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December 8, 1972
The Cemetery Board
100 W. First
Aberdeen, Washington 98520
Cite as: AGLO 1972 No. 86 (not official)
Attention: !ttHonorable Vern Rasmussen
This is written in response to your recent letter requesting our opinion as to whether
". . . RCW 84.36.020 is restricted in application to cemeteries owned and operated by a nonprofit corporation or whether it applies to all cemetery corporations complying with the nondiscrimination requirement of the section."
You have indicated as the basis for your request ". . . that counties are interpreting the provisions of RCW 84.36.020 in inconsistent manners. . . ." We wonder, however, whether the explanation for this may not be the relationship between RCW 84.36.020 and another statute dealing, specifically, with nonprofit cemeteries ‑ rather than any differing interpretations of RCW 84.36.020, itself.
As you have correctly pointed out, RCW 84.36.020 states, in material part, that
"The following property shall be exempt from taxation:
"All lands used exclusively for public burying grounds or cemeteries without discrimination as to race, color, national origin or ancestry;"
Obviously, this statute does not purport to draw any distinction, in terms of ownership, between lands as described therein which are owned by a nonprofit corporation and those which are owned by other business corporations or entities. Thus, the direct answer to the question which you have posed is that RCW 84.36.020 is not restricted in application [[Orig. Op. Page 2]] to cemeteries owned and operated by nonprofit corporations.
Conversely, however, a distinction between nonprofit corporations and other cemetery owners does appear in another statute relating to the taxation of certain cemetery properties; namely, so much of RCW 68.20.110, pertaining only to nonprofit cemetery associations, as provides that:
"Such association shall be authorized to purchase or take by gift or devise, and hold land exempt from execution and from any appropriation to public purposes, for the sole purpose of a cemetery not exceeding eighty acres, which shall be exempt from taxation if intended to be used exclusively for burial purposes, and in nowise with a view to profit of the members of such association: . . ." (Emphasis supplied.)
In one obvious sense, this latter statute is narrower in scope than is RCW 84.36.020, supra ‑ in that (as above indicated) the former is not limited in application to nonprofit cemetery corporations only. But in another, and perhaps less evident, sense the provisions of RCW 68.20.110 contain a broader tax exemption than does RCW 84.36.020.
Under RCW 84.36.020 the property of a cemetery, in order to be exempt from taxation, must actually be used exclusively for public burying grounds, etc.; accord, opinion dated September 20, 1939, to the Snohomish County Prosecuting Attorney, copy enclosed. Under RCW 68.20.110, however, the designated property of a nonprofit cemetery association is exempt from taxation "if intended" to be used exclusively for burial purposes.
Thus, we would suggest that the differing treatment which you report as being given by county assessors throughout the state to the properties of nonprofit cemeteries, as opposed to those owned by other business corporations, may well amount to nothing more than that which is called for under these two differently [[Orig. Op. Page 3]] worded tax exemption statutes; i.e., RCW 68.20.110, applicable only to nonprofit cemeteries; and RCW 84.36.020 applicable to burial places without such qualification as to ownership, but only where the property in question is actually in use as a public burying ground or cemetery.
We trust the foregoing will be of some assistance to you.
Very truly yours,
Philip H. Austin
Deputy Attorney General