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Since its creation in 1977, MSLF has been one of the Nation's leading legal centers fighting to ensure that the federal government remains a limited government and a government of laws and not men and women. MSLF recognizes that the Constitution was written, not to protect the various units or levels of government, but to preserve the liberty of the American people. MSLF is committed to ensuring that they continue to have that freedom and opportunity.

TABOR Foundation v. RTD

Why We Fight:

Denver governmental entities are not exempt from the provision of the Colorado Constitution (Taxpayer’s Bill of Rights or TABOR) that prohibits governmental entities from collecting new taxes without voter approval.

Summary:

Denver regional authorities began collecting taxes on items that were previously exempt from taxation without obtaining the voter approval required by TABOR.

Legal Question:

Whether the General Assembly can circumvent TABOR by expanding the taxing authority of RTD and SCFD without voter approval?

Plaintiffs:

TABOR Foundation and Penn Pfiffner

Defendants:

Regional Transportation District, Scientific and Cultural Facilities District, and the Colorado Department of Revenue

Court:

Colorado Supreme Court

A decision by the Colorado Supreme Court
In the 2013 legislative session, the Colorado General Assembly enacted HB13-1272, which unlawfully authorizes the Regional Transportation District (“RTD”) and the Scientific and Cultural Facilities District (“SCFD”) to levy new sales and use taxes on food, beverages, cigarettes, advertising materials, and food containers. These new taxes will be levied by RTD and SCFD, beginning January 1, 2014.


Both RTD and SCFD lobbied in support of HB13-1272. To aid its lobbying efforts, RTD identified numerous projects that would receive the increased revenues generated by the HB13-1272 taxes. 

RTD and SCFD are government districts as defined by the Taxpayers' Bill of Rights (TABOR), and therefore their tax policies are subject to voter approval.  Colo. Const. art. X, § 20(2)(b). Prior to the passage of HB13-1272, RTD and SCFD had no authority to levy sales and use taxes on food, beverages, cigarettes, advertising materials, and food containers, as specified in HB13-1272. HB13-1272 unlawfully creates new authority for RTD and SCFD to taxes these items.

The food tax created by HB13-1272 applies to “candy” as defined by C.R.S. § 39-26-707(1.5)(b)(I):  “a preparation of sugar, honey, or other natural or artificial sweeteners in combination with chocolate, fruit, nuts, or other ingredients or flavorings in the form of bars, drops, or pieces.  ‘Candy’ shall not include any preparation containing flour and shall require no refrigeration.” 

The beverage tax created by HB13-1272 applies to “soft drinks” as defined by C.R.S. § 39-26-707(1.5)(b)(II):  “nonalcoholic beverages that contain natural or artificial sweeteners.  ‘Soft drinks’ do not include beverages that contain milk or milk products, soy, rice, or similar milk substitutes, or greater than fifty percent of vegetable or fruit juice by volume.”

The cigarette tax created by HB13-1272 applies to cigarettes as defined by C.R.S. § 39-28-202(4), which includes all tobacco products “likely to be offered to, or purchased by, consumers as a cigarette.”

The advertising tax created by HB13-1272 applies to “advertising materials that are distributed in Colorado by any person engaged solely and exclusively in the business of providing cooperative direct mail advertising.”  C.R.S. § 39-26-102(15)(a)(I).

The food container tax created by HB13-1272 applies to “nonessential” food and beverage related items, such as utensils, napkins, grocery bags, bags for bulk produce, carryout containers for leftover food, straws, toothpicks, stirring sticks, cup sleeves, etc.  C.R.S. § 39-26-707(1)(c)–(d), (2)(b)–(c); Colo. Dept. of Rev. Reg. 39-26-707.1(1)(a)(i).

On October 23, 2013, the TABOR Foundation filed its complaint, alleging that HB13-1272 unconstitutionally created new taxes in violation of TABOR and moved for a preliminary injunction.  On December 24, 2013, state defendants filed responses in opposition to the TABOR Foundation’s motion for a preliminary injunction. TABOR Foundation filed a reply on January 3, 2014.  On January 14, 2014, the district court heard argument on the motion for a preliminary injunction and denied the motion.

Defendants Department of Revenue and SCFD filed answers on January 30, 2014, and February 3, 2014, respectively.  Defendant RTD filed a motion to dismiss on January 30, 2014.  On February 20, 2014, TABOR Foundation filed an amended complaint.  On March 24, 2014, SCFD, RTD, and Revenue each separately filed their answers to the amended complaint.

On April 29, 2014, the parties exchanged initial disclosures.  On September 8, 2014, SCFD, RTD, and Revenue each filed separate motions for summary judgment.  On October 10, 2014, the TABOR Foundation filed a cross-motion for summary judgment and response to the pending motions for summary judgment.  On October 31, 2014, SCFD, RTD, and Revenue each filed their responses/replies.  On November 21, 2014, the TABOR Foundation filed its reply.  On February 2, 2015, the district court heard oral arguments on the cross-motions for summary judgment.  On February 25, 2015, the district court granted summary judgment in favor of SCFD, RTD, and Revenue.

On April 8, 2015, the TABOR Foundation and Penn Pfiffner filed a notice of appeal with the Colorado Court of Appeals.  On September 2, 2015, the TABOR Foundation and Penn Pfiffner filed their opening brief.  On November 12, 2015, SCFD, RTD, and Revenue filed their response briefs.  On December 16, 2015, TABOR Foundation and Penn Pfiffner filed their reply brief.  On May 18, 2016, MSLF Staff Attorney Jeffrey McCoy argued the appeal before the Court of Appeals.  On June 30, 2016, the Court of Appeals affirmed the district court.

On August 11, 2016, the TABOR Foundation and Penn Pfiffner filed their petition for writ of certiorari.  On September 29, 2016, SCFD, RTD and Revenue filed a joint brief in opposition to the petition.  On October 27, 2016, the TABOR Foundation and Penn Pfiffner filed a reply in support of the petition.  On January 23, 2017, the Colorado Supreme Court granted the petition.  On March 27, 2017, the TABOR Foundation filed its opening brief on the merits.  Defendants Department of Revenue, SCFD, and RTD filed their answer briefs are on June 19, 2017.  The TABOR Foundation filed its reply brief on July 24.  Oral argument was held on November 14, 2017.

No Status Updates
  • Colorado Taxpayers Suffer Loss at Supreme Court in RTD Lawsuit

    Apr 23, 2018
    A Colorado group that defends taxpayers’ rights learned today the Colorado Supreme Court ruled against it following oral arguments before the court on November 14, 2017.
  • Colorado Taxpayers Appear Before Supreme Court in RTD Lawsuit

    Nov 14, 2017
    A Colorado group that defends taxpayers’ rights today participated in oral arguments before the Colorado Supreme Court following the court’s decision in January of 2017 to review a ruling by the Colorado Court of Appeals.
  • Colorado Taxpayers File Supreme Court Reply Brief in RTD Taxes Lawsuit

    Jul 24, 2017
    A Colorado group that defends taxpayers’ rights today filed its reply brief following the decision of the Colorado Supreme Court to review a ruling by the Colorado Court of Appeals that upheld a ruling by a Denver County District Court rejecting its argument that new taxes being collected by three Colorado governmental entities violate the Taxpayer’s Bill of Rights (TABOR).
  • Colorado Taxpayers File Supreme Court Brief in RTD Taxes Lawsuit

    Mar 27, 2017
    A Colorado group that defends taxpayers’ rights today filed its opening brief following the January decision of the Colorado Supreme Court to review a ruling by the Colorado Court of Appeals that upheld a ruling by a Denver County District Court rejecting its argument that new taxes being collected by three Colorado governmental entities violate the Taxpayer’s Bill of Rights (TABOR).
  • Colorado Taxpayers Win Supreme Court Review in RTD Taxes Lawsuit

    Jan 23, 2017
    A Colorado group that defends taxpayers’ rights today celebrated a decision by the Colorado Supreme Court to review a ruling by the Colorado Court of Appeals that upheld a ruling by a Denver County District Court rejecting its argument that new taxes being collected by three Colorado governmental entities violate the Taxpayer’s Bill of Rights (TABOR).
  • Colorado Taxpayers Urge Supreme Court Review in RTD Taxes Lawsuit

    Oct 27, 2016
    A Colorado group that defends taxpayers’ rights today filed its reply brief urging the Colorado Supreme Court to review a ruling by the Colorado Court of Appeals that upheld a ruling by a Denver County District Court rejecting its argument that new taxes being collected by three Colorado governmental entities violate the Taxpayer’s Bill of Rights (TABOR).
  • Colorado Taxpayers Seek Supreme Court Review in RTD Taxes Lawsuit

    Aug 11, 2016
    A Colorado group that defends the rights of taxpayers today urged the Colorado Supreme Court to review a ruling by the Colorado Court of Appeals that upheld a ruling by a Denver County District Court rejecting its argument that new taxes being collected by three Colorado governmental entities violate the Taxpayer’s Bill of Rights (TABOR).
  • Colorado Taxpayers Argue at Court of Appeals in RTD Taxes Lawsuit

    Jun 30, 2016
    A Colorado group that defends the rights of taxpayers today lost its appeal of a ruling by a Denver County District Court rejecting its argument that new taxes being collected by three Colorado governmental entities violate the Taxpayer’s Bill of Rights (TABOR).
  • Colorado Taxpayers Argue at Court of Appeals in RTD Taxes Lawsuit

    May 18, 2016
    A Colorado group that defends the rights of taxpayers today argued its appeal of a ruling by a Denver County District Court rejecting its argument that new taxes being collected by three Colorado governmental entities violate the Taxpayer’s Bill of Rights (TABOR).
  • Colorado Taxpayers File Reply Brief in Appeal of RTD Taxes Ruling

    Dec 16, 2015
    A Colorado group that defends the rights of taxpayers today filed its reply brief of its appeal of a ruling by a Denver County District Court rejecting its argument that new taxes being collected by three Colorado governmental entities violate the Taxpayer’s Bill of Rights (TABOR).
  • Colorado Taxpayers Briefs Appeal of RTD Taxes Ruling

    Sep 3, 2015
    A Colorado group that defends the rights of taxpayers today filed its opening brief of its appeal of a ruling by a Denver County District Court rejecting its argument that new taxes being collected by three Colorado governmental entities violate the Taxpayer’s Bill of Rights (TABOR).
  • Colorado Taxpayers File Notice of Appeal of RTD Taxes Ruling

    Apr 8, 2015
    A Colorado group that defends the rights of taxpayers today filed its notice of appeal of a ruling by a Denver County District Court rejecting its argument that new taxes being collected by three Colorado governmental entities violate the Taxpayer’s Bill of Rights (TABOR).
  • Court Rules Against Colorado Taxpayers On RTD Taxes

    Feb 25, 2015
    A Colorado group that defends the rights of taxpayers today suffered a set-back when a Denver County District Court rejected its argument that new taxes being collected by three Colorado governmental entities violate the Taxpayer’s Bill of Rights (TABOR).
  • Colorado Taxpayers Argue For Favorable Ruling Over RTD Taxes

    Feb 2, 2015
    A Colorado group that defends the rights of taxpayers today appeared before a Denver County District Court and urged the court to rule that new taxes being collected by three Colorado governmental entities violate the Taxpayer’s Bill of Rights (TABOR).
  • Colorado Taxpayers Further Urge Favorable Ruling Over RTD Taxes

    Nov 21, 2014
    A Colorado group that defends the rights of taxpayers today filed its reply brief urging that a Denver County District Court rule that taxes being collected by three Colorado governmental entities violate the Taxpayer’s Bill of Rights (TABOR).
  • Colorado Taxpayers Urge Favorable Ruling Over RTD Taxes

    Oct 10, 2014
    A Colorado group that defends the rights of taxpayers today urged a Denver County District Court to rule that taxes being collected by three Colorado governmental entities violate the Taxpayer’s Bill of Rights (TABOR).
  • Colorado Taxpayers Lose Effort to Stop New Taxes In 2014

    Jan 14, 2014
    A Colorado group that defends the rights of taxpayers today lost its attempt to bar three Colorado government entities from collecting taxes in its Taxpayer’s Bill of Rights (TABOR) lawsuit.
  • Colorado Taxpayer Seeks To Stop New Taxes In 2014

    Jan 6, 2014
    A Colorado group that defends the rights of taxpayers today responded to the opposition of three Colorado government entities to the group’s motion for a preliminary injunction in its lawsuit charging violation of the Colorado’s Constitution’s Taxpayers Bill of Rights (TABOR).
  • TABOR Foundation Sues RTD, SCFD to Stop New Taxes

    Oct 24, 2013
    A Colorado group that defends the rights of taxpayers today sued three Colorado government entities for their violation of the Colorado’s Constitution’s Taxpayer’s Bill of Rights (TABOR).


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