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Eye On Boise

Tax conformity bill clears Rev & Tax, with just 3 members objecting over same-sex marriage concern

The House Revenue & Taxation Committee has voted 13-3 to approve the annual IRS tax conformity bill, but only after an unsuccessful move to kill the bill was launched by Rep. Heather Scott, R-Blanchard, who objected to including a change regarding same-sex married couples.

This year’s conformity bill, which matches Idaho’s definition of adjusted gross income to that of the Internal Revenue Code, also deletes a section Idaho added to its tax law in 2014 after same-sex married couples were allowed under federal tax laws to file joint returns; that section required Idaho same-sex couples to essentially recalculate their taxes and file separately for their state returns, because the state at that time didn’t recognize same-sex marriage. Subsequent court decisions have made that subsection “legally inoperative, null and void,” state Tax Commission Chairman Ken Roberts told the committee. Removing it puts Idaho’s tax law back to how it was through 2013, making no mention of same-sex marriage or the definition of marriage.

Scott noted that Idaho’s state Constitution still contains a clause banning same-sex marriage, though the U.S. Supreme Court has invalidated it. “Unless we get rid of Article 3, Section 28, by passing this bill, we’re going to be voting against our state Constitution,” she said, “and I just need to understand why.” She questioned Deputy Attorney General Phil Skinner. Skinner cited the 1803 case Marbury vs. Madison, noting that it’s part of the first-year law school curriculum and covered often in high school civics classes, and said, “The holding coming out of that is essentially that the United States Constitution is the supreme law of the land, and the U.S. Supreme Court is the body with the authority to interpret that law and declare what it is.”

“I apologize, I’m not a lawyer,” Scott responded. Referring to the U.S. Constitution, Article 1, Section 8, which enumerates the powers of Congress, Scott said, “But I do understand this little one here. So I just wonder, in Section 8, which enumerated power are you using to accomplish this?”

Skinner said, “I don’t have the U.S. Constitution in front of me, but it’s whatever portion of the Constitution gives the judicial branch its authority.” He said he’d be glad to research that and get back to Scott. “If a United States citizen is guaranteed a right through the United States Constitution, that trumps everything else,” he said. “It trumps any federal statutes, Idaho statutes, Idaho Constitution. You cannot deny a right that is guaranteed to a citizen of the United States through the United States Constitution.”

Rep. Ron Nate, R-Rexburg, asked whether the U.S. Supreme Court’s decision legalizing same-sex marriage nationwide made Idaho’s constitutional ban on same-sex marriage a “legal nullity,” just like the tax clause. Skinner said the U.S. District Court decision overturning Idaho’s constitutional ban, which was upheld by the 9th Circuit Court of Appeals, “just said you are specifically enjoined from enforcing the provisions of the Constitution” and two related statutes, “to the extent they would deny same-sex couples the same privileges and rights as opposite-sex couples.” And the following U.S. Supreme Court decision amplified on that, settling the question of same-sex marriage nationwide.

Nate said, “If parts of our Idaho Constitution and potentially part of our Idaho Code have been declared null … I would expect that if we want to have our Constitution mean what we want it to mean, I would expect that we would go back and change our Constitution and amend our statutes.”

Scott moved to kill the conformity bill. “I have no problem with the conformity part,” she said. “But this bill violates Article 3 Section 28 of our state Constitution. … If we want to pass this part of the bill, then we need to make a change to our state Constitution.”

Ken McClure, lobbyist for the Idaho Society of Certified Public Accountants, urged the committee to pass the bill. Without it, he said, Idaho taxpayers will see a big tax increase next year. The bill adjusts Idaho’s tax code to match up with federal law changes, including extension of the popular Section 179 expense deduction, used by small businesses, farmers, contractors and m ore.

Scott’s move drew just three votes: Herself, Nate, and Rep. Greg Chaney, R-Caldwell. The bill then passed, 13-3, with the same three objecting.

Scott said afterward, “If Idaho wants to accept gay marriage, then we need to remove Article 3, Section 28 of the Constitution. … That should be changed in our Constitution if we want it changed, not through the back door.”

She added, “I think a lot of people want a vote on that issue, and they’re going to suppress that vote. … This is important to all Idahoans. It doesn’t matter which side you’re on. … It’s not a partisan issue. Whether you agree or you don’t agree with gay marriage is irrelevant. The question is are we going to violate our state Constitution when the federal government tells us to.”

House Rev &  Tax Chairman Gary Collins, R-Nampa, said he anticipated the discussion, which came during a long hearing that also included lots of questions about the fiscal impact of this year’s conformity bill. “The real crux of the whole thing is if it doesn’t go through, it’s a tax increase for the state of Idaho,” Collins said. “The law of the land is the law of the land. Just because you don’t agree with it doesn’t make any difference. … We can bang our head against the wall and say we don’t agree, and that’s OK, but I just don’t see that we’re going to change anything by doing that – especially on a bill like this, that’s that important to the state of Idaho. I don’t see that that’s a place to make a stand.”

The bill now moves to the full House. To become law, it needs passage both there and in the Senate and the governor’s signature.

Betsy Z. Russell
Betsy Z. Russell joined The Spokesman-Review in 1991. She currently is a reporter in the Boise Bureau covering Idaho state government and politics, and other news from Idaho's state capital.

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