TAXATION ‑- APPLICATION OF TAX EXEMPTION PROVIDED BY CHAPTER 168, LAWS OF 1965, EX. SESS.
(1) The first real property taxes as to which the exemption provided for by chapter 168, Laws of 1965, Ex. Sess., is applicable are the taxes levied in 1966 for collection in 1967.
(2) Under existing law, taxpayers who inadvertently fail to claim an exemption under chapter 168, Laws of 1965, Ex. Sess., may not obtain a refund of the amount of exemption to which they would have been entitled.
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December 6, 1966
Honorable Robert V. Graham
Cite as: AGO 65-66 No. 122
By letter previously acknowledged, you have requested the opinion of this office on several questions relating to chapter 168, Laws of 1965, Ex. Sess. Your questions may be paraphrased as follows:
(1) What are the first taxes as to which exemption is applicable under the terms of the act?
(2) May taxpayers who inadvertently fail to claim exemption under this statute obtain a refund of the amount of exemption to which they would have been entitled?
(3) If the answer to question (2) is in the affirmative, what is the time limitation on the filing of claims for such a refund?
We answer your first question in the manner set forth in our analysis; your second question is answered in the negative, rendering question (3) moot.
In general, the law in question, chapter 168, Laws of 1965, [[Orig. Op. Page 2]] Ex. Sess. (now codified as RCW 84.36.125 through 84.36.127) grants to retired persons of limited income an exemption from the first fifty dollars of real property taxes due and payable in any one year. Section 2 thereof (RCW 84.36.126) provides for this exemption as follows:
"The following persons, as heads of households, shall be exempt from the first fifty dollars of real property taxes due and payable in any one year, provided they come within the following provisions:
"(1) A male head of a household shall be sixty-five years of age or older prior to February 15th of the year in which the real property is assessed and the taxes levied thereon;
"(2) A female head of a household shall be sixty-two years of age or older prior to February 15th of the year in which the real property is assessed and the taxes levied thereon;
"(3) The person claiming exemption shall have owned, either in fee or by contract purchase, the real property for which the exemption is claimed for at least five years or have been a resident of the state of Washington for at least ten years if not qualified under the five year ownership limitation;
"(4) A claim for exemption can only be made for a single family dwelling;
"(5) Said single family dwelling as provided in subsection (4) above cannot be permanently occupied by anyone who is not solely dependent upon the head of the household for his support;
"(6) The head of the household and spouse shall be retired from all gainful employment for at least one year prior to application for such exemption and shall not be actively engaged in any type of business;
"(7) The combined income of the head of the household and his spouse, from all sources whatsoever, shall not be in excess of three [[Orig. Op. Page 3]] thousand dollars ($3,000) for the calendar year immediately preceding the year in which the real property is assessed and the taxes levied thereon.
"(8) All claims for exemption shall be made and signed either before a notary public or the county assessor or his deputy in the county where the real property is located. Any person signing a false claim shall be subject to either civil or criminal perjury;
"(9) Claims for exemption shall be made annually and solely upon forms as prescribed by the Washington State Association of County Assessors.
"Head of a household, as used in this section, may be any of the following: A married person, a single person, a widow or widower, a divorce or divorcee, provided they are the sole support of the household."
This law was enacted by the legislature in 1965, to become effective upon the adoption of House Joint Resolution No. 7, an amendment to the state constitution authorizing this type of exemption. Prior to the November 8, 1966, general election we formally advised (AGO 65-66 No. 99) that no further action by the legislature would be needed to make this statute effective as the law of the state, if the constitutional amendment were to be approved by the voters. As you know, the constitutional amendment was approved.
In considering your questions the first point to be noted is that the statute does not automatically grant an immediate exemption to those persons who may be qualified under its terms. The exemption must be affirmatively claimed. However, the legislation contains no detailed directions as to the timing or allowance of claims for exemption.
Further complicating the matter is the fact that the statute provides for an "exemption" which is in reality a personal deduction from the amount of taxes otherwise due. As such, it is unique in the property tax field. Existing statutes, all of which relate to exemption from assessment of specific types of property, have no application to such a personal deduction. We are obliged, therefore, to seek the answer to your questions from the language of the act itself.
In doing so, we must follow a strict construction of the act.
[[Orig. Op. Page 4]]
". . . In construing a statute of tax exemption which is susceptible of more than one meaning, it is the rule that the statute shall be strictly construed. We said inSpokane County v. Spokane, 169 Wash. 355, 13 P.2d 1084:
"'Taxation is the rule, and exemption is the exception. Where there is an exception, the intention to make one should be expressed in unambiguous terms. Columbia Irr. Dist. v. Benton County, 149 Wash. 234, 270 Pac. 813.'" Crown Zellerbach v. State, 45 Wn.2d 749, 757, 278 P.2d 305 (1954).
You first have asked for our opinion as to what are the first taxes to which the exemption provided for by § 2, chapter 168, Laws of 1965, Ex. Sess.,supra, may be applicable; i.e.,
(a) Taxes levied in 1965 for collection in 1966;
(b) Taxes levied in 1966 for collection in 1967; or
(c) Taxes levied in 1967 for collection in 1968.
Pursuant to the act, persons meeting the state's requirements are, in the words of the statute,
". . . exempt from the first fifty dollars of real property taxes due and payable in any one year, . . ."
The controlling phrase, as we view it, is the phrase "due and payable."
Real property taxes are levied in October of each year. RCW 84.52.030. They are collected during the following year; however, pursuant to RCW 84.56.010, they are not collectible before the fifteenth of February of the year following the year in which they are levied. The next code section, RCW 84.56.020, then provides that:
". . . All taxes upon real and personal property made payable by the provisions of this title shall be due and payable to the treasurer as aforesaid on or before the thirtieth day of April in each year, after which date they shall becomedelinquent, and interest at the rate of eight percent per annum shall be charged upon such unpaid [[Orig. Op. Page 5]] taxes from the date of delinquency until paid: Provided, That when the total amount of tax on any lot, block or tract of real property payable by one person is ten dollars or more, and if one‑half of such tax be paid on or before the said thirtieth day of April, then the time for payment of the remainder thereof shall be extended and said remainder shall bedue and payable on or before the thirty-first day of October following, after which date such remaining one‑half shall becomedelinquent, and interest at the rate of eight percent per annum shall be charged upon said remainder from the date of delinquency until paid: . . ." (Emphasis supplied)
Thus, the statutes relating to the collection of real property taxes distinguish between (1) taxes levied but not yet collectible ‑ RCW 84.56.010,supra; (2) taxes "due and payable" ‑ RCW 84.56.020, supra; and (3) delinquent taxes ‑ RCW 84.56.020,supra. We must assume that the legislature, in enacting § 2, chapter 168, Laws of 1965, Ex. Sess.,supra, was aware of ‑ and intended to recognize ‑ that distinction. See,Graffell v. Honeysuckle, 30 Wn.2d 390, 191 P.2d 858 (1948), and cases cited therein.
It is to be seen from the foregoing that at the time chapter 168, Laws of 1965, Ex. Sess.,supra, became effective (following the adoption of House Joint Resolution No. 7 on November 8, 1966), no taxes levied in 1965 for collection in 1966 were "due and payable"; rather, any such unpaid taxes were delinquent. Accordingly, to allow the exemption provided for by § 2 (RCW 84.36.126),supra, with respect to these taxes would be to apply the statute retrospectively. In view of the absence of any indication that the legislature intended the statute to operate retrospectively, such an interpretation would conflict with the presumption as to the prospective application of statutes. Pape v. Department of Labor and Industries, 43 Wn.2d 736, 264 P.2d 241 (1953). Thus, we conclude that the exemption does not apply to any real property taxes that were delinquent ‑ i.e., no longer "due and payable" on the effective date of the statute.
On the other hand, since real property taxes levied in 1966 (before the effective date of the statute) will not become "due and payable" until February 15, 1967 (accord, RCW 84.56.020, supra) ‑ after the statute has become effective ‑ the exemption may be allowed as to these taxes. Since the key status is "due and payable" rather than "taxes levied," such an application of the exemption provision would not [[Orig. Op. Page 6]] constitute a retrospective application of the statute. Accordingly, it is our opinion, in response to your first question (as paraphrased) that the first taxes against which the exemption may be allowed are those levied in 1966, to become "due and payable" on February 15, 1967.1/
Next you have inquired as to the consequence of an inadvertent failure to claim the exemption. Should an otherwise eligible taxpayer pay his taxes, neglecting to claim the exemption, he would not be able, under existing statutes, to obtain a refund. Recovery of illegal or excessive payments is authorized only by RCW 84.68.020 and by RCW 84.68.110.
The former statute permits refund only of taxes paid under protest.2/ Voluntary payments of property taxes, even though not legally due, cannot be recovered. Childs v. Spokane County, 100 Wash. 64, 170 Pac. 145 (1918); also,Weyerhaeuser Tbr. Co. [[Orig. Op. Page 7]] v. School Dist. No. 188, 7 Wn.2d 683, 110 P.2d 872 (1941). Under the latter statute (RCW 84.68.110) a refund may be obtained of excessive taxes assessed against a taxpayer through error in description, double assessment, or manifest error in the assessment of the property. Neither of these statutes would appear to provide relief in the situation presented. If such relief is to be granted, it will have to come from a further act of the legislature.
We trust that the foregoing will be of assistance to you.
Very truly yours,
JOHN J. O'CONNELL
J. RICHARD DUGGAN
Assistant Attorney General
*** FOOTNOTES ***
1/It should be noted that, as to taxes optionally paid in first and second half installments, the legislature intentionally limited the claim to the first fifty dollars of taxes due and payable. Therefore, in cases where the first half installment is fifty dollars or more, the claim for exemption should be filed on or before April 30th of that year. Otherwise the exemption for that year may be lost.
2/RCW 84.69.020 and 84.69.170 authorize refunds of taxes paid not under protest, but only if they were:
"(1) Paid more than once; or
"(2) Paid as a result of manifest error in description; or
"(3) Paid as a result of a clerical error in extending the tax rolls; or
"(4) Paid as a result of other clerical errors in listing property; or
"(5) Paid with respect to improvements which did not exist on assessment date; or
(6) Paid under levies or statutes adjudicated to be illegal or unconstitutional."