TAXATION ‑- EXCISE TAX ‑- MECHANICAL GAMBLING DEVICES

TAXATION ‑- EXCISE TAX ‑- MECHANICAL GAMBLING DEVICES

Operators of mechanical gambling devices known as "The Clock" are subject to a tax at the rate of 40% of the gross operating income pursuant to chapter 82.28 RCW.

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                                                                     July 7, 1953

Honorable Dinsmore Taylor
Commissioner
State Tax Commission
Insurance Building
Olympia, Washington                                                                                                                Cite as:  AGO 53-55 No. 81

Dear Sir:

            Our opinion is requested as to the applicability of Title XIII of the Revenue Act of 1935, as amended, to operators of a device known as "The Clock."

            We conclude that such operators are subject to the tax imposed by that act.

                                                                     ANALYSIS

            Your letter describes the above mentioned "clock" as follows:

            The device consists of numbered squares placed on a counter, the numbers corresponding to those appearing on the face of a "mechanical clock" located near the board.  Players place bets upon the numbered squares and the clock is electrically activated to spin a free‑turning hand.  If the hand stops upon a number chosen by a player, he wins a certain designated return.

            Assuming the accuracy of the facts as set forth in your letter, these devices are  [[Orig. Op. Page 2]] clearly mechanical lotteries within the rule of the case ofState ex . Evans v. Brotherhood of Friends, 41 Wn. (2d) 133, 247 P. (2d) 787, hence illegal.

            Generally speaking, under our statutes, law enforcement is the exclusive function of local policing agencies.  The authority of the tax commission extends only to the collection of taxes.  It is not a policing agency and is not concerned with the illegality of the device.  In fact, we have gone so far in aid of tax collection that tax returns are confidential even as against a search by law enforcement officials seeking information regarding possible violations of the law.

            Assuming the existence and operation of these devices, their illegality is no bar to the imposition of the tax.  SeeU.S. v. Sullivan, 274 U.S. 259, 71 L.Ed. 1037;Steinberg v. U.S., 14 F. (2d) 548 (C.C.A. 2nd, 1926).

            Your question is whether Title XIII (which was added by chapter 118, Laws of 1941) should be limited to coin-operated mechanical devices or whether it must be construed to cover any mechanical gambling device, coin-operated or otherwise.  The act does not refer to coin-operated devices either in the title or in the text.  The tax is levied on every person for the privilege of engaging in business as an operator of

            "* * * certain mechanical devices * * *"

            and

            "(2) Upon every person * * * in business as an operator of (a) any mechanical device wherein only the element of chance determines a payout to the player, * * *"

            Thus, the exclusive test of taxability is whether or not a mechanical device is employed in determining the pay-outs to players.

            These electrically operated clocks, as described in your letter, although illegal, are clearly "mechanical devices" within the meaning of the act.  Whether it is actuated electrically, manually, by the insertion of a coin, or in any other manner is immaterial under the statute.

            In our opinion, the operators of such devices are taxable under the statute cited above.

Very truly yours,

DON EASTVOLD
Attorney General

RALPH M. DAVIS
Assistant Attorney General