City of Covington v. Kenton County

• Court: Supreme Court of Kentucky
• Writing for the Court: Graves
• Citation: City of Covington v. Kenton County, 149 S.W.3d 358 (Ky. 2004)
• Decision Date: 18 November 2004
• Docket Number: No. 2002-SC-0991-DG.
• Parties: CITY OF COVINGTON, et al., Appellants, v. KENTON COUNTY, Kentucky, Appellees.

149 S.W.3d 358

CITY OF COVINGTON, et al., Appellants, v. KENTON COUNTY, Kentucky, Appellees.

No. 2002-SC-0991-DG.

Supreme Court of Kentucky.

November 18, 2004.

John E. Lange, III, Lange, Quill & Powers, P.S.C., Newport, Mark D. Guilfoyle, Patrick R. Hughes, Deters, Benzinger & LaVelle, P.S.C., Covington, Frank F. Chuppe, Virginia H. Snell, Angela C. McCorkle, Wyatt, Tarrant & Combs, LLP, Louisville, John Jay Fossett, Covington, Counsel for Appellants.

Sheryl G. Snyder, H. Lawson Walker, II, David S. Kaplan, Frost Brown Todd LLC, Louisville, Counsel for Appellee.

Opinion of the Court by Justice GRAVES.

In July 1978 and pursuant to KRS 68.197(1), Appellee, Kenton County, adopted Ordinance 78-6-1 which levied an occupational license fee of 0.4% on the first $25,000 of an individual's gross income ($100 maximum fee) and the first $37,500 of a business's net profits ($150 maximum fee). The resolution framed the ballot question as "whether a license fee shall be imposed at a percentage not to exceed one per cent," and purported that the fiscal court could in the future change the rates within statutory limits without submission to the voters.¹ The voters of Kenton County thereafter authorized the fiscal court to impose an occupational tax at a rate up to 1% of income and profits.

In 2000, Kenton County adopted Ordinance 225.19, which amended Ordinance 78-6-1 and increased the county license fee from 0.4% to 0.7403%, and also tied the taxable income or net profits to the Social Security maximum as defined by the Federal Government for all taxpayers.²

Following the adoption of the 2000 ordinance, Appellants, the City of Covington and a number of its taxpayers, filed a declaratory judgment action in the Kenton Circuit Court seeking a determination of whether KRS 68.197(4) entitles taxpayers to credit their municipal license fees against Kenton County's occupational license fees. The trial court ruled that the county's tax increase pursuant to the 2000 ordinance constituted a license fee imposed under the provisions of KRS 68.197(1) after July 15, 1986, thus the city residents were entitled to credit their municipal fees against their county fees pursuant to KRS 68.197(4).

The Court of Appeals reversed, finding an apparent ambiguity in the word "imposed," in that the term could refer both to a county's initial adoption of an occupational license fee and to a county's adoption of additional or increased fees. To resolve the ambiguity, the court relied upon the history of KRS 68.197, in holding that the legislature did not intend the mandatory credit provision to apply to post-1986 increases in license fees that were originally adopted prior to 1986. The Court of Appeals concluded that Kenton County's license fee was "imposed" in 1978, and the 2000 ordinance did not "impose" a fee, but merely increased the rate of the existing fee. This Court thereafter granted discretionary review.

KRS 68.197, License fees in counties of 30,000 or more³, was enacted pursuant to Section 181 of the Kentucky Constitution which authorizes the Legislature to delegate to cities and counties by statute the power to impose and collect license fees on trades, occupations and professions. Preston v. Johnson County Fiscal Court, Ky., 27 S.W.3d 790 (2000). At the time in question herein, namely when Kenton County adopted the 2000 ordinance, the statute provided, in pertinent part:

(1) The fiscal court of each county having a population of thirty thousand (30,000) or more may by order or resolution impose license fees on franchises, provide for licensing any business, trade, occupation, or profession, and the using, holding, or exhibiting of any animal, article, or other thing. License fees on such business, trade, occupation, or profession for revenue purposes, except those of the common schools, may be imposed at a percentage rate not to exceed one percent (1%) of:

(a) Salaries, wages, commissions, and other compensation earned by persons within the county for work done and services performed or rendered in the county;

(b) The net profits of self-employed individuals, partnerships, professional associations, or joint ventures resulting from trades, professions, occupations, businesses, or activities conducted in the county; and

(c) The net profits of corporations resulting from trades, professions, occupations, businesses, or activities conducted in the county.

In order to reduce administrative costs and minimize paperwork for employers, employees, and businesses, the fiscal court may provide:

1. For an annual fixed amount license fee which a person may elect to pay in lieu of reporting and paying the percentage rate as provided in this subsection on salaries, wages, commissions, and other compensation earned within the county for work done and services performed or rendered in the county; and

2. For an annual fixed amount license fee which an individual, partnership, professional association, joint venture, or corporation may elect to pay in lieu of reporting and paying the percentage rate as provided in this subsection on net profits of businesses, trades, professions, or occupations from activities conducted in the county.

Licenses imposed for regulatory purposes are not subject to such limitations as to form and amount. No public service company that pays an ad valorem tax is required to pay a license tax, and no license tax shall be imposed upon or collected from any insurance company except as provided in KRS 91A.080, bank, trust company, combined bank and trust company, combined trust, banking, and title business in this state, or any savings and loan association whether state or federally chartered, or in other cases where the county is prohibited by law from imposing a license tax.

(2) No such license fee shall be imposed or collected on income received by members of the Kentucky National Guard for active duty training, unit training assemblies, and annual field training.

(3) Persons who pay a county license fee pursuant to this section and who also pay a license fee to a city contained in the county may, upon agreement between the county and the city, credit their city license fee against their county license fee.

(4) The provisions of subsection (3) of this section notwithstanding, effective with license fees imposed under the provisions of subsection (1) of this section on or after July 15, 1986, persons who pay a county license fee and a license fee to a city contained in the county shall be allowed to credit their city license fee against their county license fee.

Prior to a 1986 amendment which added a new subsection (4), taxpayers paying a municipal fee could only obtain a credit against the county fee provided that the city and county had reached an agreement regarding the credit. See KRS 68.197(3). Notably, the statute has undergone additional significant changes through amendments in both 2002 and 2003.

In reaching its conclusion in this case, the Court of Appeals assumed a number of questionable premises. With regard to the pre-1986 requirement of voter ratification of a county license fee, the court noted that the statute "clearly required voter approval for the initial adoption of an occupational license fee, but not for any subsequent modification of the tax rates." With regard to the 1986 enactment to subsection (4), the court...