ATTORNEYS' FEES UNDER INHERITANCE TAX LAW

LEGISLATURE ‑- AMENDMENT TO EXISTING STATUTE ‑- TAXATION ‑- INHERITANCE ‑- ATTORNEYS' FEES UNDER INHERITANCE TAX LAW

(1) While clarification may also have been an object of the passage of § 2, chapter 209, Laws of 1979, 1st Ex. Sess., amending RCW 83.04.013, its passage further evidences a legislative intent to make certain substantive changes in that statute.

(2) Prior to the foregoing 1979 amendment to RCW 83.04.013, attorneys' fees incurred in an estate administration other than those attorneys' fees incidental to the preparation of federal and state inheritance tax returns were deductible for inheritance tax purposes.

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                                                                 August 26, 1981

Honorable Alex Deccio
St. Sen., 14th District
P.O. Box 1343
Yakima, Washington 98907                                                                                                               Cite as:  AGLO 1981 No. 24

Dear Sir:

            By recent letter you made reference to a certain 1979 legislative amendment to RCW 83.04.013, relating to authorized deductions from the gross value of property for purposes of the state inheritance tax, and then requested our opinion as follows:

            "1. Was the legislative intent of the 1979 amendment to RCW 83.04.013 to clarify the effect of this section or was the legislative intent to make substantive changes?  Please include a statement of the basis of your opinion as to the legislative intent of the 1979 amendments.

            "2. Prior to the 1979 amendments to RCW 83.04.013, were attorneys' fees incurred in estate administration other than those attorneys' fees incidental to preparation of federal and state inheritance tax returns deductible for inheritance tax purposes?"

             [[Orig. Op. Page 2]]

            We respond to your first question in the manner set forth in our analysis and answer your second question in the affirmative.

                                                                     ANALYSIS

            Let us begin by setting forth the text of RCW 83.04.013, as amended by § 2, chapter 209, Laws of 1979, 1st Ex. Sess. in full, in bill form for ease of comprehension.  As thus amended, this statute, which authorizes certain deductions from the gross value of property passing for purposes of the state inheritance tax, reads as follows:

            "((All debts owing by the decedent at the time of his death, the local and state taxes due from the estate prior to his death, and a reasonable sum for funeral expenses, monument or crypt, court costs, including cost of appraisement made for the purpose of assessing the inheritance tax, the fees of executors, administrators or trustees, reasonable attorney's fees, and family allowance not to exceed one thousand dollars, and no other sum, shall be allowable as deductions from the gross value of the entire property, but said debts shall not be deducted unless the same are allowed or established within the time provided by law.))

            The following shall be allowed as deductions from the gross value of the property passing:

            "(1) All debts owing by decedent at the date of death:  PROVIDED, That debts founded upon a promise or agreement shall be allowable only to the extent that they were contracted, bona fide, and for full and adequate consideration in money or money's worth;

            "(2) All unpaid local and state taxes assessed on decedent's property and payable before or during the calendar year of decedent's death;

            "(3) Reasonable costs of funeral, burial, and monument or crypt;

             [[Orig. Op. Page 3]]

            "(4) Court costs and reasonable fees of the personal representative and his attorneys, accountants, and appraisers incurred in administering decedent's estate; and

            "(5) Reasonable fees of trustees, attorneys, accountants, and appraisers incurred in determining the amount of state and federal death taxes payable by reason of decedent's death."

            Question (1):

            In response to your first question, it is our opinion that while clarification may also have been an object of the foregoing 1979 amendment, its passage further evidences a legislative intent to make certain substantive changes.  We note, particularly, the qualifying proviso with respect to the deduction of debts owing by the decedent at the date of death‑-which was not in the law before.  In addition, as also related to your second question, below, there appears clearly to have been an intent, on the part of the legislature, to provide, separately, for the deduction of costs and fees related to the administration of the estate, generally, on the one hand, and those specifically incurred ". . . in determining the amount of state and federal death taxes payable by reason of the decedent's death . . ." on the other.  See, new subsections (4) and (5) of RCW 83.04.013, supra, as amended.

            As for your request that we include, in this opinion, a statement of the basis for our opinion ". . . as to the legislative intent of the 1979 amendments . . .", we rely, of course, on the well-established principle of statutory construction which dictates that where a material change in the language of a statute is made, there is a presumption on the part of the legislature to change the law.  See,e.g.,Home Indemnity Co. v. McClellan Motors, 77 Wn.2d 1, 3, 459 P.2d 389 (1969) and cases cited therein.

             [[Orig. Op. Page 4]]

            Question (2):

            In responding to this question, let us again set forth the text of RCW 83.04.013,supra, but this time as it read prior to the passage of § 2, chapter 209, Laws of 1979, 1st Ex. Sess.:

            "All debts owing by the decedent at the time of his death, the local and state taxes due from the estate prior to his death, and a reasonable sum for funeral expenses, monument or crypt, court costs, including cost of appraisement made for the purpose of assessing the inheritance tax, the fees of executors, administrators or trustees,reasonable attorney's fees, and family allowance not to exceed one thousand dollars, and no other sum, shall be allowable as deductions from the gross value of the entire property, but said debts shall not be deducted unless the same are allowed or established within the time provided by law."  (Emphasis supplied)

            In our opinion, nothing contained in the law as it then read could be deemed to have been supportive of the proposition that the only "reasonable attorney's fees" which might be deducted, for inheritance tax property valuation purposes, were those (in the words of your question)  ". . . incidental to preparation of federal and state inheritance tax returns . . ."

            To support a contrary conclusion, one would have to read into the statute language which was simply not there.  It is, however, well settled that courts will not read into a statute something which is not there; see,e.g.,In Re Baker's Estate, 49 Wn.2d 609, 304 P.2d 1051 (1956), and, accordingly, neither may we in an attorney general's opinion.

            We trust that the foregoing will be of assistance to you.

Very truly yours,

KENNETH O. EIKENBERRY
Attorney General

PHILIP H. AUSTIN
Deputy Attorney General