MASSACHUSETTS TAXPAYERS FOUNDATION, INC., & others [Note 1] vs. SECRETARY OF ADMINISTRATION & another. [Note 2]

LYNCH, J. This complaint for declaratory judgment, filed in the Supreme Judicial Court for Suffolk County and reported here by a single justice, seeks a declaration that the provisions of St. 1985, c. 593, Section 6, which establish a graduated system of exemptions from the Massachusetts personal income tax are unconstitutional. The case was reported to us by a single justice for our decision of the following question: "Do the provisions of Section 6 of Chapter 593 of the Acts of 1985, which establish a series of personal exemptions from the personal income tax in Massachusetts, violate the proportionality requirement of Part II, Chapter I, Section 1, Article IV or the uniformity requirement of Amendment Article 44, of the Constitution of the Commonwealth?" We answer the question, "Yes."

The plaintiff Massachusetts Taxpayers Foundation, Inc. (MTF), is a nonprofit membership corporation organized under the laws of the Commonwealth. [Note 3] The remaining twenty-four plaintiffs are citizens, residents, and taxpayers of the Commonwealth. The complaint also seeks an order enjoining expenditures in the furtherance of the contested provisions of St. 1985, c. 593, Section 6 (the act), and declaring that the previously existing personal exemption provisions of G. L. c. 62, Section 3, survive and remain in full force and effect.

Chapter 593 contains extensive revisions to the tax statutes of the Commonwealth. It is a comprehensive statute containing fifty sections which make changes in the personal income, corporate excise, and cigarette excise taxes. It eliminates the 7.5% surtax and purports to simplify and to improve the administration of the Commonwealth's tax system. Section 6 is the only contested provision of the Act. [Note 4] This section contains

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graduated personal income tax exemptions which are contingent upon the amount of the taxpayer's gross income, marital

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status, and filing status. The graduated personal exemptions for single taxpayers range from $3,800 to $600, the exemption decreasing in a specific amount as income increases. The range of exemptions for a husband and a wife filing a joint return is from $8,000 to $1,200. A different schedule is provided for a married person filing a separate return and certain additional exemptions are provided for the blind and the elderly. For single taxpayers the $3,800 exemption applies if the person's income is $6,000 or less. The exemption then decreases at the rate of $20 for each $100 in adjusted gross income up to $9,000, at which point the exemption is reduced to $3,200. The exemption then further decreases at the rate of $17 for each $200 of adjusted gross income up to approximately $40,000, at which point the exemption is fixed at $600.

A similar decreasing schedule of exemptions exists for joint returns and married taxpayers filing separately. The joint return exemption schedule starts at an income of $8,000 and decreases until it reaches $1,200 for incomes of $80,000 and above. [Note 5] The declining exemption schedule and the increasing no-tax status in the section were designed to give 55% of the proposed tax cut to taxpayers with less than $35,000 of income. Joint Conference Committee of Taxation, Analysis of Agreement, 1985 House Doc. No. 6999.

The decision of the primary legal question raised by this case will affect the vast majority of Massachusetts taxpayers as well as the several branches of government, and is therefore appropriate for resolution in declaratory proceedings. Andover Sav. Bank v. Commissioner of Revenue, 387 Mass. 229, 232-233 (1982).

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1. We are not unmindful that Section 6 bears some similarity to the bill (House Bill No. 5528) considered by the Justices in Opinions of the Justices, 386 Mass. 1223 (1982). A majority of the Justices there advised that the bill which set forth a schedule of vanishing exemptions was constitutionally competent and not in conflict with art. 44. Id. at 1230. Even if the act was not significantly different from the bill considered by the Justices, we would not be bound by that opinion. As the court has stated previously: "When called upon, as we are now sitting as a court, to deal again with questions once considered in our advisory capacity, we regard it as our duty to consider the issue anew and to guard against any influence which might arise from the prior advisory consideration of the same questions. See Perkins v. Westwood, 226 Mass. 268, 271-272 [1917]; Dodge v. Prudential Ins. Co., 343 Mass. 375, 379-380 [1961]. Our advisory opinions, as the Perkins case indicates, are not `binding authorities,' but are `open to reconsideration and revision' (see also Lowell Co-op. Bank v. Co-operative Cent. Bank, 287 Mass. 338, 345 [1934]) particularly when (as in the present instance) the legislative proposals, once considered in an advisory capacity, have been subsequently modified and clarified." Massachusetts Hous. Fin. Agency v. New England Merchants Nat'l Bank, 356 Mass. 202, 208-209 (1969).

There are, however, significant differences between the act we now consider and that bill considered by the Justices. The bill provided for a system of vanishing exemptions over a range of income for individual taxpayers of between $3,000 and #30,000; for married taxpayers filing jointly of between $5,000 and $50,000, and for married taxpayers filing separately of between $5,000 and $25,000. 386 Mass. at 1225 & n.2. The act, on the other hand, approximately extends the range of income within which the exemptions vary from $6,000 to $40,000; $10,000 to $80,000; and $6,000 to $43,000, respectively, in the same classifications. See 1985 House Doc. No. 6999. Furthermore, the number of income brackets within which the exemptions differ is substantially greater in the act than in the schedules considered in the bill. For example, for

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single taxpayers the bill varied the exemptions in ten categories while the act varies the exemption in 184 categories of income.

Another feature of the act not found in the bill is that the exemption disappears at a different rate at the higher range of income. For example, the single taxpayer's exemption decreases at the rate of $20 for each $100 of income up to $9,000 and then decreases at the rate of $17 per $200 of income up to $40,000. In recommending to the General Court the legislative package that formed the basis of the act, the Governor informed the Legislature that approximately 85% of the persons filing tax returns fall in an income class of $50,000 or less. See 1986 House Doc. No. 1, Figure 5, at 5.

It can be discerned from the legislative history of the act and its complex scheme of exemptions applicable to very broad ranges of income that Section 6 was intended to tax the same class of income at different rates rather than to provide reasonable exemptions from the tax so "that the tax burdens may rest as nearly equally as possible among those able to bear them." Opinions of the Justices, 386 Mass. at 1229. [Note 6]

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2. The defendants devote much of their argument to the proposition that the exemptions of the act are reasonable. There is no question but that the explicit language of art. 44 requires that exemptions from the tax permitted by that article be reasonable. Although art. 44 empowers the Legislature to enact an income tax subject to reasonable exemptions, such a tax must be levied "at a uniform rate throughout the Commonwealth upon incomes derived from the same class of property." As we stated in Opinion of the Justices, 383 Mass. 940, 942 (1981): "This `uniformity' requirement consistently has been interpreted both by the Supreme Judicial Court and others as forbidding the taxation of income from the same class of property at graduated rates, i.e., with the rate of taxation varying with the total amount of income (as, for example, is done by the Federal government)." Moreover, "[t]he `reasonable exemptions' provision of art. 44 does not authorize special treatment that undercuts the dominant requirement of uniformity in art. 44. See Opinion of the Justices, 354 Mass. 792, 794 (1968)." Massachusetts Teachers Ass'n v. Secretary of the Commonwealth, 384 Mass. 209, 242 (1981). Not only must exemptions be reasonable, therefore, but also they must not conflict with the uniformity requirement. Id. "The requirement

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of uniformity cannot be circumvented by a device which keeps the rate of tax uniform while graduating the taxable base." Opinion of the Justices, 383 Mass. at 944.

In 1930, the Justices considered a bill which would have granted an exemption from the income tax to individual and married taxpayers whose incomes did not exceed $1,500 and $3,000, respectively. The stated purpose of the exemption was "to relieve from taxation those whose income is no more than sufficient to support the recipient and his immediate family, and keep within fair bounds the burden upon those whose ability to pay because of inadequate income is low." Opinion of the Justices, 270 Mass. 593, 600-601 (1930). The Justices responded that "[t]o say that one having an income of $1,500 per year, or that a husband and wife together having twice that income shall not be required to contribute from such income to the expenses of government, while approaching to the verge of reasonableness, cannot quite be said to exceed that bound . . . ." Opinion of the Justices, 270 Mass. at 601. "It is to be borne in mind that the theory of the bill is that exemptions are granted solely on the basis of lack of ability to pay the tax" (emphasis supplied). Id. at 603. Although the Justices relied upon the difference between the value of the dollar today and its value in 1930, as well as increases in per capita income, more is required to demonstrate that the balance between uniformity and reasonableness has been achieved than a mere mechanistic application of economic indices. See Opinions of the Justices, 386 Mass. at 1228 n.4. "In 1930, the Justices opined that the General Court has considerable discretion to apportion income taxes to the end that the tax burdens may rest as nearly equally as possible among those able to bear them" (emphasis supplied). Id. at 1229. That simple legislative plan to exempt from the tax burden those who lacked the ability to pay by means of fixed exemptions was described by the Justices as "approaching the verge of reasonableness. "Opinion of the Justices, 270 Mass. at 601. Such a plan cannot be equated with the act's intricately conceived exemptions, which are unabashedly intended to apportion tax relief among the

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taxpayers based upon their relative ability to pay. [Note 7] Whatever may be the merits of the system commonly described as the graduated income tax, it is prohibited by art. 44. We, therefore, answer that the provisions of St. 1985, c. 593, Section 6, which establish a series of personal income tax exemptions from the personal income tax in Massachusetts violate the uniformity requirement of art. 44. [Note 8]

WILKINS, J. (dissenting, with whom Hennessey, C.J., joins). My views remain unchanged on the subject of the relationship between the requirement of art. 44 of the Amendments to the Constitution of the Commonwealth that an income tax be levied at a uniform rate on income derived from the same class of property and the Legislature's right under art. 44 to grant "reasonable exemptions" from income taxation. In Opinions of the Justices, 386 Mass. 1223 (1982), I concluded that a taxation bill not meaningfully different from the statute now before us (G. L. c. 62, Section 3[b], as appearing in St. 1985, c. 593, Section 6) was constitutionally competent. The court's opinion in this case describes differences between the bill the Justices considered in 1982 and the act now before us and, without saying how or why, characterizes these differences as "significant" (ante at 44). The differences have no substantial significance warranting a change of opinion concerning the application of art. 44 principles. [Note Dissent-1]

There is in art. 44 an inherent and unavoidable conflict between the mandate of uniform rates and the authorization of reasonable exemptions. Opinions of the Justices, supra at 1226.

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Any exemption destroys uniformity. Reasonable exemptions, however, do not destroy the uniformity that art. 44 requires. The court's opinion in this case, however, improperly gives near conclusive effect to the requirement of uniform rates, thus relegating the right to grant reasonable exemptions to insignificance.

I would have thought that this court, following its own precedents, would have expressed deference to the Legislature's judgment as to what exemptions were reasonable in these circumstances. When the Justices furnish an advisory opinion, there is no presumption of the validity of a proposed statute. Opinion of the Justices, 345 Mass. 780, 781-782 (1963). Where, however, this court addresses "a constitutional challenge to a tax measure, we begin with the premise that the tax is endowed with a presumption of validity and is not to be found void unless its invalidity is established beyond a rational doubt." Andover Sav. Bank v. Commissioner of Revenue, 387 Mass. 229, 235 (1982), and cases cited. The court's opinion acknowledges that, in past decisions, we have upheld a flat exemption based on ability to pay. The use of decreasing exemptions, scaling down from a flat exemption which would itself be proper under art. 44, injects a greater element of fairness than would a flat exemption standing alone. In addition, the difference in the effective tax rate due to the exemptions is minor. [Note Dissent-2] This is hardly a graduated income tax of the sort that art. 44 plainly forbids. The Legislature's judgment that a minor exemption should be apportioned according to each taxpayer's ability to pay falls in the range of reasonableness within which the Legislature is entitled to act.