Certified Final Objection No. 94 of the
Joint Legislative Committee on Administrative Rules
At its meeting on July 18, 1997, the Joint Legislative Committee on Administrative Rules (Committee) voted, pursuant to RSA 541-A:13, IV, to enter a preliminary objection to Final Proposal 97-067 containing rules of the Department of Revenue Administration relative to the real estate transfer tax. The Commissioner of Revenue Administration responded by letter dated July 25, 1997, and the letter was received by the Office of Legislative Services on that same date.
At its special meeting on September 5, 1997, the Committee voted, pursuant to RSA 541-A:13, V(d), to enter a final objection to the objection response for Final Proposal 97-067. The final objection has been filed with the Director of the Office of Legislative Services for publication in the New Hampshire Rulemaking Register. The effect of a final objection is stated in RSA 541-A:13, VI:
After a final objection by the committee to a provision of a rule is filed with the director under subparagraph V(d), the burden of proof thereafter shall be on the agency in any action for judicial review or for enforcement of the provision to establish that the part objected to is within the authority delegated to the agency, is consistent with the intent of the legislature, is in the public interest, or does not have a substantial economic impact not recognized in the fiscal impact statement. If the agency fails to meet its burden of proof, the court shall declare the whole or portion of the rule objected to invalid. The failure of the committee to object to a rule shall not be an implied legislative authorization of its substantive or procedural lawfulness.
The following summarizes the bases for the Committee’s final objection:
Rev 406.02(a)
The Committee objected that Rev 406.02(a) is, pursuant to Committee Rule 401.04, beyond the authority of the Commissioner, and is, pursuant to Committee Rule 402.04, contrary to legislative intent.
This section governs the transfer of the Real Estate Transfer Tax funds collected by the ten county registers of deeds to the Department of Revenue Administration. Paragraph (a) requires that such transfers be made on a semi-monthly basis. Previously, such transfers were required to be made on a monthly basis. The Committee heard testimony from various county officials and representatives of the counties that requiring transfers more frequently than on a monthly basis would cost the counties directly for the administrative and record-keeping aspects, and indirectly by the counties having to pay more for banking services.
In the Committee’s view this violated Pt. 1, Art. 28-a of the New Hampshire Constitution. That constitutional provision states that:
The state shall not mandate or assign any new, modified or expanded programs or responsibilities to any political subdivision in such a way as to necessitate additional local expenditures by the political subdivision unless such programs or responsibilities are fully funded by the state or unless such programs or responsibilities are approved for funding by a vote of the local legislative body of the political subdivision.
The Committee determined that, based upon the testimony, compliance with the requirement that payments be made semi-monthly will necessitate additional expenditures by the counties. Additionally, the Committee believed that the indirect costs are substantial. Thus, the Committee concluded that the provision in question violates Pt. 1, Art 28-a.