August 11, 2011 in Idaho

Hart argues his tax appeal stymied by House duties

By The Spokesman-Review
 
Betsy Russell photo

Idaho Rep. Phil Hart, R-Athol.
(Full-size photo)

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Read Rep. Hart’s legal brief here.

BOISE - Tax-protesting Idaho state Rep. Phil Hart is arguing that a district judge abused his discretion by refusing to delay a hearing when the state representative was in Boise, debating legislation to permit guns on state college campuses that he strongly supported.

Hart, R-Athol, devoted much of his opening brief in his appeal to the Idaho Supreme Court to arguments over how a Coeur d’Alene judge, John Mitchell, went ahead with a scheduled hearing in Hart’s case on March 16 when the Idaho House was “debating a very important piece of legislation which my constituents most certainly expect, and would demand, that I be present to vote on.”

Hart is contesting an order to pay more than $53,000 in back state income taxes, penalties and interest from the tax years 1996 to 2004. He disagreed with the court’s ruling that the hearing - on Hart’s own motion for reconsideration of Mitchell’s order rejecting his case - merely consisted of legal arguments by the attorneys and didn’t require Hart’s presence but Hart could participate by phone if he chose to. He declined.

State Tax Commission attorneys have cited “a pattern of delay and obstruction” in Hart’s tax protests and objected to any further delays. “There is no reason why respondent should have to wait nearly six months after the entry of the original order to learn whether the order is final,” Deputy Attorney General Bill von Tagen wrote in legal documents.

Hart already has lost four rounds in his fight against paying the back state income taxes; his first court appeal in November 2010 charged that Idaho’s state income tax is unconstitutional. He also contended he should have months longer to appeal his taxes than other citizens because of his status as a state legislator.

Both the court and the state Board of Tax Appeals ruled repeatedly that Hart simply waited too long to file his appeal - the law allows 91 days, and he waited six months - so it no longer can be considered. Both also found that whether or not the Idaho Constitution’s legislative privilege clause - which protects lawmakers from arrest or civil process during sessions - applies, Hart’s appeal still was too late.

The fourth-term lawmaker stopped filing both federal and state income tax returns in 1996 while he unsuccessfully pressed a lawsuit claiming the federal income tax was unconstitutional. Hart has sought delays in his state and federal tax cases five times due to his duties as a state legislator.

The IRS has filed hundreds of thousands of dollars in liens against Hart and two trusts he created: one that owns his Athol, Idaho home and another that owns his engineering firm. Though Hart contends he started filing returns again after he lost his federal lawsuit and has made substantial payments, federal and state authorities maintain he still hasn’t fully paid up.

Hart faced multiple ethics complaints in the Idaho House over the past year, both over his tax issues and over his theft of timber from state school endowment land in 1996 to build his log home in Athol, for which he hasn’t fully paid an outstanding judgment. Hart was removed from the House Tax Committee and agreed to give up his vice chairmanship of the House Transportation Committee to avoid ethics sanctions; he apologized to the full House in February.

In his filings to the Idaho Supreme Court, Hart contends that Judge Mitchell’s order tossing out his appeal is an “order depriving him of property,” and that therefore holding a hearing without him present deprived him of due process rights under the U.S. and Idaho constitutions.

“The prohibition against the deprivation of property without due process of law reflects the high value, embedded in our constitution and political history, that we place on a person’s right to enjoy what is his, free of governmental interference,” states Hart’s brief, submitted by his Coeur d’Alene attorney, Starr Kelso.

The brief also says, “He could not be present at this hearing because of his duties as a Legislator in the House of Representatives” and “The district court did acknowledge Hart as being a legislator, by tersely referring to him as ‘Representative Hart.’ ”

The state now has a month to submit its response to Hart’s brief, and then Hart can reply to that; after that, the high court will decide whether Hart’s appeal should be heard by the state Court of Appeals or the Supreme Court justices themselves. The Supreme Court likely couldn’t take it up until 2012.

Hart’s appeal also asks that he be awarded attorney fees, and faults Mitchell’s ruling on a technical point that Mitchell earlier dismissed as incorrect.

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