Expose Yourself to Art . . . and New Taxes

04.09.18

Enhanced access to the arts is hardly a controversial proposal. So it should come as no surprise that a ballot measure purporting to provide just that was passed in the 2012 Portland general election with 62 percent of voters' support (the "Arts Tax"). Yet controversy and opposition continue to follow the Arts Tax wherever it goes, including all the way to the Oregon Supreme Court. Many Portland residents believe the Arts Tax promotes inequity and violates the Oregon Constitution, which prohibits the state from imposing a "poll or head tax" on its residents1. In fact, George Wittemyer, a Portland resident subject to the Arts Tax, filed suit in 2013, challenging the Arts Tax's constitutionality.

On September 21, 2017, the Oregon Supreme Court issued its opinion upholding the Arts Tax2. While supporters of the Arts Tax rejoice, its opposition continues to grow, and administrative and equitable issues continue to mount. The highest court in the state may have resolved the legal issue, but the practical questions accumulate.

The Portland Arts Tax

The Arts Tax levies a flat $35 on all Portland residents who are at least 18 years old, earn a yearly income of at least $1,000, and reside in a household whose annual income is above the federal poverty guidelines. The Arts Tax requires that the City must spend no more than 5 percent of the revenue generated3 to administer and enforce the Arts Tax, ensuring that the funds generated provide funding for arts programs in Portland elementary schools in addition to providing grants to local arts-focused nonprofit organizations at the discretion of the Regional Arts & Culture Council ("RACC").

Constitutional Fight

A "poll or head tax" is a tax assessed on individuals independently from income or ability to pay. No matter what the individual earns as income, each taxpayer owes the same amount of tax. In 1910, Oregon residents voted to amend the Oregon Constitution to forbid such taxes as inequitable and unjust, instead imposing taxes reflecting the idea that each taxpayer should pay his or her fair share based on income level.

George Wittemyer alleged that the Arts Tax is a prohibited poll or head tax because the flat $35 tax applies uniformly to all eligible Portland residents regardless of income level. Wittemyer argued that the analysis should focus on the amount and nature of the tax itself, without regard to its exemptions. On the other hand, the City of Portland essentially argued that the Arts Tax is not flat. Because Portland residents earning less than $1,000 annually or living below the federal poverty line are exempt from the Arts Tax, the City argued, not all residents pay the same amount of tax. Instead, the City argued, the Arts Tax differentiates liability based on income in that it imposes $35 on a taxpayer who meets the qualifications, and $0 on a taxpayer who does not.

The Oregon Supreme Court agreed with the City. After a historical analysis of the definition of “poll or head taxes” the Court held that a prohibited tax is one that does not take income, property, or resources of the taxpayer into account at all. While the Arts Tax is a uniformly applied $35 levy, the Court held that because it exempts certain classes of taxpayers from liability based on income level, it considers income, property, or resources.

Equitable Issues

This decision narrows the scope of a prohibited poll or head tax to the point that no future tax will likely be able to fit within its purview, rendering the prohibition largely irrelevant. Thus, despite the Arts Tax's good intentions, it opens the door for any political body in the state of Oregon to impose flat taxes on its residents for other purposes as well. So long as the tax includes an exemption for residents living below the federal poverty level, for example, any tax assessment would be upheld by the Oregon Supreme Court, consistent with the reasoning from Wittemyer.

The Arts Tax, then, is swimming in inequities. Not only does a family hovering just above the federal poverty line have to pay the same amount as a family comfortably sitting above it, but administration of the Arts Tax fails to provide any backstops requiring fair allocation of its funds. No preference is given to low-income elementary schools, or to arts nonprofit organizations targeting low-income communities. Instead, families least able to afford the Arts Tax foot the bill for, potentially, middle to upper-class schools with existing arts programs. Further, while advocates for the Arts Tax argue that RACC grants potentially provide low-income families with access to the arts—whether that be through access to theaters, art museums, or concert halls—the grants lack any condition that a recipient open its doors to the public at a reduced entry fee, for example. Instead, RACC is free to funnel the revenue to qualifying arts organizations in its discretion, even if the majority of an organization's benefits are primarily enjoyed by middle to upper-class Portland residents.

In addition, the reality of the Arts Tax is that as many as one in every four Portland residents subject to the tax simply do not pay it4. This is likely because eligible residents must file the Arts Tax in a separate return, and so a high percentage of residents merely skip the filing. While a penalty is supposedly imposed on those who fail to pay5, the high administrative burden to implement the Arts Tax itself leaves few resources to collect penalty payments.

Administrative Issues and Resolutions

After its inception, implementation of the Arts Tax failed to live up to its own administrative mandate. The Arts Tax originally imposed a cap on administrative costs. Under the law, Portland could spend no more than 5 percent of the funds generated from the Arts Tax on collections and administrative costs6. But in the years following passage of the Arts Tax, the City's Revenue Bureau spent as much as 9 percent in trying to collect more of the $35 checks from residents7. As a result, far fewer funds than projected were raised each year.

These issues raised an ironic problem. The purpose behind the Arts Tax was to avoid fights over annual budget cuts to arts and music programs. It appears, however, that rather than avoiding budget disputes, the Arts Tax simply shifted focus to a new and different budget issue─administrative costs surrounding tax collection. The City spent nearly 9 percent of the collection and administrative budget by hiring a consulting agency to collect about $2 million in outstanding payments.

On March 14, 2018, the Portland city commissioners voted unanimously to raise the 5 percent administrative cap to a 10 percent cap8. This ordinance was passed after Portland's Revenue Division director, Thomas Lannom, testified to the necessity of higher administrative spending for successful implementation of the Arts Tax, which he described as "one of the city's most efficient money-making pathways."9 Now, the City is able to spend 10 cents in order to collect each dollar of tax from eligible residents.

In addition, the ordinance authorized a combined effort between the Portland City Council and the Arts Tax oversight committee to raise the level of income subject to exemption from the tax. While the exact value of the income-based exemption remains unknown, the joint effort aims to double the $1,000-per-individual exemption at a minimum. According to Lannom, this would allow as many as one in three Portland residents to fall within the exemption and thus not be required to pay the Arts Tax.10

So it seems that the Portland City Council is focused on resolving the issues facing the Arts Tax, as opposed to its outright repeal. By being permitted higher administrative spending, the Arts Tax becomes shielded from further legal attack, and is more in line with actual implementation costs. By having the number of exempt individuals increased, the Arts Tax starts to become more equitable. Consequently, the ordinance chips away at many of the critiques put forth by its opponents and signals that the Arts Tax is here to stay.

Further Solutions

Creating arts programs in elementary schools and providing the community with enhanced access to the arts justifies changes to, as opposed to an outright repeal of, the Arts Tax. Additional equitable issues could be cured by allocating funds to schools in lower-income communities without existing school arts programs first, and by conditioning the receipt of funds granted to arts organizations on a requirement that those organizations provide lower-income communities with enhanced access to benefits. The City could help solve administrative issues by allowing residents to pay on a state return, or at least mail the forms together.

Legislators could take it one step further and make the Arts Tax more progressive. For example, residents earning over a stated income level could be taxed $40, with liability gradually stepping down to $15 for those residents hovering just above the federal poverty line. By lessening the proportionate burden that lower-income taxpayers shoulder, more eligible taxpayers might be more likely to pay the Arts Tax when it is due, thus also lessening the administrative burden that the City faces.

Conclusion

While the Oregon Supreme Court's decision in Wittemyer settled legal turbulence surrounding the Arts Tax, the practical questions continued to swirl. Through 2017, the high costs to implement the Arts Tax may have outweighed the benefits generated. Additionally, the Arts Tax had created a new venue for budget battles over art and music programs. But Portland took steps to remedy some of these major practical administrative burdens, though it remains to be seen whether the 2018 ordinance will be a sufficient cure.

Portland also took steps to address some of the equitable concerns, by considering raising the exempt-income level to include more individuals hovering above the poverty line. Such a step is certainly in the right direction, but is it enough? What about limits or direction on how RACC should administer grants and other funds?

The justification behind the Arts Tax is simple: elementary-school children deserve arts programs, and local arts nonprofits deserve the community's support. Even opponents of the Arts Tax agree that the arts play a significant role in a child's development and that exposure to the arts is important. What remains uncertain is how, after the Wittemyer decision, a future tax uniformly imposed on individuals without regard to income class or gradation could possibly be overturned as an unconstitutional poll or head tax. The line remains chillingly unclear.


1Or Const, art. IX, § 1(a), www.oregonlegislature.gov/bills_laws/Pages/OrConst.aspx

2Wittemyer v. City of Portland, 361 Or. 854, 402 P.3d 702 (2017)

3The Portland City Council passed Ordinance 188859 on March 14, 2018, raising this cap to 10 percent. See the “Administrative Issues and Resolutions” section below for more details.

4April Baer, With Legal Challenge Over, What's Next for Portland's Arts Tax?, KUOW, Sept. 21, 2017, kuow.org/post/legal-challenge-over-whats-next-portlands-arts-tax

5City of Portland, Office of Mgmt. & Fin.: Revenue Div., Arts Tax FAQs, www.portlandoregon.gov/revenue/article/422384#penalties

6Portland City Code 5.73.030(B)(1)

7Dirk VanderHart, The Arts Tax Is Broken, Portland Mercury, Sept. 20, 2017, www.portlandmercury.com/news/2017/09/20/19330745/the-arts-tax-is-broken

8Pending City Code Amendments, Ordinance 188859, Mar. 14, 2018, www.portlandoregon.gov/citycode/article/23682

9Gordon R. Friedman, Portland City Council axes limit on arts tax overhead spending, Oregon Live, Mar. 14, 2018, www.oregonlive.com/portland/index.ssf/2018/03/portland_city_council_axes_lim.html

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