Friday, September 30, 2016
The ABA Tax Section continues its three-day joint Fall CLE Meeting with the ABA Real Property, Trust and Estate Law Section today in Boston. The full program is here. Today's highlight is the joint program of the Teaching Taxation and State & Local Taxes sections on Out of Ferguson: Misdemeanors as Taxes and Municipal Courts as Tax Collectors:
The 2014 events in Ferguson, Missouri brought the operation of the municipal justice system in St. Louis County, Missouri into the public eye. Most of the 91 municipalities in St. Louis County have their own police force and municipal court. Increasingly, the police and municipal courts have been charged with a revenue raising function. City administrators have encouraged police to issue misdemeanor citations, primarily for traffic offenses including driving without insurance and failure to renew vehicle registration or the operator’s license. According to a Department of Justice Report on Ferguson, policing in Ferguson had come to serve primarily a revenue function, so that the police and courts became relatively little concerned with public safety in enforcing laws and more in generating revenue. This joint program will consider the impact of reclassifying these fines and penalties as taxes.
When Is Something a “Tax”?
To provide the basis for understanding how and why the fines and penalties imposed by municipal courts for misdemeanor violations might be reclassified as taxes, this first panel will explore the importance of classification of a payment as a “tax” (as opposed to a fee or some other payment to the government) in a variety of contexts. The panelists consider the importance of classification as a tax in the state and local context as well as the constitutional law and international tax contexts.
- Vanessa Caston Lafleur (LSU)
- Erin Scharff (Arizona State)
- Glenn Newman (Greenberg Traurig, New York, NY)
- Jasper Cummings (Alston & Bird, Raleigh, NC)
- Adam Rosenzweig (Washington University)
Out of Ferguson: Misdemeanors, Municipal Courts, and Tax Distribution.
This panel will report on original research into the operations of the municipal justice system in St. Louis County accomplished through a survey of defendants exiting various municipal courts as well as a study of data provided by the municipalities to the state. This research tentatively indicates that the municipal justice system is performing a revenue raising rather than a law enforcement function. Because the fines and fees imposed by the justice system correlate closely with municipal revenue needs, they resemble taxes rather than punishments. Some St. Louis County municipalities (and other municipalities nationwide) derive a substantial, regular, and predictable portion of their municipal budget from the fines, costs, and fees imposed by these municipal courts. Yet the laws “enforced” have been enacted under the police power and are arguably invalid because they were enacted under the wrong power exercise. In addition, the Hancock Amendment to the Missouri Constitution requires that new taxes and increases in taxes be approved by a vote of the people and the fines and fees have not been and are constitutionally infirm.
- Anthony C. Infanti (Pittsburgh) (moderator)
- Henry Ordower (Saint Louis)
- Kenneth Warren (Saint Louis)
- Onésimo Sandoval (Saint Louis University)
Other Tax Profs with speaking roles today include:
- Court Procedure & Practice Roundtable Discussion: Joni Larson (Indiana Tech)
- Diversity: Alice Abreu (Temple), David English (Missouri), Amy Hess (Tennessee), Francine Lipman (UNLV), Michelle Layser (Georgetown)
- Exempt Organizations: Daniel Halperin, (Harvard), Dana Brakman Reiser (Brooklyn)
- Individual & Family Taxation: Philip Manns (Liberty), Theodore Sims (Boston University), Timothy Todd (Liberty)
- State & Local Taxes: Walter Hellerstein (Georgia)
- Tax Policy & Simplification: Lily Kahng (Seattle), Michael Lang (Chapman), James
Poterba (MIT), Stephen Shay (Harvard)
- Transfer Pricing: Shannon Anderson (UC-Davis), Dirk Hackbarth (Boston University)
- Transfer Pricing Career Symposium: Stephen Shay (Harvard)