After paying nearly $11,000 in taxes to Albemarle County, freelance writer John Hart will have a chance to get a refund.
On December 4, Judge Claude Worrell of Albemarle Circuit Court ruled that Hart’s lawsuit against the county will proceed, rejecting the county’s request that it be dismissed. Hart, who filed the lawsuit in July, claims that the county’s business tax violates the First Amendment and is unconstitutionally vague.
The tax excludes staff writers for “the institutional press: newspapers, magazines, radio, and television,” says Renée Flaherty of the Institute for Justice, who is representing Hart. “If Hart were one of those speakers, he wouldn’t have to pay the tax.”
The law “is very clear that discriminating among speakers violates the First Amendment,” says Flaherty.
Citing the 14th Amendment, Hart and his attorneys also claim that the county’s tax code is “vague,” and doesn’t list freelance writers among the businesses and services that must pay business taxes.
“Tax officials can basically go after anyone they want,” says Flaherty. “And any ordinary person who’s looking at the code wouldn’t be able to tell that a novelist like Hart is going to be taxed.”
However, the county claims that because Hart writes manuscripts of novels and sells them to a publisher, he runs a personal business. Hart also claimed himself as a business by filing a Schedule C to report profit or loss on his income taxes, according to Senior Assistant County Attorney Anthony Bessette.
“All persons engaged in a business need a license,” says Bessette. “And every business must pay a business license tax,” if they earn over $100,000. (Writers who earn less pay a flat fee starting at $35 in the city and $50 in the county.)
In response to Hart’s vagueness claim, Bessette said the county’s tax code includes the catch-all phrase, “repair, personal, business, and other services,” which covers all of the occupations not directly listed as those who must pay business taxes, and that freelance writers and journalists have been taxed at the same rate as Hart.
If the county were to exempt Hart from paying business taxes, it would have to repeal taxes for all county residents whose businesses “amount to expressing themselves,” Bessette concluded.
But Hart, who has written six New York Times bestselling thrillers, says he does not consider himself a business.
“It’s been so obvious to me for years and years that [Albemarle’s] the kind of place that welcomes creative people,” says Hart. “But this changes the way I feel…they clearly view me more as an ATM than as a contributing member of the artistic community here.”
Hart filed his suit alongside fellow novelist Corban Addison Klug, who filed a separate lawsuit against the City of Charlottesville. Klug, who has written four novels about human rights issues, was also not aware that he needed to pay business taxes, and ended up paying the city almost $2,600 for three years in back taxes, penalties, and interest.
A hearing on the city’s motion to dismiss Klug’s lawsuit will be held December 18.
As for Hart’s case, Albemarle has until January 13 to file a formal response to his lawsuit. The case will then proceed to discovery and a trial.
“We’re hoping that the tax is struck down as applied to novelists like Hart and they can no longer be unconstitutionally taxed,” says Flaherty.
Both Hart and Klug want the courts to refund the business taxes they’ve paid.