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Originally Posted by Denver
Bunt you may know this. Can the Colorado legislature raise the state gas tax without running into issue with tabor?
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Complicated, but probably not with the gas tax in its current form. Whatever increase we wanted would have to be in the nature of fee to avoid an election. And the amount of the fee would have to be reasonably related to its intended uses. Fee revenues can not be used to defray general costs of government - so we couldn't raise the gas tax and plop it in the general fund. But the FASTER bridge fee that got tacked on to our vehicle registrations a few years back was upheld by the Court of Appeals in August. As an example, though, I do not think you could use a gas fee for transit. (See the third factor below.)
One thing is absolutely certain - it would get litigated. So you can be sure the legislature would be extremely careful in structuring it, like they were with the FASTER bridge fee.
There is another thing to consider, in that TABOR also limits to total revenues the state can receive. I do not have the numbers to know if we are bumping up against that, but from what I understand about the likelihood of us getting tax refunds this year, plus the additional revenue marijuana is generating, I do believe we are at the total cap in taxes the state government is allowed to retain in the current year. (In Colorado, if we have extra revenue because the economy is roaring, state government does not get to keep that revenue - without an election - we have to give that money back. Most newcomers to Colorado do not remember those days. But in the 90s, we all got a check every year.)
Here is actual language from last August's Court of Appeals case:
"To determine whether a government mandated financial imposition is a 'fee' or a 'tax,' the dispositive criteria is the primary or dominant purpose of such imposition at the time the enactment calling for its collection is passed." Barber, 196 P.3d at 248 (emphasis added). This inquiry requires examination of several factors.
First, we review the language of the enabling statute . If the language states that a primary purpose is to raise revenues for general governmental spending, it is a tax; but if it indicates that the primary purpose of the charge is to finance a particular service, then the charge is a fee. Id. The fact that a fee incidentally or indirectly raises revenue does not alter its essential character as a fee, transforming it into a tax.Id.
Second,we look to the primary or principal purpose for which the money is raised, not the manner in which it is ultimately spent. Id. (if the primary purpose for the charge is to raise revenues for general governmental spending, then the charge is a tax); see Bloom, 784 P.2d at 307-08.
Third, we look to see if the primary purpose of the charge is to finance or defray the cost of services provided to those who must pay it. Barber , 196 P.3d at 241,249.
Any fee amount must be reasonably related to the overall cost of the service; however, mathematical exactitude is not required. Bloom, 784 P.2d at 308. The particular mode adopted by an entity in assessing the fee is generally a matter of legislative discretion. Id.
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