House Bill 16-1444 Passes Colorado Legislature Unanimously - Governor signs May 27

Thanks to the efforts of state Senator Keffalas and his colleagues, the conflict between Article X Section 3.5 of the Colorado constitution and its enabling legislation will be resolved tomorrow when the Governor signs House Bill 16-1444.

The constitution provided a modest property tax exemption to both VA 100% disabled veterans and military retired 100% disabled servicemembers. BUT...someone writing the subsequent legislation forgot the military and only specified VA, denying hundreds of retired totally disabled servicemembers the exemption guaranteed by the constitution.

WOW...it only took three months from mentioning the problem to Senator Keffalas, getting the support of the United Veterans Committee, and even the state Division of Military and Veterans Affairs, and the correction simply sailed through both houses without a dissenting vote.

So...one problem solved, and next we move on to the shameful discrimination suffered by Colorado's war widows and widowers, who are denied the property tax exemption afforded disabled veterans' survivors.

Why the exclusion of war widows and widowers? Because the constitution only provides the property tax exemption to those whose veteran husband/wife was in receipt of the exemption before the veteran's death. Logically, a soldier who dies in a roadside bomb or hostile artillery fire doesn't make it home to complete Colorado's application, but illogically, his/her survivor is denied the property tax exemption.

Our Testimony Supporting Senate Bill 16-147 (28 Apr 2016)

Statement of Wes Carter, Major USAF Retired

National Chairperson, The C-123 Veterans Association

also speaking for the united veterans committee of colorado

Mr. Chairman, and members of the committee,

I’m Wes Carter, National Chairperson of the C-123 Veterans Association. Today I also represent 450,000 Colorado veterans whose voice is the United Veterans Committee. Before you today is the terrible issue of suicide in Colorado and our hope that Senate Bill 16-147 can help.

I want to share some personal experiences with this issue. My town of Fort Collins lost thirteen children last year. Four were suicides. Four…over 30% if you want simple statistics. We don’t know all the causes, but we certainly know the tragedies our families were left with.

Military suicides are something I became familiar with 26 years service in the Army and then the Air Force. For twelve years I was a hospital administrator. Marvin, one of the officers who nominated me for my commission, faced demons he felt could only be driven away by ending his life. I flew medevac for several years with Diane, a flight nurse. I have a happy memory of her rushing from work to attend my wedding, without time to change from her hospital scrubs. I have been to her parent’s Massachusetts home only twice…each time for the funeral of one of her brothers, both of whom ended their lives while on active duty.

Military and veterans’ suicides. I can speak for the accumulation of life’s burdens in the military…extremely difficult technical and physical training, frequent deployments, injuries, career disappointments, loss of friends, family strife, relocations, financial stress. And then there’s all those people bombing and shooting at you. Life’s tough. We have an evolving understanding that it takes a warrior to call in help. I wish more warriors would reach out, but we see an average of one veteran’s suicide per hour, each and every day. 8000 a year, almost an Army division. Last year in our county, the 80 adults who ended their lives were 3.8% of all adult deaths, but remember what I said about the children…30% of all children’s deaths were by their own hand.

Senate Bills won’t solve everything but, along with recent action in the US Senate, they’ll help. I join Colorado’s 450,000 veterans in urging unanimous approval of Senate Bill 16-147. Thank you, Mr. Chairman.

Unanimous vote moves disabled veteran property tax legislation forward in Colorado legislature

IT WAS UNANIMOUS!

Yesterday after the two hour wait for a previous bill to be defeated, the Colorado House Committee on Military and Veterans Affairs approved House bill 16 – 1444. And the vote was all in favor of the proposed legislation.

Our thanks are due to Committee Chair Sue Ryden who not only sponsored the legislation but testified on its behalf as did Representative Terri Carver (Colonel, USAF, Ret.)  And also to the outstanding leg work done by the United Veterans Committee of Colorado, Senator John Kefalas, and other leaders behind this issue.

Next up? The House Appropriations Committee, to address the modest cost of bringing the laws of Colorado into alignment with our state's Constitution Article 10, Section 3.5.

House Veterans Committee Disabled Military Retirees Property Tax Hearing April 25 (HB16-1444)

The legislative process begins April 25 at the Colorado Statehouse, when the House Veterans  Committee takes up HB16-1444, the bill to put military disabled retirees into the state's disabled veteran property tax laws.

Committee Chair Sue Ryden, herself a sponsor, will call the committee to order at 1:30PM, and HB16-1444 is first on the schedule.

I will be presenting the basic argument as the first witness, speaking as chair of our own C-123 Veterans Association. The United Veterans Committee of Colorado will also have me represent their 450,000 members in supporting the bill. Even the state's Division of Veterans Affairs is behind this bill!

Although the state's constitution covers both VA 100% disabled veterans and military personnel retired by their service for total disability, only VA-rated veterans were specified in the law, so the new bill aligns the constitution with the law by adding the totally disabled military retirees.

Things are happening...our bill is now before the Colorado House Veterans Committee

Fix HB6-1251 to match the constitution's Article X Section 3.5

In his effort to align the constitution with legislation, Colorado's state senator for Fort Collins has a "late bill" now being worked on in Denver. It was a miracle that, so late in the Legislature's crowded final thirty days, this issue still got attention from leaders in both parties and both chambers.

Senator John Kefalas crafted the bill and with bipartisan support now has it before the House Veterans Affairs Committee, and in the Senate awaiting committee assignment.

Bill Detail: HB16-1444

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Title	Definition Qualifying Disabled Veteran Prop Tax
Status	Introduced In House - Assigned to State, Veterans, & Military Affairs (04/15/2016)
House Sponsors	S. Ryden (D) T. Carver (R)
Senate Sponsors	J. Kefalas (D) L. Garcia (D)
House Committee	State, Veterans, & Military Affairs
Senate Committee
Date Introduced	04/15/2016
Description	The bill aligns the statutory definition of qualifying disabled veteran, as it relates to a property tax exemption for qualifying seniors and disabled veterans, with the language established in section 3.5 of article X of the Colorado constitution.
Amendments out of Committee	None
Link to Full Text	Full Text of Bill
Link to Bill Versions	Bill Versions
Link to Fiscal Notes
Link to History	History
Link to Lobbyists	(no lobbyist data)
Link to Audio	[This feature is available by subscription.]
Votes	House and Senate Votes
Vote Totals	Vote Totals by Party
Profile:

Colorado's Curious Management of its Disabled Veteran Property Tax Exemption

 • Colorado Legislative Council, in describing the disabled veteran property tax exemption on the 2006 ballot:

"Veterans are rated 100-percent permanently disabled when a mental or physical injury makes it impossible for the average person to hold a job and the disability is lifelong."

• Colorado Division of Veterans Affairs:

VA "unemployability' total and permanent disability awards (TDIU, but only permanent and total) not acceptable for disabled veteran property tax exemption."

• Is there a disconnect somewhere in CDMVA? Are we stuck with this Catch-22 situation? Why does only Colorado treat TDIU differently than VA's other total disability rating (100% schedular?)

Briefing Package – Problems with Colorado's Disabled Veteran Property Tax Exemption, & Recommended Solutions

Background & source documents

We have summed up the issues with HB07-1251, Referendum E, and Article X Section 3.5 of the Colorado Constitution...CLICK to download the complete briefing packet.

Also quite informative is the legislative history for HB07-1251. CLICK to download that 33-page resource.

VA Unemployability Disability Ratings (TDIU) – a little background for Colorado

There are two kinds of U.S. Department of Veterans Affairs– 100% and TDIU; both are total and permanent disability ratings that should be recognized for Colorado's disabled vet property tax exemption – but aren't!

VA has 100% rating for total disability for unemployability...and also total and permanent disability individual unemployability (TDIU) or often in print, just IU.  

The Individual Unemployability Benefit is equal in every way to a 100% Schedular rating. The compensation is 100% and that dollar amount is equal to both ratings.  This VA permanent disability rating of TDIU meet Colorado's constitutional requirements for the disabled veteran property tax exemption.

(Note: VA has a temporary version of 100%, which is not eligible for the exemption as it is temporary, not permanent as the Colorado constitution and HB07-1251 require.)

This is the rating CDMVA should reject, not the permanent TDIU. All TDIU ratings are permanent, unless the veteran’s health improves and VA determines employment is possible.

If the veteran is VA-rated as 100% Schedular, he or she may work at any job they are capable of doing. The TDIU veteran is proven unable to hold "gainful employment." Nationwide, about 330,000 disabled veterans are rated TDIU. The IU veteran completes a yearly VA Form 21-4140 to verify that there has been no employment in the previous year. 

More about TDIU:

If awarded, this benefit allows the veteran to receive the total disability rating if he/she is proven unable to secure any gainful employment but only for reasons of very serious line-of-duty injuries worse than standard VA tables anticipate. Frequently state or VA experts will evaluate veterans using Certified Rehabilitation Specialists.

For TDIU, VA specifies basic disability ratings that reach the following levels:

a) a single service connected disability rated at 60% or more, or but which, in fact, is totally disabling

b) the result of 2 or more service-connected disabilities where the total rating is 70% and at least one disability is 40% or more and, in fact, are totally disabling.

This type of claim is automatically considered by the VA Regional Office whenever the Veteran’s service-connected impairment ratings reach the above levels. 

Should TDIU disabled vets qualify for Colorado's disabled veteran property tax exemption? Yes, we believe so, based on several points:

     1. Referendum E's Blue Book analysis clearly included veterans made unemployable due to line-of-duty injuries, and was overwhelmingly approved by the voters.

"Who qualifies for the tax reduction? Homeowners who have served on active duty in the U.S. Armed Forces and are rated 100-percent permanently disabled by the federal government due to a service-connected disability qualify for the tax reduction in Referendum E. Colorado National Guard members injured while serving in the U.S. Armed Forces also qualify." 

The Blue Book described totally disabled veterans eligible for the benefit:

• Veterans are rated 100-percent permanently disabled when a line of duty mental or physical injury makes it impossible for the average person to hold a job and the disability is lifelong. 

But note that the same description, those same qualifications can apply to TDIU vets:

• Similarly, veterans are rated TDIU when an unusually severe mental or physical line of duty injury makes it impossible this specific veteran to hold a job and the disability is lifelong. 

 

Nationally, less than one percent of veterans have a 100-percent permanent disability rating. About 2,200 veterans were expected to qualify for the property tax reduction in Colorado.

     2. Article X Section 3.5 in the Colorado constitution describes the qualifying points of a veteran's disability for the tax exemption, and VA Veterans Benefits Administration confirmed that VA's TDIU rating has the same qualifiers:

 "(1.5) For purposes of this section, "disabled veteran" means an individual who has served on active duty in the United States armed forces, including a member of the Colorado national guard who has been ordered into the active military service of the United States, has been separated therefrom under honorable conditions, and has established a service-connected disability that has been rated by the federal department of veterans affairs as one hundred percent permanent disability through disability retirement benefits or a pension pursuant to a law or regulation administered by the department, the department of homeland security, or the department of the army, navy, or air force. 

Late Bill Can Save Colorado $8M – ONLY IF Senate or House Leadership Will Get It to the Legislature

Leadership in the Colorado Legislature has an opportunity to actually save Colorado over $8M by enacting legislation. Act now...this legislative session. Not next year

Veterans affected by the problems surrounding Referendum E, and the resultant Article X Section 3.5 in the Constitution, and subsequent flawed legislation have two clear approaches to correct the disabled veterans property tax exemption:

1. corrective legislation, with "late bill" restoring military disability retirements and unemployability provisions  of the Constitution, to begin in 2017, or...
2. the Supreme Court to declare unconstitutional statutes and regulations related to Referendum E/Article X Section 3.5

1. A legislative solution through a "late bill" is a much, much cheaper solution. If enacted, it will provide the exemption for application in 2017.  Because Colorado laws prohibit retroactive correction., there can be no payment for years when the exemption was withheld. But...

2. If veterans gain relief from the Supreme Court, it is probable jurors will grant relief retroactive to the 2007 tax year, because that's when abuse to the Constitution's Article X Section 3.5 began. Thus, benefit of the exemption will be made effective from 2007 on, ten years earlier than what the Legislature can provide! Nine years times as as many veterans as might be affected by this solution (estimated 2000), times an average of $466 each.

To both save money and help veterans now, leaders in the Senate and House much permit the necessary late bills to be released for the Legislature to act on ...now!

Will Politics Play a Role Against Veterans' Needs?

Maybe the question should be – will legislators find a way to use veterans' rights and needs to attack the opposing party? With veterans' issues founded in the Constitution, we think not. Especially not, because we've seen leaders in the Senate and the House, from opposite parties, push for late bills.

Folks in the know about Colorado politics remind us that corrections in our disabled veteran property tax exemption face hurdles, especially if legislation is involved rather than a constitutional challenge at the Supreme Court.

Too often, perfectly worthy bills are assigned to committees which have nothing to do with the bill so that failure is certain. For instance, automobile safety bills assigned by the president of the Senate or the speaker of the House to the Committee on State, Veterans and Military Affairs. That's known as referring bills to a "kill" committee.

So, not only do we have to hope leadership in Denver will obey their oaths of office to support the Constitution and bring statues into accord with it, but we have to hope they don't find in the process a way to attack the opposite party and use "kill" committees. Finally, we have to hope the Legislature views veterans' rights under Article X Section 3.5 to be something they will permit us to finally enjoy by passing essential legislation. Too much to hope for? Perhaps.

The problem is felt heavily by the electorate. Bills might be important problem-fixers, but legislative in-fighting makes it far more important for parties to find ways to hurt each other rather than serve the electorate. The worst of these abuses comes when really important legislation is introduced by one party but blocked by the other only to keep the introducing party from getting credit for good legislation.

Finally, the problem can be that this is the veterans' problem, not our legislators'. Their disinterest might just leave us abandoned.

What is the value of Colorado's disabled veteran property tax exemption?

Very simply, a totally disabled veteran's property is given a $100,000 exemption from the appraised value. A veteran's widow(er) also receives the exemption if the veteran was receiving the exemption before death. Sadly, no combat deaths qualify because the servicemember wasn't receiving the benefit at death, obviously.

Referendum E was explained to voters as an effort to thank Colorado's veterans whose service left them 100% permanently and totally disabled, about one percent of all veterans.

Vets still pay property tax but that burden is lessened on average about $466. Total cost to the state was estimated at $1,000,000 for extending the benefit to an estimated 2000 veterans.

There is also a benefit to the entire state in encouraging and supporting voluntary military service.

Referendum E, which became Article X Section 3.5 of our state constitution, is Colorado's largest benefit for qualified disabled veterans, although not to be compared to other states like New Hampshire or New Jersey where all property taxes are excused. The public expressed the intent of a little tax help so that totally disabled veterans might get and keep their homes, although the benefit applies only to homeowners. Other states provide different property tax relief. Oregon, for instance, exempts only $18,000 of the assessed value. Connecticut and a few other states offer 100% tax exemption. Colorado wrongly considers itself "somewhat above average" in disabled veterans' benefits. Remember: disabled veterans and military retirees are combat- proven good citizens and also economically beneficial to their states. Their pensions and retirements are huge injections of cash to local economies. Because of federal benefits, they are not burdens, and many states actively target these folks as new residents by offering such things as property and income tax relief.  Colorado can do so much more, especially with free state park camping, tax-exempt military retirement, and more significant property tax exemptions.

Colorado Division of Veterans Affairs Stumbles on Property Tax Exemption for Disabled Vets & Widows

Colorado statue on disabled veteran property tax relief: §§ 39-3-202(2) and (3) and 203(1.5) to (5), C.R.S:

"rated by the federal department of veterans affairs as one hundred percent permanent disability through disability retirement benefits or a pension pursuant to a law or regulation administered by the department, the department of homeland security, or the department of the army, navy, or air force."

Issues.

(1) Required to follow the 2007 legislation, Colorado Department of Veterans Affairs excludes recognition of US military disability retirements, despite provision in the constitution and blocks such veterans from the disabled veteran property tax exemption.

(2) Missing from the Constitution but added somehow by CODVA as their own disqualifier are veterans with “unemployability” VA ratings. US Department of Veterans Affairs ratings for permanent and total disability with unemployability (TDIU) are unacceptable to CODVA, blocking many qualified veterans, and their survivors, from any disabled veteran property tax exemption.

Generally, veterans who receive 100% VA disability compensation pension benefits are free to work and are not limited in the amount of earnings they may receive, even when their single- or combined-impairment ratings total 100%. For example, office or sedentary workers such as clerks, lawyers, telephone workers and others may be totally disabled from military line of duty illness or injury yet fully able to continue gainful and satisfying employment although rated 100% disabled by VA for loss of use of legs.

Not so a TDIU disabled vet, professionally judged by VA, Social Security or state rehabilitation agency. That veteran’s service-connected disabilities are sufficient, without regard to other factors, and so severe as to prevent performing the mental and/or physical tasks required to get or keep substantially gainful employment. TDIU recognizes only permanent and totally disabling service-connected issues via an extra-schedular construct. A TDIU veteran is even barred by VA from employment rehab services because no employment is deemed possible.

Permanent and total disability individual unemployability (TDIU) is a recognition that service connected disabilities, while not rated individually at 100%, are complete enough in their totality to equal 100% and to prohibit employment and are in total, permanent and completely disabling. Diseases and injuries of long standing that are actually totally incapacitating will be regarded as permanently and totally disabling when the probability of permanent improvement under treatment is remote.

Permanence of total disability is taken to exist when such impairment is reasonably certain to continue throughout the life of the disabled person. Total disability is considered to exist when there is present any impairment of mind or body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation.

Generally, a vet qualifying for TDIU would also meet SSI requirements for disability benefits, but the same is not true regarding SSDI recipients and TDIU because TDIU is awarded only for military line of duty issues that cause complete and permanent disability. The military services infrequently award such total disability retirements for service members whose injuries or illnesses are completely disabling and considered to be unimproved for life, but all military disability ratings, even for combat, are not accepted by CODVA which recognizes only the US Department of Veterans Affairs decisions, but then, not including VA’s permanent and total service-connected unemployability disability awards. The means by which CODVA excludes military disability retirements is not known, even though its provision is clearly constitutional and blocking these veterans is clearly unconstitutional!

Generally speaking, disregard for military disability ratings and VA TDIU ratings seems unique among states providing property tax relief. For instance, Virginia’s statutes:

A veteran is considered to have a 100 percent service-connected disability if:
• The veteran's disability is rated at 100%; or
• The veteran's service-connection is rated at less than 100%, but the veteran is paid at the 100% disability rate due to unemployability.

NOTE: Under either standard, the disability must be considered total and permanent. Veterans with temporary disabilities do not qualify.

Some Legislative History of the Disabled Veteran Property Tax Exemption

The problem: Colorado's voters defined "qualified disabled veteran via a Constitutional amendment (Referendum E). Presently the Colorado Division of Veterans Affairs unfairly excludes from the benefit qualified veterans with permanent "unemployability" VA awards, and also excludes veterans directly retired by the military services per permanent and total disability.

Military disability retired property tax relief for Colorado's totally disabled military veterans is based on the 2006 amendment to the state Constitution. The wording of the title of Referendum E is inclusive of any "United States Military veteran who is 100% permanently disabled due to a service-connected disability." 

Nowhere in the Constitution nor other legislation does the "unemployability"appear. It was added as an exemption only by extra-legal preference of the CDMVA, contrary to the Constitution.

Here is the full title, approved by the voters:

AN AMENDMENT TO SECTION 3.5 OF ARTICLE X OF THE CONSTITUTION OF THE STATE OF COLORADO, CONCERNING THE EXTENSION OF THE EXISTING PROPERTY TAX EXEMPTION FOR QUALIFYING SENIORS TO ANY UNITED STATES MILITARY VETERAN WHO IS ONE HUNDRED PERCENT PERMANENTLY DISABLED DUE TO A SERVICE-CONNECTED DISABILITY Here's the text of Referendum E's definition of "disabled veteran:"

(1.5) FOR PURPOSES OF THIS SECTION, "DISABLED VETERAN" MEANS AN INDIVIDUAL WHO HAS SERVED ON ACTIVE DUTY IN THE UNITED STATES ARMED FORCES, INCLUDING A MEMBER OF THE COLORADO NATIONAL yGUARD WHO HAS BEEN ORDERED INTO THE ACTIVE MILITARY SERVICE OF THE UNITED STATES, HAS BEEN SEPARATED THEREFROM UNDER HONORABLE CONDITIONS, AND HAS ESTABLISHED A SERVICE-CONNECTED DISABILITY THAT HAS BEEN RATED BY THE FEDERAL DEPARTMENT OF VETERANS AFFAIRS AS ONE HUNDRED PERCENT PERMANENT DISABILITY THROUGH DISABILITY RETIREMENT BENEFITS OR A PENSION PURSUANT TO A LAW OR REGULATION ADMINISTERED BY THE DEPARTMENT, OR THE DEPARTMENT OF THE ARMY, NAVY, AIR FORCE, OR HOMELAND SECURITY. 

(note: There is a minor conflict between the referendum's pension language and its requirement that disabilities be service-connected – the VA pension program is based on low-income and need, not service-connected disabilities. There is no such thing as 100% service-connected disability pensions.)

The 2007 Legislature "fine tuned" Section 3.5 of Article X from the 2006 Constitutional amendment. It bypassed the voter-approved "any veteran," dropped the pension, but  very improperly redefined and restricted the definition of "qualifying veteran" by failure to adhere to the broad and inclusive language of the voter-approved referendum.

"(3.5) "Qualifying disabled veteran" means an individual who has served on active duty in the United States armed forces, including a member of the Colorado National Guard who has been ordered into the active military service of the United States, has been separated therefrom under honorable conditions, and has established a service-connected disability that has been rated by the United States department of veterans affairs as one hundred percent permanent and total disability pursuant to a law or regulation administered by the department. "

The 2007 Legislature errored in its modification of the definition of "qualifying veteran" away from that approved by the electorate and per the Constitution. This amounted to an ex post facto law depriving many formerly qualified disabled veterans from the Constitution's protection regarding property tax. Further, this violates the US Constitution by depriving the affected veterans of their property (the tax benefit) without due process. From the Colorado Constitution's Bill of Rights:

"Section 11. Ex post facto laws. No ex post facto law, nor law impairing the obligation of contracts, or retrospective in its operation, or making any irrevocable grant of special privileges, franchises or immunities, shall be passed by the general assembly."