dissenting.
I must respectfully dissent from that part of the majority opinion which affirms the imposition of a provider tax upon physicians which is in violation of the Kentucky Constitution because it is arbitrary and unreason- . able.
The real question here is whether the method employed by the statute is fairly applied to all individuals who are required to pay the tax in a properly classified manner. As I noted in my dissent in Commonwealth, Revenue Cabinet v. Smith, Ky., 875 S.W.2d 873 (1994), the question of taxation is a peculiarly legislative function of government. The only role of the court is to review a specific tax on the grounds of arbitrariness or improper classification. Each case must be reviewed on a case-by-case approach.
“The power to tax involves the power to destroy,” noted Chief Justice John Marshall in McCulloch v. Maryland, 17 U.S. (4 Wheat) 316, 4 L.Ed. 579 (1819). The duty of the judiciary is to distinguish between constitutional error and proper deference to the legislature. Unequal treatment should not be acceptable under any circumstances.
This appeal concerns the provider tax imposed on physicians’ services pursuant to HB 250 and raises many of the same questions as Smith, supra. The legislation in question imposes a 2.5 percent tax on the gross receipts of hospitals, a 2 percent tax on the gross receipts of enumerated health care providers, including physicians, and a 25 cent tax per prescription filled. The taxes on health care providers fund, in part, the Kentucky Medical Assistance Program (Medicaid) which provides medical care to approximately 14 percent of the citizens of Kentucky who are indigent, aged, blind or disabled. Medicaid reimburses providers for the care of the medically needy without charge to the recipient of the service. Certainly the legislature is within its authority to provide for needy people through the use of properly appropriated tax funds.
*478The general public should be extremely concerned to make sure that all taxation is fairly distributed. As I observed in my dissent in Smith, it is not difficult to understand why taxpayers are very concerned in a society in which ordinary working people will pay in excess of 40 percent of their gross income in taxation. As further noted in my dissent in Smith classification by the legislature should be affirmed except where there is no rational basis and the legislation is arbitrary.
The proper function of this Court is not to determine if this legislation is good or bad. We must confine our review to the equal and uniform application of the law and its constitutionality. We do not make policy, that is for the General Assembly. The most serious question presented by this type of appeal is the tendency to generalize. Each case must stand alone.
A careful examination must be made of the classifications made by the legislation. The problem of disparate treatment of members of a subclass is that it singles out those who do not participate in a particular program as having derived benefits therefrom. An extension of the benefits/burdens test employed by the majority in Smith can lead to future assignments of tax revenue from contractors, engineers and architects who could possibly benefit by providing construction for highway work. The same analysis could be applied to lawyers who benefit from the justice system. The list of potential troublesome, unequal classifications is endless.
The assertion that HB 250 is primarily a health care reform bill and as such, its manner of enactment is not a concern of constitutional magnitude, is lacking in merit. The provider tax is a critical portion of and the primary focus of the legislation. There is a listing of more than 18 other titles included in the lengthy health care reform bill but funding is essential to achieve any of the legitimate goals announced'in the preamble. This situation is not one in which the statute merely raises revenue incidental to other purposes in the statute under review.
All classifications must be based upon reasonable and natural distinctions and must have a reasonable basis upon which to rest and not a merely arbitrarily declared one with no factual support. Cf. Priest v. State Tax Com'n, 258 Ky. 391, 80 S.W.2d 43 (1935). As early as Commonwealth v. Payne Medicine Co., 138 Ky. 164, 127 S.W. 760 (1910), this Court held that disparate treatment of persons selling medicines was in violation of the Equal Protection Guaranties found in Section Three of the Kentucky Constitution.
Here, the provider tax system is arbitrary and discriminatory taxation prohibited by Sections One, Two, Three and Fifty-nine of the Kentucky Constitution. The statute imposes a tax on a certain very narrow subgroup of health care providers for the alleged purpose of improving federal participation. However, no additional tax is imposed on other members of the subclass. The burden of obtaining matching federal funds should be borne uniformly.
Under the statute, only pharmacy prescriptions, nursing facility services, intermediate care services for the mentally retarded, physician services and free-standing psychiatric hospitals, in certain circumstances, are required to make a forced contribution to general government revenues. See Webb’s Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 163, 101 S.Ct. 446, 452, 66 L.Ed.2d 358, 366 (1980). This legislation exempts from the provider tax many health care providers, the majority of which receive Medicaid reimbursement. The legislation arbitrarily discriminates both in favor of and against certain subgroups of health care providers.
In addition, the provider tax system of this statute differs from the provider tax system of HB 1, in that it taxes a subgroup of health care providers in a manner not coextensive with the federal statutes and regulations. In Smith, HB 1 taxed all health care providers permitted to be taxed under the federal statute and regulations which defined the class to be taxed. In this legislation, the federally defined class has been subdivided into two subclasses, one required to bear a heavy financial burden and the other exempt from that burden. There is no rational basis for dividing the class of health care providers *479permitted to be taxed under the federal law into such subclasses.
Many health care providers exempt from taxation under the system of HB 250 receive Medicaid funds and are not required to assume any of the burden of the provider tax. This is clearly an arbitrary classification of taxation and is in violation of the Kentucky Constitution.
GRAVES and STUMBO, JJ., join in this dissent.