Chapter 12.20
REAL ESTATE SALES EXCISE TAX
Sections:
Article I. General Provisions
12.20.030 Purpose – Appropriation of funds.
12.20.060 Tax imposed on sale of property – Additional tax imposed.
12.20.070 Tax is seller’s obligation – Choice of remedies.
12.20.130 Tribal Court review.
12.20.140 Review and savings clause.
Article II. Tulalip Real Estate Tax Regulations
12.20.150 Authority – Definitions.
12.20.170 Taxability of transfer.
Article I. General Provisions
12.20.010 Title.
This article shall be known as the Tulalip Real Estate Sales Excise Tax Ordinance of 1987. [Ord. 45A § 1, 5-22-1987].
12.20.020 Findings.
The Board of Directors, after carefully considering the need for further implementation of taxing powers in regard to Reservation activities, finds:
(1) Owners of real property on the Tulalip Indian Reservation benefit from a number of Tribal governmental services, including, but not limited to, maintenance of roads and bridges, Tribal programs to enhance and protect natural resources and amenities of the Reservation, comprehensive land use planning, growth management, programs to improve and expand sewer and water services, and fire protection.
(2) With increasing growth and land use pressures on Reservation lands, the demands for such Tribal governmental services are increasing.
(3) The Tribes lacks sufficient revenue for the provisions of such services and the operation of its Tribal government. Decreased financial support from the Federal government and the increased cost of government operations have made the Tribes’ revenue needs acute.
(4) The sale of real estate is an activity commonly taxed by other government as a legitimate form of revenue raising. An owner’s sale of real estate on the Reservation is a business activity which can significantly affect service demands upon the Tribes. [Ord. 45A § 2, 5-22-1987].
12.20.030 Purpose – Appropriation of funds.
In order to generate badly needed revenue for Tribal self-government, territorial management, and governmental services, there is hereby imposed an excise tax on the sale of real estate, subject to the following provisions. All revenues raised by this tax shall be used in implementation of Chapter 7.02 TTC, Authority, Purpose, and Interpretation, for construction and maintenance of Tribal roads and bridges, and for such other Tribal governmental operations and services as the Tulalip Board of Directors may further designate by resolution. [Ord. 45A § 3, 5-22-1987].
12.20.040 Definitions.
(1) “Sale,” as used in this article, shall have its ordinary meaning and shall include any conveyance, grant, assignment, quitclaim or transfer of the ownership of or title to real property, including standing timber, or any estate or interest therein for a valuable consideration, and contract for such conveyance, grant, assignment, quitclaim, or transfer and any lease with an option to purchase real property, including standing timber, or any estate or interest therein or other contract under which possession of the property is given to the purchaser, or any other person by his direction which title is retailed by the vendor as security for the payment of the purchase price.
Nothing herein is intended to impose a Tribal tax on a sale by or to the Tribes or by or to the United States in trust for the Tribes or an Indian person(s). Nor is this tax intended to be applied to a sale of real property subject to a restriction on alienation by the United States. Nor shall this tax apply to sales by persons who are not enrolled members of the Tulalip Tribes, except (a) where authorized by Congress; or (b) where such nonmembers have consensual relationships with the Tribes through commercial dealing, contracts, leases, or other arrangements; or (c) where such nonmembers’ conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the Tribes.
(2) Exclusions. The term “sale” also shall not include a transfer by gift, devise, or inheritance, a transfer of any leasehold interest other than of the type mentioned above, a cancellation or forfeiture of a vendee’s interest in a contract for the sale of real property, whether or not such contract contains a forfeiture clause, or deed in lieu of foreclosure of a mortgage or the assumption by a grantee of the balance owing on an obligation which is secured by a mortgage or deed in lieu of forfeiture of the vendee’s interest in a contract of sale where no consideration passes otherwise or the partition of property by tenants in common by agreement or as the result of a Court decree, any transfer, conveyance, or assignment of property or interest in property from one spouse to the other in accordance with the terms of a decree of divorce or in fulfillment of a property settlement agreement incident thereto, the assignment or other transfer of a vendor’s interest in a contract for the sale of real property, even though accompanied by a conveyance of the vendor’s interest in the real property involved, transfers by appropriation or decree in condemnation proceedings brought by the United States, the State or any political subdivision thereto, or a municipal corporation, a mortgage or other transfer of an interest in real property merely to secure a debt, or the assignment thereof, 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, or deed in lieu of foreclosure to satisfy a mortgage, a trustee’s conveyance pursuant to a power of sale in a nonjudicial foreclosure, a conveyance to the Federal Housing Administration or Veterans Administration by an authorized mortgagee made pursuant to a contract of insurance or guaranty with the Federal Housing Administration or Veterans Administration, nor a transfer in compliance with the terms of any lease or contract upon which the tax as imposed by this article has been paid or where the lease or contract was entered into prior to the date this tax was first imposed, nor the sale of any grave or lot in an established cemetery, nor any sale by or to the United States, nor any sale by the State of Washington or any political subdivision or a municipal corporation thereof, nor a sale by or to the Tribes, nor a sale of property held in trust by or subject to a restriction on alienation by the United States.
The term “sale” shall further not include a transfer to a corporation or partnership which is wholly owned by the transferor and/or the transferor’s spouse or children; provided, that if thereafter such transferee corporation or partnership voluntarily transfers such real property, or such transferor, spouse, or children voluntarily transfer stock in the transferee corporation or interest in the transferee partnership capital, as the case may be, to other than (a) the transferor and/or the transferor’s spouse or children; (b) a trust having the transferor and/or the transferor’s spouse or children as the only beneficiaries at the time of the transfer to the trust; or (c) a corporation or partnership wholly owned by the original transferor and/or the transferor’s spouse or children, within five years of the original transfer to which this exemption applies, excise taxes shall become due and payable on the original transfer as otherwise provided by law.
(3) “Seller,” as used in this article, unless otherwise indicated by the context, shall mean any individual, receiver, assignee, trustee in bankruptcy, trust, estate, firm, co-partnership, joint venture, club, company, joint stock company, business trust, municipal corporation, quasi-municipal corporation, corporation, association, society, or any group of individuals acting as a unit, whether mutual, cooperative, fraternal, nonprofit or otherwise, but it shall not include the Tulalip Tribes, the United States or the State of Washington.
(4) “Selling price,” as used in this article, means the total or gross consideration, including money or anything of value, paid or delivered or contracted to be paid or delivered in return for the transfer of real property or estate or interest in real property, and shall include the amount of any lien, mortgage, contract indebtedness, or other encumbrance, either given to secure the purchase price, or any part thereof, or remaining unpaid on such property at the time of sale.
The term shall not include the amount of any outstanding lien or encumbrance in favor of the United States, the Tribes, the State, or a municipal corporation for the taxes, special benefits, or improvements.
(5) Real Estate, Real Property, Used Mobile Home, Mobile Home, Used Floating Home, and Floating Home. Unless the context clearly requires otherwise, the definitions in this subsection apply throughout this article.
(a) “Real estate” or “real property” means real property but includes used mobile homes and used floating homes.
(b) “Used mobile home” means a mobile home which has been previously sold at retail and the immediately preceding sale has already been subject to tax under Chapter 82.08 RCW, or which has been previously used and the immediately preceding use has already been subjected to the tax under Chapter 82.12 RCW, and which has substantially lost its identity as a mobile unit by virtue of its being fixed in location upon land owned or leased by the owner of the mobile home and placed on a foundation (posts or blocks) with fixed pipe connections with sewer, water, and other utilities.
(c) “Mobile home” means a mobile home as defined by RCW 46.04.302, as now or hereafter amended.
(d) “Used floating home” means a floating home in respect to which tax has been paid under Chapter 82.08 or 82.12 RCW.
(e) “Floating home” means a building on a float used in whole or in part for human habitation as a single-family dwelling, which is not designed for self-propulsion by mechanical means or for propulsion by means of wind, and which is on the property tax rolls of the county in which it is located. [Res. 2004-022; Res. 89-0164; Ord. 45A § 4, 5-22-1987].
12.20.050 Determining selling price of leases with option to purchase – Mining property – Payment, security when selling price not separately stated.
The Tribal Tax Administrator shall provide by rule for the determination of the selling price in the case of leases with option to purchase, and shall further provide that the tax shall not be payable, where inequity will otherwise result, until and unless the option is exercised and accepted. A conditional sale of mining property in which the buyer has the right to terminate the contract at any time, and a lease and option to buy mining property in which the lessee-buyer has the right to terminate the lease and option at any time, shall be taxable at the time of execution only on the consideration received by the seller or lessor for execution of such contract, but the rule shall further provide that the tax due on any additional consideration paid by the buyer and received by the seller shall be paid to the Tribes (1) at the time of termination, or (2) at the time that all of the consideration due to the seller has been paid and the transaction is completed except for the delivery of the deed to the buyer, or (3) at the time when the buyer unequivocally exercises an option to purchase the property, whichever of the three events occurs first.
The term “mining property” means property containing or believed to contain metallic minerals and sold or leased under terms which require the purchaser or lessor to conduct exploration or mining work thereon and for no other use. The term “metallic minerals” does not include clays, coal, sand and gravel, peat, gypsite, or stone, including limestone.
The Tribal Tax Administrator shall further provide by rule for cases whether the selling price is not separately stated or is not ascertainable at the time of sale, for the payment of the tax at a time when the selling price is ascertained, in which case suitable security may be required for payment of the tax, and may further provide for the termination of the selling price by appraisal, based on the full and true market value, which appraisal shall be prima facie evidence of the selling price of the real property. [Ord. 45A § 5, 5-22-1987].
12.20.060 Tax imposed on sale of property – Additional tax imposed.
There is hereby imposed, as of the effective date of this article, an excise tax upon each sale of real property at the rate of one percent of the selling price. [Ord. 45A § 6, 5-22-1987].
12.20.070 Tax is seller’s obligation – Choice of remedies.
The tax levied under this article shall be the obligation of the seller and the Tribal Tax Administrator may enforce the obligation through an action of debt against the seller and/or may proceed in the manner prescribed for the foreclosure of mortgages as provided in the Revised Code of Washington and resort to one course of enforcement shall not be an election not to pursue the other. [Ord. 45A § 7, 5-22-1987].
12.20.080 Payment of tax.
The tax imposed by this article shall be paid to and collected by the Tribal Tax Administrator. [Ord. 45A § 8, 5-22-1987].
12.20.090 Tax payable at time of sale – Interest, penalty, on unpaid or delinquent taxes – Prohibition of certain assessments or refunds.
(1) The tax imposed under this article is due and payable immediately at the time of sale, and if not paid within 30 days thereafter, shall bear interest at the rate of one percent per month from the time of sale until the date of payment.
(2) If upon examination of any affidavits or from other information obtained by the Tribal Tax Administrator or his agents it appears that all or a portion of the tax is unpaid, the Administrator shall assess against the taxpayer the additional amount found to be due plus interest as provided in subsection (1) of this section. If the Administrator finds that all or any part of the deficiency resulted from an intent to evade the tax payable under this article, a penalty of 50 percent of the additional tax found to be due shall be added.
(3) No assessment or refund may be made by the Administrator more than four years after the date of sale except upon a showing of fraud or of misrepresentation of a material fact by the taxpayer or a failure by the taxpayer to record documentation of a sale or otherwise report the sale to the County Treasurer. [Ord. 45A § 9, 5-22-1987].
12.20.100 Single-family residential property, tax credit when subsequent transfer within nine months for like property.
Where single-family residential property is being transferred as the entire or part consideration for the purchase of other single-family residential property and a licensed real estate broker or one of the parties to the transaction accepts transfer of said property, a credit for the amount of the tax paid at the time of the transfer to the broker or party shall be allowed toward the amount of the tax due upon a subsequent transfer of the property by the broker or party if said transfer is made within nine months of the transfer to the broker or party; provided, that if the tax which would be due on the subsequent transfer from the broker or party is greater than the tax paid for the prior transfer to said broker or party the difference shall be paid, but if the tax initially paid is greater than the amount of the tax which would be due on the subsequent transfer no refund shall be allowed. [Ord. 45A § 10, 5-22-1987].
12.20.110 Rules for reporting, application and collection of tax – Real estate excise tax affidavit form, contents, use.*
The Tribal Tax Administrator is authorized to and shall prescribe, in writing, minimum rules for uniformity in reporting, application, and collection of the real estate excise tax imposed by this article.
The Tribal Tax Administrator shall also prescribe a real estate tax affidavit form which shall require the following:
(1) Identification of the seller and purchaser;
(2) Description of the property involved including the tax parcel or account number(s);
(3) Date of sale, type of instrument of sale, nature of transfer;
(4) Total or gross sales price;
(5) Whether or not the land is exempt under this article or Federal law;
(6) Such additional information as the Tax Administrator by rule or regulation deems appropriate.
The affidavit shall be signed by either the seller or the buyer, or the agent of either, under oath attesting to the truth of all required information. [Ord. 45A § 11, 5-22-1987].
*Code reviser’s note: Res. 87-0527 adopts the affidavit form. It is on file with the Tribes.
12.20.120 Applicability of general administrative provisions – Department rules, scope – Department audit.
(1) In addition to other rules and procedures to be adopted under this article, the Tribal Tax Administrator shall by rule provide for such other procedures and standards for the effective administration of this article. The rules may include a manual which defines transactions which are taxable under this article. The Tribal Tax Administrator shall also annually conduct audits of transactions and affidavits filed under this article.
(2) The Tribal Tax Administrator shall be appointed by and be responsible to the Board of Directors of the Tulalip Tribes.
(3) All rules and procedures of the Tribal Tax Administrator shall be first reviewed and approved by the Board of Directors of the Tulalip Tribes. Such rules and procedures may further set forth and define the role and responsibility of the Tribal Tax Administrator. [Ord. 45A § 12, 5-22-1987].
12.20.130 Tribal Court review.
Any person may seek review in the Tulalip Tribal Court, pursuant to the Court’s civil procedures, of a tax imposed by this article, so long as administrative remedies have first been exhausted; and provided further, that nothing herein shall be deemed to constitute a waiver of Tribal sovereign immunity or consent to suit, except as expressly otherwise provided for herein. No monetary relief against the Tribes shall be ordered, adjudged or decreed except to the extent of the tax in question so paid. [Ord. 45A § 13, 5-22-1987].
12.20.140 Review and savings clause.
(1) Effective Date. This article shall become effective forthwith as provided by Article VI, Section 2 of the Constitution and Bylaws of the Tulalip Tribes.
(2) Savings Clause. If any section, paragraph, clause or word of this article shall not be approved by the Secretary of the Interior or for any reason be adjudged invalid, such shall not invalidate the remainder thereof but shall be confined in its operation to said section, paragraph, clause or word. [Ord. 45A § 14, 5-22-1987].
Article II. Tulalip Real Estate Tax Regulations
12.20.150 Authority – Definitions.
(1) Authority. TTC 12.20.110 provides that the Tulalip Tax Administrator shall establish rules for the effective administration of the real estate excise tax ordinance.
(2) Definitions. Definitions for the purposes of these regulations, unless otherwise required by context:
(a) “Affidavit” shall mean the real estate excise tax affidavit prescribed by the Tribal Tax Administrators and approved by the Board of Directors. The affidavit shall require the following information:
(i) Identification of the seller and purchaser, including their current mailing addresses; and the new owner’s permanent address;
(ii) Legal description of the property transferred, including the tax parcel or account numbers, street address, and general location;
(iii) Date of sale or conveyance;
(iv) Type of instrument of sale or conveyance;
(v) Nature of transfer;
(vi) County recording number of transaction;
(vii) Gross sales price;
(viii) Information exempting the land transaction from the Tribal real estate excise tax;
(ix) Information on the land transaction making it eligible for a Tribal tax credit;
(x) Current and proposed uses including the subdivision of the property;
(xi) Current and proposed sources of water and sewer service;
(xii) Type of heat source;
(xiii) Voluntary demographic data, as specified.
(b) “Consideration” shall mean money or anything of value, either tangible or intangible, paid or delivered or contracted to be paid or delivered or services performed or contracted to be performed in return for real property or estate or interest in real property. The term shall further include the market value of real property transferred to a corporation by its shareholders, officers, or corporate affiliates so as to increase the assets of the grantee corporation.
(c) “Court decree” and “Court order” shall have the same meaning and may be used interchangeably for the purposes of these rules. The Court decree or order for a transfer must be from a court of competent jurisdiction to constitute an exempt transfer.
(d) “Date of taxability” shall mean the date of transfer as defined in subsection (2)(o) of this section.
(e) “Department” shall include the Tulalip Tribes Department of Tax Administration.
(f) “Mining property” shall mean property containing or believed to contain metallic minerals and sold or leased under terms which require the purchaser or lessee to conduct exploration or mining work thereon and for no other use.
(g) “Mobile home” shall mean a mobile home as defined by RCW 46.04.302, as now or hereafter amended.
(h) “Mortgage” shall have its ordinary meaning and shall include deed of trust for the purposes of these rules, unless the context clearly indicates otherwise.
(i) “Nominal sales prices” shall mean sales prices stated on the real estate excise tax affidavit that are so low in comparison to the actual value of the real estate as to cause disbelief by a reasonable person. A nominal sales price is indicative of an intent to evade paying the real estate excise tax.
(j) “Nonsale” includes those real property transfers which, by their nature, are exempt from the real estate excise tax because they are excluded from the definition of “sale” under TTC 12.20.040(2). See TTC 12.20.170 for further identification of taxable transfers. The following transfers are excluded:
(i) Gift, devise or inheritance.
(ii) Leasehold interest, other than option to purchase real property, including standing timber.
(iii) Cancellation or forfeiture of a vendee’s interest in a real estate contract, whether or not such contract contains a forfeiture clause.
(iv) Deed in lieu of foreclosure of a mortgage, where no consideration passes otherwise.
(v) Assumption of mortgage, deed of trust, or real estate contract, where no consideration passes otherwise.
(vi) Deed in lieu of forfeiture of a real estate contract, where no consideration passes otherwise.
(vii) Partition of property by tenants in common, whether by agreement or Court decree.
(viii) Divorce decree or property settlement incident thereto.
(ix) Seller’s assignment.
(x) Condemnation by governmental body.
(xi) Security documents (mortgage, real estate contract, or other security interests apart from actual title).
(xii) Court-ordered sale or execution of judgment.
(xiii) The transfer of any grave or lot in an established cemetery.
(xiv) A transfer to or from the United States, the Tulalip Tribes or a transfer from the State of Washington or any political subdivision or municipal corporation thereof. The exclusion includes a transfer by or to the United States in trust for the Tribes or an Indian person.
(xv) A sale of real property subject to a restriction on alienation by the United States.
(xvi) A sale to a corporation or partnership which is wholly owned by the transferror and/or the transferror’s spouse or children, except as provided in TTC 12.20.040(2).
(k) “Real estate” shall mean real property, including all improvements the title to which is held separately from the title to the land to which the improvements are affixed; the term also includes used mobile homes and used floating homes, air rights and development rights.
(l) “Sale” shall have its ordinary meaning and shall include any conveyance, grant, assignment, easement trade, quitclaim, exchange, or transfer of the ownership of or title to real property, including standing timber, or any estate or interest therein for a valuable consideration, and any contract for such conveyance, grant, assignment, quitclaim, exchange, or transfer, and any lease with an option to purchase real property, including standing timber, or any estate or interest therein or other contract under which possession of the property is given to the purchaser, or any other person by his/her direction, which title is retained by the vendor as security for the payment of the purchase price.
(m) “Seller” shall mean any individual, receiver, assignee, trustee for a deed of trust, trustee in bankruptcy, trust, estate, firm, copartnership, joint venture, club company, joint stock company, business trust, municipal corporation, corporation, association, society or any group of individuals acting as a unit, whether mutual, cooperative, fraternal, nonprofit or otherwise; but it shall not include the United States, the Tulalip Tribes or any Tribal entities including but not limited to the Tulalip Housing Authority, the State of Washington or any political subdivision thereof, or municipal corporation.
(n) “Selling price” shall mean consideration, including money or anything of value, paid or delivered or contracted to be paid or delivered in return for the transfer of the real property or estate or interest in real property, and shall include the amount of any lien, mortgage, contract indebtedness, or other incumbrance, either given to secure the purchase price, or any part thereof, or remaining unpaid on such property at the time of sale; provided, that when the sale is that of a fractional interest in real property, the principal balance of any such debt remaining unpaid at the time of sale shall be multiplied by the same fraction and the result added as a component of the total sales price. The term shall not include the amount of any outstanding lien or encumbrance in favor of the United States, the Tulalip Tribes, the State of Washington or a municipal corporation for the taxes, special benefits, or improvements. The value maintained on the County assessment rolls at the time of the transaction will be used for the sales price if such cannot otherwise be ascertained. In the event that the property is under current use assessment, the market value assessment maintained by the County Assessor shall be used for the sales price.
(o) “Date of transfer,” “date of sale,” “conveyance date” and “transaction date” shall have the same meaning and may be used interchangeably for the purposes of these rules. This shall be the date shown on the instrument of conveyance or sale.
(p) “Used mobile home” shall mean a mobile home which has been previously sold at retail, or which has been previously used and which has substantially lost its identity as a mobile unit by virtue of its being fixed in location upon land owned or leased by the owner of the mobile home and placed on a foundation (posts or blocks) with fixed pipe connections with sewer, water, and other utilities.
(q) “Intent to evade” shall include knowingly making false statements or taking actions so as to intentionally underpay or not pay the proper real estate excise tax due on the transfer of real estate or ignoring the Tribal tax because of a jurisdictional dispute without meritorious legal justification.
(r) “Used floating home” shall mean a building on a float used in whole or in part for human habitation as a single-family dwelling, which is not designed for self-propulsion by mechanical means or for propulsion by means of wind, and which is on the property tax rolls of the county in which it is located and in respect to which tax has been paid under Chapter 82.08 or 82.12 RCW.
(s) “Rescinded transfer” shall mean a real property transfer wherein both grantor and grantee have been restored to their original positions. In such case, title to the real property has been reconveyed to the grantor and all valuable consideration paid toward the sales price has been returned to the grantee.
(t) “Air rights” shall mean the exclusive undisturbed use and control of a designated air space within the perimeter of stated land area and within stated elevations.
(u) “Development rights” shall mean those rights that are subject to conveyancing and are the unused development which is the difference between the density allowed by zoning and that which exists on a parcel of land. [Unnumbered Res. dated 12-15-1989; Res. 87-0527 Reg. § 1.0, 11-7-1987].
12.20.160 General provisions.
(1) Payment of Tax. The real estate tax imposed by Article I of this chapter upon each sale of real property at the rate established in Article I of this chapter (currently one percent of the selling price) shall be paid to and collected by the Tulalip Tax Administrator.
(2) Affidavit Requirements.
(a) Except for the transfers listed under sub-section (2)(b) of this section, the real estate excise tax affidavit shall be required for all transfers of real property including, but not limited to, the following:
(i) Conveyance from one spouse to the other as a result of a decree of divorce or dissolution of a marriage or in fulfillment of a property settlement agreement incident thereto;
(ii) Conveyance made pursuant to an order of sale by the Court in any mortgage or lien foreclosure proceeding;
(iii) Conveyance made pursuant to the provisions of a deed of trust;
(iv) Conveyance of an easement in which consideration passes;
(v) A deed in lieu of foreclosure of mortgage;
(vi) A deed in lieu of forfeiture of real estate contract;
(vii) Conveyance to the heirs in the settlement of an estate;
(viii) Conveyance to or from the United States, the State of Washington, or any political subdivision or municipal corporation of this State;
(ix) A declaration of forfeiture of real estate contract;
(x) Conveyance of development rights or air rights.
(b) Except as provided in TTC 12.20.170(8)(a), the real estate excise tax affidavit shall not be required for the following:
(i) Conveyance of cemetery lots or graves;
(ii) Conveyance for security purposes only and the instrument states on the face of it:
(A) For security only;
(B) To secure a debt;
(C) Assignment of a debt;
(D) For collateral purposes only;
(E) Release of collateral;
(F) To release security;
(iii) A lease of real property that does not contain an option to purchase, or does not transfer lessee-owned improvements;
(iv) A mortgage or deed of trust or satisfaction thereof;
(v) Conveyance of an easement in which no consideration passes or an easement to the United States, the Tulalip Tribes, the State of Washington, or any political subdivision or municipal corporation of this State;
(vi) A recording of a contract that changes only the contract terms and not the legal description, purchaser, or sales price, if the affidavit number of the previous transaction is reported;
(vii) A seller’s assignment of deed and contract;
(viii) A fulfillment deed.
(c) The Tax Administrator shall not accept incomplete affidavits. It is the taxpayer’s responsibility to furnish complete documentation for claimed tax exemptions. It is the Tax Administrator’s responsibility and authority to require that such documentation, as required by this chapter, shall be furnished by the taxpayers or their agents.
(3) Agent. The Tulalip Tax Administrator shall act as agent for the Tribes in carrying out the provisions of this chapter.
(4) Tax Administrator Duty. The Tulalip Tax Administrator shall cause a stamp evidencing satisfaction of the tax obligation to be affixed to the real estate tax affidavit. Such stamp shall bear reference to the affidavit number, date and amount of the payment and shall be initialed by the person affixing said stamp. The Tax Administrator shall not affix such stamp to the affidavit unless the real estate excise tax has been paid plus any interest or other penalty due from the taxpayer. This stamp is different from the cashiers’ stamp, which is simply evidence of payment, but not satisfaction of the tax obligation. The Administrator’s stamp shall not preclude subsequent collection action in the event willful fraud by the taxpayer has been discovered.
(5) Timing of Payment – Late Payment Penalty.
(a) The tax imposed under Article I of this chapter is due and payable to the Tulalip Tax Administrator as of the transaction date.
(b) If the tax is paid within 30 days of the transaction date, the late payment penalty is not applied. If the tax is paid more than 30 days after the transaction date, a one percent penalty per month is imposed beginning with the transaction date to the date of final and complete payment.
(6) Refund.
(a) Taxpayers seeking to contest the application of the real estate excise tax upon a particular transfer of real property must pay the tax prior to petition for refund. The taxpayer who has paid the real estate excise tax may seek a refund as provided in this section, if there has been:
(i) Double payment of the tax;
(ii) Overpayment of the tax through error of computation;
(iii) Recision of the sale prior to closing;
(iv) A rescinded transfer;
(v) Failure of taxpayer to claim an exemption from a transfer that was exempt.
(b) The taxpayer must submit a petition for refund within 30 days from the date of the payment of the excise tax. Such a petition must be accompanied by all documents supporting the claim for refund to the Tulalip Tax Administrator.
(c) The authority of the Tulalip Tax Administrator to issue a tax refund under this chapter is limited to those circumstances specified in subsection (6)(a) of this section.
(7) Tax Appeal. Within 30 days of the Tax Administrator’s final decision on denying a refund request or otherwise determining that a tax is due, the taxpayer may appeal the decision only to the Tulalip Tribal Court system in accordance with its rules and procedures.
(a) If the taxpayer has not paid the real estate excise tax, the taxpayer shall provide such security for the payment of the tax as the Tax Administrator determines appropriate as a condition of appeal.
(8) Intent to Evade.
(a) A penalty of 50 percent of the additional tax found to be due, or remaining due after insufficient payment, is to be applied by the Department to taxable real estate transfers involving willful fraud or an intent to evade paying the real estate excise tax.
(b) Willful fraud with intent to evade the tax is illustrated by, but not limited to, the following examples:
(i) Knowingly stating a false sales price; or
(ii) Knowingly stating a sale as a gift; or
(iii) Knowingly claiming a false reason for tax exemption. [Res. 87-0527 Reg. § 2.0, 11-7-1987].
12.20.170 Taxability of transfer.
(1) The real estate excise tax applies to all sales of real property unless specifically exempted by this chapter.
(2) Bankruptcy. A conveyance of real property by a trustee in bankruptcy is taxable under the real estate excise tax when made by a trustee conducting the business of the bankrupt. When the trustee is only authorized to liquidate the bankrupt’s estate, the liquidation shall be exempt from the real estate excise tax.
(3) Care, Comfort and Support. The real estate excise tax applies to the transfer of real property where the consideration received includes the care, comfort and support of the grantor. When the value and length of care are unknown, the average of the County Assessor’s valuation for the past 10 years shall be used as the gross sales price.
(4) Cemetery Lots or Graves. The sale of lots or graves in an established cemetery is not subject to the real estate excise tax.
(5) Community Property – To Establish or Separate. Where no consideration, other than love and affection, passes from one spouse to another in exchange for either establishing or separating community property, the transfer is not subject to the real estate excise tax. The affidavit must state that the purpose of the transfer is to establish or separate community property.
(6) Consideration. The term “sale” shall not include transfers by appropriation or decree in condemnation proceedings brought by the United States, the Tulalip Tribes, the State of Washington or any political subdivision thereof, or a municipal corporation.
(7) Contract. An owner of real property is subject to payment of the real estate excise tax upon the entry of each successive contract for the sale of the same piece of real property, each such contract constituting a “sale” of real property subject to the tax.
(8) Contractor.
(a) If land is deeded to a contractor with an agreement to reconvey the property after construction of an improvement, the real estate excise tax does not apply to either the first conveyance or to the reconveyance. In this case, the deed to the contractor, although absolute on its face, has simply created a security interest because of the requirement to reconvey the property after construction of the improvement. Real estate excise tax affidavits are nevertheless required for both the original conveyance and the reconveyance but must contain wording to the effect that the purpose of the transfers is for construction and security purposes only. The affidavit for reconveyance must refer to the date and number of the original affidavit.
(b) Where the owner of a lot contracts to have an improvement built upon the lot and retains title to the land, the real estate excise tax does not apply to the purchase of the improvement from the contractor.
(c) Where a contractor owns a lot and builds an improvement upon it, the subsequent sale of land and improvement is subject to the real estate excise tax.
(d) The real estate excise tax applies to both conveyances where an owner desiring a new home conveys his existing home to a contractor who first uses that home as collateral to secure a loan under FHA to finance the construction of the new home and then conveys the old home to a third person.
(9) Conveyance of Development Rights or Air Rights. The real estate excise tax applies to the conveyance of development rights or air rights.
(10) Court Order, Transfer Pursuant To. The real estate excise tax does not apply to 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, including a divorce or order to a trustee.
(11) Easement, Sale Of. The real estate excise tax applies to the conveyance of an easement for the use of real property in return for valuable consideration.
(12) Exchanges – Trades. The real estate excise tax applies when real property is exchanged for any other valuable property, either tangible or intangible. In the case where real property is exchanged for other real property, the transfer of each property is individually subject to the tax. The gross taxable value of each property is the fair market value of each property – not the equity that each owner has vested in the properties.
(13) Lease with Option to Purchase. The real estate excise tax shall apply to a lease with option to purchase when the purchase option is exercised:
(a) If the option to purchase must be exercised within a period no longer than two years after the original commencement of the lease and the amount of lease payments will not exceed one-half of the purchase price; or
(b) If none of these payments apply toward the ultimate sales price.
Transactions lacking the above criteria are taxable at the time that the lease with option to purchase agreement originates. The sale price shall be considered to be the purchase price stated in the lease-option agreement. If selling price is not stated in the instrument, the grantor, grantee or the agent of either shall, by affidavit, state the option price intended and the tax levied hereunder shall be on such stated option price; provided, that upon execution and delivery of the instrument of conveyance or transfer pursuant to such option a second affidavit stating the actual consideration shall be filed with the County Treasurer. If the actual consideration passing is greater than the option price stated in the affidavit filed at the time the lease-option was executed, there shall be collected the tax on such additional amounts prior to the time the deed is accepted for recording. If the actual consideration is the same as the option price originally stated, no additional tax will be collected. If the actual consideration is less than the option price stated, refund of excess tax shall be made in accordance with TTC 12.20.160(6).
(14) Mineral Rights.
(a) The real estate excise tax applies to the sale of mineral rights in private property. A quitclaim deed, in itself, is not a valid reason for tax exemption.
(b) A conditional sale of mining property in which the buyer has the right to terminate the contract at any time, and a lease and option to buy mining property in which the lessee-buyer has the right to terminate the lease and option at any time, shall be taxable at the time of execution only on the consideration received by the seller and shall be paid to the Tax Administrator (i) at time of termination, or (ii) at the time that all of the consideration due to the seller has been paid and the transaction is completed except for the delivery of the deed to the buyer, or (iii) at the time when the buyer unequivocally exercises an option to purchase the property, whichever of the three events occurs first.
(15) Mining Claims.
(a) Patented mining claims are real property and their sale is subject to the real estate excise tax. Conveyance of patented mining claims by quitclaim deed is not a reason, in itself, for tax exemption.
(b) Unpatented mining claims are intangible personal property and therefore not subject to the real estate excise tax.
(16) Tax Is Lien on Property – Enforcement. As contemplated in TTC 12.20.070, the tax herein provided for and any interest or penalties become a specific lien upon each piece of real property sold from the time of sale until the tax shall have been paid. This lien may be enforced in the manner prescribed for the foreclosure of mortgages under State law.
(17) Tax Is Seller’s Obligation – Choice of Remedies. The tax levied under this chapter shall be the obligation of the seller and the Department may, at the Department’s option, enforce the obligation through an action of debt against the seller or the Department may proceed in the manner prescribed for the foreclosure of mortgages. Resort to one course of enforcement shall not be an election not to pursue the other.
(18) Tax Credit. The Tax Administrator shall not collect the portion of the real estate excise tax due for which a credit is available under TTC 12.20.100. Nor shall the Tax Administrator collect that part of the tax already paid. [Res. 87-0527 Reg. § 3.0, 11-7-1987].