dissenting.
I respectfully dissent from the majority opinion and would hold the ordinance to be unconstitutional as it creates an irrational and arbitrary classification among counties having a population greater than 30,000 versus those with fewer than 30,000 as to their taxation of citizens similarly situated. In counties having a population of 30,000 or more plus a city, citizens living in the city are entitled to an offset on their county occupational tax bill for the occupational tax paid to that city. However, in counties having a population of fewer than 30,000 plus a city, citizens living in the city have no entitlement to such an offset. There simply is no rational basis for such a distinction.
Both the statutory provisions and case law on point dictates that this ordinance be held unconstitutional. KRS 68.197, as enacted in 1966, granted counties with a population of 30,000 or more the power to impose an occupational tax at a maximum of one percent (1%). Subsection three provided, in precatory language, that where a city located in such a county also had an occupational tax, the city and county “may” reach an agreement to allow a credit for city tax paid as an offset against county tax owed. Subsection four was later enacted to amend that precatory language, substituting a mandatory provision that after July 15, 1986, city occupational taxpayers became entitled to such a credit against a county occupational tax.
Appellant correctly points out that counties with populations of fewer than 30,000 were granted that power to assess an occupational tax not by virtue of statutory enactment but by interpretation of the existing statute by case law — namely, Casey County Fiscal Court v. Burke, Ky., 743 S.W.2d 26 (1988). It therefore follows as a logical conclusion as well as a constitutional necessity that this Court extend the same reasoning (by corollary to the statutory enactment of § 4 of KRS 68.197) to permit taxpayers of cities located in counties of fewer that 30,000 to offset city occupational taxes against the county counterpart.
I would, therefore, hold the ordinance at issue to be unconstitutional as violative of § 2 and 3 of the Constitution of Kentucky and of § 1 of the 14th Amendment to the Constitution of the United States.