TAXATION ‑- REAL ESTATE EXCISE TAX

TAXATION ‑- REAL ESTATE EXCISE TAX

The real estate excise tax applies to the assignment of a vendee's interest of property purchased by him at a sale pursuant to a mortgage foreclosure.

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                                                                  January 7, 1958

Honorable Tom A. Durham
Prosecuting Attorney
Whatcom County Court House
Bellingham, Washington

                                                                                                              Cite as:  AGO 57-58 No. 146

Dear Sir:

            You have requested an opinion from this office on the application of the real estate excise tax to a particular transaction.  We paraphrase your question as follows:

            Does the real estate excise tax apply to a transaction wherein the purchaser at a sheriff's sale pursuant to a mortgage foreclosure assigns the certificate of sale and requests that the deed be issued to the assignee?

            We answer your question in the affirmative.

                                                                     ANALYSIS

            In an opinion of this office to the Prosecuting Attorney of Cowlitz County dated April 14, 1953 (No. 53-55-6a) [[AGO 53-55 No. 6]]which we enclose for your convenience, we held that the assignment of a certificate of sale by the purchaser of real estate at an execution sale is subject to the real estate excise tax.  The tax is payable by the assignor and becomes due if and when a deed is executed by the sheriff.

            The theory upon which the above opinion is based is that the assignment is within the definition of sale set out in RCW 28.45.010, which reads in pertinent  [[Orig. Op. Page 2]] part as follows:

            "As used in this chapter, the term 'sale' shall have its ordinary meaning and shall includeany conveyance, grant, assignment, quitclaim, or transfer of the ownership of or title to real property, . . . or any estate or interest therein for a valuable consideration, . . ."  (Emphasis supplied.)

            The statutory definition of sale is, in our opinion, equally applicable to a transaction wherein the purchaser at a sheriff's sale pursuant to a mortgage foreclosure assigns the certificate of sale and requests that the deed be issued to the assignee.

            Admittedly, since the issuance of the above mentioned opinion, RCW 28.45.010 has been amended to expressly exclude from the definition of "sale" any

            "transfer or conveyance made pursuant to an order of sale by the court in any mortgage or lien foreclosure proceeding or upon execution of a judgment, . . ."

            However, the language of the amendment cannot be interpreted more liberally than the plain import of the language used.  Consequently, while the original sale in a mortgage foreclosure proceeding is not taxable under the statute, an assignment by the vendee of his interest in the real property purchased at such a sale is taxable under the statute.  The assignment by the vendee of his interest in the real property purchased at a mortgage foreclosure sale is not a transfer or conveyance made pursuant to an order of sale by the court in a mortgage foreclosure proceeding but is rather a voluntary sale by the vendee of the interest acquired by him at the sale.

            We trust this information will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

HENRY W. WAGER
Assistant Attorney General