Protesters at the ready to stand up against tax (Tennessee income tax)

The Tennessean ^ | May 23, 2002 | Tim Chavez

[tdadams]

The people of Tennessee were not supposed to win yesterday.

Working people like those who drove by the state Capitol in their big rigs honking horns.

Stay-at-home moms who stood at Legislative Plaza with signs in one hand and children on the other.

[tdadams]

This is a good analysis, one of the best I've seen, from someone who is a self-confessed liberal.

[ctdonath2]

They know the law is on their side in the state Constitution, which says an income tax is illegal.

Oh reEEEEEEAAlllly now? veeeEEEEEERRRRyyyyy interesting. Anyone care to post details on that little tidbit?

[tdadams]

Yes, really? Why the skepticism. That's the reason so many of us have been screaming about this attempt to pass the income tax. Because the TN Constitution clearly says no tax shall be levied on income.

[lewislynn]

They know the law is on their side in the state Constitution

[sandydipper]

We need to do the same thing in DC. The suits think that your pocket is bottomless.

[ctdonath2]

...yeahhhhh...as the article said...so what does the STATE constitution say?

[archy]

They know the law is on their side in the state Constitution, which says an income tax is illegal.

Oh reEEEEEEAAlllly now? veeeEEEEEERRRRyyyyy interesting. Anyone care to post details on that little tidbit?

Ask, and ye shall receive:

When the Tennessee Constitution was adopted in 1870, Article II, Section 28, contained the sentence,

"The Legislature shall have power to levy a tax upon incomes derived from stocks and bonds that are not taxed ad valorem."

In 1932, in Evans v. McCabe, 52 S.W.2d 159, the Tennessee Supreme Court held that that sentence "conferred upon the Legislature the power to tax only one class of incomes", and "necessarily denied to the Legislature the power to tax incomes of other classes", and, therefore, that a tax on personal income enacted by the Legislature was unconstitutional.

The Attorney General had given an opinion that the tax was constitutional, but the five Supreme Court judges unanimously ruled that he was wrong.

In 1960, in Jack Cole Co. v. MacFarland, 337 S.W.2d 453, and in 1964, in Gallagher v. Butler, 378 S.W.2d 161, in unanimous opinions by the five judges, the Supreme Court quoted with approval and followed the ruling of the Supreme Court in Evans v. McCabe. Thus, in those three cases, the Tennessee Supreme Court unanimously ruled that a tax on any class of income other than the income from stocks and bonds is prohibited by the Tennessee Constitution.

The Tennessee Supreme Court is the highest authority on the meaning of the Tennessee Constitution, and those decisions by the Supreme Court have never been overruled. Furthermore, the sentence quoted from Article II, Section 28, of the Constitution has never been amended. Therefore, those decisions are binding on the Governor and the Legislature and cannot be changed by the Governor, the Legislature, or an opinion of the Attorney General. Those decisions can be changed only by a constitutional amendment, or by being overruled by a subsequent Supreme Court decision.

Tennessee Attorney General Paul Summers wrote opinion no. 99-217, dated October 28, 1999, to the effect that the Constitution of Tennessee does not prohibit a state income tax. That opinion cites no decision of the Tennessee Supreme Court and no provision in the Constitution as supporting the opinion. That opinion does refer to the cases of Evans v. McCabe and Jack Cole Co. v. MacFarland, in both of which the Tennessee Supreme Court held that a personal income tax statute was unconstitutional.

As a result of the 1971 Constitutional Convention, the Constitution was amended; but the key provision relied on in Evans v. McCabe was left unchanged. That key provision is the sentence in Article II, Section 28, which is still in the Constitution today unchanged, and which states, "The Legislature shall have power to levy a tax upon incomes derived from stocks and bonds that are not taxed ad valorem." In fact, the call to the 1971 Constitutional Convention expressly prohibited the Convention from considering a personal income tax.

After the Constitutional Convention of 1971, the Attorney General's office issued an opinion on May 14, 1975, stating, "It is our opinion that realizing and receiving income or earnings is not a privilege that can be constitutionally taxed," citing Evans v. McCabe and Jack Cole Co. v. MacFarland.

That opinion specifically stated that the call of the 1971 Constitutional Convention contained an express prohibition against consideration of a personal income tax.

The Attorney General's office issued another opinion on October 27, 1977, stating that under Article II, Section 28, of the Constitution, "The General Assembly is without power to impose an income tax on any income other than on incomes derived from stocks and bonds that are not taxed ad valorem", citing Evans v. McCabe, Jack Cole Co. v. MacFarland and Gallagher v. Butler. The opinion pointed out that, "Although these cases dealt with the provisions of Article II, Section 28, before its amendment in 1972, the income tax provisions in the amended section were adopted verbatim from the former provisions interpreted by these cases."

Thus, General Summers' opinion is not only in direct conflict with three unanimous decisions of the Tennessee Supreme Court, it also conflicts with two prior opinions of the Tennessee Attorney General's office.

It is settled law in Tennessee at this time that an income tax on any income other than incomes from stocks and bonds is unconstitutional. Since there is no plan to change this by constitutional amendment, this rule cannot be changed by the Legislature or an opinion of the Attorney General. It can be changed only by a Supreme Court decision overruling all three prior decisions of the Supreme Court on this point.

No one can know how the present judges of the Supreme Court would vote if another case involving the constitutionality of an income tax comes before the Court, since none of those five judges has been called upon to rule on a prior case involving that question. However, the Tennessee Supreme Court rarely overrules a prior decision. There is no justification for the belief that the Court would overrule the three prior decisions which held that a state income tax is unconstitutional.

Maclin P. Davis, Jr. is a partner in the law firm of Waller Lansden Dortch & Davis, and is legal counsel to the Tennessee Republican Party. He was the lawyer for the taxpayer in the case of Jack Cole Co. v. MacFarland, the 1960 case that is one of three cases in which the Tennessee Supreme Court unanimously held an income tax to be unconstitutional.

[ctdonath2]

No skepticism, just curiosity.

Kindly remember that not everyone is in TN, and that the news outlets are completely avoiding the issue - much less giving detailed legal analysis.

To restate my question: would someone please post the text of the TN constitution which forbids income taxes?

[lewislynn]

Thank you!

[ctdonath2]

Thank you! That's what I wanted to see.

Now that I understand that point, I gotta wonder why TN'ers are not MORE pissed off about this...and why nearly half the legislature is going for it...

[archy]

Yes, really? Why the skepticism. That's the reason so many of us have been screaming about this attempt to pass the income tax. Because the TN Constitution clearly says no tax shall be levied on income.

Not quite. As per the post above, Article II, Section 28, still a provision of the Tennessee state Constitution states: "The Legislature shall have power to levy a tax upon incomes derived from stocks and bonds that are not taxed ad valorem."

The language in fact authorizes a certain tax- but not any other. And if the state constitution is renedered meaningless by abrogation and corruption of it as a consensual contract between governed and government, then it is NOT just the provision of Article II, Section 28 tghat is rendered moot and meaningless, but the entire constitution of the state, including those provisions that provide for a governor, or legislature, or judiciary. In that event the government of the state of Tennessee has no more legitimate moral or legal authority than any Memphis or Knoxville street gang, and will also then be afforded no more respect than they can compel and take by force.

When the government dictates the laws, it's a dictatorship.

-archy-/-

[tdadams]

Would you like a PDF copy of the state constitution? I have one if you'd like to read it. I assure you I know it well. It gives the legislature no authority to impose an income tax other than a capital gains tax. In Article 11, section 9, it expressly forbids the legislature from imposing taxes on income, estates, or inheritances or any other tax that is not expressly authorized.

[archy]

Because they are bought and paid for, either by the political forces within their own respective parties, who use both the carrot and the stick to ensure that they fall in line with their leadership's demands, or by the criminal elements that have influenced and sometimes controlled Tennessee's political leadership for the last half-century, the example of former governor Ray Blanton being but one of the more nortorious cases; the assassination attempt on McNairy county sheriff Buford *Walking Tall* Pusser in which his wife Pauline was murdered is another, somewhat better known.

It was after Pusser had held a Memphis press conference to announce a third motion picture continuing his story, the first of which told of his election and the ambush that nearly killed him, and the second, which described his hunt for those who had perpetrated the act, that he died in a single-car accident, and that final film was never made. That third, he had announced, would detail the levels at which the orders to silence him had been given, which reached directly into the Tennessee statehouse and as far away as Texas and to the haunts of the Boston mob families with whom the Tennessee pollies were doing business.

A couple of years back, the going bet was that the Tennessee *budget crisis* was a crowbar with which to introduce either a state lottery or casino gambling into Tennessee; but the nearby powerful Mississippi casino cartel, in Tunica and elsewhere, is not at all in favor of that idea, and have enlisted the support of both the legislators and others on their payrolls and such interesting allies as Tennessee churchmen and religious organizations to keep that from happening.

-archy-/-

[archy]

TN Legislative districts map:

[tdadams]

Now that I understand that point, I gotta wonder why TN'ers are not MORE pissed off about this...and why nearly half the legislature is going for it...

You sounded a bit skeptical and supportive of an income tax. If you think we're not already pissed off and raising holy hell, just click here.

[tdadams]

Well, that's correct, but I think in general when people here are talking about income, they're talking about wages and salaries, not investment income. So that is what I am referring to by income unless I state specifically investment income.

The constitution expressly provides authorization to tax income from investments. By inferrence, if a tax on earned income isn't specifically authorized, it is forbidden.

[fporretto]

Bravo, Volunteers! But you know your politicos will keep at this.

Connecticut has a sad story to tell in this regard. After two centuries without an income tax, and a very healthy state government even so, the citizens of Connecticut made the mistake of electing the odious Lowell Weicker to the governorship. Weicker, who had said several times during his campaign that no necessity existed for an income tax, proceeded to ram one through the state legislature anyway, sending waves of shock through the populace.

Weicker was followed in the governorship by a (Northeastern) Republican, John Rowland. Governor Rowland has made no attempt to rescind the income tax. He's defended it several times as something Connecticut must have.

Some changes, it seems, are not to be reversed. Beware!

Freedom, Wealth, and Peace,
Francis W. Porretto
Visit The Palace Of Reason: http://palaceofreason.com

[ctdonath2]

You sounded a bit skeptical and supportive of an income tax.

Wasn't my intent; was trying to show surprise & comprehention of a critical yet under-reported point.

If you think we're not already pissed off

I am becoming increasingly cynical about the effectiveness of sign-waving. That only works so long as those in power fear ink on paper; there comes a point when your legislators will realize - as 45 of them obviously have - that sign-wavers are mostly harmless and may be ignored just as easily as the words in the state constitution. Those who don't get this point, well, just don't...but those who do get it, get it all too well - and history does not reflect favorably what happens next.

[wardaddy]

Chavez is relatively honest and LOL....the Tennessean considers him their resident "conservative"....mainly because he's anti-abortion. I am happy they have given him a stronger voice.

[wardaddy]

Is that pic from yesterday? My wife was there with the baby. I did drive bys in the morning and right before the vote. (New Green Suburban with an HK logo trailer hitch plate). It was a nice turnout. I will be there all day next Wednesday. We really need to get some heavy hitters out there next wednesday. If Van Hillary and Mayor Phil both claim they are anti-income tax then why don't they come out and help rather than give televised attaboys after the fact. We could use both of them ...at least for the publicity. I know Bredesen is a spender but he is on record against the tax...we should make him take a stand. Sadly, I had to leave right before the vote to attend a family business meeting in Lebanon at the law firm where Rochelle is a partner. Yuck....I felt like a traitor in the lion's den. Fortunately, none of the senior partners I spoke with in that firm support Rochelle's shenanigans. They are all acutely shamed.

I am very proud of all who came. How about those troopers doing their Kent State imitation? Talk about overkill....nuts.