AGO 1991 No. 7 - Mar 4 1991
DEPARTMENT OF REVENUE ‑- TAXATION ‑- PROPERTY ‑- PUBLIC FUNDS ‑- PUBLIC ASSISTANCE
1. Article 7, section 1, of the Washington Constitution, provides that all taxes on real property be uniform. House Bill 1297 which authorizes payments to certain people, calculated with reference to the taxes levied on their primary residence, does not violate the uniformity requirement.
2. Article 11, section 9, of the Washington Constitution, prohibits releasing or discharging state taxes on a county, its inhabitants or its property. The payment of assistance from funds appropriated for that purpose by the Legislature in House Bill 1297 does not constitute a release or discharge of the state property tax levied for the support of the common schools.
3. Article 8, sections 5 and 7, of the Washington Constitution, prohibit gifts of public funds. The payment of assistance to certain citizens authorized by House Bill 1297 is a gift of public funds because the payments do not carry out a fundamental governmental function and there is no consideration for the payments.
4. Article 8, sections 5 and 7, of the Washington Constitution, do not prohibit gifts of public funds that are necessary for the support of the poor. House Bill 1297 authorized assistance to persons with $30,000 or less of combined disposable income. The question of whether House Bill 1297 constitutes assistance to the poor is, to some degree, a factual question and we cannot say precisely where the court will draw the line between assistance to the poor and an impermissible gift. Some people with incomes of less than $30,000 are, undoubtedly, poor. However, there is substantial doubt whether an individual with an annual income of $30,000 and no dependents is poor. It is unlikely that a court would permit such a person to receive assistance pursuant to House Bill 1297.
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[[Orig. Op. Page 2]]
March 4, 1991
The Honorable Jean Silver
State Representative, District 5
413 John L. O'Brien Building
Olympia, Washington 98504
Cite as: AGO 1991 No. 7
Dear Representative Silver:
You have asked for our opinion on several questions relating to House Bill 1297 which was introduced in the 52nd Legislature. We paraphrase your questions:
1. Does House Bill 1297 violate article 7, section 1, of the Washington Constitution, that provides all taxes on real property be uniform?
2. Does House Bill 1297 violate article 11, section 9, of the Washington Constitution, that prohibits releasing, discharging or commuting state taxes on a county, its inhabitants or its property?
3. Does House Bill 1297 violate article 8, sections 5 and 7, of the Washington Constitution, that prohibits gifts of public funds?
The aswers to questions 1 and 2 are no. The answer to question 3 is set forth in our analysis.
House Bill 1297 
deals with property tax assistance payments. The bill provides that a "person may receive assistance for all or a portion of the amount of excess and regular property taxes levied for collection in 1991 . . . ." HB 1297, § 1(2). There are three qualifications for assistance.
First, the assistance is only available for property taxes imposed upon the applicant's principal residence as of January 1, 1991. The residence must be owned and occupied by the person claiming assistance. Id. § 1(2)(a), (b). House Bill 1297 [[Orig. Op. Page 3]] incorporates the definition of residence in RCW 84.36.383(1). Id. § 1(1).
Second, the person claiming the assistance must have a "combined disposable income" of $30,000 or less. The bill adopts the definition of combined disposable income in RCW 84.36.383(5). Id. § 1(2)(c).
Third, the amount of assistance is limited. The bill provides:
The amount of assistance is equal to the amount by which the 1991 taxes exceed the greater of:
(i) One hundred twenty percent of the 1990 taxes; or
(ii) The 1990 taxes plus two hundred dollars.
To obtain assistance one must file a claim with the Department of Revenue before July 1, 1991. Id. § 1(2)(e). If the Department determines the claim is valid, it shall pay the claim only from monies appropriated for that purpose. Id. § 1(3). House Bill 1297 appropriates $14 million, or as much thereof as may be necessary, from the general fund to pay these claims. Id. § 2.
Does House Bill 1297 violate article 7, section 1, of the Washington Constitution, that provides all taxes on real property be uniform?
Your first question concerns the uniformity requirement in article 7, section 1 (amendment 81), 
of the Washington Constitution, which provides in part:
[[Orig. Op. Page 4]]
All taxes shall be uniform upon the same class of property within the territorial limits of the authority levying the tax and shall be levied and collected for public purposes only. The word 'property' as used herein shall mean and include everything, whether tangible or intangible, subject to ownership. All real estate shall constitute one class . . . .
Put simply, article 7, section 1 requires the property tax be applied uniformly to all property in the same class. Much of the litigation regarding the uniformity requirements of article 7, section 1 has concerned the assessment of property. For example, inDore v. Kinnear, 79 Wn.2d 755, 489 P.2d 898 (1971), the court struck down the piecemeal revaluation of 27,000 parcels which constituted only six percent of the taxable parcels in the county. See also Carkonen v. Williams, 76 Wn.2d 617, 458 P.2d 280 (1969); Sator v. Dep't of Revenue, 89 Wn.2d 338, 572 P.2d 1094 (1977).
House Bill 1297 does not deal with the assessment of property by the county assessor or the Department of Revenue. It does not affect the levy of property tax by the various taxing districts. Therefore, we see no violation of article 7, section 1, in this respect.
There might be a violation of the uniformity requirements of article 7, section 1, if House Bill 1297 provided for a rebate of property tax. 
However, in our judgment, House Bill 1297 does not authorize a property tax rebate. Instead, it is more properly characterized as an assistance program, that calculates the amount of assistance in relation to the property tax levied on a residence.
There are two reasons why we view House Bill 1297 as an assistance program instead of a rebate program.
[[Orig. Op. Page 5]]
First, the assistance is calculated without reference to the payment of property tax. Rather, it is calculated based on property taxes levied. The amount of aid depends on the "1990 taxes" and the "1991 taxes." These two terms are defined as:
(a) '1990 taxes' means the amount of excess and regular real property taxeslevied for collection in 1990 for the residence.
(b) '1991 taxes' means the amount of excess and regular real property taxeslevied for collection in 1991 for the residence.
HB 1297, § 1(1)(a)(b) (emphasis added). Based on these definitions, section 1 of House Bill 1297 provides:
(2) A person may receive assistance for all or a portion of the amount of excess and regular real property taxes levied for collection in 1991 . . . .
(d) The amount of assistance is equal to the amount by which the 1991 taxes exceed the greater of:
(i) One hundred twenty percent of the 1990 taxes; or
(ii) The 1990 taxes plus two hundred dollars.
The assistance is calculated with reference to taxes levied. Unlike a rebate, House Bill 1297 does not affect the amount of tax paid nor is it a refund of tax paid. There is no requirement that a person receiving assistance pay the property tax levied on the residence.
To qualify for aid a person must own the residence subject to tax on January 1, 1991. HB 1297, § 1(2)(a). However, the person who owns the residence on January 1, 1991, may not be the person required by law to pay the entire tax. If the residence is sold after January 1, 1991, RCW 84.60.020 provides in part:
[W]hen there is no express agreement as to payment of the taxes [on real property] thereon due and payable in the calendar year of the sale or the contract to sell, the grantor or vendor shall be liable for the same proportion of such taxes as the part of the calendar year prior to the day of the sale or the contract to sell bears to the whole of such calendar year, and the grantee or purchaser shall be liable for the remainder of such taxes and subsequent taxes.
[[Orig. Op. Page 6]]
Thus, if the residence is sold on June 30, 1991, the owner, in absence of a contrary agreement, is subject to one‑half the property tax levied on the residence. The buyer is subject to the other one‑half. Nevertheless, as we read House Bill 1297, the seller who owns the residence on January 1, 1991, will receive assistance if he or she meets all the other qualifications. The buyer will not be entitled to any assistance because he or she did not own the residence on January 1, 1991.
House Bill 1297 does not require that the assistance received be used to pay the tax levied on the residence and eligibility to receive assistance is not contingent upon payment of the tax. Indeed, as we read the bill it is possible for a person to receive assistance who did not paid his or her 1990 property taxes and does not intend to pay his or her 1991 property taxes.
Even individuals who intend to pay their 1991 property taxes will, in all likelihood, apply for assistance before the taxes are completely paid. RCW 84.56.020 entitles taxpayers to pay their property tax in two installments. It provides:
All taxes upon real and personal property made payable by the provisions of this title shall be due and payable for the treasurer . . . on or before the thirtieth day of April and shall be delinquent after that date . . .Provided further, That . . . if one‑half of such tax be paid on or before the said thirtieth day of April, the remainder of such tax shall be due and payable on or before the thirty-first day of October following and shall be delinquent after that date . . . .
RCW 84.56.020. Thus, the first one‑half of 1991 property taxes must be paid by April 30, 1991, and the second one‑half must be paid by October 31, 1991. House Bill 1297 requires a person claiming aid to file before July 1, 1991. Id. § 1(2)(e). This is almost four months before the second one‑half of 1991 property tax is due.
Of course, if a person does not pay the property tax levied on his or her residence, it will become delinquent. Chapter 84.64 RCW imposes heavy penalties and provides for the collection of unpaid property tax. House Bill 1297 does not affect this collection procedure. The bill does not reduce the amount of the delinquent taxes or in any other way assist a delinquent taxpayer. In our judgment, this fact also supports our characterization of House Bill 1297 as an assistance program.
[[Orig. Op. Page 7]]
The second reason we judge House Bill 1297 to be an assistance program is that it does not reduce the property taxes actually collected by the various taxing districts. House Bill 1297 calculates the assistance with respect to "excess and regular real property taxes levied". These excess and regular property taxes include the taxes levied by the various taxing districts. For example, if one lived in an unincorporated part of a county, with no special districts or excess levies, he or she might be subject to the state school levy, RCW 84.52.065; the general county levy, RCW 36.40.090; and the county road fund levy, RCW 36.82.040. Assuming these taxes are levied at their maximum statutory rate limit (RCW 84.52.043), the taxes on a residence assessed at its fair market value of $100,000 is $765. Calculations are illustrated below:
State School Levy ($3.60 per $1,000) = $ 360
General County Levy ($1.80 per $1,000) = $ 180
County Road Levy ($2.25 per $1,000) = !tt$ 225
RCW 84.56.020 provides that the tax of $765 be paid to the county treasurer. RCW 84.56.230 requires the treasurer to distribute the taxes collected to each fund. In this case, the state school fund receives $360; the general county fund receives $180; and the county road fund receives $225.
A tax rebate is a deduction from the amount of taxes due or a return of part of the tax paid. House Bill 1297 does not have this affect. Even if our hypothetical taxpayer qualified for $150 of assistance under House Bill 1297, it would not reduce the taxes paid by the treasurer to the three funds in question. Even with $150 of assistance, the state school fund still receives $360; the general county fund, $180; and the county road fund, $225.
The money used to fund the assistance program does not come from the property taxes thus levied and collected. Instead, it is paid from a $14 million appropriation. HB 1297, § 2. It is important to note that the appropriation cannot come from the state school levy‑-the $360 in our example. Article 7, section 5, of the Washington Constitution, provides:
No tax shall be levied except in pursuance of law; and every law imposing a tax shall state distinctly the object of the same to which only it shall be applied.
[[Orig. Op. Page 8]]
Article 7, section 5 requires that taxes levied for a purpose must be applied to that purpose. The court reached this conclusion in State ex rel. Latimer v. Henry, 28 Wash. 38, 68 P. 368 (1902):
From [article 7, section 5] it seems too plain for argument that the funds of the county raised by taxation for general county purposes cannot be applied to the payment of assessment of costs against school lands improved in a local assessment district. Such application is not for a county purpose. On this ground . . . we hold that part of § 8 of the act of 1895 which provides that the county shall pay the assessment apportioned against school lands out of its general fund, and have a lien on the proceeds of the sale of such lands from which it is to be reimbursed, unconstitutional and void.
28 Wash. at 45-6.
The state school levy is "for the support of common schools of the state". RCW 84.52.065. The taxes levied for the support of the common schools cannot be appropriated to make assistance payments.
House Bill 1297 does not violate the uniformity provisions of article 7, section 1. Even when assistance payments are made, the assessment, levy and collection of property tax remain uniform.
Does House Bill 1297 violate article 11, section 9, of the Washington Constitution, that prohibits releasing, discharging or commuting state taxes on a county, its inhabitants or its property?
Your second question concerns article 11, section 9, of the Washington Constitution, which states:
No county, nor the inhabitants thereof, nor the property therein, shall be released or discharged from its or their proportionate share of taxes to be levied for state purposes, nor shall commutation for such taxes be authorized in any form whatever.
Article 11, section 9 applies to taxes levied for state purposes‑-in this case, the state school levy. It does not apply to taxes levied for local (e.g., county or city) purposes. The constitutional prohibition in article 11, section 9 "is not only [[Orig. Op. Page 9]] concerned with discriminatory release of a tax system already in existence, but also requires that each county of the state pay its proportionate share of taxes to be levied for state purposes." Bond v. Burrows, 103 Wn.2d 153, 160-61, 690 P.2d 1168 (1984).
The payment of assistance from a fund appropriated by the Legislature for that purpose by House Bill 1297 does not constitute a release or discharge of state tax. As we pointed out in our answer to question 1, the state school levy cannot be appropriated to make assistance payments. The state school levy is spread uniformly among the counties. No county inhabitant is released or discharged from paying the state school levy and all the tax collected will be used for the purpose of supporting the common schools. Since we view House Bill 1297 as an assistance program, we conclude that it does not violate article 11, section 9.
Does House Bill 1297 violate article 8, sections 5 and 7, of the Washington Constitution, that prohibits gifts of public funds?
Article 8, section 5, of the Washington Constitution, provides:
The credit of the state shall not, in any manner be given or loaded to, or in aid of, any individual, association, company or corporation.
Article 8, section 7, of the Washington Constitution, provides:
No county, city, town or other municipal corporation shall hereafter give any money, or property, or loan its money, or credit to or in aid of any individual, association, company or corporation, except for the necessary support of the poor and infirm, or become directly or indirectly the owner of any stock in or bonds of any association, company or corporation.
Although article 8, sections 5 and 7 are addressed to different political entities, the court has "construed sections 5 and 7 as containing similar restrictions, similar exceptions thereto, and as implementing nearly identical policies with respect to different political entities." Health Care Facilities v. Ray, 93 Wn.2d 108, 115, 605 P.2d 1260 (1980).
[[Orig. Op. Page 10]]
We have construed House Bill 1297 as an assistance program. This characterization is also important for our analysis of article 8, sections 5 and 7. If House Bill 1297 authorized a rebate ofuncollected taxes, there would be no violation of article 8, sections 5 and 7. (Although there might be a violation of other provisions of the Washington Constitution.)
Seattle‑King Cty Council of Camp Fire v. Dep't of Revenue, 105 Wn.2d 55, 711 P.2d 300 (1985) concerned the retroactive repeal of uncollected taxes. The court ruled that the retroactive repeal was permissible stating:
[T]he absence of any actual public expenditure [is] clearly an important consideration. Therefore, unless the State must actually return money to the affected Taxpayers, this reasoning implies that a retroactive tax repeal will not contravene Const. art. 8, §§ 5 or 7 . . . .
105 Wn.2d at 61 (citations and footnotes omitted).
House Bill 1297 does not fall within the rule in Camp Fire because it would not cancel uncollected taxes. The bill authorizes a distribution of funds to qualified recipients.
Accordingly, we must analyze the court's decisions interpreting article 8, sections 5 and 7. There are a number of these decisions and they have not always been consistent. See discussion inIn re Marriage of Johnson, 96 Wn.2d 255, 264-66, 634 P.2d 877 (1981). In recent years the court has narrowed the application of these constitutional provisions. In doing so the court has characterized that construction as an attempt to limit the scope of the constitutional provisions to the evils the framers sought to prevent‑-the harmful effects on the public purse of granting public subsidy to private commercial enterprises, primarily railroads. Tacoma v. Taxpayers of Tacoma, 108 Wn.2d 679, 701-02, 743 P.2d 793 (1987).
InTacoma v. Taxpayers, a majority of the court set out two tests by which to judge a public expenditure. First, no "unconstitutional gift of public property occurs when funds are expended as entitlement payments, made by the government in carrying out its fundamental purposes." 108 Wn.2d at 702. The theory is that the public benefit from carrying out the fundamental governmental function is a type of consideration for the funds expended. Marriage of Johnson, 96 Wn.2d at 262.
Second, with expenditures that are not for a fundamental governmental purpose, the court focuses on two factors: "consideration and with donative intent." 108 Wn.2d at 702. [[Orig. Op. Page 11]] These two factors are related. The court uses donative intent to determine how closely to scrutinize sufficiency of the consideration. "Unless there is proof of donative intent or grossly inadequate return, courts do not inquire into the adequacy of consideration." Tacoma, 108 Wn.2d at 703.
In our judgment, House Bill 1297 does not pass either of these tests. The payments authorized under the bill do not appear to carry out any fundamental governmental function and House Bill 1297 does not articulate such a function.
This is different from expenditures which have been sustained as fulfilling a fundamental governmental function. For example, inMarriage of Johnson, the court considered RCW 74.20.040 which authorizes the Department of Social and Health Services to offer support enforcement services to children. A plurality of the court concluded that "[p]ublic enforcement of child support is a recognized governmental function." 96 Wn.2d at 262. We do not see that the payments authorized in House Bill 1297 fulfill any similar recognized governmental function. 
We also do not find any consideration for the payments that take House Bill 1297 outside the restriction in article 8, sections 5 and 7. It is true that in the absence of donative intent, the court will not inquire into the adequacy of consideration. For example, in Tacoma v. Taxpayers the court found that energy savings which could not be predicted over the long run were adequate consideration to support energy conservation measures in private homes. However, in reviewing House Bill 1297, we find no consideration flowing to the state.
House Bill 1297 falls within the gift provisions of article 8, sections 5 and 7. This does not end the analysis. Not all gifts are prohibited by the constitution. There is a specific exemption for "the necessary support of the poor and infirm". Const. art. 8, § 7. The court has ruled that the poor and infirm exception should be read in the disjunctive. Health Care Facilities, 93 Wn.2d at 116. The State can make payments to the poor or to the infirm without violating the constitution.
House Bill 1297 makes no reference to the health of the recipient. It does limit recipients to disposable income of $30,000 or less. HB 1297, § 1(2)(c). Therefore, we must analyze [[Orig. Op. Page 12]] House Bill 1297 in light of the exception for necessary support of the poor.
The court has interpreted the exception permitting assistance to the poor on two occasions. InMorgan v. Dep't of Social Security, 14 Wn.2d 156, 127 P.2d 686 (1942), the court heard a challenge to the Senior Citizens Grants Act, Laws of 1941, ch. 1. This law authorized grants to senior citizens with yearly incomes of $480 or less. The court sustained the constitutionality of the act stating:
If the act by its terms purports to relieve persons not in actual need, it might well be challenged upon constitutional grounds, but while the 'declaration of intent,'supra, contains a statement arguendo, that need is not the only, or the best, basis for an old-age pension, the latter portion of the declaration shows beyond question that the act as drawn operates for the benefit of persons 'without resources and income,' or upon a basis of need alone. Considering the entire act, we hold that no person who is not in need may be a beneficiary thereunder.
. . .
The argument advanced byamici curiae, to the effect that the entire act should be held void as purporting to grant relief to persons described in the act as possible beneficiaries thereunder, upon some basis other than need, is not well founded, and the act cannot be held unconstitutional.
14 Wn.2d at 169. In State v. Guaranty Trust Co., 20 Wn.2d 588, 148 P.2d 323 (1944), the court again considered the Senior Citizens Grants Act. And the court reaffirmed its holding in Morgan. The court stated:
It will be seen from what we have said in deciding the Morgan case that the only legal justification for the aid of citizens of the state is that those aided must be without resources or income and upon the basis of need along. The lawmaking power of the state has the authority, within reasonable limitations, to declare what shall be deemed a resource or income, and it has done so in the act.
Under the act, a senior citizen may have quite a substantial amount of property of the excepted kind and still be regarded as a needy person and hence entitled to a grant.
[[Orig. Op. Page 13]]
20 Wn.2d at 592.
With these decisions in mind we turn again to House Bill 1297. We note at the outset that there is no definition of need or declaration that the purpose of the assistance payment is to help the poor. As in the Senior Citizens Grants Act, House Bill 1297 does limit aid to persons of a certain income level. A "person claiming the assistance must have a combined disposable income, as defined in RCW 84.36.383, of thirty thousand dollars or less." HB 1297, § 1(2)(c).
RCW 84.36.383(5) defines "combined disposable income" as:
[T]he disposable income of the person claiming the exemption, plus the disposable income of his or her spouse, and the disposable income of each cotenant occupying the residence for the preceding calendar year, less amounts paid by the person claiming the exemption or his or her spouse during the previous year for the treatment or care of either person in a nursing home.
RCW 84.36.383(6) defines "disposable income" as:
[A]djusted gross income as defined in the federal internal revenue code, as amended prior to January 1, 1989, or such subsequent date as the director may provide by rule consistent with the purpose of this section, plus all of the following items to the extent they are not included in or have been deducted from adjusted gross income . . . .
RCW 84.36.383(7) defines "cotenant" as:
[A] person who resides with the person claiming the exemption and who has an ownership interest in the residence.
The Legislature clearly has the authority to make payments to the poor based on property tax levied against their primary residence. The question of whether House Bill 1297 constitutes assistance to the poor is, to some degree, a factual question. In 1941 the Senior Citizens Grants Act defined eligibility for assistance as a yearly income of $480 or less. Clearly, in 1991 poverty is not limited to a yearly income of $480 or less.
The Legislature has the power, within reasonable limits, to declare what shall be deemed income or resources. For example, we are not troubled by the fact that recipients of assistance under House Bill 1297 must be property owners to qualify. The [[Orig. Op. Page 14]] Legislature can declare that a person's residence will not be included in determining his or her income or resources. The Legislature has taken a similar approach to eligibility for public assistance. See RCW 74.04.005(10)(a).
After reviewing House Bill 1297, we have substantial doubt that the bill, as currently drafted, constitutes assistance to the poor. Obviously, some applicants with less than $30,000 are poor. In addition, we recognize that the $30,000 limit in House Bill 1297 may apply to more than one person. Four cotenants who have dependents, each with an annual income of $7,500, might be considered poor even though their combined disposable income is $30,000. However, we have great difficulty believing that a single person with an annual income of $30,000 and no dependents is poor. And if challenged, we doubt that the court would permit such a person to receive assistance pursuant to House Bill 1297.
Indeed, it is possible that the court might go beyond disallowing aid to applicants who are not poor and strike down the entire act. InMorgan the court noted that an act might be challenged on constitutional grounds if, by its terms, it purports to relieve persons who are not in actual financial need. Morgan did not find the Senior Citizens Grants Act unconstitutional because the declaration of intent showed that act was drawn to operate for the benefit of people without resources and income. InsteadMorgan held that a person who is not in need cannot receive assistance. Morgan, 14 Wn.2d at 169.
In this case there is no legislative declaration that the purpose of House Bill 1297 is to assist the poor. There is no reference at all to the need of the recipients of the assistance. The only limitation is the requirement of $30,000 or less of combined disposable income. This income limitation is so high that it may convince the court that the purpose of House Bill 1297 is not to aid the poor, but to aid those who are not in actual financial need.
You will note that our discussion of whether House Bill 1297 constitutes assistance to the poor is phrased in terms of possibilities. Since the question is, in part, factual, we cannot say precisely where the court will draw the line between assistance to the poor and an impermissible gift. In our view $30,000 is too high, certainly, it relates to an individual without dependents. However, we have no facts before us and we do not know what facts might be developed and presented to a court. We also do not know what facts might come before the Legislature to justify drawing the line at a particular level. Obviously, the higher the income level the more difficult it is to justify the payments as assistance to the poor. The lower the income level the easier it is to justify.
[[Orig. Op. Page 15]]
We hope the foregoing will be of assistance to you.
Very truly yours,
KENNETH O. EIKENBERRY
WILLIAM B. COLLINS
Assistant Attorney General
*** FOOTNOTES ***
 House Bill 1297 is set forth in its entirety at Appendix A.
 This provision became part of the constitution in 1930 when the people adopted amendment 14. Article 7, section 1 was subsequently amended in 1988 when the people adopted amendment 81. The changes made by amendment 81 do not bear on this opinion.
 In Vance Lumber Co. v. King Cty, 184 Wash. 402, 51 P.2d 623 (1935), the court considered the constitutionality of an act that authorized a five percent tax rebate on delinquent taxes paid before a certain date. The plaintiff in the action was a taxpayer seeking the rebate and the defendant was a county asserting the unconstitutionality of the rebate law. The court did not reach the question of uniformity since "only the taxpayer [and not the county] who suffers thereby may raise the question." 184 Wash. at 409.
 We consider separately whether the payments fall, with the exception to article 8, sections 5 and 7, that permits necessary support for the poor.