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Arts Tax: 503-865-4278

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111 SW Columbia St, Suite 600, Portland, OR 97201

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Arts Tax September 21, 2017 Court Ruling

What was decided by the courts?
In Wittemyer v. City of Portland, the Multnomah County Circuit Court ruled on June 21, 2013, that “the Arts Tax is not a Poll or Head tax as prohibited by the Oregon Constitution". This decision, which was favorable to the City of Portland, was appealed to the Oregon Court of Appeals. On June 8, 2016, the Oregon Court of Appeals affirmed the decision of the Multnomah County Circuit Court. The decision of the Court of Appeals and the Circuit Court were affirmed by the Oregon Supreme Court on September 21, 2017.

What is the impact of this decision?
The September 21, 2017 decision simply affirmed that the Arts Tax is legal. The Arts Tax will continue to be due from Portland residents. Penalties are due for late payment of the Arts Tax, so individuals who have not filed should file as soon as possible to avoid the assessment of additional penalties.

Below is the Oregon Court of Appeals press release regarding the decision.
Wittemyer v. City of Portland, (CC 130304234) (CA A154844) (SC S064205)

On review from the Court of Appeals in an appeal from the Multnomah County Circuit Court, Kelly Skye, Judge. 278 Or App 746, 377 P3d 589 (2016). The decision of the Court of Appeals is affirmed. The limited judgment of the circuit court is affirmed.  Opinion of the Court by Justice Jack L. Landau. Justice Richard C. Baldwin did not participate in the decision of this case. Justice David V. Brewer did not participate in the decision of this case. Justice Rebecca A. Duncan did not participate in the consideration or decision of this case. 

Today, the Supreme Court held that the prohibition against a poll or head tax contained in Article IX, section 1a, of the Oregon Constitution applies only to a flat tax on each individual that does not take into account income, property, or resources. 

The City of Portland assesses a $35 "arts tax" on its residents who are over the age of 18, have income of $1,000 or more per year from specific sources, and do not reside in a household that is at or below federal poverty guidelines. Plaintiff challenged the imposition of the arts tax, arguing that it violated the prohibition on poll or head taxes in Article IX, section 1a, of the Oregon Constitution. The City of Portland moved for summary judgment on the arts-tax claim and the trial court granted the city's motion. The Court of Appeals affirmed the trial court's grant of summary judgment.  

In a unanimous opinion authored by Justice Jack L. Landau, the Supreme Court held that a poll or head tax as prohibited by Article IX, section 1a, is one that does not take income, property, or resources into account in any way. The Court examined the evolution of poll and head taxes in the United States to establish what the voters intended when enacting Article IX, section 1a, in 1910. The Court determined that, as of 1910, a poll or head tax was one that did not exempt individuals based on income, property, or resources. Because the city's arts tax exempts residents based on their amount of income, household resources, and sources of income, it does take income into account and so is not a poll or head tax. Accordingly, the trial court correctly granted the city's motion for summary judgment.