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A Kansas town’s plan to raise revenue by taxing parishioners attending worship services has gone by the wayside, but the ripples from the controversial decision still are developing.

One consequence is that the state’s attorney general has issued a statement, albeit in a non-binding opinion, that such a tax is illegal.

The complaint brought on behalf of the churches in the city of Mission was resolved some weeks ago when the city decided to settle a lawsuit rather than fight for its decision to impose a “driveway tax.” The municipal tax was based on an estimate of the number of people who would attend the church and use its parking lot in a given week.

The battle originally was brought in 2010 by lawyers with the Alliance Defense Fund.

Erik Stanley, a senior legal counsel for the organization, said when the case over the $1,000 city fees being charged to churches based on the number of seats in their sanctuaries was brought that it was no less than punishment for the churches.

He said the “driveway tax” was outrageous and openly speculated whether a city successful in imposing such a cost also would be interested in a “sidewalk tax” based on the number of people who walk to church.

Mission city officials in 2010 adopted Ordinance 1332 for a “Transportation Utility Fee,” which required all property owners within the city to pay a fee “which functions as an additional property tax.”

According to ADF, the ordinance itself specifies that owners of properties that are tax exempt under state law, such as churches, charities and nonprofit ministries, still must pay.

For churches, the tax was based on an assumption about the number of vehicle trips based on the number of seats.

“Single family homes are assessed a fixed rate of $72 per year while 5.8 total weekly vehicle trips are estimated per worship facility seat to calculate the tax amount for churches,” ADF said.

ADF sued on behalf of First Baptist Church of Mission and the Archdiocese of Kansas City.

The Baptist church had been billed nearly $1,000 and the Catholic diocese billed some $1,700.

In his “Speak Up” column on the ADF website, Stanley reported that it was shortly after ADF filed a motion for the court to decide the case without a trial that the city agreed to settle.

The city agreed specifically to exempt tax-exempt organizations from the tax.

The ADF noted that the Idaho and Florida supreme courts already had ruled that similar “fees” actually are taxes on churches and must be treated as such.

Stanley called it a “great victory.”

“The city of Mission had forgotten to respect the tax exemption given to churches and may have forgotten the reasons why churches have those exemptions in the first place. Churches are exempt for a good reason. Churches provide benefits to the community in the services they provide to the poor and needy. In this respect, they ‘pay’ more in how they minister to the community than they ever would in taxes,” Stanley said.

He said they also are providing intangibles, such as the making of good citizens.

“Churches are in the business of taking lives that are ruined, desperate, and headed for destruction of themselves and others around them and turning those lives around by the power of the Gospel,” he wrote.

After the case was settled, Kansas Attorney General Derek Schmidt concluded that the “fee” actually is an “excise tax” and said state law bars Mission from imposing such a tax.

According to a Johnson County report from the Kansas City Star, the offering from Schmidt raised concerns among officials at the League of Kansas Municipalities, which said the organization would be looking further into the requirements.

The Star report suggested that another court challenge may be needed to establish that the tax itself, not just its application to churches, may be problematic.

At the time Schmidt’s opinion was released, Dan Murray of the National Federation of Independent Business told the Star that Schmidt’s statement would be “fodder” for those who may be interested in challenging Mission’s remaining applications.

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