[WSBARP] REET Supp. Excise tax statement can't be signed by P of A?

Wed Aug 5 16:29:18 PDT 2020

Eric, your disbelief is on point. I have had so many arguments over the years with various recorder's office(s) about what exemptions should be cited and apply, what should be on the REET, what the WAC says, etc. I gather that a lot of us go through the same frustrations.

My general approach has been to throw up my hands and do what they want unless what they want is clearly contrary to the law or documents in question. Really frustrating but the cost to client and attorney of arguing is often out of line to get the same outcome - a recorded document and REETA accepted.

Best, Claudia

PS at least at King County, they tell me that what they are accepting is what the DOR tells them they need in order to accept a REETA. So, the question is raised - what is DOR telling them and why do some counties interpret one way and another, another way.

Claudia A. Gowan

Claudia A. Gowan, PLLC
1001 Fourth Avenue, Suite 3200
Seattle, WA 98154
(206) 443-2733 (T)
claudia at cagowanlaw.com<mailto:claudia at cagowanlaw.com>

www.seattletrustsandestates.com<http://www.seattletrustsandestates.com/>

From: wsbarp-bounces at lists.wsbarppt.com [mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of Eric Nelsen
Sent: Wednesday, August 05, 2020 3:38 PM
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>
Subject: Re: [WSBARP] REET Supp. Excise tax statement can't be signed by P of A?

Watching these comments come in, I am in increasing disbelief that multiple counties are interpreting the WAC that way. I know of no other circumstance where a simple statutory or regulatory statement that something must be "signed by the grantor" is interpreted to mean that the grantor, and only the grantor and not an agent, must physically be the individual who puts pen to paper.

Delve into the common law and it's clear that having someone "sign" a paper is a mystical concept that is satisfied in the law by having some kind of mark made on the paper either by the person or by any authorized agent. It can be satisfied in any number of ways: You can sign with an "X." You can have someone else write your name. You can have someone else write someone else's name and that can still be deemed your signature for purposes of your affirmation of the document. You can sign someone else's name, and it can still bind you. You can write "this is not my signature" as your signature and it can still bind you. You can have an agent write "John Smith" and assert that is how you spell your name, and assert also that "John Smith" is pronounced "Vladimir Wachowsky."

It doesn't have to be ink either. I could "sign" a declaration under penalty of perjury by asking the barista from the coffee shop across the street to spill a little caramel sauce somewhere on the page. The point isn't the ink, or the symbols or mark, or the identity of the individual physically making the mark-the point is intent to sign the document, and the mark is no more than evidence of that intent, whatever the circumstance by which the mark hits the page.

Frankly, I think it's superfluous that the WAC says that a grantor's or grantee's "agent" can sign the REETA. There is no need to specify whether or not an agent can sign such a document, and the mere fact that is expressly says "agent" does not by implication retroactively construe a lack of agent authority under every other statute and regulation that fails to mention having an agent sign on behalf of a principal.

Leaving aside my common-law melodrama, it's also an interpretation of the WAC that flies in the face of RCW 11.125.380<https://app.leg.wa.gov/RCW/default.aspx?cite=11.125.380>:

RCW 11.125.380<http://app.leg.wa.gov/RCW/default.aspx?cite=11.125.380>
Agent authority-Taxes.
Unless the power of attorney otherwise provides, language in a power of attorney granting general authority with respect to taxes authorizes the agent to:
(1) Prepare, sign, and file federal, state, local, and foreign income, gift, payroll, property, federal insurance contributions act, and other tax returns, claims for refunds, requests for extension of time, petitions regarding tax matters, and any other tax-related documents, including receipts, offers, waivers, consents, including consents and agreements under internal revenue code section 2032A, 26 U.S.C. Sec. 2032A, as amended, closing agreements, and any power of attorney required by the internal revenue service or other taxing authority including, but not limited to, an internal revenue service form 2848 in favor of any third party with respect to a tax year upon which the statute of limitations has not run and the following twenty-five tax years;
(2) Pay taxes due, collect refunds, post bonds, receive confidential information, and contest deficiencies determined by the internal revenue service or other taxing authority;
(3) Exercise any election available to the principal under federal, state, local, or foreign tax law; and
(4) Act for the principal in all tax matters for all periods before the internal revenue service, or other taxing authority.

Sincerely,

Eric

Eric C. Nelsen
Sayre Law Offices, PLLC
1417 31st Ave South
Seattle WA 98144-3909
206-625-0092
eric at sayrelawoffices.com<mailto:eric at sayrelawoffices.com>

Covid-19 Update - All attorneys are working remotely during regular business hours and are available via email and by phone; please call the Seattle office. Videoconferencing also is available. Signing of estate planning documents can be completed and will be handled on a case-by-case basis; please call the Seattle office.

MAIL AND DELIVERIES can be received at the Seattle office. For any other needed arrangements, please call the Seattle office.

From: wsbarp-bounces at lists.wsbarppt.com<mailto:wsbarp-bounces at lists.wsbarppt.com> <wsbarp-bounces at lists.wsbarppt.com<mailto:wsbarp-bounces at lists.wsbarppt.com>> On Behalf Of jbdolan at jbdolan.com<mailto:jbdolan at jbdolan.com>
Sent: Wednesday, August 5, 2020 2:15 PM
To: 'WSBA Real Property Listserv' <wsbarp at lists.wsbarppt.com<mailto:wsbarp at lists.wsbarppt.com>>
Subject: Re: [WSBARP] REET Supp. Excise tax statement can't be signed by P of A?

Skagit County has the same policy - an agent can sign a REETA but the Treasurer's office requires the Grantor and Grantee to sign the Gift Supplement.  If the underlying POA gives the AIF/Agent authority to convey real property and the authority to make gifts, your client should be able to sign the Gift Supplement, IMHO, because, um, that's what a POA is for.  In my situation, the Grantor was available and competent to sign, so I went and got her signature. (Sometimes it is easier to just lay on the floor of the cage and take the shocks.)  If she had not been capable of signing, I guess I would have had to duke it out at the Treasurer's office.  If your Grantor is no longer able to sign, perhaps trying speaking with someone in the excise department at DOR in Olympia would help?

Jim Dolan

===================

Jones Butler Dolan, PS
www.jbdolan.com<http://www.jbdolan.com>
www.jonesbutlerdolan.com<http://www.jonesbutlerdolan.com>

Mount Vernon

P.O. Box 2784
415 Pine Street
Mount Vernon, WA 98273
Telephone: 360-336-2939
Facsimile: 360-336-2949

Stanwood

P.O. Box 458
10027 - 269th Place NW (SR 532)
Stanwood, WA 98292
Telephone: 360-629-3833
Facsimile: 360-629-6253

From: wsbarp-bounces at lists.wsbarppt.com<mailto:wsbarp-bounces at lists.wsbarppt.com> <wsbarp-bounces at lists.wsbarppt.com<mailto:wsbarp-bounces at lists.wsbarppt.com>> On Behalf Of Josh Grant
Sent: Wednesday, August 5, 2020 1:35 PM
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com<mailto:wsbarp at lists.wsbarppt.com>>
Subject: Re: [WSBARP] REET Supp. Excise tax statement can't be signed by P of A?

Thanks Claudia that is helpful.
458-61A-201(5)(a)    The statement must be signed by both the grantor and the grantee.
 That was probably meant only to say that the signing by one of the parties to a gift wasn't sufficient to sign a Supp. statement.  Literally taken is being interpreted strictly.
That is probably where they got that.  It's not worth the time to  contest but my hunch is that "signed by the grantor" also means  that a 'grantor' includes an attorney in fact under the POA statute.
This is a treasurer widely know to be difficult.  Anyone recording gift deeds in Grant County are warned.

Josh

Joshua F. Grant
[advocates]
P. O. Box 619
Wilbur, WA 99185
509 647 5578

From: Claudia A Gowan
Sent: Wednesday, August 05, 2020 1:09 PM
To: WSBA Real Property Listserv
Subject: Re: [WSBARP] REET Supp. Excise tax statement can't be signed by P of A?

Hi, Josh, it does seem odd. Maybe the County Treasurer is interpreting the rules strictly? The below clearly states that for REET purposes, the REETA can be signed by an agent. However see 201(5)(a) below, the supplemental statement is to be signed by grantor and grantee. IMHO, the Treasurer's office is interpreting the rules too strictly. Common sense suggests that the agent could also sign the supplemental statement to the affidavit in compliance with the purposes of the chapter.

458-61A-102(1)

Definitions.
For the purposes of chapter 458-61A WAC, the following definitions apply unless the context requires otherwise:

(1) "Affidavit" means the real estate excise tax affidavit provided by the department for use by taxpayers in reporting transfers of real property. Both the seller/grantor and the buyer/grantee, or their agents, sign the affidavit under penalty of perjury includes the form used to report to the department transfers and acquisitions of a controlling interest in an entity owning real property in this state under WAC 458-61A-. The term also 101.

458-61A-201(5)(a)

(5) Documentation.
(a) A completed real estate excise tax affidavit is required for transfers by gift. A supplemental statement approved by the department must be completed and attached to the affidavit. The supplemental statement will attest to the existence or absence of underlying debt on the property, whether the grantee has or will in the future make any payments on the debt, and whether a refinance of debt has occurred or is planned to occur. The statement must be signed by both the grantor and the grantee.

Best, Claudia

Claudia A. Gowan

Claudia A. Gowan, PLLC
1001 Fourth Avenue, Suite 3200
Seattle, WA 98154
(206) 443-2733 (T)
claudia at cagowanlaw.com<mailto:claudia at cagowanlaw.com>

www.seattletrustsandestates.com<http://www.seattletrustsandestates.com/>

From: wsbarp-bounces at lists.wsbarppt.com<mailto:wsbarp-bounces at lists.wsbarppt.com> [mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of Josh Grant
Sent: Wednesday, August 05, 2020 11:51 AM
To: wsbar <wsbarp at lists.wsbarppt.com<mailto:wsbarp at lists.wsbarppt.com>>
Subject: [WSBARP] REET Supp. Excise tax statement can't be signed by P of A?

My client as P of A for her mom signed a gift deed for the grantor. County Treasurer returned everything including the  supplemental statement REET form which accompanied the gift deed .  With the notation that a P of A can not sign the supplemental statement REET form !!  Where did that come from?  So a P of A can sign a deed conveying real property but can't the supplemental statement REET form which just says it's a gift and there is no loan on the property. Seems odd to me.

(They also said the Auditor needed 2 checks one for the $10 on the REET form and the rest for the recording fee.)

Josh
Joshua F. Grant
[advocates]
P. O. Box 619
Wilbur, WA 99185
509 647 5578
________________________________
***Disclaimer: Please note that RPPT listserv participation is not restricted to practicing attorneys and may include non-practicing attorneys, law students, professionals working in related fields, and others.***

_______________________________________________
WSBARP mailing list
WSBARP at lists.wsbarppt.com<mailto:WSBARP at lists.wsbarppt.com>
http://mailman.fsr.com/mailman/listinfo/wsbarp
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mailman.fsr.com/pipermail/wsbarp/attachments/20200805/112372d9/attachment-0001.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image001.png
Type: image/png
Size: 7674 bytes
Desc: image001.png
URL: <http://mailman.fsr.com/pipermail/wsbarp/attachments/20200805/112372d9/image001-0001.png>