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Feds tell court Rep. Hart not immune from taxes

Phil Hart
Phil Hart

BOISE – The U.S. Justice Department wants a federal judge to toss out Idaho Rep. Phil Hart’s arguments that his status as a state legislator should bar IRS claims against him for back taxes.

Federal authorities are seeking to foreclose on Hart’s Athol, Idaho log home for $550,000 in back federal income taxes, penalties and interest. In fighting the move, Hart claimed that because a notice of deficiency was sent to him while the Legislature was in session, the whole case should be tossed out.

His Kentucky lawyer, Charles McFarland, argued in court documents that Hart’s immune from being served any such notices during a legislative session, to “prevent interference with the state legislative process.” Wrote McFarland, “This has been a fundamental principle since the foundation of country and even the law of nations.”

He cited a 1788 court case from the Court of Common Pleas of Pennsylvania to back up his argument, but Justice Department lawyer Adam Strait noted that decision predated the U.S. Constitution, and was expressly rejected by the U.S. Supreme Court in a 1934 decision.

“Federal law, not state law, determines the scope of legislative immunity from a federal-law cause of action,” Strait wrote in court documents. “And there is no set of facts under which Hart is entitled to assert legislative immunity for failing to pay his federal income taxes.”

Hart, a fourth-term Republican lawmaker, is a tax protester who stopped filing federal income tax returns in 1996 while he unsuccessfully pressed a federal lawsuit charging that the federal income tax is unconstitutional. He also stopped filing state income tax returns, and has argued that the Idaho state income tax also is unconstitutional. Hart says he started filing again after several years, but both federal and state authorities say he’s never fully paid up.

Hart has an appeal pending at the Idaho Supreme Court over more than $53,000 in unpaid state income taxes, penalties and interest.

Since he’s been serving as a lawmaker, he’s sought delays in his state and federal tax cases five times due to his duties as a state legislator.

Strait has filed a motion to strike Hart’s legislative immunity defense; Hart has argued for denying the motion “and that this issue proceed to the factual issues of whether the 90-day letter was actually issued to Hart while he was in a session of the Idaho Legislature.”

Strait wrote, “Legislators are not ‘a special class of citizens protected from suit, or prosecution, arising out of any activity that could assist in the performance of their official duties,’ … much less a special class protected from suit arising out of any activity at all.”

In a reply urging against Hart’s arguments, Strait wrote, “No federal court has extended to a state legislator immunity from process in a federal suit merely because the state legislature happened to be in session.”

Hart also has cited a slew of other defenses in his bid to keep the IRS from foreclosing, including that the federal agency is wrong about his owing the taxes and that he was improperly denied legal deductions.

The IRS’ foreclosure suit against Hart is scheduled to go to trial in April of 2013 before U.S. District Judge Edward Lodge, who hasn’t yet ruled on the motion regarding the immunity defense.

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