This column first appeared in the San Antonio Express News and in other Hearst Newspapers on July 1, 2019.
Dear Mr. Premack: I just received a letter from Gov. Abbott saying the Democrats were pushing a law to make a state income tax. This is terrible. I don't want to pay a state income tax. Lack of state income tax is one of the benefits left to living in Texas. Why would the Democrats be pushing such a law? What can I do to stop the Democrats from achieving this crazy idea? GW
Your question refers to a letter from Governor Abbott dated June 17, 2019. A copy was given to me by a client. The letter’s envelope says, “Stop the Democrats from passing a state income tax”. Texas does not have a state income tax and legally cannot have a state income tax based solely on Democrats passing one. No Texas or national Democrat has called for creating a Texas income tax. The platform of the Texas Democrat Party does not call for a Texas income tax.
Abbott is stirring fear and anger by criticizing Democrat influence in Washington and lionizes Donald Trump. The Governor’s letter misrepresents the situation and creates alarm where none exists. He claims to be fundraising to support Texas House Joint Resolution (HJR) 38 but contributions actually go to the Governor’s re-election campaign (donations go to “Texans for Greg Abbott”).
Here are the two more fundamental problems with Abbott’s letter and with HJR 38:
First, HJR 38 pretends to protect Texans from imposition of an income tax, but does not provide any more protection from an income tax than Texans now have. HJR 38 was passed by the Texas legislature in May 2019 with support from 23 Democrats, about 30% of the Democrat members of the Texas House and Senate.
The current Texas Constitution now bans a Texas income tax unless 1) the legislature, by majority, votes to create one, 2) the governor approves it, and 3) the people vote in a statewide election to allow the income tax. HJR 38 would repeal those protections, replacing them with this clause: “The Legislature may not impose a tax on the net incomes of individuals, including an individual’s share of partnership and unincorporated association income.”
The difference between existing law and HJR 38 is that a) currently, an income tax is unconstitutional unless three (3) steps are taken: a majority vote of the legislature, approval of the governor, and approval of the voters, but b) under HJR 38 an income tax could be imposed with only two (2) steps being taken: a 2/3 vote of the legislature and approval of the voters. HJR 38 actually eliminates one of the barriers to an income tax by removing participation of the Governor in the decision whether to impose an income tax.
Second, HJR 38 may go farther than banning a personal income tax. The Legislative Budget Board, a nonpartisan state agency, warned that HJR 38 could be used to eliminate the corporate franchise tax which currently raises about $8 billion in Texas tax revenues. This is because the courts often interpret the word “individual” (as in “not impose a tax… on individuals”) as including corporations.
Governor Abbott has, in the past, voiced his desire to kill the franchise tax. He supports HJR 38 without mentioning it could kill the corporate franchise tax. His letter may be a deceitful way of cutting taxes for corporations while proclaiming that his motive is protecting ordinary people from a mythical income tax. His letter wrongly accuses Democrats of something they are not doing. The Texas Constitution already puts you, as a voter, squarely in the driver’s seat.
Paul Premack is a Certified Elder Law Attorney with offices in San Antonio and Seattle, handling Wills and Trusts, Probate, and Business Entity issues. View past legal columns or submit free questions on legal issues via www.Premack.com.