AUTHORITY TO IMPOSE SPECIAL EXCISE TAX

COUNTIES ‑- CITIES AND TOWNS ‑- TAXATION ‑- AUTHORITY TO IMPOSE SPECIAL EXCISE TAX

A county, and a city situated within that county may both impose the special excise tax authorized by RCW 67.28.180 on statutorily taxable transactions occurring within the city.

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                                                               December 24, 1974

Honorable Mary Ellen McCaffree
Director, Department of Revenue
General Administration Building
Olympia, Washington 98504                                                                                                             Cite as:  AGLO 1974 No. 104

Dear Mrs. McCaffree:
 
            This is written in response to your recent letter requesting our opinion on a question pertaining to RCW 67.28.180, as amended by § 5, chapter 34, Laws of 1973, 2nd Ex. Sess.  We paraphrase your question as follows:
 
            May a county, and a city situated within that county, both impose the special excise tax authorized by RCW 67.28.180 on statutorily taxable transactions occurring within the city?
 
            We answer this question in the affirmative for the reasons set forth in our analysis.
 
                                                                     ANALYSIS
 
            RCW 67.28.180, as you know, is the codification of part of a law originally enacted by our state legislature in 1967 to provide for the construction and financing of public stadium facilities and, by reason of certain 1973 amendments to that law,1/ convention center facilities by any "municipality," a term defined in RCW 67.28.080 as meaning:
 
            ". . . any county, city or town of the state of Washington."
 
            As originally enacted, this particular section of the law read as follows:
 
            "The legislative body of any class AA county is authorized to levy and collect, a special excise tax of not to exceed two percent on the sale of or charge made  [[Orig. Op. Page 2]] for the furnishing of lodging by a hotel, rooming house, tourist court, motel, trailer camp, and the granting of any similar license to use real property, as distinguished from the renting or leasing of real property: Provided, That it shall be presumed that the occupancy of real property for a continuous period of one month or more constitutes a rental or lease of real property and not a mere license to use or to enjoy the same."2/
 
             Thus, as originally passed by the legislature, the statute only authorized the imposition of the "special excise tax" therein described by a class AA county; and we may take note of the fact that under RCW 36.13.010, which classifies counties on the basis of population, King county was then and is now the only such county in this state.
 
            Three years later, however, by its enactment of § 1, chapter 89, Laws of 1970, Ex. Sess., the legislature amended the statute so as to grant this same authorization, as well, to
 
            "any city of the first class having a population of 150,000 or more not situated in a class AA county, . . ."
 
            By this action, as we may also note in terms of a point of fact, the legislature thus extended this taxing authority to the cities of Spokane and Tacoma ‑ the only cities in this state, according to 1970 census figures, having population of 150,000 or more that are not situated in a class AA county.
 
             [[Orig. Op. Page 3]]
            Then, most recently, in 1973, the legislature again amended the provisions of RCW 67.28.180 by the enactment which has given rise to your immediate question.  Set forth in bill form for easy reading, § 5, chapter 34, Laws of 1973, 2nd Ex. Sess., further amended this statute to read as follows:
 
            "The legislative body of any ((class AA)) county, and of any city ((of the first class having a population of one hundred fifty thousand or more not situated in a class AA county)), is authorized to levy and collect, a special excise tax of not to exceed two percent on the sale of or charge made for the furnishing of lodging by a hotel, rooming house, tourist court, motel, trailer camp, and the granting of any similar license to use real property, as distinguished from the renting or leasing of real property:  PROVIDED, That it shall be presumed that the occupancy of real property for a continuous period of one month or more constitutes a rental or lease of real property and not a mere license to use or to enjoy the same."
 
            Under the language of the statute as thus amended it appears to us that the power to impose the tax in question has now been conferred upon the legislative body ". . . of any county, and of any city, . . ."  (Emphasis supplied.)  From this language it thus follows in direct answer to your question that a county, and a city within that county, may each levy the tax simultaneously.  We find nothing in the statute, or anywhere else in the pertinent 1973 amendments, which purports in any way to give one such municipality a preference over the other.
 
            Moreover, this conclusion is further supported by the above‑described legislative history of the law.  Under the original, 1967, enactment, only King county could impose the tax.  Then, when the legislature in 1970 decided to extend that authority to cities with a population of 150,000 or more, it carefully avoided the possibility of a "doubling up" within the city of Seattle by limiting the extended authority thus granted to such cities as are not situated in a class AA county.  Similarly, under the 1970 amendment, although the cities of Spokane and Tacoma were thereby authorized to impose the tax, the counties in which those two cities are situated, Spokane and Pierce, were not.
 
             [[Orig. Op. Page 4]]
            However, by way of contrast, the 1973 amendment to RCW 67.28.180, supra, removed all such qualifications and extended the power to impose the tax to the legislative body of any county and of any city.  By so doing the legislature removed its previously established safeguards against the kind of doubling up by a county and a city situated therein to which your question makes reference.  Not only were the barriers thereby let down for the city of Seattle and for Pierce and Spokane counties, but they were let down for every other city and county in the state as well.
 
            If the legislature now desires to resurrect those barriers, in some manner, it may certainly do so.  But until and unless the legislature takes such action, it is our opinion that the question you have posed, as above paraphrased, is to be answered in the affirmative.
 
            We trust the foregoing will be of assistance to you.
 
Very truly yours,
 
SLADE GORTON
Attorney General

TIMOTHY R. MALONE
Assistant Attorney General

                                                         ***   FOOTNOTES   ***
 
1/See, chapter 236, Laws of 1967, as amended by chapter 34, Laws of 1973, 2nd Ex. Sess.
 
2/Section 11, chapter 236, Laws of 1967.  Under § 14 of this act, as amended by § 6, chapter 34, Laws of 1973, 2nd Ex. Sess. (RCW 67.28.210), all taxes levied under this statute, also as amended by another section of the 1973 act noted below, are to be credited to a special fund in the treasury of the county or city imposing the tax and are to be used ". . . only for the purpose of paying all or a part of the cost of acquisition, construction, or operating of stadium facilities and/or convention center facilities . . ."