Letter Opinion 1972 No. 010

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                                                                 January 31, 1972

Honorable Fred H. Dore
State Senator, 45th District
Legislative Building
Olympia, Washington 98504                                                                                            Cite as:  AGLO 1972 No. 10 (not official)

Dear Sir:
 
            This is written in response to your recent letter requesting our opinion on two questions relating to the property tax status of some 22,000 parcels of real property located in King county.  Based upon the recent decision of the Washington Supreme Court in Dore v. Kinnear, 79 W.D. 755 (October 14, 1971) [[79 Wn.2d 755]], holding certain 1970 appraisals of other taxable property in King county to be unconstitutional in so far as they were utilized for 1971 property taxes, you have asked:
 
            "Question No. 1 ‑ Whether the 22,000 parcels in King County reappraised and assessed at 50% of fair market value in Auburn, Kent, Duvall, Bellevue, White Center and West Seattle, identified above, which had been scheduled to be reappraised and assessed at 50% of fair market value according to the King County Assessor's plan in Phase 2, 3, and 4, respectively, in 1972, 1973 and 1974 would not be entitled to the same relief that the Supreme Court gave the 27,500 taxpayers in the northend of Seattle?
 
            "Question No. 2 ‑ If your answer to Question No. 1 is in the affirmative, could tax relief to these 22,000 parcels be effectuated by an administrative ruling of the King County Assessor directing the King County Treasurer to rebill the owners of the 22,000 parcels herein identified at the assessed valuations of 1969 rather than 1970 evaluations, or would it be necessary to initiate a class action lawsuit to effectuate this result?"
 
                                                                     ANALYSIS
 
            Since the various parcels of property to which your questions refer were not within the class of parcels specifically before the court in Dore v. Kinnear, supra, it of course follows that the supreme court's decision in that case restraining the utilization of 1970 appraisals  [[Orig. Op. Page 2]] for 1971 tax purposes with regard to the properties owned by these 27,000 taxpayers, is not, per se, applicable to the owners of the separate group of 22,000 parcels to which you have referred.
 
            Moreover, we understand that a substantial majority of the owners of these 22,000 parcels of taxable real property (located, as you have pointed out, in various separate areas of the county) have already made full payment of their 1971 property taxes rather than seeking an injunction against their collection as did the plaintiffs in the Dore case.  Thus, even if your suggestion is valid ‑ that the rationale of this decision may be applicable to these other taxpayers ‑ the relief which you urge can only come to them by way of a refund of some portion of the property taxes which they have already paid.  Accordingly, let us first consider the question of whether administrative (as distinguished from judicial) relief would be available to these taxpayers should the Dore reasoning be deemed applicable to them.
 
            We know of only two statutory provisions which now authorize administrative refunds of property taxes previously paid.  The first of these relates to "small claims" recoveries and it is contained in RCW 84.68.110 through 84.68.150.  However, by virtue of the express language of RCW 84.68.110, these provisions regarding tax refunds only apply in cases involving
 
            ". . . error in description, double assessments, or manifest errors in assessment which do not involve a revaluation of the property, . . ."  (Emphasis supplied.)
 
            Manifestly, the underscored portion of this statutory language excludes the parcels you have described from the coverage of RCW 84.68.110 ‑ 84.68.150 ‑ in that the specific claim to be made on behalf of the subject taxpayers is that they have overpaid their 1971 property taxes because of an asserted error of the King county assessor in the reevaluation process.
 
            The second set of statutory provisions relating to administrative refunds of erroneous payments or overpayments of property taxes is contained in chapter 84.69 RCW.  The several grounds for refunds under this chapter are spelled out in RCW 84.69.020 as follows:
 
             [[Orig. Op. Page 3]]
            "On order of the board of county commissioners or other county legislative authority of any county, ad valorem taxes paid before or after delinquency shall be refunded if they were:
 
            "(1) Paid more than once; or
 
            "(2) Paid as a result of manifest error in description; or
 
            "(3) Paid as a result of a clerical error in extending the tax rolls; or
 
            "(4) Paid as a result of other clerical errors in listing property; or
 
            "(5) Paid with respect to improvements which did not exist on assessment date; or
 
            "(6) Paid under levies or statutes adjudicated to be illegal or unconstitutional; or
 
            "(7) Paid as a result of mistake, inadvertence, or lack of knowledge by any person exempted from paying real property taxes or a portion thereof pursuant to RCW 84.36.128; or
 
            "(8) Paid or overpaid as a result of mistake, inadvertence, or lack of knowledge by either a public official or employee or by any person paying the same or paid as a result of mistake, inadvertence, or lack of knowledge by either a public official or employee or by any person paying the same with respect to real property in which the person paying the same has no legal interest; or
 
            "(9) Paid on the basis of an assessed valuation which was appealed to the state board of tax appeals and ordered reduced by the board:  PROVIDED, That the amount refunded shall only be for the difference between the tax paid on the basis of the appealed valuation and the tax payable on the valuation adjusted in accordance with the board's order.
 
             [[Orig. Op. Page 4]]
            "No refunds under the provisions of this section shall be made because of any error in determining the valuation of property, except as authorized in subsection (9)."  (Emphasis supplied.)
 
            In regard to this section the important point to note is that in so far as refunds based upon asserted errors in determining the valuation of property are concerned, such refunds can only be made on the basis of subsection (9), and this subsection relates solely to those cases where the taxes have been paid while the taxpayer was pursuing an administrative appeal to the board of state tax appeals ‑ followed by the entry of an order by the board reducing the taxable value of the subject property.  Again, therefore, the statute by its own terms excludes from its scope most if not all of the 22,000 parcels to which you have referred.
 
            The only other procedures presently provided for by statute for obtaining a refund of erroneous payments or overpayments of property taxes are those which are spelled out in RCW 84.68.010 ‑ 84.68.070 ‑ and these procedures contemplate judicial rather than administrative relief.  Specifically, they require filing of an action by the aggrieved taxpayer in the superior court of the county in which his property is located in order to obtain an adjudication of his asserted claim and a refund based thereon.  From this it follows, in direct answer to the second of your two questions, that even if your first question were to be answered in the affirmative, relief with respect to the owners of the 22,000 parcels of taxable property referred to therein could only be obtained by means of a lawsuit and consequent court decision holding the assessments of those properties for 1971 tax purposes to have been based upon errors by the county assessor in the revaluation process.
 
            In addition, it could very well be that any decision by the court as to the applicability of the Dore decision's rationale to these taxpayers would turn upon factual as well as legal determinations keyed to the prior history of the county assessor's treatment of these parcels.
 
            For all of these reasons, we must respectfully decline to undertake the task of attempting to provide you with a definitive answer to your initial question.  Simply stated, it has long been the policy of this office  [[Orig. Op. Page 5]] to refrain from passing upon questions which are in litigation, or which can only be resolved by litigation in the courts.  See, e.g., our letter dated October 2, 1969, to the chairman of the state board of medical examiners, copy enclosed, in which we similarly declined ". . . to issue an opinion on a question where litigation is imminent, in the absence of some reasonable likelihood that our opinion will preclude the litigation and settle the matter."
 
            We trust that you will understand the reasons for this policy, and that the foregoing will be of some assistance to you in determining whether to work for a legislative solution to the problem during the remainder of the current session or to pursue further litigation.
 
            We trust the foregoing will be of some assistance to you.
 
Very truly yours,
 
FOR THE ATTORNEY GENERAL
 
Philip H. Austin
Deputy Attorney General