REAL ESTATE SALES TAX: RECITALS OF CONSIDERATION IN DEED AS AFFECTING APPLICABILITY OF TAX.

REAL ESTATE SALES TAX:  RECITALS OF CONSIDERATION IN DEED AS AFFECTING APPLICABILITY OF TAX.

Recitals as to consideration contained in deed are not controlling on question whether or not Real Estate Sales Tax applies.  ("for one dollar & other valuable consideration;" "for one dollar and love and affection") Whether sale has occurred within meaning of RCW 28.45.010 is question of fact.  Seller's affidavit is much better evidence than recital of deed on this question.

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                                                                    May 6, 1953

Honorable R. A. Hensel
Prosecuting Attorney
Douglas County
Waterville, Washington                                                                                                                Cite as:  AGO 53-55 No. 34

 Dear Sir:

             We have considered your request of April 21, 1953, previously acknowledged, for an opinion on the following question:  Is the real estate sales tax applicable to transactions wherein the deed recites "for one dollar and other valuable consideration" or "for one dollar and love and affection?"

             In our opinion, the recital in the deed is not controlling on this question.

                                                                      ANALYSIS

             The recital of consideration in a deed is only one of the elements to be considered in determining whether or not the particular transaction falls within the definition of "sale" made by RCW 28.45.010.  The phrase "for one dollar and other valuable consideration" imports a consideration as defined by RCW 28.45.030, and consequently, a sale, by its wording.  The phrase "for one dollar and love and affection" standing alone would indicate merely a reason for the deed, other than a bargained-for consideration, and might be construed to show a gift.  The cited statute is concerned with a question of fact namely, whether or not a "sale" has occurred.  In answering this question a recital in the deed is of little assistance.  A much better guide is the seller's affidavit, in which the true consideration must be disclosed under oath.

             In this connection we call to your attention the attached opinion of  [[Orig. Op. Page 2]] December 22, 1952, which states that a recited consideration of one dollar cannot be used to measure the tax upon any transfer which is in fact a "sale."

             If the transaction constitutes a gift, rather than a sale, within the meaning of RCW 28.45.010, the real estate sales tax would not apply.  However, the transfer may then be subject to the Washington gift tax, under chapter 83.56 RCW.

             We conclude that the applicability of the real estate sales tax depends upon whether or not a sale has actually occurred, and that recitals in a deed are not controlling upon this question.

 Very truly yours,
DON EASTVOLD
Attorney General 

A. J. HUTTON, JR.
Assistant Attorney General