June 1, 2012 in Idaho

Hart asks high court to reconsider income tax appeal

By The Spokesman-Review
 
Betsy Russell photo

Phil Hart
(Full-size photo)

BOISE - Tax-protesting Idaho state Rep. Phil Hart is asking the Idaho Supreme Court to reconsider its dismissal of his state income tax appeal, saying the court should have given more consideration to his legislative privilege argument.

Hart appealed an order to pay more than $53,000 in back state income taxes, penalties and interest, but filed his appeal months after the 91-day appeal period had expired. He argued that because an Idaho legislative session fell just after the appeal period, his status as a lawmaker should entitle him to more time to file.

The Idaho Supreme Court strongly disagreed, writing in its unanimous decision in April, “In this instance, Hart is just a taxpayer, with no greater privilege than his constituents.”

The Idaho Constitution makes lawmakers immune from “any civil process” during or 10 days before legislative sessions. But the high court, in its April decision, wrote, “Hart’s untenable argument flows from his misunderstanding of the word ‘process. … In this case, Hart was not obligated to do anything but pay his taxes.”

In his bid for reconsideration, Hart’s Coeur d’Alene attorney, Starr Kelso, wrote, “Requiring a legislator to defend himself from any action during a legislative session immunity period is an exercise of authority that invades the specific constitutional immunity granted to legislators intended to remove all distractions during the legislative session.”

He also objected to the high court’s decision to award attorney fees and costs for the appeal to the state of Idaho. “The award of fees punishes Appeallant Hart, a legislator, for asserting a right,” Kelso wrote.

He noted that Hart is a believer in the U.S. and Idaho constitutions who carries pocket editions of both with him, writing, “Hart’s interpretation of Article III, Section 7 may be erroneous in the eyes of this Court, but it is not frivolous or groundless.”

However, in the high court’s decision, Justice Jim Jones, writing for the unanimous court, wrote, “Hart’s position here is groundless.”

Meanwhile, the state Tax Commission’s attorney in the case, Deputy Attorney General Bill von Tagen, submitted an affidavit to the court documenting the state’s costs and fees for the appeal at $10,747.

Hart, R-Athol, was defeated in Idaho’s May 15 GOP primary in his bid for a fifth term in the state House. He also faces a federal lawsuit from the U.S. Justice Department seeking to foreclose on his Athol home for more than $500,000 in back federal income taxes, penalties and interest, and earlier this week he filed for bankruptcy.


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