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  #11  
Old 05-11-2009, 12:00 PM
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I wonder if we could get a bill going that would allow us to redirect Congressional and Senate payroll to NOVA?
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Old 05-11-2009, 12:10 PM
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Pursuant to the Washington State Constitution, Article I, Section 40 the fuel tax collected must be used for highway purposes or refunded.


To comply, the State must do one of the following:

1. Use the money for State roads
2. Not collect the taxes and fees collected
3. Refund the taxes and fees


In 1972 the offroad vehicle community supported passage of legislation that waived their right to a direct refund in exchanged for having those same funds put into a dedicated account to promote and protect their sport.


That dedicated fund has now been redirected to neither the refundees or State DOT to be spent exclusively on roads. It went to State parks instead.

Hope that helps,
Tod
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Old 05-11-2009, 04:15 PM
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Sen. Delvin:



In my previous e-mail, I addressed the constitutional validity of the 2009 legislative amendment (in the budget bill) to RCW 46.09.170, authorizing the use of NOVA moneys for the state park system. Since that e-mail, I have received (both through your office, and directly from several constituents) correspondence suggesting that the overall refund scheme in RCW 46.09.170 is constitutionally invalid under Article II, section 40 of the state Constitution because the state Constitution requires the fuel tax to be either (1) used for highway purposes or (2) refunded to the nonhighway users.



This issue was directly addressed by the Washington Court of Appeals in the 2005 case Northwest Motorcycle Ass'n v. Interagency Comm. for Outdoor Recreation, 127 Wn. App. 408. (The Washington Supreme Court declined to accept an appeal of the case in January 2006.)



In brief, the Court of Appeals held that the Legislature’s use of the refund money was within the Legislature’s general powers of taxation. Here is the relevant discussion from the court’s decision upholding the statute’s constitutionality:



At the time of the enactment of article II, section 40, Washington statutes already authorized refunds for nonhighway use of fuel. These refunds generally applied to all internal combustion vehicles that were not motor vehicles licensed to be operated on the public highways. According to statistics compiled in an IAC-sponsored survey involving 7,252 Washington vehicle owners, over 25 million gallons of gasoline were used in 2002 to travel on nonhighway roads (including back roads and off-road trails). Direct refunds to those who purchased gasoline for these nonhighway road trips is not practical due to the number of recipients and the difficulty in providing proof of the nonhighway use. Consequently, the legislature directed that one percent of the total gasoline excise taxes, representing nonhighway use of gasoline, would be refunded annually to a program that would benefit the nonhighway travelers who purchased the gasoline. The benefit comes in the form of ORV, nonmotorized, and nonhighway recreational uses.

This is a legislative policy, so our task is simply to determine if RCW 46.09.170 is constitutional. Giving the appropriate deference, we conclude that an annual one percent withdrawal from the motor vehicle fund (an estimate of the taxes paid for nonhighway gasoline use) falls within the refund authorized by article II, section 40. The legislature's disbursal of that refund through NOVA for the benefit of the affected taxpayers comes within its plenary powers of taxation. We find nothing in article II, section 40 that specifically prohibits the legislature from disbursing the "refund" as it sees fit. RCW 46.09.170 is then constitutional. We affirm the summary dismissal of Northwest Motorcycle Association's challenge to this legislative scheme.



Please let me know if I can provide any additional assistance on this issue.





Steve Jones, Senior Fiscal Counsel
Senate Ways & Means Committee
300 Cherberg Building
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