Every Day is Tax Day: Kentucky’s Dope Tax

Editorials

April 23, 2007

Anonymous The Commonwealth Journal Mon Apr 23, 2007, 10:04 AM EDT

Ahh ... the sweet aroma of spring! Freshly cut grass. Blossoming flowers. Charcoal grills wafting sweet smoke in neighbors’ yards. And what about those welcome sights – redbuds and pink dogwoods, kids flying kites, manicured red and green baseball fields, new foals and calves dotting shorn fields. Surely there can be no place in heaven as pure and pleasant as a Kentucky spring. Especially after tax day.

Every day thereafter is a little brighter; every meal a little more satisfying, every bird’s song a little more melodious.

But for some Kentuckians, tax day is every day. That’s because a little known provision of our revenue laws require the purchase of tax stamps for illegal drugs. The extra boost that comes from settling our annual accounts with the Internal Revenue Service doesn’t count if you neglect to pay your dope tax.

Kentucky’s drug tax provides for an anonymous tax payment due immediately “upon the occurrence of taxable activity” and precludes the use of that information for criminal prosecutions. Taxable activity includes producing, cultivating, manufacturing, transporting, distributing, storing, selling, possessing or using certain quantities of illegal drugs – marijuana, cocaine, methamphetamine, or even prescription pills when possessed, transported or distributed contrary to law.

The tax rates are set forth in our statutes: $1,000 for each marijuana plant or $3.50 per gram of processed marijuana, $200 for each gram of controlled substances such as cocaine, and $2,000 for each 50 dosage units of controlled substances which are not sold by weight.

The procedure for procuring the tax stamp is theoretically simple. The taxpayer remits the appropriate sum to the Revenue Cabinet who issues a tax stamp. This procedure is confidential. The tax stamp, which is good for one year, must then be affixed to the illegal drugs.

If law enforcement seizes drugs, and no tax stamp is affixed, the offender can be charged with a class C felony for the tax violation in addition to the substance drug crime. Moreover, the offender must also pay a tax penalty with interest on the seized drugs.

Believe it or not, some Kentuckians actually pay their dope taxes. In 2005, the Revenue Cabinet issued 37 tax stamps. In 2006, the cabinet issued an astonishing 68 tax stamps, and thus far in 2007, 35 tax stamps.

Thus far, the only significant legal challenge to Kentucky’s dope tax scheme failed, thereby making future prosecutions more likely. In 1998, the Kentucky Supreme Court reviewed a decision of the Fayette Circuit Court dismissing trafficking charges against Robert Bird and Joseph Nicholson on double jeopardy grounds. Three years earlier, in 1995, Lexington police arrested Bird and Nicholson for trafficking after seizing a quantity of powder cocaine.

Since the cocaine had no tax stamp, police notified the Revenue Cabinet as required by statute. The Revenue Cabinet then assessed Bird and Nicholson taxes of approximately $6,000 and $4,000 respectively, which they paid.

Police then obtained an indictment charging both with trafficking. Bird and Nicholson moved to dismissed based on Fifth Amendment double jeopardy grounds and a U.S. Supreme Court decision which had declared a Montana dope tax scheme unconstitutional. Bird and Nicholson were not as lucky.

Our Supreme Court found that Kentucky’s dope tax was sufficiently distinguishable from the flawed Montana plan because it doesn’t constitute a “punishment” but rather a genuine and legitimate tax. Therefore, payment of the required tax on illegal drugs did not bar Bird and Nicholson’s prosecution for drug trafficking, much like a late payment of federal income taxes might not preclude a charge of failing to file a tax return.

For the vast majority of all Kentuckians, the passing of the springtime income tax filing deadline brings a welcome respite from nagging fears and uncertainties. But for a few, every day is tax day.

Did you remember to pay your dope tax?

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