HOUSE TRAILERS ‑- EXCISE TAX ‑- NONRESIDENT SERVICEMENS' EXEMPTION ‑- SOLDIERS' AND SAILORS' CIVIL RELIEF ACT

HOUSE TRAILERS ‑- EXCISE TAX ‑- NONRESIDENT SERVICEMENS' EXEMPTION ‑- SOLDIERS' AND SAILORS' CIVIL RELIEF ACT

Nonresident military personnel are exempt from the state's house trailer excise tax by virtue of the Federal Soldiers' and Sailors' Civil Relief Act.

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                                                                October 29, 1957

Honorable William S. Schumacher
Chairman
Washington State Tax Commission
Olympia, Washington                                                                                                              Cite as:  AGO 57-58 No. 128

Attention:  William E. Schneider, Secretary

Dear Sir:

            This is in response to your recent request for an opinion inquiring whether the Federal Soldiers and Sailors Civil Relief Act (50 U.S.C.A. App. § 574) exempts nonresident military personnel from the house trailer excise tax imposed by chapter 269, Laws of 1957.

            In our opinion, the answer to the inquiry is in the affirmative.

                                                                     ANALYSIS

            The excise tax on house trailers is currently set forth in chapter 269, Laws of 1957.  Section 1 thereof (RCW 82.50.010) defines a house trailer as

            ". . . all trailers of the type designed to be used upon the public streets and highways which are capable of being used as facilities for human habitation and which are ten feet or more in length and six feet or more in height from floor to ceiling, . . ."

             [[Orig. Op. Page 2]]

            Section 2 of the act provides that the tax on house trailers is an excise tax for the privilege of using a house trailer; § 3 sets forth the rate at 1 per cent of the fair market value of the house trailer, and § 4 provides that the county auditor on payment of the tax shall issue a receipt and shall issue a license plate and collect the fee therefor under the provisions of chapter 46.16 RCW.

            Section 5 provides that house trailers taxed and licensed under the provisions of the act shall also be entitled to use of the streets and highways subject to the provisions of the motor vehicle law.

            The exemptions from the tax are contained in § 8.  None of the exemptions set forth therein provide for a complete exemption for nonresident military personnel although subparagraph 3 grants an exemption to house trailers owned by a nonresident and currently licensed in another state, unless the house trailer remains in the state for a period in excess of 90 days.  Thus, the act does not expressly grant any immunity to nonresident military personnel.

            The question then is whether the Soldiers and Sailors Civil Relief Act enacted by Congress, previously referred to herein, grants nonresident servicemen immunity from the house trailer excise tax.  The Soldiers and Sailors Civil Relief Act (50 U.S.C.A. App. § 574) provides in part as follows:

            "(1) For the purposes of taxation in respect of any person, or of his personal property, income, or gross income, by any State, . . . such person shall not be deemed to have lost a residence or domicile in any State, Territory, possession, or political subdivision . . . solely by reason of being absent therefrom in compliance with military or naval orders, or to have acquired a residence or domicile in, or to have become resident in or a resident of, any other State, Territory, possession, . . . while, and solely by reason of being, so absent.  For the purposes of taxation in respect of the personal property, income, or gross income of any such person . . . personal property shall not be deemed to be located or present in or to have a situs for taxation in such State, Territory, possession, or political subdivision . . .Provided, That nothing contained in this section shall prevent taxation by any State, Territory, possession, or political subdivision of any of the foregoing, . . . in respect of personal property used in or arising from a trade of business, . . .

            "(2) When used in this section, (a) the term 'personal property'  [[Orig. Op. Page 3]] shall include tangible and intangible property (including motor vehicles), and (b) the term 'taxation' shall include but not be limited to licenses, fees, or excises imposed in respect to motor vehicles or the use thereof:  Provided, That the license, fee, or excise required by the State, Territory, possession, or District of Columbia of which the person is a resident or in which he is domiciled has been paid."

            From the above provisions of the federal act, it is clear that Congress has granted certain tax immunity to the personal property and income of nonresident military personnel who are required by military orders to be absent from the state of their residence or domicile.  The term "personal property" above is broad enough to include house trailers.

            The next inquiry then is whether Congress can validly create a tax immunity for a particular class of persons from state taxation.  On the basis of a decision of the United States supreme court in the case ofDameron v. Brodhead, 345 U.S. 322, 97 L.Ed 1041, the answer must be in the affirmative.  In that case the city of Denver, Colorado, assessed a tax on the personal property of an air force officer contained in his apartment in that city.  His home state was Louisiana.  The question was whether the officer was exempt from the Denver tax under the provisions of the Federal Soldiers and Sailors Civil Relief Act,supra.  The court ruled that the officer was exempt, and held that the federal legislation was a valid exercise of the "necessary and proper" war powers of Congress and did not affect the reserve power of the state to tax.

            Accordingly, in view of the above decision of the United States supreme court, it is our opinion that the provisions of the Federal Soldiers and Sailors Civil Relief Act,supra, exempt nonresident military personnel from the state's house trailer excise tax, provided the house trailer is not used in a trade or business.

            The above conclusion leaves unanswered another question not raised by your opinion request.  This question is whether an unlicensed house trailer belonging to a nonresident serviceman may be moved over our highways without first securing a license plate and paying the fee therefor.  This problem arises administratively because license plates, under § 4, chapter 269, Laws of 1957,supra, are issued at the time the excise tax is paid for the house trailer and since nonresident servicemen are held herein to be exempt from paying the excise tax, such persons presumably would not receive plates from the county auditor.

            It is our opinion that house trailers are not "motor vehicles" within the terms  [[Orig. Op. Page 4]] of the Federal Soldiers and Sailors Civil Relief Act (50 U.S.C.A. App. § 574)supra, and likewise are not "motor vehicles" within § 18, chapter 269, Laws of 1957 (RCW 82.44.010), and accordingly nonresident servicemen desiring to move unlicensed house trailers over our highways must first secure license plates and pay the $3.00 fee provided therefor by § 16, chapter 269, Laws of 1957.  In passing, we observe that the provisions of RCW 46.16.100 pertaining to the single movement special permit statute are inapplicable.

            We trust the foregoing answers your inquiry.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

ROBERT L. SIMPSON
Assistant Attorney General