"UNEMPLOYABILITY" - How did it pop up as a disqualification for Colorado's Disabled Property Tax Exemption?

Back in 2006 Colorado voters amended our constitution to provide a partial property tax exemption (a small one, about $480 on average) for totally disabled military veterans. This is now Article X Section 3.5 of the constitution and §39-3-202(2) C.R.S of our statutes. The 2006 Blue Book explained that federal VA ratings would be the standard followed for veterans to qualify. 

The VA has only two such ratings. 

One is for injuries that are so severe the veteran is made 100% disabled. The other is for injuries that are severe but even worse than the percentage of disability VA rules allow for that particular injury or illness, and which by themselves (only military issues) make the veteran unable to work for the remainder of his/her lifetime...that rating is termed IN THE LAW as, "Total Disability Individual Unemployability" (TDIU.) BOTH of these VA ratings are for ONE HUNDRED PERCENT PERMANENT AND TOTAL DISABILITY. 

Colorado has a problem in that for some reason outside the law, the state opted to refuse the exemption to veterans having the VA TDIU rating.  Although state agencies refuse to accept TDIU or unemployability, that refusal isn't in the constitution, the legislation or the 2006 Referendum E, for which the Blue Book specifically referenced totally disabled veterans unable to work for their remaining lifetime.

It seems the only mention of unemployability is in the instructions and web pages saying it is unacceptable...only in the forms for the final implementation of the referendum, the constitutional amendment, and the legislation does unemployability get mentioned as a disqualifier. Unemployability, one of the two VA ratings for total and permanent military service disability is simply (and wrongly) excluded.

That's wrong. It needs correction, and we call on DMVA and DOLA to make implementation of this constitutional benefit properly reflect the constitution. VA's rating of veterans should be respected as detailed in the law. ALL veterans rated totally and permanently disabled, including via the TDIU rating, should be afforded this modest property tax exemption.

Here's what the law says are our totally disabled veterans entitled to the partial tax exemption:

Colorado 39-3-202 C.R.S.

 “(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 federal department of veterans affairs as one hundred percent permanent disability through disability retirement benefits pursuant to a law or regulation administered by the department, the United States departments of homeland security, Army, Navy, or Air Force.”

COLORADO DEPARTMENT OF MILITARY & VETERAN AFFAIRS

Property Tax: Disabled Veteran Property Tax Exemption

This program is for Disabled Veterans who:

• Are RATED by the U.S. Department of Veterans Affairs at 100%, Permanently and Totally Disabled by the U.S. Department of Veterans Affairs (Individual Unacceptability(?*) does not qualify) AND

• You must have owned and occupied the property since January 1st of the year in which the Veteran is applying. (*unacceptability is DMVA's typo, not mine!)

COLORADO DEPARTMENT OF THE TREASURY

“Requirements for Eligibility, Veterans

• Applicant must be a disabled veteran who has been rated by the U.S. Department of Veterans Affairs as permanently disabled. (VA unemployability awards do not meet the requirement for determining an applicant's eligibility.)”

COLORADO DEPARTMENT OF LOCAL AFFAIRS

ELIGIBILITY REQUIREMENTS, Qualifying Disabled Veteran:

To qualify, a disabled veteran must meet each of the following requirements: 

• Served active duty in U.S. armed forces.

•  Was honorably discharged.

• Sustained a service-connected disability rated by the U.S. Department of Veterans Affairs as 100% permanent and total.  Disabilities rated less than 100% and VA employability awards do not meet the eligibility requirements.

BUT WAIT: THERE'S MORE!
There's another problem with the way Colorado implements this constitutional benefit and its enabling legislation. They simply haven't gotten around to it.

The constitution also recognized servicemembers that the military retires as totally and permanently disabled. Through an oversight, these disabled veterans were simply not mentioned in the statutes and were therefore refused the exemption even though it was a constitutional right, spelled out crystal clear, word for word:

"...through disability retirement benefits pursuant to a law or regulation administered by the department, the United States departments of homeland security, or the departments of Army, Navy, or Air Force.”

In May 2015 the governor signed an act unanimously approved by both houses of the legislature in May 2016 to correct the problem by placing those last fifteen words in the constitution also in the law. For some reason the correction hasn't been implemented by the responsible state agencies...it has simply been ignored. Totally disabled military retirees continue to be taxed and the constitution abused. 

When I've tried to discuss this disconnect with officials there's been no disagreement about the issue, but it doesn't seem a big deal to anyone.

This is a big deal! The people of the state are the supreme power, and the constitution reflects the will of the people, with state officials from the governor on down sworn to protect and defend it. A right specifically guaranteed by our state constitution cannot simply be ignored by agencies that didn't get around to honoring it. You may recall that in 1776 unfair taxation led to some disagreement between England and her American colonies. 

Thankfully, officials have indicated that things will be set right by January 2018, ending eleven years of unconstitutional taxation of this group of totally disabled military retirees. By January, these veterans will have been unconstitutionally overtaxed about $4,800 each.

"Unemployability" VA Total & Permanent Disability Rating (TDIU) for Vets With Line-of-Duty Injuries – Colorado's unique exception

Colorado is unique among US states in distinguishing VA line of duty permanent and total unemployability ratings (TDIU)) from VA's other permanent and total disability schedular rating.

Only Colorado denies TDIU totally and permanently line-of-duty rated vets the state property tax exemption provided in the state constitution's Article X Section 3.5 by somehow considering this VA classification of veterans different than VA's other category of 100% disabled veterans.

No other state in the Union treats TDIU disabled vets differently than 100% schedular vets. To 49 other states, both VA 100% disability ratings are treated the same. The only difference is that TDIU vets are rated so disabled that they are unable to work.

NOTE: PDIU & TDIU have been used interchangeably, especially by older vets like me. TDIU is the current proper VA term.

Did Colorado Legislative Council Overrule the People and Constitution of Colorado?

"CLC" is the Colorado Legislative Council. The CLC web site tells us they have an important role in our state's legislative process:

"The Colorado Legislative Council plays a big role in the initiative process in Colorado. The Legislative Council meets to approve all language for all ballot measures that have qualified in Colorado. Also, Legislative Council provides a fiscal impact statement which is mandatory for all ballot measures. This is done to determine impacts on any state agency or local government.
Once the analysis is complete, the Legislative Council prepares an official booklet which is published to Colorado voters on the actual language and fiscal impacts of ballot measures. The name of the official booklet is known as the Blue Book."

Colorado's voters were sent the Blue Book back in 2006, and CLC explained which veterans were specified in Referendum E. Included were explanations that the Referendum specified totally military personnel retired by their services, and described VA-rated totally and permanently disabled veterans, "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." Referendum E received 78% of the votes, becoming Article X Section 3.5 of the Colorado constitution.

In 2007 the Legislature undertook to create statutes to implement the constitution's changes. Their final work efforts were then routed past CLC for legal form, content and other requirements to become law. But CLC, or the Legislature, goofed. Twice.

First, the final legislation somehow dropped reference to totally disabled military personnel retired by the Army, Navy and Air Force. Second, although the Blue Book explained to the electorate (and we approved) that totally and permanently disabled vets "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," CLC and the Legislature somehow specifically barred VA's disability category called "totally and permanently disabled individual unemployability," or TDIU. The electorate, relying on CDC's Blue Book, amended the constitution and specifically protected vets who couldn't hold a job and whose disability was lifelong.

But CLC then specifically rejected such unemployability, somehow backtracking on its Blue Book as well as the decision of the electorate to amend the constitution, in part overturning the voters' decision on Referendum E.

Today, the Colorado Department of Military and Veterans Affairs refuses to follow the constitution but instead relies on the flawed statute, both of which CLC worked on. CDMVA thus defies the constitution and refuses the exemption to qualified vets seeking the benefit. State and county forms read, but without legal foundation, "VA employability awards do not meet the eligibility requirements." 

Why couldn't CLC get the final statutes to comply with the constitution and the guidance CLC gave the electorate? Why does CLC say VA permanent and total service-connected unemployability disability awards are unqualified for the exemption?

Why is the will of the people, expressed in our approval of Referendum E to amend the constitution, defied by CLC and the Colorado Legislature? How can CLC be called to account for this, and to correct their mistakes?

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!