Constitutional Law Commons^™

Obamacare And The 'What Is A Tax?' Issue – Part Ii, Steve R. Johnson

Scholarly Publications

We are engaged in a two-part exploration. The previous installment of our column reviewed the perennial question of whether a given state or local exaction should be classified as a tax or something else. It rehearsed the contexts in which the issue has arisen in state and local tax controversies, the practical stakes involved in those controversies, and the criteria courts have developed to distinguish between truces and other types of governmental levies.

The previous installment also said that a new source of guidance as to the “what constitutes a tax?” question is developing: litigation over the individual mandate and …

Obamacare And The 'What Is A Tax?' Issue – Part I, Steve R. Johnson

Scholarly Publications

One of the hardiest perennials in the garden of state and local tax issues is the question whether particular revenue measures should be classified as taxes or some other type of exaction. The issue has been dispositive in numerous state and local tax cases and, befitting that significance, has been the topic of many reports in this journal.

Given the frequency of the decisions and commentary, authorities cited on the issue constantly evolve. State courts, omnivorous in their search for precedents and rationales, often cite federal cases. Recognizing this, a recent article in State Tax Notes examined decisions of the …

Taxes, Free Expression, And Adult Entertainment, Steve R. Johnson

Scholarly Publications

The interaction of morality and money produces interesting results. One manifestation is legislation in some states and proposals in others to impose higher taxes on “gentlemen’s show lounges” (OK, I mean strip clubs) and other venues of adult entertainment.

In 2010 and 2011 two state supreme courts passed on the legality of different forms of those taxes, upholding them against challenges that they infringed on free speech/free expression rights protected by the First Amendment of the U.S. Constitution. This installment of the column considers those two decisions: the February 2010 Utah decision in Bushco v. Utah State Tax Commi …

Supermajority Provisions, Guinn V. Legislature And A Flawed Constitutional Structure, Steve R. Johnson

Scholarly Publications

The constitutional crisis of 2003 was a defining event for Nevada and may prove instructive for the rest of the nation. Among the prominent features in the topography of the crisis were (1) state constitutional provisions that required two-thirds legislative approval for tax increases but only simple majority approval for spending increases and (2) the State Supreme Court’s decisions in Guinn v. Legislature that ended the immediate impasse. Both are focal points of continuing controversy.

Criticism of the Guinn decision has exceeded praise of it – probably in frequency, certainly in passion and rhetorical exuberance. In my view, much of …

The Irs As Super Creditor, Steve R. Johnson

Scholarly Publications

The IRS is a super creditor in the sense that its efforts to collect tax debts are free of restrictions imposed by state law on other creditors. This principle is no novelty. Several recent developments, though, have involved interesting applications of it. Part I of this article explains the principle. Part II examines recent applications of it.