The Use Tax – An Unconstitutional Tax:
I assert that the Use Tax (RCW 82.12.020) violates The US
Constitution Article 1, Section 9.
1)
Art. 1 Sect. 9 States that “No Tax or Duty shall be laid on Articles exported from any State.”
a.
The USE tax, as defined by RCW 82.12.020 applies
a tax against goods purchased from outside the state for use within the
state. While the stated purpose is to
permit use within the state borders, I assert that the tax acts as a
protectionist tariff to dissuade purchasing of goods and services outside the
borders of Washington State
b.
A definition of a tariff is tax or excise which
is levied against a good for the express purposes of permitting import into a
nation or jurisdiction. Art 1, Sect. 9
of the US Constitution prohibits taxes on goods imported from other
states. I assert that regardless of it
being an individual or a company or local government, the USE tax violates this
statute.
c.
Furthermore, The Washington State Legislature
does not have the jurisdictional authority to compel companies residing outside
the state without a physical presence within the state which sell goods and
services to collect any taxes from residents or businesses. Such an act of compulsion violates the sovereignty
of another state’s jurisdiction.
d.
Further, The US Constitution, Article 1, Section
9’s language infers that articles being exported from a state would also be
imported to another state, and would also not be subject to tax. As the relationship between export and import
are indistinguishable and inseparable.
Hence forth, the statute also infers that where there is an export,
there is also an import to some other destination within the United States, and
also established per “The Federalist, No.
42.” I, therefore, assert that the
tax referred to by Article 1, Section 9, applies to importation to a state as
well as export from a state.
2)
The state has used the phrase “There is levied and collected from every
person in this state a tax or excise for the privilege of using within this
state as a consumer any (the subsections of this law list the specific
conditions) whereby inference, the law is designed to usurp the
Constitutional mandate of Article 1, Section 9, prohibiting taxation of goods
imported from one state to another. It
is, by definition and practice, a duty, tariff, and/or tax as defined even
though, by name, a tax on the use of all goods in the state.
a. Further,
this is a proper inference to make, citing Chief Justice John Roberts in
NATIONAL FEDERATION OF INDEPENDENT BUSINESS vs.
SEBELIUS, SECRETARY OF HEALTH AND HUMAN SERVICES. Justice Roberts used similar reasoning to
assert in Section III, P. 15
“§§860(h)(1), 6324A(a), 6601(e)(1)(2),
6602, 7122(b). There would, for example, be no need for §6671(a) to
deem tax to refer to certain assessable penalties if the Code already included all
such penalties in the term tax. Indeed, amicus’s earlier observation that the
Code requires assessable penalties to be assessed and collected in the same
manner as taxes makes little sense if assess able penalties are themselves taxes. In light
of the Codes consistent distinction between the terms tax and assessable
penalty, we must accept the Government’s interpretation: §6201(a) instructs the
Secretary that his authority to assess taxes includes the authority to
assess penalties, but it does not equate assessable penalties to taxes for
other purposes. The Affordable Care Act does not require that the penalty for
failing to comply with the individual mandate be treated as a tax for
purposes of the Anti-Injunction Act. The Anti-Injunction Act therefore does not
apply to this suit, and we may proceed to the merits.
i.
We see in the above passage that the Chief
Justice is using inductive reasoning to assert that regardless of the name, it’s
function (the individual mandate enforced by the IRS, even though called a “penalty”
is still a tax by function.)
3)
Therefore, following this same form of
reasoning, I assert that the USE TAX is indeed a form of import tax for
engaging in commerce outside the state.
a.
In RCW 82.12.020(2), which states
i.
“The
provisions of this chapter do not apply in respect to the use of any article of
tangible personal property, extended warranty, digital good, digital code,
digital automated service, or service taxable under RCW 82.04.050 (2)(a) or
(g), (3)(a), or (6)(b), if the sale to, or the use by, the present user or the
present user's bailor or donor has already been subjected to the tax under
chapter 82.08 RCW or this chapter and the tax has been paid by the present user
or by the present user's bailor or donor.”
4)
I further assert, that because the USE TAX’s
application would only apply to out-of-state purchases for consumers, and to
businesses for use of goods purchased in-state, for business use in which RCW
82.12 would not apply, that the USE TAX’s function is indeed, a tariff, duty,
or tax on out-of-state goods brought into the state for consumption.
a.
Further, The
Federalist, No. 42 discussed the justification of this statute of The
Constitution by writing in length about the consequences of inter-state
taxation. That such taxation is harmful
to the population, and unfair to the neighboring states.
i.
The
defect of power in the existing Confederacy to regulate the commerce between
its several members, is in the number of those which have been clearly pointed
out by experience. To the proofs and remarks which former papers have brought
into view on this subject, it may be added that without this supplemental
provision, the great and essential power of regulating foreign commerce would
have been incomplete and ineffectual. A very material object of this power was
the relief of the States which import and export through other States, from the
improper contributions levied on them by the latter. Were these at liberty to
regulate the trade between State and State, it must be foreseen that ways would
be found out to load the articles of import and export, during the passage
through their jurisdiction, with duties which would fall on the makers of the
latter and the consumers of the former. We may be assured by past experience,
that such a practice would be introduced by future contrivances; and both by
that and a common knowledge of human affairs, that it would nourish unceasing
animosities, and not improbably terminate in serious interruptions of the
public tranquillity. To those who do not view the question through the medium
of passion or of interest, the desire of the commercial States to collect, in
any form, an indirect revenue from their uncommercial neighbors, must appear
not less impolitic than it is unfair; since it would stimulate the injured
party, by resentment as well as interest, to resort to less convenient channels
for their foreign trade. But the mild voice of reason, pleading the cause of an
enlarged and permanent interest, is but too often drowned, before public bodies
as well as individuals, by the clamors of an impatient avidity for immediate
and immoderate gain.
b.
In this line of reasoning also, we must conclude
that the USE TAX violates The US Constitution, Article 1, Section 9, on the
grounds that the USE TAX is being used as an import tax by function.
RELIEF BEING SOUGHT
1)
The relief I am seeking is that the USE TAX be
declared an unconstitutional tax on the grounds that it unfairly, immorally and
illegally taxes goods from other states, as would a duty, tariff, and by
function, the kind of tax as described by “The
Federalist No. 42, and by definition The US Constitution, Article 1,
Section 9.
2)
That all USE TAXES paid in the previous Seven
Years (7) or per the mandated statute of limitation as prescribed by Federal
Law be refunded to their respective businesses and individual tax payers.
3)
That the USE TAX be removed from the RCW as a
valid source of taxation.
4)
That the State Department of Revenue
conspicuously declare to the entire nation and its businesses that it is
neither mandated, nor required to render to The State of Washington, any taxes
from its citizens which do not reside within the State of Washington’s territorial
borders by way of physical presence of any kind.
5)
Reasonable Attorney fees as prescribed by Law.
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