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

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

County treasurers may not withhold distribution to taxing districts of taxes paid under protest, and refund of such taxes, when necessary, may be made only pursuant to RCW 84.68.020 or 84.68.110 when applicable.

                                                                   - - - - - - - - - - - - -

                                                                 February 6, 1956

Honorable Herb Hanson
State Representative
Thirty-ninth District
307 Avenue H
Snohomish, Washington                                                                                                              Cite as:  AGO 55-57 No. 199

 Dear Sir:

             You have requested our opinion as to whether the county treasurer may make a blanket refund of taxes paid without protest which are collected pursuant to a statute subsequently declared unconstitutional.

             The answer is no.  County treasurers may refund taxes only in strict conformance with the provisions of RCW 84.68.030 and 84.68.140.

                                                                      ANALYSIS

             Your question has particular reference to the lawsuit now pending in which the constitutionality of chapter 253, Laws of 1955, has been challenged.  As you may know, an appeal has been taken from a judgment rendered by the Yakima superior court which upheld the act.  As you point out, many taxpayers throughout the state may not be aware of this litigation and may consequently pay 1956 property taxes increased as a result of this act, without any protest challenging the constitutionality of the act.

              [[Orig. Op. Page 2]]

            The conditions which must be met before a taxpayer can petition for a tax refund or bring an action in the superior court for refund of illegal taxes have been expressly established by statute.

             If a tax is collected in excess of the amount properly due because of an error in description, double assessment, or manifest errors in assessment which do not involve revaluation of the property, the taxpayer may file a petition for refund with the county assessor pursuant to RCW 84.68.110.  Chapter 16, Laws of 1939.  This statute establishes a procedure whereby the taxpayer's right to a refund and the amount thereof is determined on an administrative level.  But this procedure is available only in the specific situations enumerated.

             At this writing chapter 253, Laws of 1955, to which you have directed our attention, has been declared to be constitutional and we have no reason to presume that taxes paid pursuant to it are invalid.  Consequently we expressly reserve any ruling as to whether taxes paid pursuant to an act, which subsequent to payment is declared unconstitutional, are paid as a result of "manifest error in assessment which does not involve revaluation of the property."

             This brings us to the remedy for refund of property taxes provided by RCW 84.68.020 which by RCW 84.68.070 is made the exclusive remedy available to attack by lawsuit the validity of any tax after its payment.  Under this statute it has been held by the supreme court that payment of a tax under protest is a condition precedent to the maintenance of an action to recover the tax.  State ex rel. Yakima Amusement Co., v. Yakima County, 192 Wash. 179.  It is not enough under this section that the county treasurer by apprised orally of the grounds upon which the taxpayer claims the tax to be unlawful; the protest must be written.  First National Bank v. King County, 4 Wn. (2d) 91.  Nor may a taxpayer in bringing an action for refund allege grounds of illegality which were not expressly stated in his written protest.  Weyerhaeuser Timber Co. v. School District 118, 7 Wn. (2d) 683.

             Refund of taxes can be made only in strict compliance with the statutes:

             ". . . In the absence of statutory authority, no executive or administrative officer or board has power to refund taxes; and, if the power is given to him or it by law, it must be strictly as follows."  84 C.J.S. 1265, Taxation, § 632.

              [[Orig. Op. Page 3]]

            See 3 Cooley on Taxation (4th ed. 1924), page 2506:

             ". . . no executive or ministerial officer has authority to refund taxes, unless such authority is expressly conferred."

             Property taxes may be refunded by the county only upon warrants drawn by the county auditor against the fund created by section 3, chapter 62, Laws of 1931, RCW 84.68.030, known as the county tax refund fund.  This in the only fund from which property tax refunds may be made, and the only situations whereunder warrants may be drawn against this fund are set forth in RCW 84.68.030 and 84.68.130.  See attorney general opinions of December 16, 1941, to the state auditor, and April 9, 1942, to the Honorable Floyd Miller.

             As stated above we reserve an opinion as to whether taxes collected under any act later declared unconstitutional may be refunded pursuant to the procedure established by the small claims act, RCW 84.68.110.  Each taxpayer who desires to protect his right of possible refund should pay his taxes under written protest stating all the grounds upon which the tax is claimed to be unlawful.

             We are enclosing for your information a copy of our opinion of this date to the Honorable John H. Happy, state senator for the sixth district [[AGO 55-57 No. 198]].

 Very truly yours,
DON EASTVOLD
Attorney General 

KEITH GRIM
Assistant Attorney General