Court Stops Short of Tax-Versus-Fee Question in TABOR Decision
In Griswold v. NFIB, Colorado Supreme Court unanimously rules there’s insufficient evidence that state department’s filing fee increases require voter approval

by Doug Chartier
Ralph Carr Judicial Center

In another closely watched case that might have clarified the reach of Colorado’s tax laws, the Colorado Supreme Court declined to say whether a fee regime was really a tax. In the process, the court handed a win to a state department.

On Sept. 23, the Supreme Court ruled unanimously in favor of the Colorado Department of State in a case challenging the department’s system for charging businesses filing fees. The plaintiff, the National Federation of Independent Business, claimed the office’s filing fee increases amounted to taxes that required voter approval under the Taxpayer’s Bill of Rights, or TABOR.

The justices upheld a summary judgment order saying NFIB showed no evidence that the Secretary of State’s charges constituted a tax increase under TABOR. The Supreme Court also reversed the Court of Appeals, which sent the case back down to the trial court so facts could be further developed.

In focusing on the evidence issue, the Supreme Court’s decision stopped short of the tax-versus-fee inquiry that would have had broad implications on TABOR’s reach and the autonomy state agencies have in charging fees.

NFIB is “disappointed” with the decision, NFIB’s state director for Colorado, Tony Gagliardi, said in a statement. “[H]owever, Colorado businesses should be thoroughly disappointed with the Court’s lackadaisical attitude in examining the fee versus tax issue,” he added.

To read the rest of this story and other complete articles featured in the Sept. 30, 2019 print edition of Law Week Colorado, copies are available for purchase online.