Virginia Attorney General Ken Cuccinelli II has issued a legal opinion indicating that a new tuition tax credit, which critics say amounts to school vouchers, is constitutional.
Cuccinelli (R) provided the opinion at the request of Del. Scott A. Surovell (D-Fairfax), who questions the legality of the credit created by the General Assembly this year.
The Virginia Constitution prohibits the General Assembly from appropriating funds to any non-public schools, private charities or churches. Surovell asked Cuccinelli if such a credit would run afoul of those prohibitions. He made the request in December, anticipating that the issue, which Republicans had pushed without success in previous sessions, would resurface in 2012.
Responding with a formal advisory opinion Friday, Cuccinelli said that while the General Assembly is prohibited from appropriating money for private- or parochial-school tuition, it may provide tax credits for that purpose.
His opinion did not directly address the law passed this year, which offers tax credits to businesses and individuals donating private- and parochial-school tuition to poor, middle-class and disabled students.
Republicans contend the tax credit will open doors for students, while Democrats say it will undermine public education.
“Absent an appropriation, the constitutional limitations you identify do not apply,” Cuccinelli wrote ... “[B]ecause income tax credits offset dollar for dollar the tax obligation a taxpayer would otherwise incur, the benefit derived from a tax credit does not flow out of the state’s general fund; rather it reduces the tax revenues that would otherwise go into the general fund.”
The response did not please Surovell.
“Legally, a tax credit might not be an appropriation, but it certainly has the exact same financial effect on the state budget,” he said. “You can do through the back door what we’re prohibited from doing through the front door. ... It basically opens an exception in our constitution that you can drive a truck through.”
But Cuccinelli maintained that it was a distinction with a difference.
“[I]f the meaning of ‘appropriation’ were extended as you suggest, charitable donations to churches would not be deductible for Virginia income tax purposes, for by allowing deductions for sectarian causes, the General Assembly has decreased the tax revenues that otherwise would flow into the general fund,” he wrote.