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HB 1955 & Expiring Sales Taxes

ML
Matt Love
Thu, Apr 11, 2024 5:41 PM

All,

I got an interesting question about the impact of the grocery tax Bill (HB
1955). When the Bill becomes effective in a few months, it will put in
place the following provision at 68 O.S. 1357.11(A)(2)-(3):

  1. Any sales tax or excise tax levied by a city, town, county, or any
    other jurisdiction in this state upon sales of food and food ingredients
    shall be in effect regardless of ordinance or contractual provisions
    referring to previously imposed state sales tax on the items.

  2. On or after the effective date of this act, until June 30, 2025, a
    county or a municipality that submits the question of a sales tax or excise
    tax to its voters shall provide that the increased rate does not apply to
    "food and food ingredients" as that term is defined in Section 1352 of
    Title 68 of the Oklahoma Statutes.

I read these provisions as effectively stating 1) that any existing
municipal sales tax will not be affected by the elimination of the State's
sales tax on groceries and 2) that any election we might hold to raise or
create a new sales tax after 6/30/25 could not extend to tax groceries.

I got two questions today and I'm curious if anyone else has considered the
questions and perhaps developed an opinion on them:

  1. if we have a current, temporary sales tax that is set to expire after
    6/30/25 and we go to a vote to renew that tax for an additional X years,
    would the application of that tax no longer extend to groceries upon
    renewal?

At it's core, the question recognizes the reality that, we may refer to
this as merely 'extending' a tax (so no new taxes), but it's typically
just a vote on a new tax that simply mirrors the old, expiring tax rate and
the start date is aligned with the expiration date of the old tax. The
second question I got was conditioned on the answer to the first question
being "yes, the tax rate would not apply to groceries at renewal" and was:

  1. if we get to a vote of the people prior to 6/30/25 in which we ask the
    people to approve lifting the expiration date of the temporary tax, thereby
    making it permanent, would that ensure that the tax would continue to apply
    to groceries?

When I look at the language, I think the intent was likely that it was to
prevent us from trying to go increase our tax rate (probably because they
thought we'd argue that, by increasing our rate, you wouldn't really be
paying an extra, say, $0.01 on the dollar for everything since your key
expense - groceries - wouldn't be included - so, see, not really that much
of a tax increase). But in looking at it, I do think that it would capture
tax elections after 6/30/25 that were designed to merely replace one
expiring tax rate with a new expiring tax rate (i.e. the "renewals" of the
tax). And if that's the case, then the second question does become
potentially critical for those communities that would have a temporary
sales tax that would expire after 6/30/25. I'm assuming that a tax that is
approved by the voters with the condition that it expired on a date certain
could always be modified by the voters at a future election, including to
remove the expiration date. But I'm not sure if that's the case.

Thoughts?

Matt

All, I got an interesting question about the impact of the grocery tax Bill (HB 1955). When the Bill becomes effective in a few months, it will put in place the following provision at 68 O.S. 1357.11(A)(2)-(3): 2. Any sales tax or excise tax levied by a city, town, county, or any other jurisdiction in this state upon sales of food and food ingredients shall be in effect regardless of ordinance or contractual provisions referring to previously imposed state sales tax on the items. 3. On or after the effective date of this act, until June 30, 2025, a county or a municipality that submits the question of a sales tax or excise tax to its voters shall provide that the increased rate does not apply to "food and food ingredients" as that term is defined in Section 1352 of Title 68 of the Oklahoma Statutes. I read these provisions as effectively stating 1) that any existing municipal sales tax will not be affected by the elimination of the State's sales tax on groceries and 2) that any election we might hold to raise or create a new sales tax after 6/30/25 could not extend to tax groceries. I got two questions today and I'm curious if anyone else has considered the questions and perhaps developed an opinion on them: 1) if we have a current, temporary sales tax that is set to expire after 6/30/25 and we go to a vote to renew that tax for an additional X years, would the application of that tax no longer extend to groceries upon renewal? At it's core, the question recognizes the reality that, we may refer to this as merely 'extending' a tax (so *no new taxes*), but it's typically just a vote on a new tax that simply mirrors the old, expiring tax rate and the start date is aligned with the expiration date of the old tax. The second question I got was conditioned on the answer to the first question being "yes, the tax rate would not apply to groceries at renewal" and was: 2) if we get to a vote of the people prior to 6/30/25 in which we ask the people to approve lifting the expiration date of the temporary tax, thereby making it permanent, would that ensure that the tax would continue to apply to groceries? When I look at the language, I think the intent was likely that it was to prevent us from trying to go increase our tax rate (probably because they thought we'd argue that, by increasing our rate, you wouldn't *really* be paying an extra, say, $0.01 on the dollar for everything since your key expense - groceries - wouldn't be included - so, see, not really that much of a tax increase). But in looking at it, I do think that it would capture tax elections after 6/30/25 that were designed to merely replace one expiring tax rate with a new expiring tax rate (i.e. the "renewals" of the tax). And if that's the case, then the second question does become potentially critical for those communities that would have a temporary sales tax that would expire after 6/30/25. I'm assuming that a tax that is approved by the voters with the condition that it expired on a date certain could always be modified by the voters at a future election, including to remove the expiration date. But I'm not sure if that's the case. Thoughts? Matt