Proposed Massachusetts Income Tax Surcharge ‘Truly Radical,’ Opponents Say

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By Andy Metzger

BOSTON — A proposed constitutional amendment that roughly 70 percent of Bay State lawmakers voted to put before voters is “truly radical,” a group of business representatives told the state’s highest court in a brief filed Monday.

Christopher Anderson, the president of the Massachusetts High Technology Council, and others have appealed to the Massachusetts Supreme Judicial Court to block from the November 2018 ballot the proposal to impose a 4 percent surtax on incomes over $1 million to fund transportation and education programs.

“Our constitution never has mandated that a specific tax be imposed – let alone that a specific tax rate be collected – and, in the century since Article 48 introduced the initiative petition process, the Court repeatedly has affirmed that initiative petitions cannot be used to embed spending earmarks in the Constitution,” attorneys for the plaintiffs wrote in Monday’s brief. “Allowing this initiative on the ballot would undermine the Legislature’s authority with respect to both spending and taxes in one fell swoop, setting the stage for public finances to be determined not in the deliberative legislative process, but in the free-for-all of special interest-fueled initiative petitions.”

Raise Up Massachusetts led the signature-gathering effort to advance the ballot question, and the group’s spokesman, Steve Crawford, dismissed the legal effort to torpedo the measure.

“It’s disappointing that a few wealthy corporate executives and their lobbyists are trying to take away the public’s right to vote on the Fair Share Amendment, but we believe their arguments have no merit,” Crawford said in a statement. “We’re confident that the Attorney General properly certified the Fair Share Amendment. We expect that the SJC will uphold that certification and uphold the right of the citizens of Massachusetts to amend their Constitution.”

Oral arguments are scheduled for February 5.

The opponents of the so-called Fair Share Amendment contend that it runs afoul of the state constitution by combining unrelated subjects of taxation along with education and transportation spending in one question. They also argue the Legislature has the responsibility for raising revenue and initiative petitions are barred from specifically appropriating money.

Citizen-led ballot questions to lower taxes have gone to the ballot in recent years – and sometimes won – although the Legislature can rewrite laws, which it made clear after voters in 2000 approved a ballot law to lower the income tax rate to 5 percent. In 2002, lawmakers halted the tax rate’s scheduled descent, adding economic triggers that would need to be hit for further drops to take effect. The tax rate currently stands at 5.1 percent, and could be lowered 5.05 percent starting January 2019 if those triggers are met.

The proposed surtax, however, would amend the state’s constitution, a step that could not be easily undone.

The state constitution currently mandates a flat income tax rate, and voters rejected bids to authorize a graduated income tax in 1962, 1968, 1972, 1976, and 1994, according to the opponents’ brief.