Ruling 90-41

Occupational Tax

ISSUE PRESENTED

Whether a family support magistrate, as defined in Conn. Gen. Stat. §46b-231(b)(9), not otherwise engaged in the practice of law, is subject to the occupational tax imposed pursuant to Conn. Gen. Stat. § 51-81b.

RULING ISSUED

A family support magistrate, as defined in Conn. Gen. Stat. §46b-231(b)(9), not otherwise engaged in the practice of law, is exempt from the occupational tax imposed pursuant to Conn. Gen. Stat. §51-81b.

FACTS FOUND

1. A request for the issuance of a letter ruling was made by a person who had been appointed a family support magistrate as provided in Conn. Gen. Stat. §46b-231(f).
2. The request pertained to liability for the occupational tax for calendar year 1989.
3. The person requesting the ruling served as a family support magistrate throughout calendar year 1989 and did not otherwise engage in the practice of law during calendar year 1989. (Conn. Gen. Stat. §46b-231(f) provides that a family support magistrate "shall devote full time to his duties as a family support magistrate and shall not engage in the private practice of law.")

CONCLUSIONS OF LAW

Prior to its amendment by 1982 Conn. Pub. Acts 425, Conn. Gen. Stat. §51-81b provided in part:

Any person who has been admitted as an attorney by the judges of the superior court, and who was engaged in the practice of law, including the performance of judicial duties, in the year preceding the year in which an occupational tax is due hereunder, shall annually on or before January fifteenth pay to the commissioner of revenue services a tax in the amount of one hundred fifty dollars....[Emphasis added]

With the passage of 1982 Conn. Pub. Acts 425, the underscored language was deleted from Conn. Gen. Stat. §51-81b. As a consequence, a person admitted as an attorney and engaged in the practice of law was no longer subject to the tax if engaged in the performance of judicial duties.

Judges, without question, perform judicial duties. Judges are those who, under Article Fifth of the Connecticut Constitution, are nominated by the Governor and appointed by the General Assembly. They hold their offices for an eight-year term, but may be impeached by a two-thirds vote of each house of the General Assembly. Conn. Const., Art. 5, §2. Similar provisions apply to judges of courts inferior to the superior court. Conn. Const., Art. 5, §3.

In contrast, family support magistrates are appointed by the Governor and may be removed from office by the Governor for cause. Conn. Gen. Stat. §46b-231(f). While it cannot be gainsaid that family support magistrates are not judges, the question is not whether family support magistrates are judges, but, rather, whether family support magistrates perform judicial duties.

While not judges, family support magistrates do serve in the family support magistrate division, a division of the superior court. The division establishes and enforces "child and spousal support in IV-D cases utilizing quasi-judicial proceedings." Conn. Gen. Stat. §46b-231(b)(7). The rules of procedure followed by family support magistrates are those adopted by the judges of the superior court for the handling of IV-D support matters by magistrates. The rules conform when applicable to rules adopted for the superior court. Conn. Gen. Stat. §46b-231(l). Family support magistrates hear and determine matters involving child and spousal support in IV-D support matters and hear and determine all motions for modifications of child and spousal support in IV-D support matters. Conn. Gen. Stat. §46b-231(m)(2). Family support magistrates enforce orders for child and spousal support entered by such family support magistrates and by the superior court in IV-D cases by citing an obligor for contempt. Conn. Gen. Stat. §46b-231(m)(6). With the exceptions noted therein, orders for support entered by a family support magistrate have the same force and effect as orders of the superior court and are considered orders of the superior court for the purpose of establishing and enforcing support orders of the family support magistrate. Conn. Gen. Stat. §46b-231(r).

Family support magistrates are performing duties that, had the Family Support Magistrate's [sic] Act not been enacted, could only be performed by judges. Because the performance of these duties by judges would unquestionably be considered the performance of judicial duties, the performance of these duties by family support magistrates, rather than by judges, should not alter the nature of these duties. In conclusion, therefore, it is hereby ruled that family support magistrates are engaged in the performance of judicial duties.

While family support magistrates are "included under the provisions of chapters 65 [Disability Compensation and Death Benefits] and 66 [State Employees Retirement Act] regarding retirement and disability of state employees"; Conn. Gen. Stat. §46b-231(i); this ruling expressly offers no guidance concerning whether a family support magistrate is exempt from the occupational tax as a person "liable for payment of the occupational tax under this section solely by virtue of such person having engaged in the practice of law while acting as an employee of the state." Conn. Gen. Stat. §51-81b(h). The term "employee of the state" is not defined therein, and is differently defined in a number of other sections of the Connecticut General Statutes. See, e.g., Conn. Gen. Stat. §1-79(m) ("state employee" in Chapter 10: Code of Ethics for Public Officials); Conn. Gen. Stat. §4-141 ("state officers and employees" in Chapter 53: Claims against the state); Conn. Gen. Stat. §5-154(l) ("state employee" in Chapter 66: State Employees Retirement Act); Conn. Gen. Stat. §5-196(i) ("employee" or "state employee" in Chapter 67: State Personnel Act); and Conn. Gen. Stat. §5-270(b) ("employee" in Chapter 68: Collective Bargaining for State Employees). The term "state employee" is also used but not defined in Chapter 65 (Disability Compensation and Death Benefits).

LEGAL DIVISION

April 11, 1990