January 18, 2013 The Tax Lawyer

Invalid Excise: Washington’s Real Estate Excise Tax Applied to a Change in Control

Vol. 65, No. 4 - Summer 2012

Richard M. Weber, Jr.

Abstract

    Since the early 1930s, Washington state courts have considered challenges to the validity of certain fees or excise taxes. Typically the issue was whether a tax or fee was an excise tax that was invalid as applied to a property tax. An excise tax may be invalid as applied if the incidents do not meet the requirements of a valid excise tax. A tax on the mere ownership of property is a property tax no matter how it is labeled and it must not violate the Washington constitution’s prohibition against nonuniform property taxes. The  Washington Supreme Court has addressed these arguments attacking the validity of a number of different types of taxes, including the business and occupations tax, sales and use tax, motor vehicle registration tax, fees for improvements, and the real estate excise tax (REET). This Article addresses a particular problem with the technical validity of the REET as applied to a change in control of an entity that owns real property in the State of Washington. Briefly stated, the REET as applied to a change in control is unconstitutional either because it is (1) an invalid excise or (2) a nonuniform property tax. It is a nonuniform property tax because the REET is computed based on and applied to 100% of all real property owned by the entity, including the portion of underlying property that is not transferred as part of a change in control. Because the arguments raised against imposing the REET on a change of control relate to the nature and validity of excise taxes, it is useful first to consider the nature and characteristics of other types of taxes, such as the business and occupations tax, sales and use tax, estate and gift tax, motor vehicle registration tax, and fees for improvements.

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