There is a lot of attention during this session of the Indiana General Assembly on personal property taxes (i.e., taxes on business equipment), spurred by a call from Governor Pence for their elimination. I’ll talk about the impact of the Governor’s proposal, as well as several of the bills in the Indiana General Assembly, on local governments in a separate post. My purpose here is to talk about a little-known institution called the County Income Tax Council — a body that has been referred to as the “phantom council.”
The connection is that one of the primary legislative vehicles for reduction or elimination of the personal property tax is House Bill 1001, which gives counties the option of eliminating personal property taxes on newly acquired personal property. This option, at least in the version of the legislation on the floor as of today, is exercised, not by the County Council, which normally exercises fiscal authority over county-wide taxation, but instead by the County Income Tax Council.
What is the County Income Tax Council?
The County Income Tax Council is a body created by statute (IC 6-3.5-6-2) for each county in Indiana to exercise oversight over the County Option Income Tax (COIT), one of 6 local income taxes allowed by Indiana statute. Its statutory duties and powers are: to impose or rescind the county option income tax, increase, freeze, or decrease the tax rate, and increase the COIT homestead credit for the county. The County Income Tax Council also has some powers with respect to the wheel and vehicle excise taxes. And now — the General Assembly is proposing to give this body the power to eliminate personal property taxes on newly acquired personal property. For reasons I will explain below, this is highly problematic — in fact, the whole existence of the County Income Tax Council is problematic.
In keeping with the monicker “the phantom council”, the County Income Tax Council is not a regular deliberative body with individual members. Instead, it is a “virtual council” that rarely, if ever meets. It is defined by statute as follows:
Every county income tax council has a total of one hundred (100) votes. Every member of the county income tax council is allocated a percentage of the total one hundred (100) votes that may be cast. The percentage that a city or town is allocated for a year equals the same percentage that the population of the city or town bears to the population of the county. The percentage that the county is allocated for a year equals the same percentage that the population of all areas in the county not located in a city or town bears to the population of the county. On or before January 1 of each year, the county auditor shall certify to each member of the county income tax council the number of votes, rounded to the nearest one hundredth (0.01), it has for that year. (IC 6-3.5-6-3)
In other words, this council is made up not of individuals, but of fiscal bodies of other units of government.
How Does This Play Out in Monroe County?
In Monroe County, the county income tax council is thereby made up of the fiscal bodies of the county (the Monroe County Council) and the fiscal bodies of each of the municipalities in the county — the Bloomington City Council, the Ellettsville Town Council, and the Stinesville Town Council. As described above, the votes are allocated amongst these bodies in proportion to their populations (and the county is given the population only of the unincorporated areas). For 2014, this means that each body gets the following “votes” in the phantom council:
- Monroe County Council: 36 votes
- Bloomington City Council: 59 votes
- Ellettsville Town Council: 5 votes
- Stinesville Town Council: 0 votes
All votes are cast by the body as a whole — in other words, all of the Bloomington City Council votes as a single bloc, Monroe County Council as a single bloc, etc.
Taxation Without Representation?
The important thing to notice about this breakdown is that the Bloomington City Council has an absolute majority on the County Income Tax Council. This is generally going to be the case in any county that has a single large municipality. In other words, it doesn’t matter what the County or Ellettsville or Stinesville say — the Bloomington City Council has the power to set income tax policy for the entire county. This raises a serious issue of representation. While every resident of Monroe County, including all residents of cities and towns, are represented by 4 (out of 7) members of the Monroe County Council (1 district and 3 at-large members), there are many residents of Monroe County — in fact, all residents outside of the City of Bloomington corporate limits — who are not represented by any City Council member.
Taking this argument one step further, because elimination of the personal property tax doesn’t simply reduce tax revenue — it actually shifts the tax burden to other property owners (i.e. raises the taxes of homeowners, to the benefit of businesses), we are actually faced with a situation in which a city council could vote to raise the taxes on residents who have NO representation on that council. This is a loophole that needs to be eliminated.
When Does the Income Tax Council Meet?
So when does the Monroe County Income Tax Council — controlled by the Bloomington City Council — meet? In practice — never. The statute (IC 6-3.5-6-13.5) states that “A county income tax council must [emphasis mine] before August 1 of each odd-numbered year hold at least one (1) public meeting at which the county income tax council discusses whether the county option income tax rate under this chapter should be adjusted.” However, at least in the time that I have served on the County Council (since 2009) there has definitely not been a meeting of the Income Tax Council, and I believe that there has not been a meeting quite a bit before that. In fact, the most recent evidence I can find of a vote of any kind from the Income Tax Council is from 1995 (interestingly, in the form of a vote from the Bloomington City Council, then presided over by current Monroe County Commissioner Iris Kiesling). This lack of meeting, despite statute saying that the council “must” hold a public meeting on odd-numbered years, is similar to the experience of officials in other counties I’ve spoke with about the matter, and bolsters the notion of the income tax council as a “phantom council.”
Most broadly, the county income tax council needs to be eliminated. The current situation allows, in some situations,county tax policy to be dictated by municipal councils who don’t represent the entire county. The obvious broader fix is simply to replace the county income tax council with the county council — the county fiscal body that is already empowered with oversight of all other countywide fiscal policy. As I mentioned above, the county council already represents all residents of the county, including those in cities and towns. The converse is not true. There is actually a bill this session, Senate Bill 258, that replaces the county income tax council with the county council; however, it doesn’t appear to be going anywhere this year.
Even if the General Assembly can’t find its way to close this loophole this session, it should still at least amend HB1001, which looks likely with a republican supermajority to pass in some form, to give the ability to opt out of personal property taxes, to the county council — the county’s fiscal body representing all county residents — rather than the phantom council.