AGO 1956 No. 234 - Mar 26 1956
TAXES, TAX REFUNDS, PROTEST.
First-half payment of taxes must be made under protest if the taxpayer is to preserve his right to possible refund of such taxes, and an unlawful portion of taxes cannot be deducted from the total amount due the county treasurer, but the entire amount shown must be paid with no deduction or set off of illegal tax still due or already paid.
A short form of protest, referring to an incorporating by reference a comprehensive form already on file with the county treasurer, is valid.
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March 26, 1956
Honorable Charles O. Carroll
County City Building
Seattle, Washington Cite as: AGO 55-57 No. 234
Attention: !ttMr. K. G. Smiles
Chief Civil Deputy
You have requested our opinion in answer to the following questions which have arisen because of current litigation questioning the constitutionality of chapter 253, Laws of 1955:
1. If the first half of the 1956 taxes are paid without protest, and thereafter a portion of 1956 taxes are determined to be invalid, can a taxpayer:
a. who has paid the first half of his taxes without protest, pay the second half of taxes under proper protest of the total invalid amount of both payments and thereby preserve his right to recover the amount protested, or
[[Orig. Op. Page 2]]
b. set off against the last half of the taxes the excessive invalid amount paid at the time of payment of the first half.
2. Is a short form of protest, referring to and incorporating by reference the terms and conditions of a comprehensive protest already on file with the county treasurer, as effective and valid as if the said terms and conditions were expressly contained in each specific protest.
The answers to your various questions appear in order below.
1. Your first question must be answered in the negative. There is no specific statutory provision pertaining to the factual situation posed by your question nor have we found any applicable court decision. However, general principles controlling tax protests and actions for refund of tax coupled with the provisions of RCW 84.68.020 indicate that if one is fully to preserve his right to refund of a void portion of tax, where he pays in two installments pursuant to RCW 84.56.020, he must make proper protest with each installment.
As stated in 84 C.J.S. 1290
"* * * the statutory requirement is intended not only to furnish proof that the payment was involuntarily made, but also to warn the tax collector that the tax is claimed to be illegal; and the filing of a protest has two purposes, to serve notice on the government of the dissatisfaction of the taxpayer, and to define the grounds on which the taxpayer stands."
RCW 84.68.020 provides in part:
"In all cases of the levy of taxes for public revenue which are deemed unlawful or excessive by the person whose property is taxed, or from whom the tax is demanded or enforced, such person may pay the tax or any part thereof deemed unlawful, under written [[Orig. Op. Page 3]] protest setting forth all of the grounds upon which such tax is claimed to be unlawful or excessive; and thereupon the person so paying, * * * may bring an action in the superior court * * * against the state, county, or municipality by whose officers the tax was collected, to recover it or any portion thereof, so paid under protest. * * *" (Emphasis added)
RCW 84.68.070 makes this the exclusive method to contest the validity of the payment of any tax except with respect to cases covered by RCW 84.68.010. This section requires that if an action for refund of tax or portion thereof is to be maintained it must be paid under written protest and only if "so paid" may such action be maintained.
Whatever may have been the reason for legislative requirement of protest as a condition to the right to sue for refund of tax, it is apparent that permitting the first half of payment without protest would frustrate the legislative purpose. It is to be noted that this section was enacted by the 1931 legislature at a time when the legislature had already authorized by § 83, chapter 130, Laws of 1925, payment of taxes in two installments. Permitting recovery of taxes paid upon the first installment without protest would clearly defeat one of the purposes for the enactment of the statute as stated in the quotation from C.J.S., since it would then be possible for a taxpayer to not advise the county he was paying under protest until after the levies had been made. Cf. RCW 84.56.020 and RCW 84.52.030. The officials responsible for imposing a levy for the tax refund fund, RCW 84.68.040, would thus have no knowledge of the amount of potential refunds facing the district.
2. The answer to your second question is likewise in the negative. Existing statutory procedure does not permit acceptance by the treasurer of an amount less than that shown on the tax statement.
"Unless directed by statute the collector is not obliged to take payment of a given tax in installments; or to accept a part where the taxpayer claims the balance is illegal or that the amount tendered is the whole amount due." Cooley on Taxation (4 ed 1924) § 1253.
It is the general rule that taxes can be paid only in the manner prescribed by statute.
[[Orig. Op. Page 4]]
Under prior statute, Remington and Ballinger Codes §§ 955, 956, one could pay or tender such amount of taxes as he believed validly due and sue to enjoin collection of the remainder. Under this statute it was held in Northern Pac. R.R. Co. v. Franklin County, 188 Wash. 118, 203 Pac. 27, that the county treasurer was obliged to accept such a tender, and when timely made the tender entitled the taxpayer to the current statutory rebates. However, the statute construed in that case, so far as it pertains to actions to enjoin collection of taxes, appears to have been repealed by implication by chapter 62, Laws of 1931. See Reviser's Note, RCW 84.68.080.
County treasurers are authorized to accept less than the full tax only in specifically stated instances, RCW 84.56.340, 84.56.350 and 84.56.360. The enumeration of specific instances implies, of course, that the authority for receiving part payment exists in no others.
Whether a taxpayer may petition, pursuant to RCW 84.68.110, for reduction of his tax should chapter 253 be declared invalid, and thus avoid through that procedure the necessity to pay and later sue for refund of the unlawful portion of the tax, need not be determined until an answer to that question becomes necessary.
3. The answer to your third question is yes. Written protest is required to assure that the collecting officials' attention will be drawn to the protest and provide a written record of the fact of protest and contents thereof. These requirements are adequately satisfied where a short form of the protest is made with the payment which by its terms expressly incorporates and fully identifies a comprehensive protest, the text of which has been previously filed for such purposes with the collecting officer.
Very truly yours,
Assistant Attorney General