Domina Law Client Wins Dispute: Nebraska Statute Ruled Unconstitutional

Domina Law Client Wins Dispute: Nebraska Statute Ruled Unconstitutional

Lancaster District Court rules that Neb Rev Stat § 77-6203(5)(b) violates Nebraska’s Constitution and is therefore invalid.

When the Nebraska Legislature decided to join the race among states to attract wind power investors, it exempted electricity-generating windmills from the state’s personal property tax. The replacement, called the “Nameplate Tax,” favors wind generators. It reduces taxes by spreading out the term over which they are paid and provides an exemption from personal property taxes not enjoyed by other investors in significant assets such as costly farming implements.

But, the Legislature did even more. It permitted wind generators who were in business to enjoy a tax credit for previously-paid personal property taxes on their wind machines against the future new Nameplate Tax. This credit favored a single taxpayer who was an early investor in the industry.

The Nameplate Tax credit’s benefit created a corresponding and unacceptable hardship. One Nebraska county, Knox County, found itself facing the burden imposed by the special legislation. Among Nebraska’s 93 counties, only Knox County was affected.

The County Attorney, John Thomas, and its Board of Supervisors, decided a challenge to the Nameplate Tax was appropriate.

The County hired David Domina and Domina Law Group pc llo to study the situation, identify issues, and challenge the tax credit.

On July 30, 2012, the District Court of Lancaster County declared the tax credit unconstitutional. The Court, in a decision written by Hon. Paul Merritt, adopted Domina’s arguments holding that Knox County can collect its tax and striking the challenged statute. The Court held that the stricken statute unlawfully commuted taxes or transformed an obligation to pay into a credit. It also found the statute conferred a special benefit and was, therefore, improper special legislation.

The ruling means Knox County will keep its tax revenues for the affected years and not be burden by a tax designed to benefit a special taxpayer.

State officials have thirty (30) days within which to decide to appeal.

Read the Lincoln Journal Star: Judge Throws Out Part Of Wind Farm Law (8/3/12) article here.

Read the Omaha World Herald: Knox County Wind-Farm Tax Credit Ruled Unconstitutional (7/31/12) article here.