When times were happier. Commissioners Dan Raley Center and Tom Mattingly, right, disagreed with Commissioner Tommy McKay, and the rest of the board’s decision to challenge a state opinion calling the senior property tax credit program unconstitutional.  — The Bay Net photo by Sean Rice

The Board of St. Mary’s Commissioners is legally challenging an opinion by an Assistant Maryland Attorney General that states the county’s senior property tax credit program is unconstitutional.

The Board on Tuesday unanimously voted to seek a two-year extension on the senior property tax credit, which provides property owners 70 years and older a credit for the home they reside in that keeps the taxes at that level for life. The Maryland General Assembly required the county to add a sunset provision on the program.

The Board sought legislative approval to remove the sunset clause completely. A committee meeting in Annapolis earlier this month called to discuss the issue was abruptly cancelled when a surprise note from the Maryland Department of Taxation was attached to the bill saying the tax credit itself flies in the face of the Maryland constitution.

“During the process of lifting the sunset, someone requested an opinion from the attorney general’s office,” Commissioner President Tommy McKay said Tuesday when the discussion began. “I think we need to defend our ordinance, and provide as much security for our senior population. I think we need to argue that we did the right thing.”

St. Mary’s Deputy County Attorney Heidi Dudderar agreed, saying Assistant A.G. Bonnie Kirkland was incorrect in her assessment of the law, but she stopped short of saying the decision was absurd.

“The county attorney’s office doesn’t agree with Ms. Kirkland’s assessment,” Dudderar said. “It’s also important to note Ms. Kirkland did not cite any case law, only attorney general opinions.”

Dudderar went on to say she is “moe than willing” to fight the issue in court.

The Board adopted the law in 2004, and it became effective in 2005 when the state legislature approved enabling legislation. The assembly required the county define an income limitation for the program and add a sunset clase, which the county later did.

So far 765 seniors have used the program, with another 200 applications pending.

In Kirkland’s opinion, the credit program violates the tax “uniformity” clause in the state constitution. And she laid out options for the county that would solve the problem, Dudderar said. They were: leave the sunset provision intact or extend it, amend the law so it is “uniform”, or use other tax credit programs provided by the state.

“We dispute her analysis, but for the sake of time … an extension of the sunset provision may be the most prudent action to take that this time,” Dudderar said.

Dudderar said the county legal department did its research, and the county program is not much different that the state’s homestead tax credit, or the tax credit offered for disabled veterans. Both of which would not be “uniform” in Kirkland’s view.

McKay asked Dudderar if during the time she has been with county government