The arcane but high-stakes battle over collections of certain city property taxes might have seemed over last month, when Attorney General Irvin B. Nathan decided that the law wasn’t clear enough to conclude that Chief Financial Officer Natwar M. Gandhi erred in failing to collect potentially hundreds of millions of dollars in deed recordation taxes.
But D.C. Council members David Catania (I-At Large) and Mary Cheh (D-Ward 3) aren’t letting the matter go. In a letter they sent Nathan last week, they took strong issue with his opinion, that it “failed to apply well accepted legal principles, as one should expect from the Office of the Attorney General.”
In essence, the letter says Nathan’s consideration of the legislative history of the law was “unnecessary in light of the fact that the plain meaning of the statute is clear.” Neither the AG or the CFO, they write, “should attempt to decipher the intent of the legislature when the law is clear.”
But the council members write that they are “far more troubled” by what they consider to be Nathan punting on Gandhi’s handling of the matter. The letter accuses Nathan of glossing over the rather crucial question of whether the city tax office originally collected the tax and then made an about-face in 2007 without informing the council.
The CFO has repeatedly been asked whether or not the tax was ever collected, and if it was, during what period and when did the collection cease. The responses from the CFO have been inconsistent at best, and outright contradictory from one another at worst.
[Gandhi’s] statements and your letter have left us to draw one of two conclusions: either Dr. Gandhi never implemented the changes mandated by passage of the Act and the District of Columbia has not collected untold millions of dollars which it should have since 2001, OR; the Act was correctly implemented between 2001 and 2007 until Dr. Gandhi, unilaterally and without notice to the Council, the Mayor or the general public, ceased collecting a tax that he was required to collect under the Act. We would suggest to you that neither of these conclusions is remotely acceptable and that the latter is likely a breach of Dr. Gandhi’s duties and represents a massive legal liability for the District.
Catania and Cheh are asking Nathan to revisit his analysis, sticking to the question of whether the law requires full payment of taxes and what discretion the CFO has in interpreting that law. They want an answer by Sept. 6, before the council returns from summer recess.
That Catania, a frequent Gandhi critic, is continuing the fight is not surprising. It is more surprising that Cheh, a George Washington University law professor, is joining his crusade.
Nathan’s office did not immediately return a request for comment.
UPDATE, 1:55 P.M.: Nathan said that he has received the letter and plans to respond in writing by week’s end.
The letter:Catania/Cheh Letter to AG Re RecordationTax