Cohn v. City of Oakland

Opinion

PERLEY, J.

Plaintiffs and appellants Lowell Cohn and Dawn Cohn (Cohn) appeal from a summary judgment granting a declaratory judgment to defendants and respondents City of Oakland and Rene C. Davidson (Oakland) on the ground that Oakland’s increase of a real estate transfer tax from 0.75 percent to 0.95 percent was not barred by article XIII A of the California Constitution.

Cohn contends that the transfer tax is invalidated by article XIII A, formerly known as Proposition 13. We affirm the judgment.

Statement of the Case and Facts

The instant action arose from a complaint for declaratory relief filed by Cohn which sought a refund of $265 paid under the above-described tax law and a declaration that the tax violated article XIII and was therefore invalid. A motion for summary judgment filed by Cohn was denied by the superior court. Cohn requested reversal of the superior court in a petition for a writ of mandate. The petition was denied by an order of this court per Presiding Justice Anderson, Justice Channell, and Justice Perley. A petition for review was denied by the Supreme Court. Oakland then filed a motion for summary judgment which was granted. This appeal followed.

It is undisputed that the tax involved in the instant case was enacted after article XIIIA was passed by the voters and that moneys collected under the tax go into the general fund.

Discussion

Cohn contends that section 4 of article XIII A prohibits the increase in the transfer tax. This contention lacks merit.

[263]

Article XIII A, section 1, sets the maximum amount allowed for any ad valorem tax on real property. Section 2 regulates the valuation of real property for tax purposes. Section 3 provides: “From and after the effective date of this article, any changes in State taxes enacted for the purpose of increasing revenues collected pursuant thereto whether by increased rates or changes in methods of computation must be imposed by an Act passed by not less than two-thirds of all members elected to each of the two houses of the Legislature, except that no new ad valorem taxes on real property, or sales or transaction taxes on the sales of real property may be imposed.” Section 4 provides: “Cities, Counties and special districts, by a two-thirds vote of the qualified electors of such district, may impose special taxes on such district, except ad valorem taxes on real property or a transaction tax or sales tax on the sale of real property within such City, County or special district.”