MOTOR VEHICLES ‑- TRAILERS ‑- LICENSES ‑- MOTOR VEHICLE EXCISE TAX ‑- PERSONAL PROPERTY TAX

MOTOR VEHICLES ‑- TRAILERS ‑- LICENSES ‑- MOTOR VEHICLE EXCISE TAX ‑- PERSONAL PROPERTY TAX

Questions and answers relative to licensing and payment or collection of motor vehicle excise tax or personal property tax upon trailers, including house trailers, as affected by section 5, chapter 252, Laws of 1953.

(Overruling in part our opinions to the Tax Commission dated March 20, 1944 and October 13, 1949).

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

                                                                    July 28, 1953

Honorable E. C. Huntley
Chairman
Washington State Tax Commission
Olympia, Washington                                                                                                              Cite as:  AGO 53-55 No. 105

Dear Sir:

            You request a comprehensive opinion relative to the many faceted inter-relationship of motor vehicle excise taxes, licenses, and personal property taxes imposed upon house trailers.  The Department of Licenses, county assessors, and local enforcement officials have also indicated a vital interest.

            Our detailed conclusions to your several specific questions are set forth after a preliminary but necessary general analysis of the tax and license laws involved and the effect of section 5, chapter 252, Laws of 1953.

                                                                     ANALYSIS

            I. MOTOR VEHICLE EXCISE TAX

            The motor vehicle excise tax applies to house trailers

            "used or of the type designed primarily to be used, upon the public streets and highways."

             [[Orig. Op. Page 2]]

            of this state, RCW 82.44.010 (PTC sec. 362).  If the excise tax applies, the property tax does not, RCW 82.44.130 (PTC sec. 374).  However, if the trailers are

            "usedentirely upon private property" (Emphasis supplied)

            they are subject to the property but not the excise tax.

            The excise tax is payable each calendar year, RCW 82.44.060 (PTC sec. 367), at 1-1/2% of the fair market value of the vehicle, RCW 82.44.030 (PTC sec. 363).  The payments are pursuant to a schedule prepared by the Tax Commission and county assessors, RCW 82.44.040 (PTC sec. 365).  Collection (but not imposition) of the tax is tied in with annual vehicle licensing.  It is a crime‑-a gross misdemeanor ‑-for the county auditor or other licensing official to issue a license without collecting the tax, RCW 82.44.090 (PTC sec. 370).

            It was legislatively intended that the excise tax be in lieu of the property tax.  The title to chapter 144, Laws of 1943, provides:

            "an act relating to revenue and taxation providing for an excise tax upon certain vehicles and trailers in lieu of property taxes thereon * * *"

            Thus, in the normal case, either the property or the excise tax would apply, but not both.

            Motor vehicles and trailers first licensed in this state may only be subject to a fractional portion of the excise tax, RCW 82.44.060 (PTC sec. 367), depending upon when during the year the vehicle is first required to be licensed.

                        II. PERSONAL PROPERTY TAXES

            All personal property is subject to taxation, Wash. Const. Art. VII, sec. 1 (Amend. 14, November 1930).  Motor vehicles, and trailers, are personal property, see RCW 84.04.080 (PTC sec. 43).  The tax is imposed as of January 1 of each year‑-the tax day, RCW 84.40.010 and 84.40.020 (PTC secs. 176 and 177).  The county assessor starts his assessing duties not later than December 1 of each year, and he is required to complete his valuations by May 31, RCW 84.40.040 (PTC sec. 179).  The assessments then pass through the equalization procedures, first through the county board, RCW 84.48.010 (PTC sec. 217) and then the State  [[Orig. Op. Page 3]] Board of Equalization, RCW 84.48.080 (PTC sec. 224).  The involved procedure by which revenue needs are balanced against revenues available upon equalized valuations takes about one year.  The result is a specific amount of tax being levied against each item of personal property assessed.

            The county treasurer received the tax rolls on the first Monday in January of the year following the tax day and he then begins his collection duties.  The statute, RCW 84.56.050 (PTC sec. 250) contemplates that tax statements will be mailed out beginning on or about February 15th.  The tax does not become delinquent until May 1, RCW 84.56.020 (PTC sec. 248).

            Thus, the personal property taxes paid in the current year relate to a "tax day" ‑-January 1‑-a year and four months previous to the time those taxes become delinquent.  Except under jeopardy distraint procedure, the property tax code contemplates no way a trailer owner may pay the property tax prior to a reasonable time after February 15 of each year.  This is important in view of certain provisions of sec. 5, chapter 252, Laws of 1953, discussed later.

                        III. STATE LICENSING LAWS

            The term "vehicle" under our licensing laws includes both house and other type trailers, RCW 46.04.620 and 46.04.070.  The first requirement of one who intends

            "to operate any vehicle [trailer] in this state"

            over the public highways is to obtain a certificate of ownership,RCW 46.12.010.  The director of licenses may issue such an ownership certificate without requiring the trailer to secure a license, RCW 46.16.010.  This equitably permits a trailer owner to have registered proof of title even though the trailer will not be licensed or used on the highways.

            One who operates any trailer over any public highway of this state must have a current trailer license and display proper license plates, RCW 46.16.010.  The exceptions for resident owners relate to:

            "farm tractors and farm implements including trailers used exclusively upon farms and being drawn from one farm to another."  RCW 46.16.010

             [[Orig. Op. Page 4]]

            The license fee is five dollars for each calendar year.  The license is not subject to apportionment such as the excise tax, RCW 46.16.060.  The small trailer license fee is three dollars for one or two wheeled trailers of less than 2000 pounds gross weight, RCW 46.16.065.  Normally this will not apply to house trailers.

            RCW 46.16.100 provides for special permits for single movements (one‑transit permits).  A license is not required and the motor vehicle excise tax need not be paid.

            To summarize:

            (1) A house trailer not used on the public highways is subject to the personal property tax.  The tax collected in the current year‑-from February 15 to May 1‑-is for taxable ownership as of January 1 of the previous year.

            (2) License fees and excise taxes are current.  If one owns a house trailer for the entire year 1952, used in a manner subject to the personal property tax, that tax is due in 1953, even though in 1953 he uses the trailer on the highway and must purchase a 1953 license and pay the 1953 excise tax.  (To assist the obfuscation, property taxes for the year 1952 are called "1953 taxes," the year in which they are paid.)

            (3) The purchase of the 1953 license and payment of the 1953 excise tax, exempt the owner from the personal property tax of that year but for which he will not be billed until the following year.

            (4) Further, if at any time during the year 1953, the trailer is licensed and the 1953 excise tax is paid, the owner is exempt the personal property tax for that entire year (the 1954 taxes), RCW 82.44.130 (PTC sec. 374).  This is true even if he pays only a fractional or prorated excise tax under RCW 82.44.060 (PTC sec. 367).  See on like matters,Puget Sound Power and Light Co. v. Cowlitz County, 38 Wn. (2d) 907, 34 P. (2d) 506 (1951); and State v. Snohomish County, 71 Wash. 320, 128 Pac. 667 (1912).

             [[Orig. Op. Page 5]]

            Our opinions to the State Tax Commission dated March 20, 1944 and October 13, 1949 [[Opinion No. 49-51-144]]fail to consider the time differential between licenses and property taxes and are inconsistent with certain specific statutory language.  They are hereby overruled.

                        IV. 1953 TRUCK AND TRAILER LICENSESAMENDMENT

            Section 5, chapter 252, Laws of 1953 adds a new section to the vehicle licensing code which affects not only licenses, but personal property taxes and motor vehicle excise taxes.  Section 5, enumerated and separated for clarity provides:

            [1] "The owner or operator of any truck or trailer, including house trailer, shall at all times display either a vehicle license or receipt for personal property tax paid in the current year.

            [2] "It shall be unlawful for any person to display in lieu of the license required, a dealer or trip plate license except for the initial delivery of the vehicle from the seller.

            [3] "The provisions of this section shall not apply to those vehicles identified in RCW 46.16.065.  [Small trailer license]

            [4] "A violation of any of the provisions of this section shall be a misdemeanor."

            The owner who uses his trailer on the highway must have a trailer license for the current year.  The license is required as of and can be obtained at the first of that calendar year, and thus the requirements of provision "[1]" can be complied with.  The owner of a trailer subject to the property tax however, cannot pay and obtain a tax receipt until February 15 or after.  Therefore, he cannot

            "at all times display * * * a * * * receipt for personal property tax paid in the current year."  (Emphasis supplied)

             [[Orig. Op. Page 6]]

            The property tax code contemplates no possible manner in which the tax may be paid prior to February 15 except in instances where the treasurer proceeds under jeopardy distraint sections, RCW 84.56.090, 84.56.100 and 84.56.110 (PTC secs. 254 to 256).  Under most sets of facts these sections cannot apply.  The treasurer may only distrain when in his judgment the

            "property is being removed or is about to be removed from the state, or is being dissipated or about to be dissipated."  RCW 84.56.090 (PTC sec. 254).

            The mere fact that house trailers are mobile does not justify a jeopardy distraint.  Most, if not all personal property is mobile.  Other factors affirmatively disclosing impending removal of the property are required.

            All statutes must be construed together.  Thus the owner of a house trailer, paying the personal property taxes, would not be in violation of the above section for failure to have either a vehicle license or personal property receipt, until a reasonable time after he had received his personal property tax statement from the county treasurer.  Normally this will be subsequent to February 15 of each year.  May 1, the date of tax delinquency does not control.  This date provides merely for the attachment of delinquency interest.  It is incumbent upon individuals in this particular and peculiar situation to comply with the new section as soon as it is reasonably possible.

            Paragraph "[2]" provides that it is unlawful to use a

            "trip plate license"

            for any but the initial delivery of the vehicle to the purchaser.  No "trip plate license" exists either in law or in practice.  We are informed that this term is entirely new to the licensing code.  There is however, a special permit for a single movement, commonly called a one‑transit permit, authorized by RCW 46.16.100.  Perhaps we can assume that this is what the drafters intended.  In a noncriminal statute the difference might not perhaps be important, criminal statutes however must be strictly construed.  To indulge the above assumptions (which cannot constitutionally be done in a criminal statute) would mean that although the director of licenses is still authorized to issue such permits, it is unlawful for the permittee to use them.

             [[Orig. Op. Page 7]]

            However, we need not reach this absurd result nor need we treat constitutional injunction.  This section specifically provides

            "it shall be unlawful for any person to display in lieu of thelicense required * * * a trip plate license" (Emphasis supplied).

            The 1953 act in no way specifically amended the special permit section and statutes therefore must be read in pari materia‑-both statutes must be given effect.  No license is required when a one‑transit permit is properly obtained and used.  Therefore a one‑transit permit may still be issued and used.  However, it is unlawful to use such a permit in a situation where a license would be otherwise required.  In other words, it is unlawful to misuse the single trip permit.

            We are fully aware that this construction probably does not conform to what we are informed some of the sponsors of the act may have intended.  However,

            the intention of the legislature must be deduced from what is said,Lynch v. State, 19 Wn. (2d) 802, 806, 145 P. (2d) 265 (1944) and cases cited.

            and

            no construction should be given to a statute which results in injustice or an absurdity,In re Horse Heaven Irr. Dist., 11 Wn. (2d) 218, 225-226, 118 P. (2d) 972 (1941) andDiscargar v. City of Seattle, 25 Wn. (2d) 306, 171 P. (2d) 205 (1946), and cases cited.

            Any other conclusion would subject the act to grave doubts as to its constitutionality.  A person could hardly be constitutionally prosecuted for validly using a "one‑transit permit" lawfully issued, under a statute prohibiting use of a "trip plate license."  To the argument that this construction but little changes previous law, note the provision in "[2]" regarding dealer plates.  We point out that under any construction, no change in the law as to dealer plates could have been intended, see RCW 46.70.090.

             [[Orig. Op. Page 8]]

                        V. ANSWERS TO SPECIFIC QUESTIONS

            You have presented a number of specific questions.  In view of the nature of the problem, we have outlined the general nature and inter-relationship of the taxing and licensing laws.  Your questions and the answers thereto are:

            (1) If the assessor lists as personal property on January 1, a trailer that is expected to be used entirely on personal property, and if under RCW 84.56.110 [PTC 256‑-Jeopardy Distraint Before Levy] the tax is collected immediately, and if later the owner decides to operate the trailer and applies for a license, what is the taxable status of the vehicle under both the property tax and the motor vehicle excise tax?

            Answer:  Even though a property tax was collected, none was in actuality due.  The trailer is subject to the license provisions and the motor vehicle excise tax must be paid.

            (2) Can a motor vehicle license be issued in such an instance without collecting the excise tax?

            Answer:  No, RCW 82.44.090 makes it a crime for the county auditor or other authorized licensing official to issue a motor vehicle or trailer license without collecting the excise tax.  Obviously if the tax is required to be collected, it is required to be kept.  Our opinion to the Tax Commission dated March 20, 1944, is overruled.

            (3) If not, which shall be refunded, or shall the owner be required to pay both?

            Answer:  The property tax should be refunded if it has been paid and is for the year (year of assessment) in which the license is purchased.  RCW 82.44.120 provides for refunds of all or a portion of the license fee and of the excise tax if it is

            "erroneously excessive."

            If the trailer is so used as to require a license, the excise tax either fractionally or in fullmust be paid.  (Our opinion to the Tax Commission of October 19, [[October 13]]1949 [[Opinion No. 49-51-144)]], is in this respect hereby overruled.)  If required to be paid, it is to be kept, and not refunded.  In other words, if required to be paid (as it is by specific statute) it cannot be "erroneously excessive."

             [[Orig. Op. Page 9]]

            Property taxes may be recovered if based upon

            "manifest errors in assessment which do not involve a revaluation of the property."

            under the "Small Claims Act," see RCW 84.68.100 (PTC sec. 356).  A "manifest error in assessment" includes a situation where property either did not exist or should not have been extended upon the tax rolls.  See State ex rel. Northern Pacific Railway Co. v. Henneford, 3 Wn. (2d) 48, see p. 49, 99 P. (2d) 616 (1940).  Such errors include those which subsequently become evident, see our opinion to the Tax Commission dated September 29, 1939.  In this instance, the taxpayer has been required to pay both taxes, but is entitled to a refund of the personal property tax collected by the jeopardy distraint.  He has paid the property tax which RCW 82.44.130 (PTC sec. 374) provides he is exempt and he is entitled to a refund.

            (4) Would a different conclusion be indicated if the tax had not been collected under jeopardy and if merely an assessment for personal property tax existed?

            Answer:  Yes.  Normally, in such an instance, no property tax refund would be authorized because the personal property tax paid is a result of taxable ownership on January 1 of the previous not the current year; the taxpayer could not get a refund of those taxes merely because he purchases a license and pays an excise tax for taxable use in the current year.

            (5) Is the receipt for property tax paid in 1953 and based on valuation as of January 1, 1952, acceptable in place of the 1953 license or the 1952 license?

            Answer:  The 1953 license.  The act specifically refers to property taxes "paid in the current year."  As a practical matter, payment of a tax in 1953 could hardly be in lieu of a 1952 license.

            (6) If the tax on the 1953 assessment is collected immediately under RCW 84.56.110 [Jeopardy Distraint Before Levy] and is thus "paid in the current year" would it be acceptable in place of the 1953 license or the 1954 license?

             [[Orig. Op. Page 10]]

            Answer:  The 1954 license.  Although the tax is actually paid in the current year‑-1953, normally it would be paid in the subsequent year‑-1954.  The act contemplates that the receipt should be valid in place of the excise tax in the year in which the property tax is normally paid.  The taxpayer should already have a receipt for taxes paid in 1953 because this is when taxes based on the 1952 assessment would come due.

            If the trailer was not in taxable existence until the assessment year 1953, there is no way the taxpayer can pay the property tax and obtain a receipt therefor until 1954.  Does the 1953 statute require he be subject to a jail sentence or fine for failure to have something which he cannot obtain?  Obviously not.  It is no answer to say he could purchase a license for and pay the excise tax for that year because these statutes do not apply unless the trailer is used on the highway.  However, even if this were done the first year, the same problem would arise the second year because the property tax would always be a year behind.

            A jeopardy distraint each year on all house trailers is not only unworkable but is not countenanced by statute.  The statutory limitations on jeopardy distraints are not only to protect the taxpayers but the county.  Jeopardy distraints before levy are for a tax based upon a time even one further year antecedent.  Jeopardy distraints on house trailers as a uniform practice not only is not authorized by statute but might also violate the uniformity requirements of our constitution,Art. VII, sec. 1, (Amend. 14, November 1930), since they would be taxes on a different basis than other personal property.

            (7) Does a truck or trailer owner have the right to "choose" whether to pay the excise tax or the property tax?

            Answer:  In practical effect, yes.  At the beginning of each year, each truck or trailer owner many times cannot, in honest accuracy, foretell whether or not that vehicle will be subsequently used upon the public highways in a manner not covered by a one‑transit permit.

            To protect himself from possible contingencies, the owner has the right to obtain a license and pay the motor vehicle excise tax.  In fact, section 5 seems drawn almost as if to intentionally force the trailer owner to purchase a license and pay the motor vehicle excise tax rather than the property tax.  Many trailer owners strongly prefer to pay the property tax because these directly support local government, schools, etc.; but this is a legislative matter.

            (8) Will the fact that a vehicle carries an  [[Orig. Op. Page 11]] "out-of-state" license for the current year exempt such vehicle from assessment for personal property tax if it is located within the state on January 1?

            Answer:  This situation would not often arise.  First, because our property tax is in effect a year behind, and since January 1 is the beginning date for licenses of most states, including our own.  It would be unusual for a vehicle to be in taxable presence in this state on January 1, and yet have a valid out-of-state license.  A trailer physically within the state on the tax day‑-January 1‑-is not subject to our property tax unless (1) it belongs to a resident of this state, or (2) if owned by a non-resident, it must have acquired a tax situs here, that is, be "more or less permanently located" here.  2Cooley, Taxation (4th ed., 1924) secs. 451, 452, 474-481.  State Freight Tax, 15 (Wall) U.S. 232.

            In either case the out-of-state license would be invalid except in a few situations pursuant to RCW 46.16.030 and RCW 46.08.070, the Washington reciprocal nonresident license exemption statutes.  Whether valid under the reciprocal exemption statute would depend upon the particular licensing laws of the other state.  In the few instances where applicable, the out-of-state license would be good since the reciprocity statute, in effect makes the out-of-state license equivalent to our own.

            There is no reciprocity statute relating to the motor vehicle excise tax and it is only the collection, not the imposition of this tax which is tied in with the license fee.

            (9) Will the tax status of such a vehicle change if it is located within this state for a number of years but continues to bear out-of-state license plates?

            Answer:  The out-of-state license plates would be invalid and not a substitute either for personal property taxes or the Washington license and motor vehicle excise tax.

            (10) If a house trailer is brought into the state subsequent to tax day, bearing the license of that other state, and is used in such a manner as not to require a license, may the trailer be assessed for that year, as "omitted property" pursuant to RCW 84.40.080 (PTC sec. 183)?

             [[Orig. Op. Page 12]]

            Answer:  No, the property was not in taxable ownership on January 1 and therefore could not have been "omitted."  See for exampleWood Lumber Co. v. Whatcom County, 5 Wn. (2d) 63, 104 P. (2d) 912 (1940) andHammond Lumber Co. v. Cowlitz County, 84 Wash. 462, 147 Pac. 19 (1915).  Where the out-of-state license is not valid in Washington, the provisions of RCW 84.44.080,PTC sec. 215, may however apply.

            (11) What remedies are available when the taxpayer either refuses to pay both the personal property tax and license fee, including motor vehicle excise tax, or refuses to pay the property tax, promising to pay the excise tax, but does neither‑-in other words, which tax should he be forced to pay?

            Answer:  Until after the taxpayer has received his tax statement (if he is subject to the property tax) which would be some time after February 15 of the current year, he could not possibly have a personal property tax receipt.  Thus he could not under section 5 be liable until after he had an opportunity to pay the tax which would be a reasonable time after receiving his tax statement.

            The enforcement method chosen to obtain whichever tax is due should, we suggest, be based upon the manner in which the vehicle or trailer is being used at the time the violation is noted.  Thus, if the truck or trailer is being used solely on private property, a property tax distraint would appear the more proper.  If the truck or trailer is being used on the public highways and a valid one‑transit permit has not been secured, a motor vehicle license and payment of the motor vehicle excise tax should be required.  The first alternative is subject to the possibility that the vehicle may be intended for use upon the public highway later in that year, and thus the purchase of a license and payment of the motor vehicle tax would operate to prevent the completion of the distraint sale.  Punishment of criminal violations would be through the state patrol, sheriff and/or prosecuting attorney.

                        JEOPARDY DISTRAINTS‑-ONE‑TRANSIT PERMITS

            When a trailer is subject to unpaid property taxes and the owner obtains a one‑time transit permit, such may often be, in itself, a sufficient ground for jeopardy distraint.  The permit would not be sought unless the property were to be moved.  The question is therefore how the treasurer is to know of the impending movement.

             [[Orig. Op. Page 13]]

            We conclude that it is the duty of the State Patrol in issuing one‑transit permits on such property to immediately notify the county treasurer.  We all, as public officials owe allegiance to not only a particular department but to the state as a whole and all lawful portions thereof.  We are all but servants of the same master‑-the people‑-and we do not properly serve unless we cooperate fully with all others who serve.  CompareState ex rel. State v. Church, 35 Wn. (2d) 170, 211 P. (2d) 701 (1949).  Failure of each of us as a public official to cooperate with another in the performance of the latter's duty to the full extent of our proper powers would be less than the performance of our duty.

            We hope the above has been of assistance.

Very truly yours,

DON EASTVOLD
Attorney General

JENNINGS P. FELIX
Assistant Attorney General