TAX REFUNDS - TAXATION - PAYMENT UNDER PROTEST - PROPERTY TAXES

TAX REFUNDS -- TAXATION  -- PAYMENT UNDER PROTEST -- PROPERTY TAXES

Payment of taxes under protest may be made by taxpayer's agent; but protest must be made by or for each taxpayer. 

A protest may be in the form of a rubber stamp and must set forth all the grounds for the protest, and when it is claimed that the taxes are imposed unconstitutionally the protest is sufficient if it describes the act claimed to be unconstitutional and states that the taxes are collected pursuant to such unconstitutional act. 

Description of the property used by the treasurer in billing a taxpayer is sufficient for purposes of the protest. 

County treasurers may not withhold distribution of taxes paid under protest or which are paid under protest and refund of such taxes when in order may be made only pursuant to RCW 84.68.020 or 84.68.110 when applicable.

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                                                                 February 6, 1956 

Honorable John H . Happy
State Senator
Sixth District
311 Paulsen Building
Spokane, Washington                                                                                                              Cite as:  AGO 55-57 No. 198

 Dear Sir:

             You have requested our opinion as to several questions which may confront county officials should the supreme court declare chapter 253, Laws of 1955, to be unconstitutional.  As you may know, the litigation challenging that act is presently on appeal from a judgment of the Yakima superior court which sustained the act, and the matter is set for argument on March 9th.  Your questions are as follows:

              [[Orig. Op. Page 2]]

            1. If the taxpayer has paid taxes under protest pursuant to RCW 84.68.020, is it lawful for the county treasurer to sequester the alleged illegal portion thereof, pending the outcome of the noticed litigation, and refund such illegal portion of the taxes, without additional court action should the act be declared unconstitutional?

             2. Can the protest, required pursuant to RCW 84.68.020, when paying taxes alleged to be illegal, be signed by any agent of the taxpayer who usually pays the taxes for such taxpayer, such as a savings and loan association?

             3. Can such agent who pays the taxes for a number of such taxpayers execute one protest to cover all of the payments?

             4. Can a protest in the form of a proper rubber stamp imposed on the tax statement be used?

             5. Do the provisions of RCW 84.68.020, which require setting forth all the grounds upon which such tax is claimed to be unlawful, require reference to each provision of the state constitution alleged to be violated by the law, or is it sufficient to simply allege that the law is unconstitutional?

             6. Does the legal description of the property on which the protested taxes are being paid have to be given in the protest?

             7. Assuming that the supreme court should declare the law unconstitutional, and assuming further that the county treasurer shall have kept the alleged illegal portion of taxes already paid in a separate trust fund pending litigation and not remitted to the taxing district;

             Would such a decision be sufficient to judicial authority for county treasurers to refund such illegal tax without going through the procedures of the county tax refund fund established by RCW 84.68.040?

             Our answers to each of your questions appear in order below.

              [[Orig. Op. Page 3]]

                                                                     ANALYSIS

             1. The answer to your first question is no.  RCW 84.56.230 (§ 93, chapter 130, Laws of 1925, Ex. Sess.) provides:

             "On the first day of each month the county treasurer shall distribute pro rata, according to the rate of levy for each fund, the amount collected as consolidated tax during the preceding month, and shall certify the same to the county auditor. . . ."

             The provisions of this section are mandatory, the legislature having used the word "shall."  Further, in the performance of a ministerial act such as required by this section, the officer charged with the duty is permitted no discretion as to whether he will comply with the statute, State ex rel. Northern Pacific Railway Co. v. Henneford, 3 Wn. (2d) 48.  Aside from the above statute there is no other provision relative to the treasurer's duty to distribute collected taxes, and no statute authorizes treasurers to treat taxes paid under protest differently from other taxes nor to set such taxes aside in a special fund.

             Whether the illegal portion of the tax could be refunded by the treasurer without additional court action if the act is held unconstitutional must also be answered in the negative.  The reasons therefor are fully stated in our opinion of this date to the Honorable Herb Hansen, representative for the thirty-ninth district, a copy of which is enclosed for your information.

             2. The answer to your second question is yes.  There is no statutory requirement that either the tax or a protest thereof be made personally by the owner of the property taxed.  Any person who is authorized by a taxpayer to act for him in the payment of his taxes may also validly lodge the protest with the treasurer on behalf of the taxpayer.  See RCW 84.56.310.

             3. While the answer to your third question is not readily apparent from an examination of the statutes, we conclude the answer should be no.  As analyzed above, one of the reasons the protest is required to be written is to provide a clear record of the taxes paid under protest on the counties' books.  This information is essential to advise the taxing officials of the potential refund actions facing the county, and also to apprise them of the amount of taxes which may have to be levied for purposes of the tax refund fund.  See RCW  [[Orig. Op. Page 4]] 84.68.040.  If a single protest for numerous taxpayers were permitted, considerable confusion as to who had paid under protest and the amount disputed could well result.

             4. The answer to your fourth question is yes.  The requirement that the protest be in writing assures that the collecting official's attention will be drawn to the protest; that the evidence thereof will permanently remain in the records; and that no dispute will arise later over the substance and contents of the protest as might occur were it permitted to be orally stated.  It is to be recalled that a taxpayer who brings an action for refund is limited to the grounds stated in his protest.  SeeWeyerhaeuser Timber Co. v. School District, 7 Wn. (2d) 683, andFirst National Bank v. King County, 4 Wn. (2d) 91.  A written protest is simply one committed to writing.  Black's Law Dictionary (4th ed.) defines "writing" as the expression of ideas by letters visible to the eye.  Under this definition, and considering some of the purposes for which a written protest is required, it is immaterial whether the protest is written by typewriter, longhand, or affixed with a rubber stamp.

             5. It is sufficient if the protest simply states that the taxes or the disputed part thereof are paid pursuant to the provisions of a certain legislative act which the taxpayer claims to be violative of the constitution of the state.  Such a protest would sufficiently apprise the county officials of the fact of protest and the reason therefor.  The statute does not require the particularity that would be necessary when drafting a complaint in a lawsuit brought by a taxpayer attacking the tax.

             6. The protest itself need not contain a legal description of the property if it is stated on or attached to a paper which gives the legal description or which describes the property with the same particularity by which that property is described on the tax statement mailed to the taxpayer by the treasurer.  If the property is designated by a tax number pursuant to RCW 84.40.160, it would also be sufficient for the taxpayer to use that tax number to identify the property, since reference to the assessor's plat and description book would disclose in detail the property concerned.  SeeCentralia v. Miller, 31 Wn. (2d) 417.

             7. The answers to your first question appear to fully answer this question.  Any refund of taxes must be made from the county tax refund fund in strict  [[Orig. Op. Page 5]] conformance with the procedure established by RCW 84.68.030 or 84.68.140.

             You will notice that the existing procedure requires the disbursement to the various taxing districts of taxes paid under protest in the same manner as other taxes.  The consequence of this is, where it subsequently develops that a refund is required, that a levy must be imposed to raise the amount necessary for the refund.  SeeCasco Co. v. Thurston Co., 163 Wash. 673.  This is indeed a very cumbersome procedure which may greatly delay the payment of rightful tax refunds.  This entire procedure should unquestionably receive the attention of the forthcoming legislature.

Very truly yours,

DON EASTVOLD
Attorney General

KEITH GRIM
Assistant Attorney General