Arrow-right Camera


Judge dismisses Hart appeal

THURSDAY, DEC. 9, 2010

Opinion calls some arguments unsupported and ‘unthinkable’

An Idaho district court on Wednesday tossed state Rep. Phil Hart’s attempt to appeal a state Tax Commission order that he pay more than $53,000 in back state income taxes, including penalties and interest.

In a sharply worded decision, 1st District Judge John Mitchell said part of Hart’s appeal “lacks any cogent legal argument” and labeled it “unthinkable” that Hart would call for sanctions against the Tax Commission’s attorney when it was Hart who failed to file his appeal in a timely fashion.

Mitchell’s ruling granted the motion to dismiss Hart’s appeal, agreeing with the state Tax Commission that the court lacks jurisdiction. The Tax Commission was represented by Deputy Attorney General William von Tagen. Reached Wednesday by phone, Hart, an Athol Republican recently re-elected to his fourth term, said he could not comment because he had not seen the ruling and had not decided whether he would appeal.

The State Board of Tax Appeals previously denied Hart’s appeal, saying it was not filed in the 91-day period provided by law. Mitchell concurred, saying, “What is truly remarkable about Hart’s argument is Hart seems unable to reconcile that it was Hart who disregarded the time limitation Hart had within which to perfect Hart’s appeal. It was Hart’s decision alone to fail to timely perfect his own appeal.”

In Hart’s reply to the Tax Commission’s motion to dismiss his appeal, Hart, represented by attorney Starr Kelso, asserted that the District Court had jurisdiction to hear the case. Mitchell disagreed, saying “instead of providing legal argument, Hart makes the following circular, wholly unsupported claim that this Court simply assume it has jurisdiction” before going on to cite from the document.

Hart had also argued that his status as a state legislator exempted him from time limits in filing his appeal. The Board of Tax Appeals had found that even if his legislative privilege argument was correct, he still filed too late.

Hart’s reply to the state’s motion contended that sanctions were merited against the Tax Commission because it misrepresented the decisions in two state Supreme Court cases, including Smith v. Arizona Citizens Clean Elections.

Mitchell strongly disagreed, stating that the legislative privilege did not apply in the Arizona case, just as it clearly did not apply in Hart’s appeal.

“Hart should know Smith was on point. Hart should know Smith is similar to Hart’s own case. Hart should know that to argue the contrary is to attempt to deceive this Court,” Mitchell wrote. “For Hart to take the extra step and claim the Commission has committed an offense which warrants sanctions … is unthinkable.”

There are four comments on this story »