The Oregon Constitution sets a high bar for the Legislature to raise taxes. Voters set that bar in 1996 with Measure 25, which requires new taxes to win a three-fifths majority in both chambers of the Legislature.
That may sound simple, but there are dueling opinions about what makes a new tax. What if the way a tax is calculated is changed so it increases the taxes for some people? Would those be new taxes?
That debate has come to a head this session in Senate Bill 28. The bill would change how taxes are calculated for some businesses. Some would see an increase in taxes. Some would pay a tax that they didn’t have to pay before. And some Senate Republicans are arguing that Democrats are breaking the law, in part by not requiring a three-fifths majority for SB 28 to advance.
We don’t know if anyone is breaking the law, but some businesses will be paying a tax they did not pay before. If that doesn’t violate the spirit of the law and the voters’ intent, what does?
SB 28, requested by Gov. Kate Brown, changes how corporate income taxes are calculated for intangible property and services. Income from intangible property can come from things like sale of patents, copyrights, trademarks and trade names. Oregon has taxed those intangibles according to a method that attributes all corporate income tax revenues to the state where the greatest activity was performed. Under the bill, the corporate tax revenues would go instead to the state where the customer is located.
After the change, the estimate is that the state would bring in about $5.5 million more a year.
Democrats believe they have the law on their side to pass SB 28 with a simple majority in both houses. That’s because of an Oregon Supreme Court decision in 2015 — The City of Seattle v. Oregon Department of Revenue. The state’s legislative counsel decided based on that decision that tweaks to existing taxes that increase revenue would be allowed with only a simple majority in the Legislature.
State Sen. Tim Knopp, R-Bend, sponsored a bill in this session — Senate Joint Resolution 32 — that would have spelled out that increases in taxes such as those in SB 28 require a three-fifths majority. His proposal does not seem to be going anywhere.
Instead, SB 28 seems on track to become law and to further convince voters that legislators cannot be trusted when it comes to taxes.