Missouri appeals court keeps tax overhaul on Aug. 4 ballot with new language

If an appeal is filed and the Missouri Supreme Court takes the case, it would have to hear arguments and deliver a decision on Monday or Tuesday. The final day under state law for courts to make changes to the primary ballot is Tuesday.

Gov. Mike Kehoe announced May 22 that he would put the constitutional amendment, his top legislative priority for the year, on the August primary election ballot. Amendment 5 would require lawmakers to set revenue growth triggers for cuts to the top state income tax rate. To speed the process, it would allow a five-year window for bills that would add sales tax to goods and services currently exempt.

In the unanimous decision written by Judge Thomas Chapman, the appeals court rejected arguments that the proposal improperly amends the constitution. While the amendment may have an impact on other articles in the constitution, everything it contains in its text is in the taxation article, he wrote.

There are provisions in the proposal that exempts new taxes imposed by lawmakers from requirements for statewide votes on tax increases. It would also authorize the state auditor to change the tax rate for constitutionally mandated sales taxes supporting state parks and soil erosion control and the Department of Conservation.

The court recognizes that Amendment 5 “expressly identifies a number of provisions in other articles of the Constitution as being affected by the resolution,” Chapman wrote. “However, these affected provisions from other articles all relate to taxation.”

Quoting a Missouri Supreme Court ruling from 2024 on a challenge to the amendment legalizing abortion, Chapman wrote that the court “will not construe the multiple articles requirement ‘to prohibit voters from approving or rejecting a constitutional amendment proposed by initiative petition simply because the proposed amendment may (if and when it goes into operation) be construed to alter or affect the application of a preexisting constitutional provision.’”

The ballot summary needed to be changed, the court ruled, because it did not provide enough information.

“We agree that the resolution does not sufficiently inform voters of the resolution’s expansion of the General Assembly’s sales and use tax authority and the elimination and suspension of existing constitutional limits on taxation,” Chapman wrote.

Chuck Hatfield, attorney for the plaintiff challenging the ballot measure, tried to convince the judges during arguments Thursday that the proposal’s use of the word “notwithstanding” to create exemptions from various provisions is improper.

If lawmakers add the sales tax to more transactions, it would create a windfall of new revenue for constitutionally mandated sales taxes.

Amendment 5 would grant the state auditor power to lower some, but not all, of those rates to reset revenue levels to the previous lower amounts.

That provision, Hatfield said, violates the constitutional rule limiting proposed amendments to one article of the constitution. Amendment 5 amends the taxation article, while the sales taxes that could be adjusted are in the article describing the executive branch of state government.

“When they try to address all these other effects, then you’re going to have to do that separately, because those other taxes that you’re trying to affect now are set elsewhere in the Constitution,” Hatfield told the judges.

Marc Ellinger, the attorney for a political action committee called Put Missouri First, said the provisions of Amendment 5 are all properly placed in the taxation article. Language creating exemptions to other sections was needed to make the plan work, he said.

Put Missouri First was created to campaign in favor of Amendment 5. It intervened in the lawsuit initiated on behalf of Missourians for Fair Taxation, the committee created by the Missouri Association of Realtors that is opposing Amendment 5.

“The notwithstanding language, the Supreme Court has said multiple times, is designed to eliminate a conflict, not to create one,” Ellinger said. “And I think what the appellants in this case are trying to do is to use that language to say there is a conflict. You don’t know what the legislature is going to do in the future, so you don’t know whether you know some of the conflicts that are being discussed may never actually occur.”

Ballot language

The argument over the ballot language for Amendment 5 in court on Monday was about the first thing that voters would see. That should be the most important thing the proposal would do, Hatfield said, arguing that it is the power to expand the sales tax to any goods or services that should come first.

The version written by lawmakers, he said, leads off with a statement about eliminating the income tax through revenue growth. Lawmakers already have that power without Amendment 5, he said.

“That language is a political commercial for what they want to accomplish,” he said. “It is not a legal statement.”

The language is sufficient, said Louis Capozzi, state solicitor general, because it alerts voters to the main purpose of eliminating the income tax. Expanding the sales tax is an optional way to accomplish that, he said.

“It is theoretically possible that revenue will just go up because Missouri is more pro-business,” Capozzi said. “I mean, that was the Kansas hope. It didn’t really work out, but revenue can also go up under the proposal if the General Assembly increases sales and service tax.”

The court completely overhauled the ballot summary written by lawmakers and revised the “fair ballot” language prepared by the secretary of state to explain ballot measures to voters.

In its revision, the court linked the elimination of the income tax to the expanded sales tax base and explicitly states that it allows new goods and services to be taxed.

“The resolution’s curtailment of constitutional limits on the taxing authority in Missouri makes it necessary for a sufficient summary statement to inform voters so that they may assess the costs and benefits of the resolution and make a voluntary decision regarding whether to grant new authority to their legislature,” Chapman wrote.

Barring a final change by the Missouri Supreme Court, the ballot will say:

“Shall the Missouri Constitution be amended to:

Require legislative phase-out of the individual state income tax based on revenue growth, and authorize the expansion of sales and use taxes;

Curtail constitutional limits on taxing goods and services; and

Require local tax rate cuts without reducing school funding if local sales tax revenue increases?”

The fair ballot language changes, Chapman wrote, were intended to make it clear to voters that rejecting the amendment would not alter the legislature’s power to reduce or eliminate the income tax.