Unconstitutional IRS practices that deny Due Process: Idaho Rep Phil Hart's caseSubmitted by ytc on Mon, 06/21/2010 - 08:02
As many small business people know from hard experience, IRS abuses are commonly perpetrated upon the public. If they can get away with doing this to a high profile person like Phil, they can get away with doing that (and worse) to anybody~
-John Z of Spokane C4L
(the update report from Chris B of Spokane C4L below)
Given the barrage of press reports claiming Phil Hart has somehow abused the legislative privilege or should not serve on the House Revenue and Taxation Committee, I wanted to make some further comments on the situation.
In relating to the most recent case, on September 30, 2009 the Idaho State Tax Commission made a decision to deny Phil Hart's appeal of its tax assessment. This included blindly following the IRS's arbitrary and blatantly malicious decision to deny ALL $300,000 in business deductions. Now put yourself in Phil's shoes. Would you not use every means at your disposal to exercise every one of your due process rights to fight such a blatantly unfair and illegal determination of the tax commission? Well that is what Phil is trying to do.
On October 2, Mr. Hart received this determination by certified mail which started a 91 day clock for an appeal. Article III, Section 7 of the Idaho state constitution states:
" Privilege from arrest. Senators and Representatives in all cases, except for treason, felony, or breach of the peace, shall be privileged from arrest during the session of the legislature, and in going to and returning from the same, and shall not be liable to any civil process during the session of the legislature, nor during the ten days next before the commencement thereof; nor shall a member, for words uttered in debate in either house, be questioned in any other place."
The 10 days prior to the legislative session started on December 31, which was just within the 91 day window. Mr. Hart informed the Tax Commission in a letter on day 85 that the 91day period ended within the time set forth in Article III, Section 7 and that he would be submitting the notice of appeal right after the session, which he did. The Tax Commission was seeking to confiscate $53,000 of Phil Hart's assets due to the unlawful and unjustified elimination of his legitimate business deductions -- which would qualify as a "civil process" of law. The Idaho constitution is clear that the legislative privilege extends to "any" civil process, so the Idaho State Tax Commission process should have been immediately halted and tolled until the end of the session.
The idea that this is not civil process since the tax payer is bringing the action as the Tax Commission argues is absurd, since the action the tax payer is bringing is part and parcel of the appeal process as allowed by law (63-3049, Idaho Code). You cannot divorce the appeal from the original course of action since it is a valid defense in preservation of the taxpayers property under due process of law (or what at least passes for due process in Idaho).
Now there have been many out there who have claimed that Phil Hart "abused" his legislative privilege. This claim still boggles my mind. The legislative privilege was created to protect the People of Idaho by preventing distractions to their legislators during session. Remember during the session, the legislators are away from home and must do much of their work without even the benefit of the legislative aids that the state of Washington provides to their representatives. Phil Hart in particular is a very hard worker fighting to protect the freedoms of Idahoans. Sure, Phil Hart could have acted like Barack Obama (who largely neglected his senatorial duties of his first term starting his presidential campaign almost immediately after his inaugural term) and been absent from a lot of votes, submitting little novel legislation, and failing to read the bills being distracted with putting together his defense. However, this would have left the people of Idaho with little effective representation during the session. Remember Phil Hart was not trying to forgo the process, he was postponing it so he could focus on his duties as a legislator, and if he had done otherwise he would have done a great disservice to his constituents.
Washington has a similar provision in its constitution with nearly identical language in Article II, Section 16:
"PRIVILEGES FROM ARREST. Members of the legislature shall be privileged from arrest in all cases except treason, felony and breach of the peace; they shall not be subject to any civil process during the session of the legislature, nor for fifteen days next before the commencement of each session."
A similar issue of civil process in the state of Washington came up in State v. Craig (82 Wn.3d 777) which affirmed that the matter of legislative immunity was meant to protect the public from a legislator being distracted and as such this provision should be BROADLY construed:
"In Auditor General v. Wayne Circuit Judge, 234 Mich. 540, 542, 208 N.W. 696 (1926), the court noted:
The idea back of the constitutional provision was to protect the legislators from the trouble, worry and inconvenience of court proceedings during the session, and for a certain time before and after, so that the State could have their undivided time and attention in public affairs.
These similar constitutional provisions convince us the immunity was granted by our constitution to protect the legislators from distraction during the stated periods of time and should be broadly construed. Immunity from service of "any civil process" should be granted during the constitutionally described time periods."
So courts have agreed with this interpretation. I think the interesting question is why the IRS and the state tax commission continue to time motions to coincide with his time in the legislature (at least four times I believe). Are they trying to take advantage of the fact that he is distracted by doing the people's work to get their actions rubber stamped, or is it an intimidation tactic to get him to toe the line with the status quo while in session? Come on, an IRS agent should know better than to attempt to serve process on a sitting legislator in session (which happened on a prior occasion).
The other matter here is that it has been suggested that Phil Hart should not be qualified to sit on the House Revenue and Taxation Committee because of a conflict of interest. I would beg to differ here! I imagine thousands of Idahoans have received the same treatment Hart has with not a word or press or an ounce of concern from their representatives. Now they have a voice on the committee; but, if Phil is removed they do not.
This really brings up is the issue of due process. There was no jury process here. A bunch of unelected bureaucrats, who probably did not like Phil Hart to begin with (remember he proposed a bill to do away with the state income tax last year) got to arbitrarily decide not to count his deductions. Without a jury trial, Phil was then told he would have to pay 20% up front, BEFORE he could get an appeal. Does this sound like due process of law? Do you realize that the state can arbitrarily assess an outrageous amount, and if you cannot afford a fifth of it to put up on an appeal, it automatically gets entered finally as a judgment without recourse? What recourse does a taxpayer have in this situation? -- NONE! It is anathema to American legal jurisprudence and without Phil Hart on that committee who has been railroaded in this same manner, these citizens will not have a voice.
It is not Hart that should be investigated. We should be investigating the process that allows someone to be railroaded because they've done scholarly work and have drawn a different conclusion.