AGO Opinion 81141

September 22, 1981
Opinion 81141

Senator Ernest Chambers
Nebraska State Legislature
State Capitol
Lincoln, NE 68509

Dear Senator Chambers:

You have forwarded to us a copy of a document from the National Conference of State Legislatures, entitled "State Legislatures' Tax Home Provision." You particularly direct our attention to that portion of the reproduced material which states: "The amendment made by subsection (a) shall apply to taxable years beginning on or after January 1, 1976." The particular matter to which you refer was adopted in 1981.

As we understand your question, it is whether LB 206, Eighty-Seventh Legislature, First Session, has retroactive effect. As you know, LB 206 purports to provide authority to allow the payment of necessary expenses incurred by legislators while in the performance of their official duties. You indicate that the United States Congress in the material referred to has provided for retroactive effect to certain tax changes. We would point out that the question is not pertinent to LB 206. That statute did not become effective until August of 1981. Its application applies solely to expenses incurred during sessions of the Legislature.

The Legislature was not in session on its effective date nor will the Legislature be in session after its effective date until this coming January. Therefore, there are no expenses to which it may apply at the current time. In order to have had earlier application, LB 206 would have had to have passed with the emergency clause or have had a provision similar to the federal act to which you referred us, specifically making it applicable prior to its effective date. Neither one of those events occurred.

Therefore, your question in regard to its retroactive application calls for speculation or conjecture as to the authority of the Legislature to take such action. Clearly, there was no statute in effect during the past legislative session which would have authorized claims for expenses by
members of the Legislature. Past opinions of this office have held that such expenses were not proper. No question under LB 206 will arise unless and until a claim is made by a legislator for expenses incurred during a legislative session.

If you have any further questions in this regard, please feel free to contact us.


Attorney General