August 12, 2011 in Idaho

Hart presents argument for appeal

Legislator says district judge abused discretion
By The Spokesman-Review
 

Hart
(Full-size photo)

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

In his appeal to the Idaho Supreme Court, Hart, R-Athol, devoted much of his opening brief to arguments over how a Coeur d’Alene judge, John Mitchell, went ahead with a hearing in Hart’s case 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 merely consisted of legal arguments by the attorneys and didn’t require Hart’s presence, but that he could participate by phone if he chose to. He declined to do so, and said in his Supreme Court filings that holding the hearing without him deprived him of due process.

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 submitted to the court.

Hart already has lost four rounds in his fight against paying 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 he is a legislator.

Both the court and the state Board of Tax Appeals ruled repeatedly that Hart waited too long to file his appeal – the law allows just 91 days, and he waited six months – so it no longer can be considered. Both also found that even if 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, who stopped filing both federal and state income tax returns in 1996 while he unsuccessfully pressed a lawsuit claiming the federal income tax was unconstitutional, 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. Although Hart contends he started filing returns again after he lost his federal lawsuit and has made substantial payments, both 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. He 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.

The state 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 the spring.


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