Taxing decision puts opponents at loggerheads in decades-old tiff

Mesa County has been skirting Colorado’s Taxpayer’s Bill of Rights for more than 20 years by excluding sales tax revenue from its revenue limit calculations, according to a resident who has been pressing county officials on the matter.

The constitutional amendment, approved by voters in 1992, essentially says that taxes cannot be raised, and governments can’t spend tax revenue that outpaces growth, without going to voters for approval. Revenue collected over established TABOR limits must be refunded to taxpayers, or put to voters for governments to keep and spend the surplus.

County resident Dennis Simpson raised the question about Mesa County’s decadeslong exclusion of sales tax from the calculations with finance staff more than a month ago. The county turned to Denver attorney and consultant Dee Wisor to craft a specific response to Simpson’s contention.

Wisor — whom the county has employed many times for advice on tax and finance policy — concluded Mesa County is on solid legal ground.

His opinion is that since Mesa County voters approved their specific sales tax rules in a 1981 vote, which predated the passage of TABOR, it should not be subject to the law’s limitations.

Mesa County Commissioner Steve Acquafresca, while saying he is still analyzing Wisor’s letter and the county’s overall position, has initially backed the advice auditors have provided to the county for more than two decades.

“Mr. Wisor is an attorney to many local governments across the state, and is generally viewed as an authority on implementing TABOR,” Acquafresca told Simpson last week.

Simpson — a retired former auditor — called Wisor a “hired gun” and described his legal argument as “very weak.”

“This is an argument that might be brought forward by a very left-leaning bunch of commissioners who are looking for a way around TABOR,” Simpson told 
commissioners last week.

“Do you really believe the people in Mesa County want you to do an end-run around TABOR?” Simpson asked.

Acquafresca called Simpson’s end-run suggestion “absolutely silly.”

The question of legality aside, Simpson challenged commissioners to question whether the sales-tax exclusion strategy is at odds with the county’s very public and staunch backing of TABOR.

Previous Mesa County commissioners went so far as to bring a lawsuit that challenged the constitutionality of the 2007 mill-levy freeze, which was a way for local school districts to contribute more to school funding outside the limitations of TABOR. The state Supreme Court ruled against Mesa County in the case in March 2009, upholding the mill-levy freeze.

“It’s just the notion that we are going over (to Denver) and suing people, when in our own kitchen we’re violating one of the basic principles of TABOR,” Simpson charged.

“What you’ve basically done, whether it’s legal or not legal, is de-Bruce this county,” Simpson said.

“De-Brucing” is a term used when cities or counties go to the voters for permission to exceed the spending limitations of TABOR, a reference to the original amendment’s author, Douglas Bruce.

Hundreds of de-Brucing ballot measures have been pursued across the state over the years, including one by the city of Grand Junction that failed in the April 2 municipal election.

“The city has to have elections to retain their revenue. The state has to have elections to retain their revenue. Mesa County never does,” Simpson said.


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