BOISE – Tax-protesting state Rep. Phil Hart is taking his fight against having to pay past-due state income taxes to the Idaho Supreme Court, despite already having lost four appeals.
Hart, R-Athol, lost his fourth round in March, when 1st District Judge John Mitchell refused to reconsider a December 2010 decision tossing out the appeal. In a 13-page decision, the judge twice termed Hart’s arguments “simply wrong,” and called his central argument – that he’d actually filed his appeal one day earlier than the state says – “patently wrong.”
Hart, whose first court appeal in November 2010 charged that the state income tax is unconstitutional, also is arguing that he should have months longer to appeal his taxes than other citizens because of his status as an Idaho state legislator. Plus, he’s claimed a requirement that he submit a 20 percent bond when filing his appeal is unconstitutional.
Both the state Board of Tax Appeals and the district court found that Hart waited too long to file his appeal. The law allows 91 days, and he waited six months. Both also found that Hart’s appeal was too late even if the Idaho Constitution’s legislative privilege clause, which protects lawmakers from arrest or civil process during sessions, applies.
Now, the fourth-term Republican is asking the state’s highest court to consider two issues: whether he filed too late and whether Mitchell was wrong to refuse to delay the March 16 hearing on Hart’s motion for reconsideration because Hart was debating legislation in the Idaho House. The judge ruled that since no testimony would be taken at the hearing – just legal arguments from the lawyers – there was no reason to delay the hearing, and Hart could participate by phone. He declined to do so.
“Even if I felt I could violate the trust of my constituents to be present at the legislative session today, March 16, 2011, I would not do so,” Hart declared in an affidavit. “The House is debating a very important piece of legislation which my constituents most certainly expect, and would demand, that I be present to vote on.”
Hart’s tax protesting began long before his election to the state Legislature, when he stopped filing both federal and state income tax returns in 1996 while he unsuccessfully pressed a lawsuit claiming the federal income tax is unconstitutional. After losing the case, he began filing returns again, but both federal and state authorities maintain he still hasn’t fully paid up. The IRS has filed hundreds of thousands of dollars in liens against Hart and against two trusts he created.
Since he has been serving as a lawmaker, he has sought delays in his state and federal tax cases five times because of his duties as a state legislator.
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 never 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.
The Idaho Supreme Court has received Hart’s notice of appeal; there’s a July 7 deadline for district court transcripts to be prepared and sent to the Supreme Court. Then, both sides will have three months to submit legal briefs, after which the court will decide whether the appeal should be heard by the state Court of Appeals or the Supreme Court justices themselves. April is likely the soonest it could be heard by the Supreme Court. Meanwhile, the $53,523 the Tax Commission ordered Hart to pay in 2009 for back state income taxes, penalties and interest continues to accumulate interest on the past-due taxes.
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