Retroactive taxes: Violation of ex post facto precedents in the law?

Jim was talking about Governor Malloy’s retroactive taxes today, and it raised the question of whether this is even legal, not to mention moral.

(Of course, I defer to our resident legal expert, SOS, regarding any of the following!). According to the Cornell University Law School website:

Ex post facto:

Latin for “from a thing done afterward.” Ex post facto is most typically used to refer to a criminal law that applies retroactively, thereby criminalizing conduct that was legal when originally performed. Two clauses in the US Constitution prohibit ex post facto laws: Art 1, § 9 and Art. 1 § 10. see, e.g. Collins v. Youngblood, 497 US 37 (1990) and California Dep’t of Corrections v. Morales, 514 US 499 (1995).

Nolo plain English dictionary definition of ex post facto:

Latin for “after the fact.” Refers to laws adopted after an act is committed, making it illegal retroactively. Or, it can refer to laws that increase the penalty for a crime after it is committed. Such laws are specifically prohibited by the U.S. Constitution, Article I, Section 9.
Specifically, the Constitution, Article 1, Section 9 states:

No bill of attainder or ex post facto Law shall be passed.

Section 10 is a bit more obscure, but still relevant:

No state shall enter into any treaty, alliance, or confederation; grant letters of marque and reprisal; coin money; emit bills of credit; make anything but gold and silver coin a tender in payment of debts; pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts, or grant any title of nobility.

Similarly, consider that the concept of double jeopardy might also apply:

According to the Fifth Amendment to the Constitution:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Granted, both of these concepts are usually applied to criminal law, but consider this: if you don’t pay your retroactive taxes, you are effectively a criminal and prosecutable under the law (unless you are appointed to be be Treasury chief or Chair of the tax writing House Ways and Means committee ….), and any legislation from the governor or the legislature is the law.

You could even look at this as a violation of a contract between the government and the taxpayer.

Most importantly and frighteningly, in the long run, given the government’s hunger for new revenue, will they inevitably find a way to make the imposition of retroactive taxes extend beyond the current tax year, once they run out of ways to tax haircuts and public bathroom usage?

I hope I haven’t given them any ideas…



To put this in more relevant terms, imagine if you strolled down to you local big box store six months ago and purchased a flat screen television.  What would you say if that store called you up today and said that they have to give you a retroactive price increase on said TV because they overspent on stock, or had to fund raises for their employees, or bought some square footage in a mall they didn’t need and couldn’t afford?  Would you laugh, just hang up or call your lawyer?  Would you be sucked into paying the money?  I doubt it.  So why now?

18 replies
  1. NH-Jim
    NH-Jim says:

    Dims, another argument to support 5th Amendment application:
    There is no distinction between criminal and civil laws.? If the IRS, the SEC, state, or local governments can file suit on a criminal or civil basis, it is discretionary.? Despite the differences with criminal and civil laws with regard to ex post facto laws, it makes no sense to protect a person from criminal but not civilian expost facto laws.? In either case, when the offending act was performed, it was not illegal.? Why should a person be less protected from ex post facto law if he/she is sued/indicted on a civil rather than criminal charge?
    At the Colonial time during which the Constitution was being drafted, there were places of incarceration called “debtor prisons” for non-payment of debt.

    • NH-Jim
      NH-Jim says:

      Steven Selinger at Cato also points out that the SCOTUS has upheld several cases that have allowed retroactive collection of taxes.? Here is a summary from the footnotes from Steven Selinger’s column in the Cato Journal:
      Several Supreme Court cases have upheld retroactive taxes including United States v. Carlton (1994). In Welch v. Henry (1938), a divided Court ruled that a Wisconsin tax, which was passed in 1935 and made retroactive to 1933 income, was constitutional. More recently, in United States v. Darusmont (1980) and United States v. Hemme (1985), the Supreme Court overruled two district courts that had held that retroactive tax laws were unconstitutional. It should be noted that today’s Russian Constitution explicitly prohibits retroactive tax laws.
      In simple conclusion, our property is not our property.? It is the government’s; they just let us keep a little bit of it.

      • Dimsdale
        Dimsdale says:

        Makes you wonder what they (SCOTUS) see when they read the Constitution some times…. The Kelo decision being a case in point.

  2. Tim-in-Alabama
    Tim-in-Alabama says:

    Clinton’s tax hikes were retroactive, but since he just lied during the campaign, but didn’t say, “Read my lips!” it was the elder Bush’s fault.

  3. winnie888
    winnie888 says:

    Not to be too simplistic here, but isn’t this double taxation?? CT is taxing – again – monies they already taxed from January 1st through July 31st.? Even my kids (who are new to the game of politics & a completely dem. controlled state) are asking me how they can do this & whether or not it’s legal.? I have no other answer for them except to say, “They write the laws…they can do whatever they want and pretty much always do.”

  4. SeeingRed
    SeeingRed says:

    We are doomed.? Maybe not in my lifetime (I’m early 50’s), but then again….?

    The constitution was written with an assumption?that men of good faith would all act to follow the law as written.? There was common good comradary?that doesn’t exist today as some/many have lost the faith that was so common in 1787.??All we’re really waiting for is catastrofic failure, and it will come.?

    Kind of like ‘reengineering’ a gas turbine engine that spins at 50k rpm.? Sure you can make it cheaper but at some point you?weaken it so just can’t hold together any longer.? And anything spinning that fast – with so many moving parts -?assures complete destruction once the first crack appears.?

    We can see the cracks already, now just waiting for the ka-boom.

    • winnie888
      winnie888 says:

      “Faith” has been removed from the American discourse where politics is concerned.? It’s a sad, sad thing.

  5. PatRiot
    PatRiot says:

    I have to tell myself more often these days:??
    Self control is the body’s way of overriding one’s natural desire to choke some jerk who desperately deserves it.

  6. essneff
    essneff says:

    since being laid off several years ago, I’ve had to improvise…… I do some tax work during that season….. been paid & taxed from 1/1 through 4/30 of this year…… do I get a penalty from the state for under withhokding?even though the freaking law was passed 2 months after I earned the income? I totally agree? with your premise……. why not go back to 1993 when Lord Weicker lied & showed this tax down our throats?

    • GdavidH
      GdavidH says:

      I actually had exactly that problem last year, except not for self emploment witholding. I believe the amount of under witholding?needs to be more than $1000 before they fine you at 1% per month. I had to pay a?$43 fine?for?$1133. The form # you might want to look at, I believe, is ct 2210.


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