SACRAMENTO — State Sen. Tom McClintock, a fierce critic of government spending, has accepted hundreds of thousands of dollars in tax-free per diem payments from the state that are meant to help legislators who, unlike McClintock, live far from the capital.
The Republican lawmaker said he is entitled to the $170-a-day payments because his legal residence is a family home in his Senate district of Thousand Oaks, where he is registered to vote.
McClintock and his family live year-round in Elk Grove, 14 miles from the state Capitol. He moved to the Sacramento suburb in 1996, when he was elected to the state Assembly, and he bought a five-bedroom, 4,090-square-foot home in 2004. His children attend Elk Grove schools and his wife works at a Baptist church there.
The intent of the payments is to help defray the living costs of lawmakers attending the eight-month legislative session far from their homes.
Legal experts say McClintock is taking advantage of a loophole that gives him a right to the tax-free payments even though he lives near the Capitol.
"This certainly strikes me as an example of the abuse of the per diem system," said Derek Cressman, government watchdog director for California Common Cause.
The state elections code requires legislators to maintain a residence in their district, and presumes that a senator is "domiciled" where he or she is registered to vote, said Lance Olson, an attorney with expertise in government and political law. It is partly on that basis that McClintock has claimed the tax-free payments.
The U.S. tax code's definition of legislative per diem also supports McClintock's position.
"The place of residence of such individual within the legislative district which he represented shall be considered his home," the tax code says.
Overall, McClintock has received $306,000 in per diem while living in Elk Grove during his eight years in the Senate and previous four years in the Assembly. Last year, the senator collected $36,012 in per diem, a record amount for him.
Per diem paid to a legislator whose home is within 50 miles of the Capitol building is considered taxable income. Since he is citing Thousand Oaks as his home, McClintock has taken the money tax-free, atop his annual Senate salary of $116,000.
