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Office of the Attorney General

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Bob Ferguson

AGO 1952 No. 404 -
Attorney General Smith Troy


Real property taxes and lien thereunder on property conveyed to the United States between assessment and levy dates are valid although unenforceable while title is held by the United States.

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                                                              September 12, 1952

Honorable Ronald R. Hull
Yakima County Prosecuting Attorney
Yakima County Court House
Yakima, Washington                                                                                                              Cite as:  AGO 51-53 No. 404

Dear Sir:

            You ask our opinion whether

            real property taxes on private property become extinguished by their conveyance to the United States subsequent to the tax day but prior to date of levy.

            The question is close but we conclude that:

            the taxes and the liens thereunder are valid, even though unenforceable while title is held by the United States.


            Under our Washington Constitution, ad valorem taxes on either real or personal property are extinguished by their transfer to the state or its subdivisions between assessment and levy dates.  Real property‑-State v. Snohomish County, 71 Wash. 320, 128 Pac. 667 (1912); and Personal Property‑-Puget Sound Power & Light Co. v. Cowlitz County, 38 Wn. (2d) 907, 234 P. (2d) 506 (1951).  Although  [[Orig. Op. Page 2]] the courts of various states are divided, this appears to be the plurality rule, 63 A.L.R. 1332, et seq., (1929).  You question whether the United States is also such an exempt entity.  We conclude not.

            The pertinent statutes and constitutional provisions are set out below.  RCW 84.40.010 provides:

            "All property now existing, or that is hereafter created or brought into this state, shall be subject to assessment and taxation for state, county, and other taxing district purposes, upon equalized valuations thereof, fixed with reference thereto on the first day of January at 12 o'clock meridian in each year, excepting such as is exempted from taxation by law."

            RCW 84.40.020 provides:

            "All real property in this state subject to taxation shall be listed and assessed every year, with reference to its value on the first day of January of the year in which it is assessed.  * * * "

            RCW 84.60.020 provides:

            "The taxes assessed upon real property shall be a lien thereonfrom and including the first day of January in the year in which they are levied until the same are paid * * *" (emphasis supplied)

            Wash. Constitution, Art. VII, § 3 (19th Amendment 1946) provides:

            "The United States and its agencies and instrumentalities, and their property, may be taxed under any of the tax laws of this state, whenever and in such manner as such taxation may be authorized or permitted under the laws of the United States, notwithstanding anything to the contrary in the constitution of this state."

             [[Orig. Op. Page 3]]

            This was the nineteenth amendment to our constitution, adopted in November 1946.  This constitutional provision is carried into our statute law by RCW 84.08.180, which provides:

            "Notwithstanding anything to the contrary in the laws of this state, expressed or implied, the United States and its agencies and instrumentalities and their property are declared to be taxable, and shall be taxed under the laws of this state, whenever and in such manner as such taxation may be authorized or permitted under the laws of the United States."

            State v. Snohomish County, supra, 71 Wash. at 323, declares that although the state

            "has power for the purposes of the lien to treat the entire proceeding as having been taken at any given time, that fact does not do away with the necessity of any step in the proceeding."  71 Wash. at p. 323.

            Thus, under our then statutes and constitution, whether a valid lien was created depended upon the validity of each statutory step until the date of levy.  In other words, that the

            "creation of a valid tax implies the existence of a susceptible subject of taxation at every stage of the process of such creation."  71 Wash. at p. 324.

            Thus the transfer of land to the State of Washington, exempt by our constitution, subsequent to date of assessment but prior to levy, arrested the development of tax liability and thus the inchoate or "imperfect" lien imposed by the above statute was removed or dissipated.  The court, 71 Wash. at p. 326, states:

            "passage of the title to the state in the interim therefore checks the ripening of the inchoate into a matured and perfect lien, makes it incapable of enforcement, in effect aborts and destroys it."

            See alsoPuget Sound Power & Light Company v. Cowlitz County, supra.

             [[Orig. Op. Page 4]]

            Thus, since the validity of the tax lien depends upon the property being in taxable (non-exempt [[nonexempt]]) ownership at each state of the tax imposition procedure, including the date of levy, the taxes in the above cases became invalid.

            The question is therefore resolved to whether the United States is such an exempt entity as to property it obtains, between assessment and levy dates.  It is not made so by our Washington constitution under the above amendment unless made exempt by the Federal Constitution, i.e., to be exempt under Washington constitution, it must be exempt under the Federal Constitution.  In other words, if federal law permits a state tax lien to be imposed on property, obtained by the United States subsequent to assessment but prior to levy, the state constitution is no bar.  This was the clear intent of the constitutional amendment and the statute enacted thereunder.  A legislature may impose a proper tax upon anything not constitutionally prohibited.  Thus, if federal law permits, the county tax lien continues.

            United States v. Alabama, 313 U.S. 274 (1940) specifically holds that the state tax lien imposed under Alabama statutes very similar to our own remains valid even though the property was transferred to the United States in the interim between assessment and levy dates.  See alsoNew York v. Maclay, 288 U.S. 290, 292 (1932).  See alsoOsterberg v. Union Trust Co. 93 U.S. 424, 425, 428 (1876);People v. Commissioners, 104 U. S. 466, 468 (1881); Shotwell v. Moore, 129 U.S. 590, 598 (1889); andGasaway v. Seattle, 52 Wash. 444, 100 Pac. 991 (1909).

            However, the lien remains unenforceable while the property is in the United States but subsequent purchasers will take the property subject to that lien.  United States v. Alabama, supra.

Very truly yours,

Attorney General

Assistant Attorney General