MYNORTHWEST NEWS

State files motion asking judge to throw out lawsuits against capital gains tax

Jun 15, 2021, 1:31 PM | Updated: Jun 16, 2021, 6:11 am

Bob Ferguson, 3-d printed guns, lawsuits capital gains tax...

Attorney General Bob Ferguson, left, speaks as Washington Gov. Jay Inslee, center, and Solicitor General Noah Purcell look on. (AP file Photo/Elaine Thompson)

(AP file Photo/Elaine Thompson)

Washington Attorney General Bob Ferguson filed a motion Tuesday, calling on a Douglas County Superior Court judge to dismiss a pair of lawsuits filed against the state’s recently-passed capital gains tax.

Court battle over capital gains tax could rewrite state’s tax code

The first of the two lawsuits was filed by the Freedom Foundation three days after the tax was approved by state lawmakers, while the second one — which includes former state Attorney General Rob McKenna and the Washington Farm Bureau as plaintiffs, alongside several others — was filed less than a month later.

The bill levies a 7% tax on capital gains above $250,000 to bring in an estimated $415 million in 2023, its first year. The text of the bill describes it as an excise tax on the sale of stocks, bonds, and other assets above $250,000, excepting real estate and family-owned small businesses.

Both lawsuits ask the court to void the tax, declare the bill unconstitutional, prevent its implementation while the lawsuit plays out, and have the state pay the plaintiffs’ legal fees.

A graduated income tax has been illegal in Washington since a landmark 1936 case, in which the state Supreme Court ruled that the state constitution required all property to be taxed at the same rate. The court said income counted as property, striking down a graduated income tax rate approved by voters.

Attorney General Ferguson’s Tuesday filing challenges the legitimacy of the two lawsuits on a few fronts. First and foremost, he asserts that the lawsuits represent a matter of political disagreement, rather than a standard legal challenge. Given that, Ferguson argues that plaintiffs would suffer “no legal harm from the tax they challenge, and they ask this Court to issue a purely advisory political opinion.”

Washington Rep: Capital gains tax is just ‘parity in the tax code’

Second, he points out that because the tax doesn’t take effect until 2022 — and wouldn’t actually be due until the following year — there’s no way for plaintiffs to know whether they will actually be directly affected in any way.

“None of the Plaintiffs, nor any other person, will be required to pay the tax until nearly two years from now,” the filing reads. “And no one can possibly know today what capital gains they will have in 2022.”

Ferguson further argues that “a very small percentage of Washingtonians” would likely be subject to the tax thanks to several exceptions carved into the bill, offering the following example:

Imagine a Washington taxpayer who in a single year sells a large rental property at a $1 million profit, sells a small business at a $1 million profit, sells assets in a retirement account at a $1 million profit, and sells ordinary stocks held outside a retirement account at a $200,000 profit. Though the person would have earned over $3 million in capital gains from these sale transactions, they would owe no Washington capital gains tax because the first three asset categories are exempt and the $250,000 standard deduction exceeds the profit from non-exempt assets.

It will next be up to the Douglas County judge overseeing both cases to determine whether the state’s filing presents sufficient evidence to overturn the lawsuits. In past court cases in Washington, judges have consistently struck down graduated income taxes as unconstitutional, making it crucial for plaintiffs to prove that there’s little to no distinction between that and the proposed capital gains tax.

MyNorthwest News

plane crash san juan islands...

MyNorthwest Staff

Everyone accounted for after Kenmore Air plane crash in San Juan Islands

All 11 people are accounted for after a Kennmore Air plane crash in the San Juan Islands Thursday evening.

4 hours ago

sodo bus shooting...

Ranji Sinha, KIRO 7 News

Family of SODO bus shooting victim says he’s recovering, but remains in the hospital

A local artist is recovering in the hospital after being shot three times by a stranger aboard a King County Metro bus this month.

5 hours ago

hidden camera Pokémon executive...

James Lynch

Former Pokémon executive accused of secretly recording hundreds of victims, including children, faces new charges

A former Pokémon executive, already facing voyeurism charges, has been accused of secretly recording hundreds of videos of women and children.

5 hours ago

dandy starbucks 3...

Julia Dallas

Starbucks teams up with popular brand to release exclusive merch during Bite of Seattle

Starbucks is teaming up with a popular Southern California streetwear brand to release limited-edition merchandise at a pop-up event.

6 hours ago

Jimothy (1)...

Gee Scott and Ursula Reutin Show

‘Leave him be’: Local wildlife director warns Jimothy’s deformity could prevent him from returning to the wild if captured

Suzanne West, Executive Director of the Sarvey Wildlife Care Center in Arlington, is worried Jimothy's fame could put the raccoon in real danger.

7 hours ago

Missing girl Everett...

Frank Lenzi

Missing girl: Everett Police search for Jocelyn Mora after she left Cascade High School with unknown male

Everett Police are asking for the public's help finding a girl who went missing from Cascade High School on March 26.

8 hours ago

State files motion asking judge to throw out lawsuits against capital gains tax