TAXATION ‑- REAL ESTATE SALES TAX ‑- AFFIDAVIT OF SELLER

TAXATION ‑- REAL ESTATE SALES TAX ‑- AFFIDAVIT OF SELLER

An affidavit concerning a sale of real property (for the purpose of the Real Estate Sales Tax) subscribed and sworn to by the attorney to other authorized agent of a seller of real estate would not comply with a county ordinance which provides that such affidavit must be "subscribed and sworn to by the seller."

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                                                                   June 22, 1951

Honorable James E. Duree
Prosecuting Attorney, Pacific County
Raymond, Washington                                                                                                                Cite as:  AGO 51-53 No. 77

Dear Sir:

            We have your request for our opinion on the following question:

            Where a county ordinance provides that the seller of real property (for the purpose of the Real Estate Sales Tax) must furnish the county treasurer with an affidavit describing the sale, "which affidavit shall be subscribed and sworn to by the seller," may such affidavit be subscribed and sworn to by the seller's attorney?

            Our conclusion may be summarized as follows:

            An affidavit concerning a sale of real property (for the purpose of the Real Estate Sales Tax) subscribed and sworn to by the attorney or other authorized agent of a seller of real estate would not comply with a county ordinance which provides that such affidavit must be "subscribed and sworn to by the seller."

                                                                     ANALYSIS

            Your question deals with the administration of the Real Estate Sales Tax imposed by ordinance in the various counties, as authorized by chapter 11, Laws of 1951, Ex. Sess. We understand that most of the counties have  [[Orig. Op. Page 2]] adopted a model ordinance, so your question will be of general interest, all counties apparently requiring that the seller furnish to the county treasurer an affidavit describing the sale.  You point out that your county's ordinance presently provides that the affidavit "shall be subscribed and sworn to by the seller," and ask whether an affidavit of the seller's attorney would be a compliance.  We assume that the seller has given his attorney such authority.  (Your question need not be restricted to a member of the bar, but would apply equally to any agent of the seller who has been authorized to make such affidavit.)

            The elementary rule of agency concerning the delegability of acts by the person having the duty to perform them is set forth at 2 Am.Jur., Agency Section 22, as follows:

            "A person may properly appoint an agent to do the same acts and to achieve the same legal consequences by the performance of an act as if he had himself personally acted,unless public policy or the agreement with the principalrequires personal performance, * * *" (Emphasis added.)

            This rule is also found in the Restatement of Agency, section 17.  Comment "b" to that section reads as follows:

            "Duties or privileges created by statute may be imposed or conferred upon a person to be performed or exercised personally only.  Whether a statute is to be so interpreted depends upon whether or not in view of the purposes of the statute, the knowledge, consent, or judgment of the particular individual is required.  The making of affidavits as to knowledge and the execution of wills are illustrations of acts commonly required by statute to be done personally."  (Emphasis added.)

            We must conclude that under such a provision the county treasurer need not accept any affidavit other than one subscribed and sworn to by the seller himself.  The ordinance is very plain and unambiguous in its language.  If an affidavit of the seller's attorney, or any other agent of the seller would have been acceptable, the ordinance would have so provided.  Apparently it was the desire of the board of county commissioners, in enacting such a  [[Orig. Op. Page 3]] provision, to require the seller himself to make the report.  We are not unaware of the extreme difficulty that the provision, as so construed, can cause.  However, that is a matter which should be dealt with by amendment, if found desirable.

Very truly yours,

SMITH TROY
Attorney General

C. JOHN NEWLANDS
Assistant Atorney General