AGO 1971 No. 3 - Jan 14 1971
TAXATION ‑- REAL PROPERTY ‑- EXCISE ‑- MOBILE HOMES
If a mobile home meets the conditions set forth in the first paragraph of RCW 82.50.180 (5), it is not necessary, in order for the unit to be placed on the real property tax rolls of the county in which it is located, that the owner thereof make a request to the county assessor for such entry.
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January 14, 1971
Honorable George Kinnear
Director, Department of Revenue
415 General Administration Building
Olympia, Washington 98501
Cite as: AGO 1971 No. 3
By letter previously acknowledged you have requested our opinion on a question which we paraphrase as follows:
If a mobile home meets the conditions set forth in the first paragraph of RCW 82.50.180 (5), may the county assessor, in the absence of a request by the owner thereof, enter the mobile home on the real property tax rolls of the county?
We answer your question in the affirmative.
Chapter 82.50 RCW imposes an excise tax upon owners of "mobile homes" or "travel trailers," as defined in RCW 82.50.010, for the privilege of using the same within this state. The tax is levied each calendar year at the rate of one and one‑half percent, measured by the market value of the mobile home or travel trailer. RCW 82.50.030.1/
[[Orig. Op. Page 2]]
Since first imposed upon "house trailers" by chapter 139, Laws of 1955, the act in question has relieved from ad valorem taxation any house trailer, mobile home or travel trailer which is subject to the excise tax.2/
Certain mobile homes and travel trailers otherwise subject to the excise tax, are exempted therefrom under the provisions of RCW 82.50.180. That section reads in material part:
"The following mobile homes or travel trailers are specifically exempted from the operation of this chapter:
". . .
"(5) A mobile home which has substantially lost its identity as a mobile unit by virtue of being permanently fixed in location upon land owned by the owner of the mobile home and placed on a permanent foundation, subsequent to the removal of [[Orig. Op. Page 3]] the hitch, wheels and axles of said unit, and with fixed pipe connections with sewer, water or other utilities.
"Following the permanent placement of said mobile home as provided herein, and upon the request of the owner, made to the county assessor, the assessor shall confirm compliance with the conditions of this subsection and if the unit so qualifies, the unit will be entered on the real property tax rolls of the involved county, and said unit shall be exempted from the provisions of this chapter from and after the date it is assessed as a part of the real property."
Thus, because no excise tax is payable with respect to any mobile home which meets the conditions contained in the first paragraph of subsection (5) of RCW 82.50.180, such mobile home is not exempt from property taxation and can be entered on the real property tax rolls as provided in the second paragraph of subsection (5) of RCW 188.8.131.52/
But, because of the wording of the second paragraph of subsection (5), it can be argued that the assessor could not confirm compliance with the conditions of the first paragraph of said subsection and place the mobile home on the real property tax rolls, until the owner had first requested such confirmation and change of tax.
However, under the provisions of RCW 84.40.040 and 84.40.160, the county assessor has the sole responsibility to list for taxation all real property together with any improvements thereon. While the taxpayer is given certain duties and obligations with respect to the listing of his personal property he has none in so far as his real property is concerned.
[[Orig. Op. Page 4]]
We do not believe that the second paragraph of subsection (5) detracts from the assessor's obligation to place, upon his own initiative, a permanently attached mobile home on the real property tax rolls. In view of RCW 84.40.040 and 84.40.160,supra, we believe that this paragraph is susceptible to a construction that a request of the owner is of importance only in those cases where the assessor, through the regular performance of his duties, has not otherwise become aware of the mobile home's change in status. The request will then help to insure that the assessor's oversight will be corrected. However, the request does not constitute the exclusive means of invoking the authority of the assessor to place the unit on the real property tax rolls of the county in which it is located where it is found by the assessor to be in compliance with the conditions set forth in the first paragraph of the subsection.
In adopting this construction of RCW 82.50.180 (5), we are particularly influenced by the proposition that any other construction ‑ i.e., that the owner's request must in every case be made before the "former" mobile home may be placed on the real property tax rolls ‑ would raise a substantial question as to the constitutionality of the statute. And, of course, such a construction would be contrary to the rule that where a statute is open to two constructions, one of which will render it constitutional and the other unconstitutional or open to grave doubt in this respect, the former construction and not the latter is to be adopted. Accord,Soundview Pulp Co. v. Taylor, 21 Wn.2d 261, 150 P.2d 839 (1944); see, also,Linder v. United States, 26 U.S. 5, 69 L.Ed. 819, 45 S.Ct. 446 (1925); andGruen v. Tax Commission, 35 Wn.2d 1, 211 P.2d 651 (1949).
As previously noted, when the owner of a mobile home affixes it to real estate which he owns, the mobile home becomes real property and subject to ad valorem taxation the same as any other structure attached to the land. Therefore, if permanently placed mobile homes, at the owner's election, were to be singled out and subjected to a type and method of taxation not applied to all other real estate, a serious constitutional question could be raised under the Fourteenth Amendment to the state Constitution, which requires all taxes to be uniform upon the same class of propertyand establishes all real estate as one class.
[[Orig. Op. Page 5]]
The fact that any mobile home to which the excise tax applies is relieved from ad valorem property taxation does not amount simply to a grant of exemption from the latter tax ‑ which the legislature might constitutionally have the power to give. In construing the motor vehicle excise tax, chapter 228, Laws of 1937, which was substantially the same in its operation as chapter 82.50 RCW, the mobile home excise tax, the court said in State ex rel. Hansen v. Salter, 190 Wash. 703, 70 P.2d 1056 (1937):
"It is suggested that exemption of 'private motor vehicles' fromad valorem taxes of itself constitutes discrimination. But this is in no sense an exemption statute. It is simply designed to change the character of the tax, the method of levying and collecting it, and the disposition of the revenues flowing from it. This, the legislature has plenary power to do, under the fourteenth amendment to the state constitution."4/
There is one further reason why a permanently fixed mobile home cannot be subject to the excise tax but must be placed upon the real property tax rolls, irrespective of a request by the owner. RCW 82.50.020 imposes the excise tax on the privilege of using any "mobile home." However, RCW 82.50.010 defines the term "mobile home" as meaning:
". . . all trailers of the type designed as facilities for human habitation and which are capable of being moved upon the public streets and highways and which are more than thirty-two feet in length, except as hereinafter specifically excluded."
Thus, any mobile home which has met the requirements of the first paragraph of RCW 82.50.180 (5), supra, is no longer a "mobile home" as defined in the act because it is not then "capable of being moved upon the public streets and highways." Hence, not being subject to the mobile home excise tax, it is subject to property taxation by virtue of RCW 82.50.190, supra, which excludes from property taxation only those mobile homes which are subject to the excise tax.
[[Orig. Op. Page 6]]
We trust that the foregoing will be of assistance to you.
Very truly yours,
HENRY W. WAGER
Assistant Attorney General
*** FOOTNOTES ***
1/This section further provides:
". . . Provided, That the calendar year shall be divided into twelve parts corresponding to the months of the calendar year and the excise tax upon a mobile home or travel trailer used for the first time in this state after the last day of any month shall only be levied for the remaining months of the calendar year including the month in which the mobile home or travel trailer is first used:Provided further, That the minimum amount of tax payable shall be two dollars.
"A mobile home or travel trailer shall be deemed used for the first time in this state when such vehicle was not previously licensed by this state for the year immediately preceding the year in which application for license is made."
2/See, § 19, chapter 139, Laws of 1955, codified in RCW 82.50.190, which now reads in material part:
". . . and no mobile home or travel trailer with respect to which the excise tax imposed by this chapter is payable shall be listed and assessed for ad valorem taxation."
3/Note that to qualify for the excise tax exemption the owner of the mobile home must place it upon land owned by him, which makes the mobile home real property for ad valorem tax purposes under RCW 84.04.090.
4/It should be kept in mind when reading this case that different types of personal property may be placed in different classes for tax purposes.