Commissioners Kenny Dement, left, and Tom Mattingly. The Bay Net photos by Sean Rice

What may have been an overzealous act by an assistant Maryland Attorney General may have opened a can of worms that could result in the state’s own tax credit program being ruled unconstitutional.

St. Mary’s Board of Commissioners discussed the future of the county’s senior tax credit program Tuesday, and learned there may even less room to compromise than previously thought.

So far 765 seniors have used the tax credit program, with another 200 applications pending. It provides county property owners 70 years and older a credit for the home they reside in that keeps the taxes at that level for life.

The Board adopted the law in 2004, and it became effective in 2005 when the state legislature approved enabling legislation. The assembly required the county define an income limitation for the program and add a sunset clause, which the county later did.

The Board attempted to pass a law to remove the sunset clause and make the program permanent.

While the change was being reviewed by state officials, an assistant Maryland Attorney General issued an unsolicited opinion stating the credit program violates the tax “uniformity” clause in the state constitution. Assistant Attorney General Bonnie Kirkland laid out options for the county that would solve the problem. They included: leave the sunset provision intact or extend it, amend the law so it is “uniform”, or use other tax credit programs provided by the state.

In response the board voted unanimously to seek a two-year extension on the credit, extending it to 2010. And, in a 2-3 vote, the board decided to challenge the decision in St. Mary’s Circuit Court.

On Tuesday, Commissioner Tom Mattingly (D-Leonardtown) said he has now learned “there doesn’t appear to be a simple solution” to the issue.

Mattingly last month reported he attended a meeting with state officials and regional delegates and learned the best solution for the county would be to drop the judicial challenge and have the commissioners revisit the issue each budget year.

Commissioner Larry Jarboe

“They’re not even sure that that will work now,” Mattingly said. “It doesn’t appear there is any language they could offer … to remove the cloud” on the ordinance.

Jarboe and Commission President Tommy McKay said the county’s senior tax credit is modeled after the state’s Homestead Tax Credit program, and there is no problem with that program.

The Homestead program has been around for 20 years, and nobody has challenged it, Mattingly said, that’s why its OK.

“Who was going to challenge it?” McKay asked rhetorically. “Why should the legislature create two different situations, where it’s OK for the legislature, but not OK for the county?”

McKay said the only way to settle the issue is to have a court decide, and a challenge of the county’s senior tax credit turns out to be a challenge of the state’s Homestead credit.

The board already voted to challenge the ruling, so no further action was needed.

Jarboe asked new County Attorney Christy Chesser to investigate possible options for a change in the ordinance that would alleviate the situation.

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