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AGLO 1972 No. 31 - May 05, 1972
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Slade Gorton | 1969-1980 | Attorney General of Washington

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                                                                    May 5, 1972

Honorable Pete Francis
State Senator, 32nd District
7300 E. Greenlake Dr. No.
Seattle, Washington 98115                                                                                            Cite as:  AGLO 1972 No. 31 (not official)

Dear Senator Francis:
 
            This is written in response to your letter, previously acknowledged, requesting our opinion regarding the applicability of the state retail sales tax to the service of cleaning carpets or rugs when the cleaning is done at the customer's place of business.
 
            In a memorandum accompanying your request you pointed out certain ambiguities in the regulations which have been promulgated by the department of revenue with regard to the general subject of the sales tax as related to services performed in connection with the cleaning, decorating or beautifying of personal versus real property.  Compare WAC 458-20-172 with WAC 458-20-173.  You further noted that the first of these two regulations specifies that the retail sales tax does not apply to "janitorial services."
 
                                                                     ANALYSIS
 
            At the time this regulation was promulgated, the term "janitorial services" was no where defined in the law.  However, pursuant to an amendment to RCW 82.04.050 which was contained in § 3, chapter 299, Laws of 1971, 1st Ex. Sess., this term now has a specific statutory definition ‑ as follows:
 
            ". . . for purposes of this section the term 'janitorial services' shall mean those cleaning and caretaking services ordinarily performed by commercial janitor service businesses including, but not limited to, wall and window washing, floor cleaning and waxing, and the cleaning in place of rugs, drapes and upholstery.  The term 'janitorial services' does not include painting, papering, repairing, furnace or septic tank cleaning, snow removal or sandblasting; . . ."  (Emphasis supplied.)
 
             [[Orig. Op. Page 2]]
            By virtue of this definition it now seems clear that the cleaning of rugs in place constitutes the performance of janitorial services ‑ to which the retail sales tax is inapplicable ‑ irrespective of whether the carpets or rugs are regarded as personal or real property.  Accord, memorandum opinion by Assistant Attorney General Timothy R. Malone, to the department of revenue dated May 3, 1972, copy enclosed.  We have reviewed the reasoning of this memorandum from a standpoint of officially and formally adopting its conclusion, and we are in full agreement therewith.
 
            We trust that the foregoing will be of assistance to you.
 
Very truly yours,
 
FOR THE ATTORNEY GENERAL
 
Philip H. Austin
Deputy Attorney General
 
MEMORANDUM May 3, 1972
 
            To:       Ed Tveden
 
            From:   Tim Malone
 
            Subject:            Rug Cleaners
 
            Attached is a copy of a request for an Attorney General's opinion from Senator Pete Francis.  Also enclosed is a copy of the memorandum attached to and referred to in the opinion request.
 
            It appears to me that the problem involved in the opinion request is solved by the language of RCW 82.04.050, as amended by section 3, chapter 299, Laws of 1971 1st ex. sess.  As amended in 1971, the definition of "retail sale" stated in pertinent part as follows:
 
            "* * * (c) the sale of or charge made for labor and services rendered in respect to the cleaning, fumigating, razing or moving of existing buildings or structures, but shall not include the charge made for janitorial services; and for purposes of this section the term 'janitorial services' shall mean those cleaning and caretaking services ordinarily performed by commercial janitor service businesses including, but not limited to, wall and window washing, floor cleaning and waxing, and the cleaning in place of rugs, drapes and upholstery.  The term 'janitorial services' does not include painting, papering, repairing, furnace or septic tank cleaning, snow removal or sandblasting; * * *"
 
            This language is very explicit.  The cleaning of rugs in place constitutes janitorial services within the meaning of the exclusion from the definition of retail sale.  Further, it seems to me that whether the rugs are realty, i.e., fixtures, or are personalty, would have no bearing on the problem.  Note that janitorial services can also include the cleaning of drapes and upholstery, both of which would clearly be personal property.
 
            The argument might be made that the applicability of the sales tax to the cleaning of rugs in place is dependent upon the character of the person performing the rug cleaning service.  That is to say, if the rug cleaning is done by a regular janitorial service, the sales tax would not apply, whereas if it were performed by company which specializes in rug cleaning, the tax would apply.  However, I would find no basis in the statute for making such a distinction.  The statute appears to contemplate that it is the nature of the service rendered, not the general business of the person rendering the service, which is determinative.  Thus, the cleaning of rugs in place would be a janitorial service even though it is performed by a rug cleaning specialist.
 
            Any other conclusion would, it appears to me, present a potential constitutional problem.  I would find some difficulty in defending, under attack on equal protection grounds, a construction of the statute which in effect would say that the taxability of identical services depends upon the nature of the person performing them, or more exactly, it depends upon what other types of services the rug cleaner performs in addition to rug cleaning.  In other words, the tax status of an activity would be made dependent upon factors which are essentially extraneous to that activity itself.  Thus, I believe that the normal rule of construction that if a statute is susceptible of two possible interpretations one of which avoids the constitutional problem and another of which runs right into the constitutional problem, the interpretation will be taken which avoids the constitutional problem.
 
            I note that WAC 458-20-172 (Rule 172) was last revised on June 1, 1970, i.e., prior to the 1971 amendment to RCW 82.04.050.  It might be well to revise the rule in accordance with the views expressed in this memorandum.

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