The Colorado Car Tax – er, ‘FASTER’ “vehicle registration fee” increase – court challenge moves forward

The Colorado Car Tax (er, “vehicle registration fee”) increase passed in 2009 (SB108, the so-called “FASTER” bill) is quite possibly THE most unpopular tax increase in Colorado history – made all the more repugnant by how it became law (exploiting a 2008 Colorado Supreme Court ruling which declared that “fees” don’t count as “taxes” to circumvent the constitutional requirement (under Colorado Constitution Article X, Section 20 – Taxpayer’s Bill of Rights, a.k.a. TABOR) to receive prior voter approval for any ‘policy change resulting in net revenue gain’ to the state).

After two years of legislative inaction failed to repeal or roll back the unconstitutional and unpopular tax increase, the ‘FASTER’ Colorado Car Tax is being challenged in court as a violation of the Colorado state Constitution (specifically, Colorado Constitution Article X, Section 20 – Taxpayer’s Bill of Rights, TABOR).

The most recent development in the case (the ‘FASTER’ lawsuit was initially filed in May 2012) occurred last week with the filing of a “Plaintiff’s Motion for Summary Judgment” in the case (a motion for summary judgment is filed based on the existing documentary record prior to trial claiming that all factual and legal issues can be decided in the moving party’s favor).

The Plaintiff’s Motion documents the fact that the “”Colorado Bridge Enterprise” established under the FASTER legislation as a “TABOR-exempt business enterprise” (Ed. – see, “Life in the FASTER Lane – updates on the Colorado Car Tax“) fails to meet the constitutional standard to qualify for exemption from TABOR requirements, on two main grounds:

A. The CBE Does Not Function As A Business Because It Has The Power To Levy A General Tax; and
B. The CBE Receives More Than Ten Percent Of Annual Revenue In Grants From CDOT
(including a $14.4M grant and the “gift” of 56 bridges from the Colorado Dep’t Of Transportation)

The Motion makes it crystal clear that the CBE “was created for the sole purpose of attempting to circumvent TABOR.”

Under FASTER, the CBE has forced Coloradans to pay “bridge safety surcharge” taxes approaching $100 million annually, without seeking the voter approval required by TABOR. See CBE 2010 Annual Report (“2010 Annual Report”) at 3.1 The CBE has also issued $300 million in new government bonds, again without a TABOR-required vote of the people.  By taking these actions without a vote of the people, defendants have violated the rights of [Coloradans] to vote on the imposition of new taxes and debt, as guaranteed by TABOR.

The Motion further documents the self-evident statement that

The CBE is not a business enterprise exempt from TABOR because it generates revenue by levying a general tax, rather than by engaging in market transactions. TABOR-exempt enterprises may not levy taxes, because “[t]he ability to levy general taxes is inconsistent with the characteristics of a business.”

The purported “business” character of the CBE is belied by how it “makes” money:

The CBE’s revenue is not derived from “market exchanges taking place in a competitive, arms-length manner,” but rather from the bridge safety surcharge—a compulsory tax collected without regard to any benefits conferred to payers.

Calling the Colorado Car Tax a “fee” is also belied by the nature of how it is levied, on whom, and who “benefits” from the charge; calling it a “fee”

does not comport with reality because the surcharge shares none of the characteristics of a fee as defined by the Colorado Supreme Court and is not levied to provide “a specific service to the persons upon whom the fee is imposed and at rates reasonably calculated based on the benefits received by such persons.”

The surcharge is therefore a tax, and not a fee.

Colorado taxpayers have been forced to pay literally $100 Million per year in additional ‘FASTER’ taxes (under the label of “fees”) while simultaneously becoming obligated for over $300 Million in debt – all without a vote of the people, as required under Colorado’s Constitution.

The lawsuit seeks to prevent “continued enforcement and maintenance of the bridge safety surcharge” (i.e. stop the illegal collection of a portion of the Colorado Car Tax) and require that “all “[r]evenue collected, kept, or spent illegally” be refunded” – as mandated under the Colorado Constitution.

Now THAT would be a welcome “tax refund” for all Coloradans.

Clear The Bench Colorado will, with your support, continue to promote transparency and accountability in the Colorado judiciary, informing the public to increase awareness of the substantial public policy implications of an unrestrained activism and political agendas in the courts.  We will continue to work to educate voters and provide information of relevance related to the judicial branch, and to provide useful and substantive evaluations of judicial performance.

However, we can’t do it alone –  we need your continued support; via your comments (Sound Off!) and, yes, your contributions.  Freedom isn’t free –nor is it always easy to be a Citizen, not a subject.

Ultimately, though – it’s worth the effort.