Cabell Commission Split Over Occupation Tax Challenge; Bailey Pledges to Go Solo , if Necessary

by Tony Rutherford HuntingtonNews.Net Reporter
Cabell Commission Split Over Occupation Tax Challenge; Bailey Pledges to Go Solo , if Necessary

HUNTINGTON, WV (HNN) – How many complaints will there be challenging Huntington’s recently enacted tax reform package? Two hundred people packed the Cabell County Commission meeting Thursday, March 31. Both residents inside and outside the city oppose the tax.

As for the County Commission, prior to the defeat of Scott Bias in the November election , the Commission with a Bailey/Bias majority had committed to challenging the constitutionality in the West Virginia Supreme Court. Now, with Anne Yon, on board, she’s opposed to the government entity stepping up against another government entity. Nancy Cartmill has similar inhibitions about the commission itself filing the complaint.

However, one way or the other , the home rule authority and the occupation tax will go to court. Bob Bailey told HNN Thursday afternoon, “I’ll do it myself.” And, he will file it on June 30, 2011 with tax implementation scheduled July 1, 2011. For the City of Huntington, that’s a worst case scenario.

Since the removal of the User Fee is tied to implementation of the occupation tax, a court challenge muddies the waters on revenue. Mayor Kim Wolfe and the administration anticipate a suit, though they optimistically hope it does not happen. Still, Wolfe has said that a judge , not the city, will determine the implementation if a suit is filed. The plaintiff will ask for an injunction to prevent collection of the occupation tax (and other tax adjustments?) during the litigation. IF the court believes that the plaintiff will likely prevail, the injunction issues. On the other hand, the court has the power to requie that a bond be posted to offset the losses of, in this case, the city from non-collection.

What muddies the waters the most is that the city can't implement the occupation tax without not collecting the user fee. A timely court ruling would clarify this quandry, but, if the occupation tax is not enjoined and later found unconstitutional, the city finds itself in a rubric.  What if they had to refund the occupation tax and they had not collected a user fee?

Those litigation questions come later. For now, though, Bailey and the commission have asked  John  O'Connor, vice president of Steel of West Virginia,  to speak with other businesses about joining forces. He's to speak with Cabell Huntington Hospital, St. Mary's, and the Chamber of Commerce. Bailey indicated that O'Connor's task will be for the city's major businesses to sit down with the commission and discuss a strategy.

"Maybe we can file one suit," Bailey said.

Addressing the inequities of the tax, Bailey explained that his neighbor, a teacher in Salt Rock, will not pay the tax, but he would be susceptible to paying it. He noted that two of the 'yes' votes by the State Home Rule Board came from representatives from Morgantown. "Morgantown got away from home rule, claiming it was unconstitutional," Bailey said.

"There are too many inequities in this thing, it's a joke," Bailey said.

Del. Carol Miller attended the commission meeting, too. She and Kelli Sobonya have maintained from the beginning that the home rule pilot program violates the state constitution.

"I still support my city. I want them to have flexibility, but home rule is unconstitutional ," Miller said. Referring to the Commission meeting, she explained that none of the governmental "entities" want to step on the hands of another, but "the people are upset and they have valid reasons."

So, while O'Connor works to bring potential litigants together, one word is loud and clear: "If I have to file a suit myself, I will," insisted Bailey.

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