PROPERTY TAXATION -- INTEREST RATE -- EFFECT OF AMENDMENT OF STATUTE

PROPERTY TAXATION -- INTEREST RATE -- EFFECT OF AMENDMENT OF STATUTE

Interest chargeable on delinquent property taxes is computed at time of payment and at rate then in effect.

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                                                                 January 23, 1950

Honorable Patrick M. Steele
Prosecuting Attorney
Pierce County Court House
Tacoma, Washington                                                                                                              Cite as:  AGO 49-51 No. 203

Attention:  !ttValen H. Honeywell,
            Chief Civil Deputy

Dear Sir:

            We have your letter in which you request our opinion as to the application of section 1, chapter 21, Laws of 1949 [sec. 11244 Rem. Supp. 1949], amending section 83 of the general property tax code [chap. 130, Laws of 1925, Ex. Sess.].  This section pertains to the dates of delinquency and to the interest chargeable upon delinquent property taxes.  The 1949 Legislature amended the section to provide for interest at the rate of 8% upon unpaid taxes, and changed the dates of delinquency.  Your questions are:

            "(1) Does the interest rate of 8% as reduced by chapter 21 of the Laws of 1949, apply only to tax delinquencies of January 1, 1950, and thereafter, or is the interest due on all delinquencies existing on January 1, 1950, theretofore calculated at the old rate of 10%, to be re computed [[recomputed]]from the original date of delinquency at the new rate of 8%?

            "(2) If a taxpayer failed to make any payment on his 1949 real property tax in the year 1949, and thus by the old law was delinquent as to one half on May 31 and as to the other half on November 30, does chapter 21 of the Session Laws of 1949  [[Orig. Op. Page 2]] have the effect of rendering said taxpayer delinquent as to the entire amount as of April 30, 1949?

            Our conclusions may be summarized as follows:

            All delinquent property taxes paid on and after January 1, 1950, regardless of the dates of delinquency thereof, shall be subject to a charge of interest at the rate of 8% per annum for the period of delinquency, and such period, for the purpose of determining the interest charge, shall be computed from the date during such year when the taxes would have became delinquent under the amended statute, without regard to the actual date or dates during such year when the taxes became delinquent.

                                                                     ANALYSIS

            It is a well established proposition that interest charged for nonpayment of taxes is not a part of the tax, but is only a method provided for the collection thereof.  Henry v. McKay, 164 Wash. 526, 3 P. (2d) 145; 51 Am. Jur. 848, Taxation Section 970.  In consequence, interest is computed at time of payment of the tax, and not before.  Henry v. McKay,supra, p. 532.  A tax not being a debt (New Whatcom v. Roeder, 22 Wash. 570, 61 Pac. 767), interest does not accrue as a part of the tax due, but will be charged only in accordance with statutes in effect at the time of payment.  Henry v. McKay, supra, p. 534.  The solution to your question, then, lies in determining what statute or statutes are in effect after January 1, 1950, with regard to the imposition of interest upon the payment of property taxes due prior thereto.

            We find that the case of Henry v. McKay, cited above, controls our decision on this question.  That case involved the effect of the 1931 amendment (sec. 1, chap. 21, Laws of 1931) of the section with which we are here concerned.  This section, providing for the dates of delinquency and the interest to be charged upon delinquent property taxes, has been in effect for many years and was included as section 83 of the property tax code of 1925.  Prior to the 1931 amendment section 83 provided that all taxes fell due on May 31 of each year, provided that if half were paid by that date the balance was not due until November 30 of that year.  Interest was to be charged upon delinquent property taxes at the rate of 12%.  By the 1931 amendment it was provided that one half of the property taxes fell due on May 31 and the other half on November 30 of each year, and that interest should be charged upon delinquent property taxes at the rate of 10%.

             [[Orig. Op. Page 3]]

            This last change resulted in litigation culminating in the decision of the Supreme Court of Washington in the Henry case, wherein it was determined that the amending section had had the effect of repealing the prior section, so that upon payment of delinquent taxes subsequent to the effective date of the 1931 amendment the prior provisions had no existence and the new provisions controlled not only theinterest rate to be charged but also the dates from which said interest was to be computed.

            It is true that the effect of the 1931 amendment, as construed in theHenry case, had the effect of lessening the interest charge in every instance for the rate was lowered and the period of delinquency either remained the same or was shortened.  In the instant case, the total interest charge may be greater or lesser when the 1949 amendment is applied, depending upon the particular facts of the case.

            However, no constitutional right is violated by the imposition of a greater interest charge by subsequent statutory enactments.  Authorities cited in theHenry case, including that from the Supreme Court of the United States, supports this last stated proposition and no further discussion appears necessary.  See alsoIn re Nogleberg's Estate, 200 Wash. 652, 94 P. (2d) 488; Annotation, 4 A.L.R. (2d) 954.

            We find that the 1949 amendment to section 83 caused the repeal of the preexisting statute as of January 1, 1950, because section 1, chapter 21, Laws of 1949, states:

            "Section 83, chapter 130, Laws Extraordinary Session 1925, as last amended by section 2, chapter 130, Laws of 1935, is hereby amended to read as follows: * * * " (Emphasis added).

            The underscored words in the above quotation were construed by the Washington Supreme Court in theHenry case to cause the repeal of the preexisting language of that section, so that payments made subsequent to the effective date of the act were controlled by the new language.  It was further found from this that the legislature intended that the new statutory language have retrospective effect so that it should apply to the future payment of taxes already delinquent.  A statute providing for interest to be charged on payment of delinquent property taxes may have retrospective effect if such legislative intent be clear.  51 Am.Jur. 854, Taxation, section 977; Annotation, 77 A.L.R. 1034.

             [[Orig. Op. Page 4]]

            The result of the above is that payments subsequent to January 1, 1950, of taxes delinquent prior thereto are subject to an interest charge at the rate of 8%, and that, forthe purpose of computation only, the date of delinquency shall be the date during such year when the taxes would have became delinquent under the amended statute, without regard to the actual date or dates during such year when the taxes became delinquent.  If one half of such taxes were not paid by May 31 of the year in which due, and such taxes remain unpaid, the date of delinquency for all of the taxes (for interest computation) is April 30 of that year.  If the first payment was properly made on or before May 31 of the year in which due but the remainder was not paid by November 30, the date of delinquency for such amount is October 31 of that year.  This complicated and confusing conclusion is the logical result of the holding of theHenry case when applied to this situation.  The acceleration clause for nonpayment of one half of the taxes by the spring date now provided for in the amended section necessarily must also apply to the date from which interest is computed.

            This latter proposition may cause some concern on first examination, but it is our opinion that in providing for new dates of delinquency for taxes due in 1950 and thereafter the legislature also provided the dates from which interest should be computed upon already delinquent taxes.  This is not to say that the legislature has altered the dates upon which these already delinquent taxes became delinquent.  If the legislature can raise or lower the interest to be charged on already delinquent taxes, the same effect can be achieved by the changing of the dates from which the interest charge is to be computed.  This necessarily must have been the intent of the legislature, and therefore the effect of the statute, for this is the only statute presently in effect for the determination of the charge of interest for late payment.  Note that in theHenry case the Washington Supreme Court held to this same effect.  SeeHenry v. McKay, supra, p. 542.

Yours very truly,

SMITH TROY
Attorney General

C. JOHN NEWLANDS
Assistant Attorney General