May 16, 2002

Debate Sought

Article 11, Section 9, of the state constitution says this:

The General Assembly shall not authorize any municipality to tax incomes, estates, or inheritances, or to impose any other tax not authorized by Sections 28 or 29 of Article 2 of this constitution.

It is my contention that this statement does in fact say that the General Assembly is not authorized to levy a general tax on incomes (except on income from stocks and bonds as specifically authorized by Sections 28 and 29 of Article 2), nor may it empower municipalities to tax incomes or other taxes not specifically mentioned in Article 2, Sections 28-29.

Attorney General Paul Summers, has issued an opinion that the income tax is constitutional, but only mentions Article 11, Section 9, in a single dismissive footnote in that document in which Summers says, "while the state currently taxes estates, inheritances, and incomes from stocks and bonds, cities and towns cannot be authorized to do so. It is unclear whether the courts would use this language to prevent municipalities from levying privilege taxes measured by income, should the legislature authorize them to do so."

Note that Summers cleverly focuses his footnote only on income from stocks and bonds, which the constitution explicity gives the legislature the authority to tax. Article 11, Section 9, refers not to incomes from stocks and bonds but incomes in general.

Summers' opinion claims there is no "distinct and positive expression forbidding an income tax in the text of the Tennessee Constitution." I believe Article 11, Section 9 in fact does distinctly forbid an income tax. Summers is hereby invited to explain fully why Article 11, Section 9, doesn't forbid a general tax on income at the state or local level. If he responds, I'll publish his response prominently on this web site.

Nashville attorney and 7th District Congressional candidate Forrest Shoaf has authored a good counter-argument to Summer's opinion on the constitutionality of the tax, which you can read here, courtesy of the web site of The Public Forum.