Montana Administrative Register Notice 42-1028 No. 23   12/11/2020    
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In the matter of the repeal of ARM 42.4.802 pertaining to tax credits for contributions to qualified education providers









TO: All Concerned Persons


1. The Department of Revenue proposes to repeal the above-stated rule.


2. The Department of Revenue will make reasonable accommodations for persons with disabilities who wish to participate in this rulemaking process or need an alternative accessible format of this notice. If you require an accommodation, contact the department no later 5:00 p.m. on December 18, 2020, to advise us of the nature of the accommodation you need. Please contact Todd Olson, Department of Revenue, Director's Office, P.O. Box 7701, Helena, Montana 59604-7701; telephone (406) 444-7905; fax (406) 444-3696; or e-mail todd.olson@mt.gov.


3. The department proposes to repeal the following rule:




AUTH: 15-1-201, 15-30-3114, MCA

IMP:  Montana Constitution, Art. V, Section 11, Montana Constitution, Art. X, Section 6, 15-30-3101, MCA


REASONABLE NECESSITY:  The department adopted ARM 42.4.802 under MAR Notice No. 42-2-939, effective December 25, 2015, to clarify who was entitled to a school scholarship under the educational improvement program, as limited by the Montana Constitution.  The United States Supreme Court recently held that the application of the Montana Constitution's "no-aid" provision to a state program providing tuition assistance to parents who send their children to private schools discriminated against religious schools and the families whose children attend or hope to attend them in violation of the Free Exercise Clause.  As a result of this decision, the department must repeal the rule.


4. Concerned persons may submit their data, views, or arguments concerning the proposed action in writing to Todd Olson, Department of Revenue, Director's Office, P.O. Box 7701, Helena, Montana 59604-7701; telephone (406) 444-7905; fax (406) 444-3696; or e-mail todd.olson@mt.gov and must be received no later than 5:00 p.m., January 11, 2021.


5. If persons who are directly affected by the proposed action wish to express their data, views, or arguments orally or in writing at a public hearing, they must make written request for a hearing and submit this request along with any written comments to the person named in #4 no later than 5:00 p.m., January 11, 2021.


6. If the agency receives requests for a public hearing on the proposed action from either 10 percent or 25, whichever is less, of the persons directly affected by the proposed action; from the appropriate administrative rule review committee of the Legislature; from a governmental subdivision or agency; or from an association having not less than 25 members who will be directly affected, a hearing will be held at a later date. Notice of the hearing will be published in the Montana Administrative Register.  The number of hearing requests necessary for the department to conduct a public hearing is 17, which is approximately 10 percent of the number of taxpayers who applied for the tax credit in each of the first two years of the program's availability.


7. The department maintains a list of interested persons who wish to receive notices of rulemaking actions proposed by this agency.  Persons who wish to have their name added to the list shall make a written request that includes the name, e-mail, and mailing address of the person to receive notices and specifies for which program the person wishes to receive notices. Notices will be sent by e-mail unless a different mailing preference is noted in the request.  Such written request may be mailed or emailed to the contact person in #4.


8. An electronic copy of this notice is available through the Secretary of State's web site at sosmt.gov/arm/register.


9. With regard to the requirements of 2-4-111, MCA, the department has determined that the repeal of the above-referenced rule will not significantly and directly impact small businesses.



/s/ Todd Olson                                              /s/ Gene Walborn                                        

Todd Olson                                                   Gene Walborn

Rule Reviewer                                              Director of Revenue


Certified to the Secretary of State December 1, 2020.

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