UPDATED june 2021
Third Time is a Charm? Kentucky's State Tax Tribunal "Reorganized" Again
The structure of Kentucky’s state tax tribunal has been shuffled for the third time in five years. Prior to 2016, all appeals from decisions of the Kentucky Department of Revenue, as well as real property tax appeals from county boards of assessment appeals, were heard by the Kentucky Board of Tax Appeals (KBTA). Kentucky law allows the governor to appoint the KBTA members, but also requires that the terms of KBTA members were to be staggered. This provided some continuity and stability for litigants, even when the governor’s mansion changed political hands. However, in August of 2016, then-Governor Bevin used an executive order to “reorganize” the KBTA into the Kentucky Claims Commission, removed all three of the KBTA members, and replaced them with his own appointments. Subsequently, and utilizing the well-known doctrine of “what’s good for the goose is good for the gander,” Governor Andy Beshear “re-reorganized” the Kentucky Claims Commission back into the Kentucky Board of Tax Appeals, removed the three KCC members, and replaced them with his appointments (two of whom had previously served on the KBTA).
The Kentucky General Assembly decided to get in on the act and passed SB 162 in March of 2021. While SB 162 ratified Governor Beshear’s return to the KBTA as the tax tribunal, the Legislature decided to change the requirements for KBTA members. While prior law required that one member of the KBTA must be an attorney, SB 162 states that two of the three members, including the chairman, must be an attorney. As a result, the person appointed by Governor Beshear as chair was forced to resign because she was not an attorney, and confusion reigns as to the new composition of the KBTA. Until the effects of SB 162 are fully determined, it is unclear how and when state tax appeals will be heard.
Michele M. Whittington
Morgan Pottinger McGarvey
American Property Tax Counsel (APTC)