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Circuit Judge Kelly Skye ruled Thursday that Portland’s arts tax is constitutional.

The Arts Education and Access Income Tax was created by the city in 2012 and passed by 62 percent of voters in November, according to the mayor’s office. The voter initiative provides funds for arts educators in Portland K-12 public schools and arts organizations.

The plaintiff in this case, George Wittemeyer, had argued that the arts tax was unconstitutional because it is a “head tax,” or a tax on everybody. In response, Judge Skye wrote, “The Arts Tax is not a Poll or Head tax because it is not assessed per capita.”

The city has collected more than $7 million from those who paid the tax. Had the tax’s constitutionality been successfully challenged, the city would have had to offer refunds to everyone who paid.

“The issue received three legal challenges,” reports a news release from the Portland Mayor’s Office. “The first was a challenge to the ballot title in 2012. In the second, a challenge in federal tax court was thrown out in May for a lack of legal standing.  Today’s ruling clears the third legal hurdle.”

Can the challenges be appealed?

“Yes, but we don’t know that they will,” said Portland Mayor Charlie Hales in a prepared statement Thursday. “We want to wait to hear from the city attorney regarding our best options, and then we want to get the input of the entire City Council before moving forward.”

Portland City Commissioner Nick Fish does see openings for someone to still challenge the tax.

“Not all potential legal arguments were addressed,” he said in a prepared city statement, “and [the federal tax court] suit could be appealed, too. We’ll seek the advice of the city attorney before moving forward.”

Fish is the City Council liaison to the Regional Arts and Culture Council.

After the suits were filed, Mayor Hales decided not to disburse the arts tax funds to school districts or arts organizations, until the courts clarified the legal status of the taxpayers’ money. Distribution of that money had been scheduled for November 2013. In May, the mayor proposed a plan to distribute some of the money to the six area school districts, provided they would pay a portion of it back if the tax were deemed unconstitutional.

Hales said he would reach out to the superintendents of the six school districts immediately to explain the ruling and to discuss next steps.

Anyone required to pay the tax but who hasn’t yet paid can file here: (there’s a .99 cent convenience fee for online payments). The city originally reported it would charge a $15 to $35 late-payment fee. However, as of June 27 that fee has not yet been added to the online payment form.

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