TAXATION ‑- OMITTED PROPERTY

TAXATION ‑- OMITTED PROPERTY.

The taxation of omitted property under RCW 84.60.010 is to proceed in the same manner as the taxation of any other property insofar as possible; the assessment of such property may be made only for three years immediately preceding the discovery of it.

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                                                                   April 15, 1954

Honorable Howard V. Doherty
Prosecuting Attorney of Clallam County
Aldwell Building
Port Angeles, Washington                                                                                            Cite as:  AGO 53-55 No. 239

Dear Sir:

            In a recently acknowledged letter you stated that the assessor, under a revaluation program, discovered several tracts of land and/or improvements which had previously been omitted from the tax rolls.  In connection with the taxation of this omitted property, you ask these questions:

            "(1) What is the meaning of 'the current year' in the first portion of that section?  Does it, for instance, mean that in tax statements mailed in 1954 based on an assessment of January 1, 1953, that the Assessor might go back three years beyond 1953 or from 1954?

            "(2) Assuming that at some time in 1953 the Assessor discovers an untaxed tract or improvement, which tax relates back and becomes a lien as of January 1, 1953, what is the meaning of the term in the second proviso 'prior to the time such improvements are assessed?'  Does the discovery and entry upon the Assessor's books itself relate back to January 1,  [[Orig. Op. Page 2]] 1953, or only to the actual date of discovery and entry upon the Assessor's books?  And, if the date of discovery and entry is important, should the Assessor enter such date on his records?

            "(3) In such instance, how long during 1953, can the Assessor continue to enter assessments as omitted property; must the books be complete at some time, perhaps before meeting of the Board of Equalization, so the taxpayers may know what his assessment will be so he may seek equalization or protest before the taxes become due?  Must the taxpayer be given notice of an increase in taxation through addition by way of taxing omitted improvement?

            "(4) Can the law possibly mean that if a mortgage or materialman's lien be placed upon property before the effective date of lien of omitted taxes that these taxes are invalid?  I can conceive where the mortgage or lien may be of only inconsequential amount and I do not conceive that such a transaction can wipe out the county's claim for back taxes against the mortgagor or lienee who may long have owned the property."

            These questions are answered in proper order below.

                                                                     ANALYSIS

            The general statute which provides for the listing of "omitted property" is RCW 84.40.080:

            "The assessor, upon his own motion, or upon the application of any taxpayer, shall enter in the detail and assessment list of the current year any property shown to have been omitted from the assessment list of any preceding year, at the valuation of that year, or if not then valued, at such valuation as the assessor shall determine from the preceding year, and such valuation shall be stated in a separate line from the  [[Orig. Op. Page 3]] valuation of the current year.  Where improvements have not been valued and assessed as a part of the real estate upon which the same may be located, as evidenced by the assessment rolls, they may be separately valued and assessed as omitted property under this section:  Provided, That no such assessment shall be made for any period more than three years preceding the year in which such improvements are valued and assessed:  Provided, further, That no such assessment shall be made in any case where a bona fide purchaser, encumbrancer, or contract buyer has acquired any interest in said property prior to the time such improvements are assessed.  When such an omitted assessment is made, the taxes levied thereon may be paid within one year of the due date of the taxes for the year in which the assessment is made without penalty or interest."

            This statute contemplates that an "omitted property" assessment made for any past year should be treated in the same manner as any ordinary assessment made for the current year.  Such assessments should, however, be equalized as of the statutory assessment date of the "omitted year," the rate of levy of the "omitted year" should be applied, and the "omitted property" tax should be distributed to taxing districts on the same basis as taxes based on assessments and levy of the "omitted year."  See Tax Commission ruling dated May 24, 1941.

            (1) The words "the current year," as used in this section, may not, I believe, be given any meaning more clear than that which they themselves portray.  They mean the year which currently is January 1, 1954 to December 31, 1954.

            I fail to see, however, how these words are concerned with the determination of the period for which omitted taxes may be assessed back, as intimated by your question.  The statute provides in the first proviso:

            "* * * That no such assessment shall be made for any period more than three years preceding the year in which such improvements are valued and assessed:  * * *"

             [[Orig. Op. Page 4]]

            There is no statute of limitation on the right to assess or collect taxes, AGO 1927-28:491 [[W. L. La Follette, Prosecuting Attorney, Colfax County on January 28, 1928]], and there is no limitation on how far back omitted real estate or personal property may be listed‑-even though the five year limitation is often observed ‑-TCR 2-9-1937 [[Tax Commission Ruling]].  This proviso of the statute observed‑-TCR 2-9-1937.  This proviso of the statute applies to limit only the applies to limit only the back assessment period of improvements upon real estate which have not been valued and assessed with the real estate; in this case, and only this case, such improvements may be assessed only for the three years last preceding, that is, 1953, 1952 and 1951, or in other words, back to January 1, 1951.

            (2) Your second question seems to answer itself.  We agree with your analysis that the "tax relates back and becomes a lien as of January 1, 1953."  The tax is to be treated as any other tax assessed during the current year, and so under the terms of RCW 84.40.020 the date of its assessment is January 1 of the current year, and the tax becomes a lien as of that date, RCW 84.60.020.

            The term "prior to the time such improvements are assessed" means, in the context of your question, prior to January 1 of the year in which the omitted property is assessed.  The actual date of discovery of the omitted property by the assessor is irrelevant to the date of the attaching of the tax lien.  Whether or not the assessor records the date of actual discovery is a matter resting in his discretion.

            (3) The statute provides that the assessor "shall enter in the detail and assessment lists of the current year" the omitted property to be taxed.  Since the assessor may make such entries only before equalization, it seems to follow that his books must be complete at that time, whether the property involved is omitted property or other property.

            Notice of the tax on omitted property should be given as in the case of any other tax.  RCW 84.56.050.

            (4) Since the last question is purely academic, it is presently unnecessary to research the problem at great length.  In the situation you suggest, however, the real estate taxes become a lien upon the land taxed, notwithstanding the status of the ownership, RCW 84.60.010, and annotations thereto; and are collectible before other encumbrances of an earlier date; Minshall v. Douglas County, 133 Wash. 650, 234 Pac. 661.

Very truly yours,

DON EASTVOLD
Attorney General

KEITH S. BERGMAN
Assistant Attorney General