A.R.S. Section 43-1089 Interpretation
In Kotterman v. Killian, 193 Ariz. 273, 278, P 8, 972 P.2d 606, 611 (1999), the Arizona Supreme court addressed the constitutionality of an analogous statute under Article 2, Section 12, and Article 9, Section 10.
At issue in that case was a statute that permitted individual taxpayers to take a state tax credit for contributions made to STOs. A.R.S. 43-1089.
In dismissing the challenges to Article 2, Section 12, and Article 9, Section 10, our supreme court stated:
We have already concluded that this tax credit is not an appropriation of public money.
Likewise, no tax has been laid here.
To the contrary, this measure reduces the tax liability of those choosing to donate to STOs. We cannot say that the legislature has somehow imposed a tax by declining to collect potential revenue from its citizens. Nor does this credit amount to the laying of a tax by causing an increase in the tax liability of those not taking advantage of it.
Such a construction tortures the plain meaning of the constitutional text. In addition, if we were to conclude that this credit amounts to the laying of a tax, we would be hard pressed to identify the citizens on whom it is assessed.
Because we see no constitutional difference between a credit and a deduction, we would also be forced to rule that deductions for charitable contributions to private schools were unconstitutional because they too, would amount to the laying of a tax. This we decline to do. Kotterman, 193 Ariz. at 288, P 50, 972 P.2d at 621.
In Kotterman, the Arizona Supreme Court applied a more deferential test to determine the secular purpose of the individual tax credit program. 193 Ariz. at 278-79, PP 6-8, 972 P.2d at 611-12.