LAW WEEK COLORADO
DENVER — The Colorado Supreme Court announced on Monday that it will review the Court of Appeals’ February decision that the state’s coal-severance tax violates the Taxpayer Bill of Rights, or TABOR. The case was a rare win in the appellate courts for TABOR. Deputy Attorney General Monica Marquez, one of three finalists for the upcoming vacancy on the state Supreme Court, handled Court of Appeals briefing and oral arguments for the state.
The Supreme Court said it will examine whether the automatically adjusting tax violates TABOR:
No. 10SC220
Court of Appeals Case No. 09CA132
Petitioners:
Roxy Huber, in her capacity as Executive Director of the Department of Revenue, State of Colorado; the Colorado Department of Revenue; and the State of Colorado,v.
Respondents:
Colorado Mining Association; Twentymile Coal Company; Mountain Coal Company, LLC; Colowyo Coal Company, L.P.; Oxbow Mining, LLC; Trapper Mining Inc.; and Bowie Resources, LLC.Petition for Writ of Certiorari GRANTED. EN BANC.
Summary of Issue:
Whether application of a statutory provision enacted before the adoption of the Colorado Taxpayer Bill of Rights, Colo. Const. art. X, section 20, which increases taxes based on an inflation adjustment factor tethered to an external economic index, amounts to a “tax rate increase” requiring statewide voter approval.DENIED AS TO ALL OTHER ISSUES.
The Court of Appeals’ opinion, written by outgoing Judge Sean Connelly, was notable for its concision, with the heart of the opinion reading:
We hold that TABOR precludes the challenged coal severance tax adjustments. Our holding is based on a simple syllogism:
(1) TABOR prohibits increasing tax rates without voter approval. Colo. Const. art. X, § 20(4)(a); Nicholl v. E-470 Public Highway Auth., 896 P.2d 859, 867 (Colo. 1995).
(2) Applying the statutory formula increased the coal severance tax rate (initially from $0.54 to $0.76 per ton) without voter approval.
(3) Therefore, TABOR was violated.
The Supreme Court also granted writs of certiorari to four other cases on Monday and denied cert to 15.
