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AGO 1954 No. 219 - March 03, 1954
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Don Eastvold | 1953-1956 | Attorney General of Washington

MOTOR VEHICLE EXCISE TAX ‑- SOLDIERS' AND SAILORS' CIVIL RELIEF ACT.

The motor vehicle excise tax may not be waived to permit nonresident military and naval personnel to license their vehicles here tax free.

                                                                   - - - - - - - - - - - - -

                                                                   March 3, 1954

Honorable E. C. Huntley
Chairman
Washington State Tax Commission
Insurance Building
Olympia, Washington                                                                                                    Cite as:  AGO 53-55 No. 219

Dear Chairman Huntley:

            You have requested our opinion

            whether or not collection of the motor vehicle excise tax may be waived in cases involving nonresident military personnel where such personnel have the right to license their vehicles in other states.

            We conclude that the tax may not be waived.

                                                                     ANALYSIS

            I. Motor Vehicle Excise Tax

            The motor vehicle excise tax, imposed by chapter 82.44 RCW is imposed upon all motor vehicles operating over the highways of this state, RCW 82.44.060 (PTC sec. 367), at 1-1/2% of the fair market value of the vehicle RCW 82.44.030 (PTC sec. 363).  Collection, butnot imposition, of the tax is tied in with annual vehicle licensing.  RCW 82.44.090 (PTC sec. 370) provides:

             [[Orig. Op. Page 2]]

            "It shall be unlawful for the county auditor or any other person to issue * * * a license or identification plates with respect to any motor vehicle without collecting, with the required license fee, the amount of the excise tax due thereon under the provisions of this chapter.  Any violation of this section shall constitute a gross misdemeanor."

            This tax is in lieu of the personal property tax.  See our opinion to you [[to E. C. Huntley, Chairman, Washington State Tax Commission]]of July 23, 1953, No. 7-1, 53-55-105, and RCW 82.44.130 (PTC sec. 374).  Thus, if July 23, 1953, No. 7-1, 53-55-105, and RCW 82.44.130 (PTC sec. 374).  Thus, if the excise tax for some reason is not applicable, the personal property tax, imposed pursuant to Wash. Const. Art. VII, sec. 1 (Amend. 14, Nov. 1930) appliesunless exempt by United States Constitution or by valid congressional acts enacted pursuant thereto, see Dameron v. Broadhead, 345 U.S. 322 (1953).

            II. Soldiers' and Sailors' Civil Relief Act of 1940

            The Soldiers' and Sailors' Civil Relief Act of 1940, 50 U.S.C.A. App. sec. 574 provides that for purposes of taxing military or naval personnel, such a person shall not be deemed to have lost or gained residence by the sole reason of moving from the state of true residence in compliance with military or naval orders.  This is the uniform common-law rule relative to domicile of military and naval personnel and is a part of our Wash. Const., Art. VI, sec. 4.  This does not prohibit such individuals from changing the domicile to the place where they have been assigned should they so desire.

            Personal property is defined by sec. 574 to include

            "tangible and intangible property (including motor vehicles)"

            and the term taxation

            "shall include but not be limited to licenses, fees, or excises imposed in respect to motor vehicles or the use thereof; Provided, That the license, fee, or excise required by the State, Territory, possession or D. of C. [[the District of Columbia]]of which the person is a resident or in which he is domiciled has been paid."

             [[Orig. Op. Page 3]]

            Thus, as to motor vehicles, the exemption from the state license requirements and the motor vehicle tax is specifically conditioned upon two requirements:

            (1) That the individual in the military service is a bona fide resident of another state; and

            (2) that the license fees and taxes relative to motor vehicles in such other state have been paid.

            It is obvious therefore that if a Washington license is obtained, the Soldiers' and Sailors' Act does not apply.

                        CONCLUSIONS

            1. Thus, the Tax Commission or other public officials have no authority to waive collection of the motor vehicle excise tax when military personnel obtain licenses here.  Not only does the statute specifically prohibit, see RCW 82.44.090 (PTC sec. 370) but if such military personnel license their vehicle in this state they would not fall under the protection of the Soliders' and Sailors' Civil Relief Act.

            2. You also request our advice as to what other action the State Patrol may take relative to their law enforcement problem involving vehicles so licensed out of state.  We suggest that it is perfectly proper for the State Patrol, the Department of Licenses, and the Tax Commission to insist that such personnel be able to present reasonably adequate proof that:

            (a) he is abona fide resident of a particular state (his voting residence, etc.);

            (b) he has paid the license fees and taxes which would be due in the state of his residence; and

            (c) that the license plates being used are truly those of the state of his residence.

            3. We suggest that these matters might well be worked out by a conference with the Judge Advocate's office either at the national level or with the main posts  [[Orig. Op. Page 4]] in this state.  Perhaps a procedure could be set up by which the Commanding Officer of the individual claiming the right to license his vehicle in a foreign state could certify thebona fide residence of the claimant.  The presumption is that a vehicle used on the highways of this state is subject to a tax to assist the state government which maintains such highways and protects his use of them.  Such a certification could perhaps obviate a possible requirement that a claimant using an out of state license plate carry proof of his bona fide residence and applicable tax receipts in his vehicle at all times.

            4. Relative to the State Patrol's enforcement problem, we suggest that it might be possible that the State Patrol be furnished by the military police officials of the various posts, with a list of all military or naval personnel who are using non-Washington license plates.  The military officials have always been very willing to cooperate with the state in the past, and we are confident that they will do so in the future.

Very truly yours,

DON EASTVOLD
Attorney General

JENNINGS P. FELIX
Assistant Attorney General

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