[WSBARP] Background of Need for Real Estate Excise Tax Affidavit

[Dwight Bickel]

The lawyers mostly did not perceive the extent of change when the Dept. of Revenue expanded the affidavit requirement of WAC 458-61A-303. The objection of Washington Land Title Ass’n was the only public comment.

The DOR position and interpretation is simple. There should be an excise tax affidavit for every change of ownership of real property. Changes by operation of law (like inheritance), changes due to court orders (like partition, divorce, quiet title, probate) and changes due to transfers of ownership (like mergers and distributions), which previously did not require recording, usually were exempt from the real estate sales tax, now require an excise tax affidavit.

Another Dept. of Revenue change was accomplished without objection by the Bar when DOR changed RCW 82.45.197 to require excise tax to be paid if there was not a specific WAC stating it was exempt. That change allowed the Grant County Treasurer to charge that sales tax for property inherited without a probate. Though a statute exempted inheritance, the WAC only allowed an exemption with documentation from a probate. He testified at the Legislature that every transfer of ownership due to death legally requires a probate. I was there to disagree, but lost every public debate. He collected from many heirs; often massive taxes due to the value of agricultural land. A 2016 change sponsored by the Washington Land Title Ass’n fixed that incorrect interpretation.

That is why we now have to have affidavits and $10 fees though such transfers are not taxable sales, and we now have to record documents about such changes of ownership.
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