dissenting.
The majority today approves a legislative device specifically and narrowly tailored to avoid the rule of intergovernmental tax immunity that was explicated by the Supreme Court of the United States in Davis v. Michigan Dept. of Treasury, 489 US 803, 109 S Ct 1500, 103 L Ed 2d 891 (1989) and elaborated in Harper v. Virginia Dept. of Taxation, 509 US_, 113 S Ct 2510, 125 L Ed 2d 74 (1993) (applying rule of Davis retroactively) and Barker v. Kansas, 503 US 594, 112 S Ct 1619, 118 L Ed 2d 243 (doctrine applicable to military retirees’ pensions). Because I believe that the legislative scheme does not avoid discriminating between state and federal retirees pensions benefits, based on the source of those benefits, I dissent.
I begin with a proposition that I hope even the majority would accept: Just as Davis forbids total discrimination in taxation between state and federal retirement benefits, based on the source of those benefits, I conclude that Davis likewise forbids any alternatives to complete discrimination that nonetheless treat retirement benefits differently, depending on the source of those benefits. For example, a state may not erect a statutory scheme that requires that both state and federal retirees pay income taxes on their retirement income, but then provides for complete refunds only to state retirees of all taxes paid on their state retirement benefits. And, because a total, dollar-for-dollar refund to the state retirees in this case of any taxes that they have paid on their PERS retirement benefits would be impermissible, so would be some kind of proportional refund, such as 50 cents *234for each dollar, unless, of course, federal retirees were accorded the same proportional refund on the income taxes that they paid the state on their retirement benefits.
But it is argued here — and the majority buys the argument — that the legislature’s increase in PERS benefits, while motivated by the requirement that state retirees now pay taxes on their state retirement benefits, is nonetheless simply “increased compensation” and, as such, unrelated to any taxes that any federal retiree may be paying. With respect, I disagree. In spite of the difference in label — “refund” vs. “increased compensation” — I can find no difference in substance here. The pertinent focus here is the degree to which that “increased compensation” is tied to — indeed, is completely contingent on — an obligation on the part of state retirees to pay state income taxes on their PERS retirement benefits. When the state says to state retirees, “We will increase your retirement benefits, but only because you now are being taxed on them and only for as long as you continue to be taxed on them,” the state is talking about a tax refund. And, because the state retirees are receiving a refund of taxes paid on their state retirement income to which federal retirees are not, on the same terms, entitled with respect to their federal retirement income, the violation of the doctrine of intergovernmental tax immunity, as explained in Davis, is patent. Substance counts; labels do not.
Even a cursory examination of Oregon’s present “increased retirement benefits” arrangement shows that what is going on is, in fact, a partial refund of state income taxes paid by state retirees on their PERS retirement income. That proposition is demonstrated ineluctably by the fact that the increased PERS retirement benefits are not payable in any year in which PERS retirement benefits are exempt from Oregon personal income taxation. See Or Laws 1991, ch 796, § 12 (so providing). So long as there is a direct tie between state income taxation of PERS retirement benefits and the availability of increased PERS retirement benefits, it is not even necessary to inquire whether there are other, additional grounds on which to declare the present taxation scheme to be impermissibly discriminatory.
The department does not argue, in the alternative, that Oregon’s inconsistent tax treatment between state and *235federal retirees is permissible because it is directly related to, or justified by, significant differences between the two classes, Davis, 489 US at 815-16, 109 S Ct at 1508, 103 L Ed 2d at 905, and I do not perceive any such differences.
Based on the foregoing analysis, I would hold that Oregon Laws 1991, chapter 796, is a form of refund of state income taxes paid by state retirees on their PERS retirement income. The taxation of federal retirement benefits without such a refund is, therefore, discrimination in the tax treatment of state and federal retirements, based on the source of those benefits. As such, it is a violation of the doctrine of intergovernmental tax immunity and the mandate of Davis for “equal treatment.” Davis, 489 US at 818, 109 S Ct at 1509, 103 L Ed 2d at 907. The majority errs in concluding otherwise.
I respectfully dissent.
Fadeley, J., joins in this dissenting opinion.