Pubdate: Mon, 05 Mar 2001
Source: Evansville Courier & Press (IN)
Copyright: 2001 The Evansville Courier
Contact:  P. O. Box 268 Evansville, IN 47702-0268
Fax: 812-464-7435
Website: http://courier.evansville.net/
Author: Mark R. Chellgren, Associated Press Writer

INNOCENT CAN GET CAUGHT BY DRUG TAX LAW

FRANKFORT, Ky. -- This isn't the same kind of taxation without 
representation debate that prompted some Revolutionary War era patriots to 
board the British vessels at Boston and toss crates of tea overboard.

It isn't the same kind of tea, either, for that matter.

This is a debate over taxing drugs -- the illicit kind.

In 1994, the General Assembly passed the "Marijuana & Controlled Substances 
Tax Act." As presented by its sponsors at the time, the idea was to get at 
the heart of the drug trade by making it a financial burden as well as a 
risk of penitentiary time.

To that end, the legislature imposed a tax of $1,000 on each marijuana 
plant; $3.50 for each gram of marijuana -- colloquially known as tea in 
some circles -- not attached to the plant; $200 per gram of controlled 
substances and $2,000 on each 50 doses of controlled substances not sold by 
weight.

The tax is due whenever there is possession of a drug and is technically 
not related to any criminal charges. The statute allows an individual to 
obtain a tax stamp without having to reveal anything about their identity.

Even so, failure to have the yellow and black tax stamp affixed to the 
drugs can bring a separate Class C felony.

Since its creation, the tax has brought in a remarkable $394,270.08, 
according to the Kentucky Revenue Cabinet. There doesn't seem to be any 
consistency in collections, though. In 1996, the total was $201,688; in 
1998, $4,135.

It is paid largely in cases where the Cabinet is told by law enforcement of 
drug busts. But there are other instances as well.

"We get letters saying, 'I'll pay this. Just please don't tell my mother," 
said Revenue spokesman Alex Rose. "We get a few stamp collectors. And we 
get a few people who want to make the drug tax their cause."

State Rep. Robin Webb, D-Grayson, doesn't want to make the drug tax a 
cause, but she does want to protect some potentially innocent parties.

Webb has legislation pending that would levy the tax only in cases where 
there are convictions for drug offenses. As it is, she said, an innocent 
landowner whose property might contain a few wild hemp plants could find 
himself hauled before the Revenue Cabinet for a drug tax hearing. In those 
cases, Webb said the Cabinet usually requires the posting of a bond equal 
to the potential tax.

Webb said there are few due process safeguards. "Any law enforcement 
officer can call somebody into the Revenue Cabinet and start this process," 
Webb said. "If John Q. Public landowner is not charged with a crime, he is 
still assessed and has to get a hearing in the matter."

Webb said her family owns farmland in rural Kentucky. "Some of our 
neighbors have been in the marijuana business," she said. If a seed or two 
wanders across the fence, "It's just frightening to me."

With the due process argument, though, comes another legal complication.

"If they have to be convicted first, then you have double jeopardy 
problems," Rose said.

The Kentucky Supreme Court and the U.S. Supreme Court have both ruled that 
the statute as it stands now does not seek to penalize people twice for the 
same offense -- known as double jeopardy.

A 1994 federal court ruling in a Montana case said drug offenders could not 
be forced to pay a state tax in addition to criminal penalties.

Unlike the Montana drug tax, Kentucky's highest court said, the Kentucky 
levy is more tax than punishment and is due regardless of whether a person 
has been arrested on criminal charges.

But there have also been some consequences that have prompted legislators 
to reconsider the whole matter. Charles Thomas Jr., a 27-year-old Breathitt 
County man, got a $1 million bill two years ago from the Cabinet after 
Kentucky State Police identified him as being involved with the seizure of 
517 marijuana plants on property near where he lived. Thomas said the 
marijuana was not his and he had nothing to do with it and has never been 
convicted of a crime.

Nevertheless, the Cabinet has tried to seize his bank accounts and place 
liens on his property. The cabinet has more recently relented and allowed 
him to protest the tax without posting a bond.

The House passed the bill last week by a vote of 93-1, with the vote of 
Rep. Charles Geveden, D-Wickliffe, one of the original sponsors of the tax 
six years ago.

Geveden said he too was concerned about the kind of implications that 
struck Thomas.
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