S.C. Chief Justice Jean Toal's dissenting opinion in Ed Robinson Laundry and Dry Cleaning Inc. vs. S.C. Department of Revenue and the state of South Carolina (issued Oct. 13) may not have held sway in that case, but it is, in fact, a far more accurate description of the nature of the state's range of sales tax exemptions than the majority's opinion admits.

At issue in this case was Robinson's allegation that the state's sales tax law violates the equal protection clauses of the S.C. and U.S. Constitutions because the tax is not imposed upon all service providers, only dry cleaners.

Robinson argued that similarly situated businesses were treated differently (i.e., exempted from the tax) and that such disparate treatment of dry cleaners had no rational basis and was therefore unconstitutional.

Essentially, in cases such as these, the law says that such disparate treatment is unconstitutional unless it bears a rational relationship to a legitimate government purpose.

Although the majority did not find in favor of Robinson, it did acknowledge that Robinson may be correct in noting such exemptions [indicate] a misunderstanding of economics and are therefore unwise in an economic sense. The majority did not find, however, that such economic inequities were unconstitutional. This conclusion, however legally sound it may be, once again demonstrates that good law (i.e., that which is deemed constitutional) is not necessarily good public policy; indeed, it may be the very antithesis of good public policy.

At any rate, the fact that the sales tax law passed constitutional muster does not indicate and should not be construed by members of the General Assembly as indicating that the sales tax law rests on a fundamentally sound basis. Declaring something constitutional is not the same thing as arguing that it is good public policy. Although it may not be riddled with unconstitutional inequities, the law is nevertheless riddled with inequities that are no less egregious.

Chief Justice Toal opined that not only was there no rational basis for treating dry cleaning services differently from other services, there was a genuine issue of material fact as to whether the 61 exceptions to the sales tax law are arbitrary and capricious and thus violate the Equal Protection Clause.

Again, the absence of a legal pronouncement in this case that the state's sales-tax exemptions are arbitrary and capricious does not mean that they are not arbitrary and capricious, just that there is no judicial remedy for such flaws, only a legislative one.

How tax codes and laws evolve in the political and legislative process - typically, one special interest concern after another acceded to over time with little consideration of the relationship of each to the whole - is an indication of the sales tax law's likely arbitrariness. Everyone wants to carve out his safe haven in such codes, much as the automobile dealers did in securing a cap on the sales tax on automobiles during the debate over the 1-cent increase in the sales tax brought about by the Education Improvement Act in the early 1980s. There was clearly a political basis for that concession, but I would hardly call it a rational basis. The same can probably be said about many of the other exemptions as well.

Even if the law began with a rationally and well-thought-out basis for its promulgation, when the changes over time are considered as a whole and in the context of what a well-written piece of legislation on the subject would look like, they indicate, in Toal's words, whimsical treatment of various entities for tax purposes.