Can Livingston Parish exempt diapers and feminine hygiene products from its dedicated roads and jail sales tax?

Plain-English summary

Livingston Parish asked whether it could exempt feminine hygiene products and diapers from the parish's 1% sales and use tax dedicated to roads and jail facilities. The official opinion concludes that, under La. R.S. 47:337.10.2, the parish "may adopt an ordinance exempting feminine hygiene products and diapers from parish sales and use taxes."

The statute quoted by the AG allows a political subdivision, by ordinance or resolution, to exempt purchases of either or both product categories "for individual personal use" from all or part of the sales and use tax it levies. The AG also considered the voter-approved dedication of Livingston's tax. It explained that the exemption would not divert tax money to an unauthorized purpose: the covered purchases would not be taxed in the first place. The opinion says this is distinct from using collected tax proceeds contrary to the ballot language.

There is one stated qualification. The opinion notes that if the tax has been secured by bonds or other indebtedness, the parish should consult its bond attorney. The opinion does not decide the effect of a particular bond obligation.

What this means for you

Livingston Parish officials. The AG said the parish may adopt the exemption under La. R.S. 47:337.10.2 despite the dedicated purpose of the tax. The opinion separately flags possible bond-security issues for a bond attorney.

Local tax administrators and retailers. The opinion addresses an exemption from the levy on specified purchases for individual personal use. It does not describe a redirection of taxes already collected.

Residents. The AG's answer concerns the parish's authority to enact an exemption. It does not itself enact one or determine how a particular sale is classified.

Common questions

Does a roads-and-jail tax dedication prevent an exemption for diapers and feminine hygiene products?
The AG said no. It reasoned that exempting those purchases from the levy does not use collected tax proceeds for a different purpose.

Can the parish exempt only one of the two product categories?
The statute quoted in the opinion allows an exemption for feminine hygiene products, diapers, "or both" for individual personal use.

Did the AG settle any bond issue involving the sales tax?
No. It told the parish to consult its bond attorney if the tax had been secured by bonds or other indebtedness.

Background and statutory framework

La. R.S. 47:305.75 provided a state sales tax exemption for these products. La. R.S. 47:337.10.2 gave political subdivisions authority to adopt a corresponding local exemption. The AG read that authority alongside La. Const. art. VI, §29(D)(2) and the rule that proceeds of a voter-dedicated tax must be used for the approved purpose. Its conclusion turns on the difference between an exemption from collection and spending collected proceeds.

Citations and references

Law cited: La. R.S. 47:337.10.2 and 47:305.75; La. Const. art. VI, §29(D)(2).

Source

• Landing page: https://www.ag.state.la.us/Opinions
• Original PDF: https://www.ag.state.la.us/Opinion/Download/23-0129

Original opinion text

STATE OF LOUISIANA
DEPARTMF:NT 01 JUSTICE
OvvIcE OF IfIE ATTORNEY GENERAL
P.O. Box 94005
BATON RouuE, LA
70804-9005

Liz MURRILL
ATTORNEY GENERAL
January 1 1 2024
,

OPINION 23-0129

1 60 — TAXATION — Sales Tax
Ms. Sandy Teal
La. Const. art. VI, §29
.

Council Clerk
R.S.
Livingston Parish Council
47:33710.2
P.O. Box 335
Pursuant to La. R.S. 47:337.10.2, Livingston Parish may adopt Livingston LA 70754 an ordinance exempting feminine hygiene products and diapers from parish sales and use taxes.

Dear Ms. Teal:

On behalf of the Livingston Parish Council (the “Parish”), you have requested an opinion from this office concerning sales and use tax exemptions. Specifically, you ask whether the Parish may adopt an ordinance that provides for a “pink tax exemption,” which exempts feminine hygiene products and diapers from the Parish’s 1% sales and use tax for roads and jail facilities.

We begin with La. Const. art. VI, §29(D)(2) which provides the following:

Except when bonds secured thereby have been authorized, the legislature may provide for the exemption or exclusion of any goods, tangible personal property, or services from sales or use taxes only pursuantto one ofthe following:

(2) Exemptions or exclusions applicable to the taxes of the state or applicable to political subdivisions whose boundaries are coterminous with those of the state, or both.1

Thus, we note at the outset that in the event this tax I % sales and use tax has been secured by bonds (or other indebtedness), the Parish should consult their bond attorney.

Turning to the language of La. Const. art. VI, §29(D)(2), the legislature is authorized to provide for local sales and use tax exemptions under three scenarios. One such scenario is sales and use tax exemptions or exclusions that apply to State of Louisiana sales and

1
La. Const. art. VI, §29(D)(2) emphasis added.

Page 2

Ms. Sandy Teal
Opinion 23-0129
Page 2

use taxes. Accordingly, the legislature enacted La. R.S. 47:305.75, which exempts the purchase of feminine hygiene products and diapers from state sales and use taxes.2

In addition, the legislature also enacted La. R.S. 47:337.10.2 which states that “[a]ny political subdivision may by ordinance or resolution exempt purchases of feminine hygiene products, diapers, or both for individual personal use from all or part of the sales and use tax levied by the political subdivision.”3 Here, the Parish is certainly a political subdivision of the state that has adopted an ordinance providing for such an exemption. Therefore, it appears the Parish has followed the correct procedure in implementing this particular sales and use tax exemption.

Based upon the information in your request, it seems the issue is actually whether such an exemption runs afoul of Louisiana law regarding dedicated taxes. The Louisiana Supreme Court has long held that:

[W]hen citizens are presented with a proposition that would impose a special tax for a specific purpose, and they approve the imposition of that tax, a covenant is created which must be respected and upheld. Once citizens vote for a tax dedicated to one purpose, the tax cannot be used for a purpose other than that approved by the citizens.4

In 2020, citizens ofthe Parish approved a 1% sales and usetaxforthe purpose of funding roads and jail facilities.5 There was no mention of any such tax exemption on the ballot proposition. Nonetheless, this exemption adopted by the Parish would not appear to violate any such covenant created with its citizens because tax proceeds are not being used for any purpose contrary to the ballot language. Instead, certain items (i.e., feminine hygiene products and diapers) are merely being exempted from the levy of this particular tax altogether. Therefore, the Parish (like any other political subdivision) may utilize the provisions of La. R.S. 47:337.10.2 to exemptfeminine hygiene products and diapers from all or part of its sales tax levy. Doing so would not be considered using tax proceeds contrary to what was approved by the voters.

Considering the foregoing, it is the opinion of this office that pursuant to La. R.S. 47:337.10.2, Livingston Parish may adopt an ordinance exempting feminine hygiene products and diapers from parish sales and use taxes.

2 See La. R.S. 47:305.75.
3 See La. R.S. 47:337.10.2(A).
See W. Feliciana Par. GoVt v. State, 2019-00878, p. 14 (La. 10/1 1/19); 286 So.3d 987, 997; see also Denham Springs Economic Development District, 04-1674 at 14, 894 So.2d at 335; City of New Orleans v. Louisiana Assessors’ Ret. & Relief Fund, 2005-2548, p. 14 (La. 10/1/07); 986 So.2d 1, on reh’g (Jan. 7, 2008); Orleans Parish School Board v. City of New Orleans, 238 La. 738, 116 So.2d 505 (La.1 959).
See election results from November 3, 2020 at https://voterportal.sos.la.gov/graphical#!#TabFull.
(last accessed August 28, 2023).

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Ms. Sandy Teal
Opinion 23-0129
Page 3

We trust this adequately responds to your request. However, if our office can be of further assistance, please do not hesitate to contact us.

Yours very truly,

LIZ MURRILL
ATTORNEY GENERAL

BY: 1iL
Brett A. Robinson
Assistant Attorney General
LM/BAR