TAXATION - ASSESSMENT OF PROPERTY ‑- STORAGE OF COMMODITIES MANUFACTURED OR PRODUCED OUTSIDE OF STATE ‑- CANNED SALMON ‑- EXEMPTION PROVIDED BY RCW 84.36.171

TAXATION ‑- ASSESSMENT OF PROPERTY ‑- STORAGE OF COMMODITIES MANUFACTURED OR PRODUCED OUTSIDE OF STATE ‑- CANNED SALMON ‑- EXEMPTION PROVIDED BY RCW 84.36.171.

Canned salmon which has been manufactured or produced in states, territories or possessions of the United States outside the boundaries of the state of Washington may qualify for the property tax exemption provided for in RCW 84.36.171, et seq., if the required affidavit of exemption is filed as required thereby and if the salmon is shipped out of this state by December 31 of the year for which the exemption is claimed.

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                                                                    April 9, 1964

Honorable Steve Kipper
Washington State Representative
P.O. Box 3621
Seattle 24, Washington

                                                                                                                Cite as:  AGO 63-64 No. 99

Dear Sir:

            This is written in reply to your recent letter in which you requested an opinion of this office on a question which we paraphrase as follows:

            May canned salmon which has been manufactured or produced in states, territories or possessions of the United States outside the boundaries of the state of Washington qualify for the property tax exemption provided for in RCW 84.36.171,et seq., if the required affidavit of exemption is filed and the salmon is shipped out of this state by December 31 of the year for which the exemption is claimed?

            We answer your question in the affirmative for the reasons set forth in our analysis.

                                                                     ANALYSIS

            RCW 84.36.171, as amended by § 13, chapter 28, Laws of 1963, Ex. Sess., reads as follows:

            "Goods, wares, raw furs and merchandise manufactured or produced in any of the states, territories, or possessions of the United States or foreign countries and brought into this state for the purpose of transportation or sale through and to points without the state,  [[Orig. Op. Page 2]] and identified at the time the affidavit is filed as property ultimately destined for out-of-state shipment, while being so transported, or while held in storage in a public or private warehouse awaiting such transportation, shall be considered and held to be property in transit and nontaxable if actually shipped to points outside the state.  The county assessor shall list and assess all such goods, wares and merchandise as of January 1st of each year, without regard to any average inventory, but shall cancel any such assessment in whole or in proportionate part upon receipt of the affidavit of exemption as set forth in RCW 84.36.172.  A sale of or transfer of title to any such property, while being so transported or held in storage, shall not operate to defeat the intent or purpose of this section."

            Section 14, chapter 28, Laws of 1963, Ex. Sess., (RCW 84.36.172) implemented the foregoing as follows:

            "Any owner or agent claiming property in transit as defined in RCW 84.36.171 as of January 1st of any year shall file with his listing of property as provided by RCW 84.40.040 an affidavit of exemption in such form and manner as prescribed by the state tax commission which shall adequately describe the nature and amount of such property.  Such property for which an exemption is sought must be shipped to an out-of-state destinationnot later than December 31st of the year for which the exemption is claimed."  (Emphasis supplied.)

            The consequences of failure to ship the tax exempt property to an out-of-state destination by December 31 of the year for which the exemption is claimed are set forth in § 15 of this 1963 amendatory act.  However, other than modifying certain procedures to be followed for claiming and proving the exemption, the principal effect of the aforesaid portions of chapter 28, Laws of 1963, Ex. Sess.,supra, was to change the date by which the tax exempt property had to be shipped out of the state.  Prior to its amendment by § 13,supra, RCW 84.36.171 contained a deadline of April 30 "of the first year for which . . . [the property] would otherwise be taxable."  See, AGO 63-64 No. 89 [[60 Prosecuting Attorney, Whatcom County on March 5, 1964]].  Contrast with § 14, chapter 28, Laws of 1963, Ex. Sess., supra, 89.  Contrast with § 14, chapter 28, Laws of 1963, Ex. Sess., supra, and the December 31 deadline contained therein.

             [[Orig. Op. Page 3]]

            On its face, the foregoing legislation certainly appears to cover the subject matter of your question; i.e., canned salmon which has been manufactured or produced in states, territories or possessions of the United States outside the boundaries of the state of Washington.  Of course, in order to qualify for the tax exemption the procedural requirements contained therein‑-specifically, the timely filing of the identifying affidavit‑-must be met.  But if these procedural requirements are met, we are of the opinion that the property in question should be regarded as having qualified for the property tax exemption as set forth in § 13 (RCW 84.36.171)supra.

            In thus concluding we have not overlooked the fact that RCW 84.36.140, codifying § 2, chapter 67, Laws of 1939, contains the following provision:1/

            "All grains and flour, fruit and fruit products, vegetables and vegetable products, andfish and fish products, while being transported to or held in storage in a public or private warehouse shall be exempt from taxation if actually shipped to points outside the state on or before April 30th of the first year for which they would otherwise be taxable: Provided, That proof of shipment be furnished as required in section 3 of this act."  (Emphasis supplied.)

            In AGO 63-64 No. 89, referred to above, we concluded that the provision last quoted is not to be regarded as having been impliedly repealed by §§ 13-16, chapter 28, Laws of 1963, Ex. Sess., (RCW 84.36.171, et seq., supra).  We based this conclusion upon a determination that the statutes in question, RCW 84.36.140,supra, on the one hand, and RCW 84.36.171, et seq., supra, on the other hand, are not inconsistent with or repugnant to each other.  See, Abel v. Diking & Drainage Improvement District, 19 Wn.2d 356, 142 P.2d 1017 (1943) (pertaining to repeal by implication).

             [[Orig. Op. Page 4]]

            We made this determination on the basis of the approach taken by our court inHalferty & Co. v. King County, 30 Wn.2d 561, 192 P.2d 736 (1948).  In that case, canned salmon and clams which had been manufactured or produced in territories or possessions of the United States outside the state of Washington were assessed for taxation in King county, having been brought thereto for storage sometime prior to January 1 of the tax year in question.  They were thereafter shipped to points outside the state prior to April 30, of the same tax year.  However through inadvertence no documentary proof of this shipment was furnished to the assessor until substantially after the statutory deadline for furnishing such proof; i.e., June 1 of the tax year as provided for in both § 1, chapter 66, Laws of 1939, and § 3, chapter 67, Laws of 1939.

            Chapters 66 and 67, Laws of 1939, read in material part as follows:

            (1) Chapter 66:

            ". . .And provided further, That goods, wares and merchandise manufactured or produced in any of the territories or possessions of the United States situated outside the boundaries thereof, . . . brought into the state for the sole purpose of transportation through and to points without the state, while being so transported, or while held in storage in a public or private warehouse awaiting such transportation, shall be considered and held to be property in transit and non-taxable if actually shipped to points outside the state on or before April 30th of the first year for which they would otherwise be taxable; and the county assessor shall list and assess all such goods, wares, and merchandise as of January 1st of each year, without regard to any average inventory, but shall cancel any such assessment in whole or in proportionate part upon receipt of sufficient documentary proof that the identical property so assessed was actually shipped to points outside the state on or before April 30th of such year; but no such cancellation shall be made unless such proof be furnished to the county assessor before June 1st of such year. . . ." (Section 1, chapter 66, Laws of 1939.)

            (2) Chapter 67:

            "All grains and flour, fruit and fruit products,  [[Orig. Op. Page 5]] vegetables and vegetable products, and fish and fish products, while being transported to or held in storage in a public or private warehouse shall be exempt from taxation if actually shipped to points outside the state on or before April 30th of the first year for which they would otherwise be taxable:  Provided, That proof of shipment be furnished as required in section 3 of this act.

            "The county assessor shall list and assess all such grains and flour, fruit and fruit products, vegetables and vegetable products, and fish and fish products as of January 1st of each year, without regard to any average inventory; but shall cancel any such assessment in whole or in proportionate part upon receipt of sufficient documentary proof that the property so assessed was actually shipped to points outside the state on or before April 30th of such year:  Provided, That no such cancellation shall be made unless such proof be furnished to the county assessor before June 1st of such year: . . ." (Sections 2 and 3, chapter 67, Laws of 1939.)

            Section 2 of chapter 67, as noted above, is now RCW 84.36.140.  Section 3 is RCW 84.36.150.  On the other hand, § 1, chapter 66,supra, as amended by §§ 1-3, chapter 168, Laws of 1961, and again by § 13, chapter 28, Laws of 1963, Ex. Sess., supra, is RCW 84.36.171, supra.  Thus it is to be seen that if the canned salmon and clams which were in issue in theHalferty case,supra,‑-even though they were "fish products"‑-could be considered to have been within the purview of chapter 66 because "manufactured or produced in . . . territories or possessions of the United States outside the boundaries thereof, . . ."as an alternative to being covered under chapter 67, as "fish products" (see,Libby, McNeill & Libby v. Ivarson, 19 Wn.2d 723, 144 P.2d 258 (1943)), by the same logic or reasoning canned salmon from out of statetoday can be regarded as coming under RCW 84.36.171, et seq., supra, on a similar alternative basis.

            This is precisely the position that our court took in the Halferty case.  Because of the plaintiff's failure to furnish documentary proof of shipment to points outside the state by June 1 of the particular tax year, the court denied his plea for cancellation of the assessment against the canned salmon and clams in question.  However in reaching this not unexpectable conclusion the court nevertheless  [[Orig. Op. Page 6]] considered on the merits at some length an argument made by the plaintiff that because the "documentary proof of shipment" requirement contained in chapter 66 was not in the form of a proviso‑-as distinguished from the same requirement as verbalized in chapter 67‑-therefore cancellation of the assessment as to property covered by chapter 66 was not dependent upon the occurrence of the condition subsequent of furnishing proof of shipment.

            The court rejected this argument, stating:

            "We are convinced that these two enactments disclose the common purpose of encouraging the storage of commodities in the state of Washington, whether they be salmon from Alaska, sugar from Hawaii, or any other goods, wares, or merchandise manufactured or produced in any of the territories and possessions outside the boundaries of the United States [1] which would already have entered into the stream of interstate commerce before arrival in this state; or whether they be [2] certain products of this state which are destined shortly to enter into that stream.  The legislature was clearly trying to work out identical procedures; and although in the amendment to Rem. Rev. Stat., § 11130, by chapter 66 of the Laws of 1939, the word 'provided' is not used as it is in chapter 67, the legislature intended (and the language used in chapter 66 expresses that purpose) that the assessments provided for should be valid, subject to cancellation if the goods, wares, and merchandise referred to therein were shipped out of the state by April 30th and documentary proof thereof was furnished before June 1st."  (30 Wn.2d 561, 566, 567.)

            It is obvious that had the court regarded chapter 66 as inapplicable to canned salmon or clams manufactured or produced "in any of the territories and possessions outside the boundaries of the United States" for the reason that such goods also constitute "fish or fish products" as described in chapter 67, this lengthy consideration of the plaintiff's argument would have been entirely unnecessary.  If it had been so inclined the court could simply have said, in effect, "Plaintiff may not avail himself of the provisions of chapter 66  [[Orig. Op. Page 7]] because his goods are a form of "fish products" covered exclusively by chapter 67."2/

             That it did not do so means‑-in our opinion‑-that chapter 66, Laws of 1939, and its successor through amendment, RCW 84.36.171,supra, is to be regarded as applicable (as an alternative to chapter 67, Laws of 1939, and RCW 84.36.140, supra) to, inter alia, such "fish or fish products" including canned salmon as are manufactured or produced ". . . in any of the states, territories or possessions of the United States . . ." outside the boundaries of the state of Washington.  Thus, as we concluded in AGO 63-64 No. 89, supra, RCW 84.36.171, et seq., on the one hand, and RCW 84.36.140 on the other,  [[Orig. Op. Page 8]] are not inconsistent or repugnant to each other.  And therefore, by way of specific answer to your question, paraphrased at the outset, we conclude that canned salmon which has been manufactured or produced in states, territories or possessions of the United States outside the boundaries of the state of Washington may qualify for the property tax exemption provided for in RCW 84.36.171,et seq., if the required affidavit of exemption is filed as required thereby and if the salmon is shipped out of this state by December 31, of the year for which the exemption is claimed.