What was decided by the courts?
In Wittemyer v. City of Portland, the Multnomah County Circuit Court ruled on June 21, 2013, that “the Arts Tax is not a Poll or Head tax as prohibited by the Oregon Constitution". This decision, which was favorable to the City of Portland, was appealed to the Oregon Court of Appeals. On June 8, 2016, the Oregon Court of Appeals affirmed the decision of the Multnomah County Circuit Court.
What is the impact of this decision?
The June 8, 2016 decision simply affirmed that the Arts Tax is legal. The Arts Tax will continue to be due from Portland residents. Penalties are due for late payment of the Arts Tax, so individuals who have not filed should file as soon as possible to avoid the assessment of additional penalties.
Below is the Oregon Court of Appeals press release regarding the decision.
George Wittemyer v. City of Portland (Haselton, S. J.)
Plaintiff, a resident of the City of Portland, brought an action seeking a declaration that Portland City Code 5.73.020, which imposes a tax of $35 "on the income of each income-earning resident of the City of Portland" for support of the arts in the public schools (the Arts Tax), is a "poll or head tax" in violation of Article IX, section 1a, of the Oregon Constitution. Plaintiff appeals from a limited judgment in the city's favor under ORCP 67 B, assigning error to the trial court's allowance of the city's motion for summary judgment and denial of plaintiff's cross-motion for summary judgment on the claim. Held: A "poll or head tax" has two conjunctive features: (1) the tax must be assessed per capita; and (2) it must not be "proportional" (i.e., it must be for a uniform, fixed amount). Both are required; neither is sufficient. As the trial court concluded, the Arts Tax is not imposed per capita. The referent class of putative, eligible taxpayers is all income-earning residents of Portland who are 18 or older. However, because of the exemptions predicated on level and source of individual and household income, the tax is not assessed on each eligible person within that per capita class. Accordingly, the Arts Tax is not a "poll or head tax" proscribed by Article IX, section 1a. Affirmed.