AUTHORITY OF COUNTIES AND CITIES TO IMPOSE LOCAL SALES TAX UPON CERTAIN SALES OF LIQUOR

TAXATION - LOCAL OPTION SALES AND USE TAXES - INTOXICATING LIQUOR - AUTHORITY OF COUNTIES AND CITIES TO IMPOSE LOCAL SALES TAX UPON CERTAIN SALES OF LIQUOR

Under the provisions of chapter 94, Laws of 1973, counties and cities of this state are authorized to impose a local sales tax upon those sales of liquor (as defined in RCW 66.04.010 (16)) which are also subject to the 4.5% state sales tax imposed by chapter 82.08 RCW, notwithstanding the provisions of RCW 66.08.120.

                                                              - - - - - - - - - - - - -

                                                                   June 17, 1970

Honorable George Kinnear
Director, Department of Revenue
General Administration Building
Olympia, Washington 98501

                                                                                                                 Cite as:  AGO 1970 No. 13

Dear Sir:

            This is written in response to your request for the opinion of this office on a question which we paraphrase as follows:

            Does chapter 94, Laws of 1970, authorize the counties and cities of this state to impose a local sales tax upon those sales of liquor which are also subject to the 4.5% sales tax imposed by chapter 82.08 RCW, notwithstanding the provisions of RCW 66.08.120?

            We answer this question in the affirmative for the reasons set forth in the following analysis.

                                                                     ANALYSIS

            The issue raised by your question pertains to the relationship between a long-standing provision of our state laws governing the licensing, sale or distribution of intoxicating liquor and the authority with respect to taxation which has recently been granted to counties and cities in this state through the enactment of chapter 94, Laws of 1970.

             [[Orig. Op. Page 2]]

            The preexisting statute is RCW 66.08.120, codifying § 29, chapter 62, Laws of 1933, Ex. Sess., which provides that:

            "No municipality of county shall have power to license the sale of, or impose an excise tax upon, liquor as defined in this title, or to license the sale or distribution thereof in any manner; . . ."

            On the other hand, the basic authority which is granted by chapter 94, Laws of 1970, is spelled out in § 4 thereof, as follows:

            "The governing body of any county or city while not required by legislative mandate to do so, may, by resolution or ordinance for the purposes authorized by this 1970 amendatory act, fix and impose a sales and use tax in accordance with the terms of this 1970 amendatory act.  Such tax shall be collected from those persons who are taxable by the state pursuant to chapters 82.08 and 82.12 RCW,upon the occurrence of any taxable event within the county or city as the case may be. . . ."  (Emphasis supplied.)1/

             Section 10 of this 1970 act contains a further specific enunciation of legislative intent with respect to the scope of this authorization, and the manner of its implementation by those counties or cities desiring to utilize it, as follows:

            "It is the intent of this 1970 amendatory act that any local sales and use tax adopted pursuant to this 1970 amendatory act be as consistent and uniform as possible with the state sales and use tax and with other local sales and use taxes adopted pursuant to this  [[Orig. Op. Page 3]] 1970 amendatory act.  It is further the intent of this 1970 amendatory act that the local sales and use tax shall be imposed upon an individual taxable event simultaneously with the imposition of the state sales or use tax upon the same taxable event. . . ."

            The key term "taxable event," which is used in both of the foregoing statutes, is defined in § 3 (7) of the act to mean:

            ". . . any retail sale, or any use of an article of tangible personal property, upon which a state tax is imposed pursuant to chapter 82.08 or 82.12 RCW, as they now exist or may hereafter be amended:  PROVIDED, HOWEVER, That the term shall not include a retail sale taxable pursuant to RCW 82.08.150, as now or hereafter amended."

            Finally, it is to be noted that under RCW 82.08.150, to which reference is made in this exclusionary proviso, special excise taxes (in lieu of the 4.5% state sales tax) are imposed upon sales to consumers by state liquor stores and agencies, and another special tax is imposed upon the sales of spirits, wine, or strong beer to Class C, F, H or combined C and F license holders.  Thus, retail sales which are subject to these special state taxes are expressly exempted from the purview of county or city sales or use taxes imposed under the provisions of the 1970 act.

            We thus have, in chapter 94, Laws of 1970, a clear expression of legislative intent that a local sales and use tax, if imposed, not only may, but indeed must, apply to every transaction which is subject to the state 4.5% sales or use taxes.  For purposes of the local tax, neither exemptions from nor additions to the state tax base are allowed.2/

             [[Orig. Op. Page 4]]

            We assume, without deciding, that by its terms RCW 66.08.120,supra, read by itself, would have the effect of preempting the power of a city or county to impose a retail sales tax upon sales of liquor.  Cf., AGO 53-55 No. 2, April 7, 1953; but see, Ropo, Inc. v. Seattle, 67 Wn.2d 574, 409 P.2d 148 (1965).  But can it have this effect when the local sales tax in question is imposed pursuant to the provisions of chapter 94, Laws of 1970, supra?  We conclude that it cannot.

            Section 3 (7) of chapter 94, Laws of 1970, supra, makes quite clear, we feel, the legislative intent as to the taxability of sales of liquor.  Sales subject to the special taxes imposed by RCW 82.08.150 are not to be subject to the local sales tax, whereas all other retail sales, i.e., all retail sales subject to the state 4.5% tax, are to be subject to the local tax.  In short, the legislature, in § 3 (7) specifically considered the problem of sales of liquor, and concluded that some retail sales of liquor should be subject to the tax, and others should not, depending upon whether those sales are subject to the 4.5% state tax, or are subject to the special state tax imposed by RCW 82.08.150.

            Furthermore, it is to be seen that if it were the legislative intent that all liquor sales should be exempt from the local tax (i.e., that RCW 66.08.120 should be so applied as to exempt all liquor sales from the local tax) the proviso in § 3 (7) would be meaningless and useless   [[Orig. Op. Page 5]] for liquor sales taxable under RCW 82.08.150 would have been exempt from the local sales tax even without the proviso.

            Accordingly, we conclude that chapter 94, Laws of 1970, authorizes counties and cities of the state to impose the local sales tax upon all of those sales of liquor which are subject to the 4.5% state sales tax.  We further note that this conclusion is consistent with, and indeed is required by, applicable rules of statutory construction.  We are dealing here with a potential conflict between a prior and subsequent expression of legislative intent.  Cast in terms of these rules of statutory construction, the question is whether the latter expression would constitute an amendment, or perhaps more precisely, a partial repeal, by implication of the prior enactment.

            As stated by the Washington court in Abel v. Diking & Drainage Imp. Dist., 19 Wn.2d 356, 363, 142 P.2d 1017 (1943):

            "Repeals by implication are ordinarily not favored in law, and a later act will not operate to repeal an earlier act except in such instances where the later act covers the entire subject matter of the earlier legislation, is complete in itself, and is evidently intended to supersede the prior legislation on the subject, or unless the two acts are so clearly inconsistent with, and repugnant to, each other that they cannot, by a fair and reasonable construction, be reconciled and both given effect. . . ."3/