TAXATION - NOTICE - PERSONS ENTITLED TO NOTICE OF PROPERTY TAXES DUE - REFUND OF TAXES PAID WITHOUT PROTEST

TAXATION - NOTICE - PERSONS ENTITLED TO NOTICE OF PROPERTY TAXES DUE - REFUND OF TAXES PAID WITHOUT PROTEST.

(1) When a county treasurer gives notice of the amount of property listed for taxation and of the taxes due, he must give such notice to the person whose name appears on the tax roll as owner, and while he has no obligation to give any notice to a mortgagee or other lien holder of the property, if he does so he is not relieved of the duty of furnishing a tax statement to the owner as indicated on the tax rolls.

(2) Where the real property taxes levied against a particular tract of land have been paid without protest by the mortgagee or other lien holder to whom the county treasurer has mailed a notice of taxes due, there is no provision under existing law whereby the property owner, though fully qualified for the fifty dollar tax exemption provided for by chapter 168, Laws of 1965, Ex. Sess., can thereafter obtain a refund of the amount of exemption to which he would have been entitled had his claim been filed before the taxes in question were paid.

(3) If the total first-half installment of 1967 real property taxes which was inadvertently paid prior to filing for the aforesaid fifty dollar exemption amounted to less than fifty dollars, a timely exemption claim may still be made, on or before July 28, 1967, as to that portion of the 1967 taxes remaining unpaid which constitutes a part of ". . . the first fifty dollars of real property taxes due and payable . . ." for 1967, with respect to the particular property.

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                                                                    June 7, 1967

Honorable George Kinnear
Chairman, State Tax Commission
General Administration Building
Olympia, Washington 98501

                                                                                                                 Cite as:  AGO 1967 No. 20

Dear Sir:

            By a previously acknowledged letter you have requested our opinion on several questions concerning the responsibility of a county treasurer to notify a taxpayer of the amount of his real property listed for taxation and the taxes due thereon.

             [[Orig. Op. Page 2]]

            We paraphrase your questions as follows:

            (1) Is a county treasurer authorized to notify a mortgagee or other lien holder of the amount of listed property and the taxes due thereon when only the name of the mortgagor or property owner appears on the tax roll?

            (2) If a county treasurer gives such notice to a mortgagee or other lien holder, is he obligated to also give a notice to the mortgagor or property owner whose name appears on the tax roll?

            (3) If a county treasurer is currently mailing a notice of taxes due to the mortgagee or other lien holder because their name appears on the established mailing index file maintained in his office, is he obligated to change this mailing list when the name of the mortgagor or owner of the property appears on the tax roll?

            In addition, you have asked certain related questions, which we paraphrase as follows:

            (4) Where the 1967 real property taxes levied (in 1966) against a particular tract of land have been paid without protest by the mortgagee or other lien holder to whom the county treasurer has mailed a notice of taxes due, may the property owner (i.e., mortgagor, etc.), if fully qualified for the fifty dollar exemption provided for by chapter 168, Laws of 1965, Ex. Sess., thereafter obtain a refund of the amount of exemption to which he would have been entitled had his claim been filed before the taxes in question were paid?

            (5) If question (4) is answered in the negative, may the tax exemption be claimed against 1967 taxes remaining due and payable where only the first half of the year's taxes were paid prior to claiming the exemption?

            We answer your first three questions in the manner set forth in our analysis.  Question (4) is answered in the negative, and question (5) in the manner stated in our analysis.

                                                                     ANALYSIS

            Your first three questions involve the interpretation and application of RCW 84.56.050, which provides:

             [[Orig. Op. Page 3]]

            "On receiving the tax rolls the treasurer shall post all real and personal property taxes from said rolls to the treasurer's tax segregation register, and shall carry forward to the current tax rolls, or if he so elects to a separate card or other record of delinquencies, a memorandum of all delinquent taxes on each and every description of property, and enter the same opposite or under the property upon which the said taxes are delinquent, in a space provided for that purpose, showing the amounts for each year.  The treasurer shall notify each taxpayer in his county, at the expense of the county, of the amount of his real and personal property, and the total amount of tax due on the same; and the treasurer shall either have printed on said notice the name of each tax and the levy made on the same, or shall during the month of February publish once in a newspaper having general circulation in the county a listing of the levies made in the respective taxing districts and shall upon request furnish such a listing to any one requesting the same; and the county treasurer shall be the sole collector of all delinquent taxes and all other taxes due and collectible on the tax rolls of the county: Provided, That the term 'taxpayer' as used in this section shall mean any person charged, or whose property is charged, with property tax; and the person to be notified is that person whose name appears on the tax roll herein mentioned: Provided, further, That if no name so appears the person to be notified is that person shown by the treasurer's tax rolls or duplicate tax receipts of any preceding year as the payer of the tax last paid on the property in question."  (Emphasis supplied.)

            The tax roll mentioned in the foregoing statute is the roll prepared by the county assessor in accordance with RCW 84.40.160 which reads in material part:

            "The assessor shall list all real property according to the largest legal subdivision as near as practicable.  The assessor shall make out in the plat and description book in numerical order a complete list of all lands or lots  [[Orig. Op. Page 4]] subject to taxation, showing the names and owners, if to him known and if unknown, so stated; the number of acres and lots or parts of lots included in each description of property and the value per acre or lot: . . ."

            In construing the predecessor of RCW 84.40.160, which also required the assessor to show on the tax roll the "names of the owners if to him known, and if unknown, so stated," the court in Shipley v. Gaffner, 48 Wash. 169, 93 Pac. 211 (1908), held that if the name of the owner is known to the assessor he must put it on the roll but there is nothing in the statutory language which requires him to use diligence to ascertain the names of true owners.

            Thus, under RCW 84.56.050, supra, the person to be notified of the amount of his property and of taxes due is the person whose name appears on the assessor's tax roll, or, in the absence of any name thereon, the person who last paid the taxes on the property in question as shown by the tax roll or the duplicate tax receipts of any preceding year.

            The provisions of RCW 84.56.050 with respect to giving a notice are purely directory and not mandatory.  InSpokane County ex rel. Sullivan v. Glover, 2 Wn.2d 162, 97 P.2d 628 (1940), the court said:

            "It has been frequently stated by this court, in cases affecting real estate, that a proceeding to assess and collect taxes upon real property is a proceedingin rem; that the owner of the property is chargeable with knowledge of every step in the tax procedure; and that statutory provisions with regard to owners are directory rather than mandatory. . . .

            ". . .

            "We are of the opinion that, when the legislature amended the statute by eliminating the necessity of a request by the owner or taxpayer that notice be sent him, it merely intended to direct the treasurer from that time forward to send notices to all owners of property as shown by his official records.   [[Orig. Op. Page 5]] We are satisfied that the statute is purely directory, and not mandatory in the sense that failure to comply therewith renders the whole tax proceeding illegal and void.

            "Undoubtedly, the treasurer should make every reasonable effort, based upon the record information in his office, to notify the last known owners of the property assessed; but he is not required to act at his peril, nor is the county to be deprived of its taxes, including interest and penalties thereon, merely because such notice had not been sent. . . ."

            Since that case, the statute has been amended by the only pertinent changes have been the addition of the two provisos which more particularly define the person to be notified.

            While the statute may not be mandatory in the sense that taxes will be rendered void for failure to give notice, the legislature has directed the treasurer to notify certain interested parties of real property taxes due.  When he undertakes notification he must follow the provisions of RCW 84.56.050.  This means he must send such notice to the person whose name appears as owner on the tax roll, and if no name appears thereon to the person named on any tax roll or in any duplicate tax receipt as the payer of the taxes for any preceding year.

            Specifically answering your first, second and third questions, we conclude that when the county treasurer gives notice of the amount of property listed for taxation and of taxes due he must give such notice to the person whose name appears on the tax roll as owner, and while he has no obligation to give any notice to the mortgagee or other lien holder, if he does so he is not relieved of the duty of furnishing a tax statement to the person whose name is on the tax roll.  If the treasurer is using a mailing list which does not contain the name of the owner listed on the tax roll it follows that such list must be changed to comply with the requirements of the provisos to RCW 84.56.050.

            Question (4):

            For ease of reference, we repeat your fourth question, as paraphrased:

             [[Orig. Op. Page 6]]

            Where the 1967 real property taxes levied (in 1966) against a particular tract of land have been paid without protest by the mortgagee or other lien holder to whom the county treasurer has mailed a notice of taxes due, may the property owner (i.e., mortgagor, etc.) if fully qualified for the fifty dollar exemption provided for by chapter 168, Laws of 1965, Ex. Sess., thereafter obtain a refund of the amount of exemption to which he would have been entitled had his claim been filed before the taxes in question were paid?

            In general, the law in question, chapter 168, Laws of 1965, Ex. Sess., (now codified as RCW 84.36.125 through 84.36.127) grants to certain retired persons of limited income an exemption from the first fifty dollars of real property taxes due and payable in any one year.  This law was enacted by the legislature in 1965, to become effective upon the adoption of House Joint Resolution No. 7, an amendment to the state constitution authorizing this type of exemption.  With the adoption of the proposal, now designated Amendment 47 to the constitution, chapter 168, Laws of 1965, Ex. Sess., became effective.  See, AGO 65-66 No. 99.

            Thereafter, on December 6, 1966, we issued AGO 65-66 No. 122, copy enclosed.  This opinion, which was written to State Auditor Robert V. Graham, was issued well in advance of the date upon which the first taxes against which the exemption was deemed allowable were to become "due and payable"; i.e., on February 15, 1967.  The opinion was circulated to all of the county prosecuting attorneys, treasurers, and assessors and, in addition, it was made available to all of the press media accompanied by an explanatory press release.  In addition, copies of AGO 65-66 No. 122 were made available to all of the members of the Fortieth Legislative Session, which convened on January 9, 1967.1/

             [[Orig. Op. Page 7]]

            The significant point which was made in AGO 65-66 No. 122, with regard to the possibility of obtaining a refund in the case of a taxpayer who inadvertently failed to claim the fifty dollar tax exemption, was that chapter 168, Laws of 1965, Ex. Sess., (implementing the constitutional amendment) contained no provision authorizing a refund in such a case.  We said:

            ". . . Should an otherwise eligible taxpayer pay his taxes, neglecting to claim the exemption, he would not be able, under existing statutes, to obtain a refund.  Recovery of illegal or excessive payments is authorized only by RCW 84.68.020 and by RCW 84.68.110.

            "The former statute permits refund only of taxes paid under protest.  Voluntary payments of property taxes, even though not legally due, cannot be recovered.  Childs v. Spokane County, 100 Wash. 64, 170 Pac. 145 (1918); also, Weyerhaeuser Tbr. Co. v. School Dist. No. 118, 7 Wn.2d 683, 110 P.2d 872 (1941).  Under the latter statute (RCW 84.68.110) a refund may be obtained of excessive taxes assessed against a taxpayer through error in description, double assessment, or manifest error in the assessment of the property.  Neither of these statutes would appear to provide relief in the situation presented.  If such relief is to be granted, it will have to come from a further act of the legislature."

            As a consequence of this and the various other opinions noted above, a number of amendatory bills were introduced during the 1967 legislative session.  See, for example, Senate Bill No. 114 and House Bills Nos. 218, 233 and 510.  However, only one such amendatory bill was enacted; namely, Senate Bill 468, now designated chapter 132, Laws of 1967, Ex. Sess.  In essence, this act, which will not become effective until ninety days after the end of the 1967 special session2/ replaced § 2, chapter 168, Laws of 1965, Ex. Sess., (RCW 84.36.126) with a new section modifying, in various respects, the qualifications which must be met in the future in order that the fifty dollar tax exemption may be granted.

             [[Orig. Op. Page 8]]

            However, chapter 132, Laws of 1967, Ex. Sess., the only measure enacted by the 1967 legislature pertaining to the subject, contained no provision to allow a refund of taxes paid in consequence of an inadvertent failure to make a timely application for the fifty dollar tax exemption.  Rather, the 1967 enactment dealt with the sort of problem which has led to your present question in a somewhat different manner.  Section 2 of the act, which adds a new section to chapter 84.36 RCW, contains the following provision:

            "All claims for exemption shall be made and signed by the person entitled to the exemption, by his or her attorney in fact or, in the event the residence of such person is under mortgage or purchase contract requiring accumulation of reserves out of which the holder of the mortgage or contract is required to pay real estate taxes, by such holder, either before a notary public or the county assessor or his deputy in the county where the real property is located.  Any person signing a false claim shall be subject to perjury."

            Thus, in the future, a mortgagee or contract holder of property "owned" by a person entitled to the fifty dollar tax exemption will be able to file the claim for exemption on behalf of his mortgagor or contract purchaser.  Though this will not entirely cure the problem of inadvertent failures to claim the tax exemption, it will at least make it possible for the mortgagee or contract holder who knows that his "owner" may be entitled to the tax exemption to do something about it.

            However, because the legislature has still enacted no provision for the refund of taxes paid as a consequence of an inadvertent failure to claim the tax exemption, we have no other alternative than to conclude that no refund of 1967 taxes paid without protest by a mortgagee of property "owned" by a person eligible for the tax exemption can be obtained.

            In thus concluding, we are aware of the provisions of RCW 84.69.020, which provides:

            "On order of the board of county commissioners ad valorem taxes paid before or after delinquency shall be refunded if they were:

            "(1) Paid more than once; or

             [[Orig. Op. Page 9]]

            "(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.

            "No refunds under the provisions of this section shall be made because of any error in determining the valuation of property."

            However, this statute is not applicable to the situation you have described.  Here, the reason for the excessive payment is the failure of the person entitled to the exemption to make a timely claim for it, and not any of the reasons listed in RCW 84.69.020.  This failure may, in certain cases, be attributable to the fact that the treasurer may have erroneously sent the tax statement to a mortgagee, rather than to the owner as listed on the tax rolls of the assessor.  However, such act would not be a clerical error in "extending the tax rolls" or in "listing property," both of which are functions of the assessor alone.  Nor would it bring the case within the scope of any other of the listed grounds for a tax refund which are specified in the statute.

            Question (5):

            Your final question, as paraphrased, assumes a negative answer to the previous question, and asks whether, under such circumstances, the tax exemption may still be claimed against 1967 taxes remaining due and payable where only the first half of the year's taxes were paid prior to claiming the exemption.  RCW 84.56.020 provides, in material part:

            ". . . All taxes upon real and personal property made payable by the provisions of this title shall be due and payable to the treasurer as aforesaid on or before the thirtieth day of April in each year, after  [[Orig. Op. Page 10]] which date they shall become delinquent, and interest at the rate of eight percent per annum shall be charged upon such unpaid taxes from the date of delinquency until paid:Provided, That when the total amount of tax on any lot, block or tract of real property payable by one person is ten dollars or more, and if one half of such tax be paid on or before the said thirtieth day of April, then the time for payment of the remainder thereof shall be extended and said remainder shall be due and payable on or before the thirty-first day of October following, after which date such remaining one half shall become delinquent, and interest at the rate of eight percent per annum shall be charged upon said remainder from the date of delinquency until paid: . . ."