What we can learn from Maxwell-McCarty tiff


Anyone who has ever taken a course on how to use a computer program of one kind or another knows how, during the presentation, unexpected problems can pop up. That might upset a lot of people, but I once had an instructor who viewed every glitch as a ULO, an “unscheduled learning opportunity.” We all ended up learning something we didn’t intend to, and nobody got upset.

We might be wasting a ULO if we were to let the Maxwell v. McCarty lawsuit die off with hardly a whimper. As our local press reported, county Commissioner Eric Maxwell sued his elected successor over a newly discovered and seemingly unpaid state tax liability, only to dismiss his complaint before any hearing.

Maxwell is not the first person to be upset about the possibility that we have elected officials who don’t pay their taxes. Back in 2002, many state legislators were exposed as owing back taxes to the Georgia revenue department.

That upset a lot of people.

So what did the state legislature do in response? No, they didn’t pass a law. They did even better. They proposed yet another amendment to our state constitution. And the people of Georgia showed their support by voting for it in November 2002.

So what does our state constitution now say about elected officials who let their state taxes go unpaid? Here’s the redacted text from Article 2, Section 2, Paragraph 3 entitled “Persons not eligible to hold office”:

“No person … who is a defaulter for any federal, state, county, municipal, or school system taxes required of such officeholder or candidate if such person has been finally adjudicated by a court … to owe these taxes, but such ineligibility may be removed at any time by full payment thereof, or by making payments … pursuant to a payment plan…, shall be eligible to hold any office or appointment of honor or trust in this state.”

One has to understand tax law to realize the huge loophole that guts this provision and makes it pointless.

Taxation is the lifeblood of government. Without revenues, a government cannot long function. Thus virtually all tax systems provide a limited opportunity to contest the tax before it has to be paid. Once the tax has been paid, the taxpayer who still disputes it is expected to file a claim for refund with the tax collector, and when that’s denied the taxpayer brings suit and goes to court.

That’s how tax systems generally work, and it’s a bit like being presumed guilty until proven innocent.

In practice, tax delinquents generally do nothing. They simply don’t pay, and let all the letters and notices from the tax collector go unheeded. Unless a taxpayer takes timely action to contest his tax liability, the tax becomes final without ever being “finally adjudicated by a court.”

Thus the state constitutional amendment Georgia voters approved in November 2002 concerning tax defaulters is perfectly worthless and the product of incompetent (or devious) legislators.

The fact remains, however, that voters who pay their taxes don’t approve of elected officials who don’t pay theirs. Which brings us to the McCarty situation.

The real estate records maintained by the clerk of superior court of Fayette County show that in recent years Commissioner-elect McCarty has had three tax liens filed by the state revenue department for unpaid income or sales taxes. That’s seldom a good sign, even when the taxes eventually do get paid.

But what we need to ask ourselves is why didn’t anyone bring that up before the election?

When a person runs for public office, wouldn’t it be logical to check all public records to see if that person has any criminal record, any tax deficiencies, any past bankruptcy (that may provide an indication of his financial management ability), or any lawsuit or job loss related to dishonest actions? Who’s in charge of checking that?

Before people can get a job, or a loan, or insurance, they normally get checked out. Why don’t we have any mechanism to check out people who run for office? Then, of course, we’d have to disseminate the information well before the election. And the information to be checked out should include the educational and job background of the candidate.

In the absence of any formal system, it perhaps ought to be the job of the news media to assume that burden. That might be their way to pay back the public for all the media’s privileges under the First Amendment.

It is clear to me that our legislators aren’t perfect. We should not, in fact, expect perfection. I have often figured that the virtuous Mother Teresa, who had the initiative and skills to found and run a religious order dedicated to helping people in need, would be a perfect candidate. But being neither an American nor alive, she’s unavailable. So perhaps we should expect some imperfections in our candidates.

What would be helpful would be to learn about our candidates’ imperfections before we have to choose between them. Then we could determine just how serious these imperfections are, and who is the best candidate, just as employers do when they hire workers.

So we get a nice ULO from the Maxwell-McCarty incident. Among other things, we learn that timing is important in elections, and that we need more diligent people in the media.

[A resident of Fayette county, Claude Y. Paquin is a retired lawyer and actuary whose course concentration, at Emory law school, was on tax law.]