North Carolina Advisory Opinions January 01, 1999: NC Att. Gen Opinion - Political Party Designated Funds
Collection: North Carolina Attorney General Opinions
Date: Jan. 1, 1999
Advisory Opinion Text
Gary O. Bartlett
Executive Sectetary-Director
State Board of Elections
P.O. Box 2169
Raleigh, NC 27602
Re: Advisory Opinion; Political Party Designated Funds; N.C. Gen. Stat. § 105-159.1
Dear Mr. Bartlett:
You have requested an advisory opinion on two questions arising from the designation of funds for political parties by 1998 taxpayers. While the Department of Revenue collects the designated funds, the State Board of Elections is charged with the duty of administering the Political Parties Fund pursuant to N.C. Gen. Stat. § 163-278.41. Through no fault of the Department of Revenue, the Libertarian Party was erroneously jnc1uded as a qualified party on the 1998 income tax forms. The Parry qualified to place candidates on the ballot, but did not have 1% of the registered voters as required by N.C. Gen. Stat. § 105-159.1.
The two questions you have raised, and our view as to their proper resolution, are as follows:
(1) Given that the Libertarian Parry did not in fact meet all statutory requirements to qualify as a party entitled to designated funds pursuant to N.C. Gen. Stat. § 105-159.1 how should any funds designated in 1998 for the Libertarian Party be handled?
N.C. Gen. Stat. § 105-159.1 directs the Secretary of Revenue to reconfigure the income tax return using data furnished by the State Board of Elections in order that any taxpayer so “desiring” may contribute to the Fund. Since contributions come from an individual’s actual tax liability, they constitute funds otherwise accruing to the State. Disposition of property owned by the State in its sovereign capacity is strictly controlled, and surrender of such property to private entities without a valid claim is illegal.
Although a close question, we do not believe release of the designated funds to the Libertarian Party in these unusual circumstances constitutes an impermissible gift of State property.
While
normally the sovereign
acting in its traditional
governmental role cannot be bound or estopped by
mistakes
of
its
agents, N.C. Gen.
Stat. §
105-264 constitutes a limited waiver of
this
aspect of sovereign immunity. Section
264
imposes a positive duty upon
the
Secretary to interpret the laws
administered
by her. Her interpretation is a “protection” to
all
affected taxpayers, who
are
entitled to “rely” upon
her
advice.
Oscar Miller Contractor v.
Tax
Review
Board
,
61 N.C. App. 725, 729-30 (1983).
Applying
Oscar
Miller
and
Section
264
to these facts, it appears that all requirements set by Section 159.1 have
been
met or
are
deemed satisfied. The Secretary amended the tax return to specifically enable taxpayers to voluntarily participate, individuals acted upon the form’s representations in
order
to contribute to the Libertarian Party,
and
the Secretary collected the funds with
this
understanding.
In
our opinion, the Party
qualifies to receive these monies.
(2)
Given that
the
Libertarian Party
was
not in fact a qualified party in 1998, how should funds designated for
the
“Unspecified” box be distributed?
N.C. Gen.
Stat. §
105-159.1(a) requires
any
funds generated because a taxpayer “elects to designate but does not specify a
particular
political
party …
to be distributed among the political parties on a pro rata basis
according
to their respective
party
voter
registrations
as determined by the most recent certification of the State Board of
Elections.”
The Libertarian
Party has
not qualified as a political
party under the statute
because it
has
failed to achieve at least 1% of the total number of registered voters in the State at
any point.
Thus, the funds generated by voters checking the
“Unspecified”
box should be allocated between the qualified parties, which for the 1998 tax year
are
the Republican
and
Democratic Parties.
Please let us know if we
can
provide additional assistance in
this
matter.
Edwin M. Speas, Jr.
Chief Deputy Attorney General
George W. Boylan
Special Deputy Attorney General
Susan K. Nichols
Special Deputy Attorney General