Request By:
Hon. Larry J. Crigler
Boone County Attorney
P. O. Box 114
Burlington, Kentucky 41005
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
The Boone Fiscal Court is considering passing an ordinance providing that operators of parking lots or garages in your county must pay a fee to the county and be issued a permit from the county in connection with such parking activity, except for sporting, theatrical or other entertainment events.
Your have written that Boone County already has an occupational and net profits tax upon businesses and wage earners. You also point out that the Greater Cincinnati International Airport has numberous parking areas.
Section 5 of the proposed ordinance provides in part that the operator of a parking lot must pay Boone County annually a fee equal to five cents (5 ) per diem for each and every vehicle parked.
A fiscal court may, under §§ 171 and 181, Kentucky Constitution, enact only two kinds of general revenue taxes: (1) ad valorem taxes; and (2) occupational or license taxes.
Driver v. Sawyer, Ky., 392 S.W.2d 52 (1965) 53. See also KRS 67.083(2).
If this fee and permit system is in reality but in disguise another occupational or license tax, then it would be a duplication of the existing occupational or license tax, and thus would be against public policy. To constitute "double taxation" in that sense, the two taxes must be imposed on the same property by the same governing body during the same taxing period for the same taxing purpose.
Second Street Prop. v. Fiscal Court of Jefferson County, Ky., 445 S.W.2d 709 (1969).
Obviously, the fee for operating the parking lot or garage is not an ad valorem tax, since it is not a rate applied to an assessed value of property. See
Shaw v. Mayfield, 204 Ky. 618, 265 S.W. 13 (1924). The fee here in the proposed ordinance is a per diem charge for each and every vehicle parked.
On its face it (the ordinance) purports to be an occupational license tax, although the tax is measured in terms of a per diem charge for each and every vehicle parked or occupying space on the owner's premises.
The Court of Appeals, in a somewhat similar situation, struck down a fee, imposed upon mobile home park owners, for each space in a mobile home park, which was in addition to annual license fees imposed upon businesses generally. See
Jahr v. City of Radcliff, Ky., 503 S.W.2d 743 (1973). The Court of Appeals in that case, in characterizing the mobile home space fee as a "space tax" and as a license tax, in effect, held that the additional license tax was unconstitutional under the uniformity provisions of the Constitution, §§ 2, 171 and 181. The court, in Jahr v. City of Radcliff, asserted that it adopted the basic holding on this constitutional point as was handed down in
City of Lexington v. Motel Developers, Inc., Ky., 465 S.W.2d 253 (1971). In the latter case, the court said that a legislative body may not, without some rational basis, select a certain type of business enterprise and impose upon it a substantially heavier tax than that imposed upon other businesses which fall within the same general classification.
It is our opinion that the proposed fee is a license tax which is, for reasons assigned above, constitutionally impermissible.
The question about the airport, in view of our above conclusion, is moot.