WSR 05-05-063

PROPOSED RULES

DEPARTMENT OF REVENUE


[ Filed February 15, 2005, 11:15 a.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 04-16-055.

Title of Rule and Other Identifying Information: WAC 458-16-1000 Property belonging to federally recognized Indian tribes -- Definitions -- Exemption -- Declaration process -- Appeal rights.

Hearing Location(s): Capital Plaza Building, 4th Floor, Executive Large Conference Room, 1025 Union Avenue S.E., Olympia, WA, on March 31, 2005, at 10:00 a.m.

Date of Intended Adoption: April 7, 2005.

Submit Written Comments to: Kim Qually or Nathan Schreiner, P.O. Box 47453, Olympia, WA 98504-7453, e-mail KimQ@dor.wa.gov or NathanS@dor.wa.gov, fax (360) 586-5543, by March 31, 2005.

Assistance for Persons with Disabilities: Contact Sandy Davis no later than ten days before the hearing date, TTY 1-800-451-7985 or (360) 725-7499.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: This rule describes the property tax exemption that may be claimed by a federally recognized Indian tribe for property exclusively used for essential government services in accordance with the 2004 changes to RCW 84.36.010 (chapter 236, Laws of 2004). The rule explains when property is used for "essential government services," how the exemption may be obtained, the Department of Revenue's role in granting or denying an exemption declaration, and how a tribe or an assessor may appeal an exemption determination by the Department of Revenue.

An emergency rule with the same topic is currently in effect. As compared to the emergency rule, the proposed rule adds additional examples and additional explanation of when property is "used" for essential government services.

Reasons Supporting Proposal: To provide guidance and examples for Indian tribes, local government officials, and Department of Revenue personnel to clarify the application and administration of the new property tax exemption.

Statutory Authority for Adoption: RCW 84.36.865.

Statute Being Implemented: RCW 84.36.010.

Rule is not necessitated by federal law, federal or state court decision.

Name of Proponent: Department of Revenue, governmental.

Name of Agency Personnel Responsible for Drafting: Kim Qually and Nathan Schreiner, 1025 Union Avenue S.E., Suite #544, Olympia, WA, (360) 570-6113 or (360) 570-6136; Implementation and Enforcement: Peri Maxey, 1025 Union Avenue S.E., Suite #200, Olympia, WA, (360) 570-5860.

No small business economic impact statement has been prepared under chapter 19.85 RCW. This rule does not impose any burden upon a small business.

A cost-benefit analysis is not required under RCW 34.05.328. This is not a significant legislative rule as defined in RCW 34.05.328.

February 15, 2005

Alan R. Lynn

Rules Coordinator

OTS-7627.2


NEW SECTION
WAC 458-16-1000   Property belonging to federally recognized Indian tribes -- Definitions -- Exemption -- Declaration process -- Appeal rights.   (1) Introduction. This section implements Substitute House Bill No. 1322 (SHB 1322) as passed by the 2004 legislature and published in the 2004 regular session laws as chapter 236. SHB 1322 amends RCW 84.36.010 to exempt "all property belonging exclusively to any federally recognized Indian tribe located in the state, if that property is used exclusively for essential government services." This section explains the exemption, how the exemption may be obtained, how essential government services is defined, and how a tribe or an assessor may appeal an exemption determination.

(2) Definitions. For purposes of this section, the following definitions apply:

(a) "Assessor" means a county assessor or any person authorized to act on behalf of the assessor.

(b) "Board" or "BTA" means the state board of tax appeals described in chapter 82.03 RCW and chapters 456-09 and 456-10 WAC.

(c) "Declaration" means the exemption declaration filed by an Indian tribe with the department to claim the property tax exemption authorized in RCW 84.36.010.

(d) "Department" means the department of revenue, property tax division.

(e) "Essential government services" means services such as tribal administration, public facilities, fire, police, public health, education, sewer, water, environmental and land use, transportation, and utility services. See subsections (4) and (5) below that outline more complete and detailed examples of "essential government services" for the purposes of this section.

(f) "Federally recognized Indian tribe," "Indian tribe," or "tribe" means any Indian nation, tribe, band, community, or other entity that is recognized as an "Indian tribe" by the United States Department of the Interior. The phrase "federally recognized Indian tribe" and the term "tribe" have the same meaning as "Indian tribe." See WAC 458-20-192 for more explicit information regarding these defined terms.

(g) "State" means the state of Washington.

(3) Exemption. To qualify for the exemption set forth in SHB 1322, real and personal property located in the state must:

(a) Belong exclusively to a federally recognized Indian tribe; and

(b) Be used exclusively for essential government services.

Property owned by the United States government and held in trust for a federally recognized Indian tribe is exempt from property tax.

(i) When do the amendments to RCW 84.36.010 take effect? The effective date of the amendments is June 10, 2004. After that date an Indian tribe may file an exemption declaration for the property granted exemption under RCW 84.36.010 as amended by chapter 236. Such a declaration must be filed with the department. This exemption is first applicable to taxes due in 2005.

(ii) How a tribe may claim this exemption - exemption declaration required.

(A) Declaration form - how it may be obtained. An Indian tribe claiming the property tax exemption described in this section must submit an exemption declaration and supporting documentation regarding the ownership and use of the property to the department. The declaration must be on a form prescribed by the department and signed by an authorized agent of the tribe. This information will be used to determine whether the property qualifies for exemption. An exemption declaration may be obtained from the department or downloaded from the state's internet site under the agency index for revenue at http://dor.wa.gov/.

(B) Exemption declaration. Declarations must be filed with the department to exempt property for taxes due the following year. A tribe may submit one exemption declaration for all real and personal property that it owns exclusively if the property is used exclusively for an essential government service. If real property is owned in part and/or used in part by another individual or entity, a separate exemption declaration must be submitted for each parcel.

(C) Other documentation a tribe may be required to submit with exemption declaration to determine eligibility. In addition to the exemption declaration, a tribe may be asked to submit the following information regarding the real or personal property for which exemption is sought to determine the amount of and eligibility for the exemption:

(I) An accurate description of the real and personal property including the county tax parcel number(s), and a copy of the current deed(s);

(II) An accurate map identifying by dimension the use of all real property that shows buildings, building sites, parking areas, landscaping, vacant areas, and floor plans of the buildings. This map or floor plan will be used to determine whether the property is entitled to a total or partial exemption based upon the use of the area;

(III) If the property is rented or loaned to another party, a copy of the rental agreement or other document explaining the terms of the lease or loan. This documentation must describe:

What property is rented or loaned;

The name of the party to whom the property is rented or loaned; and

How the property is being used.

(D) Department's review of exemption declaration and notice of exemption determination. Upon receipt of the exemption declaration the department will review the declaration and all supporting documentation. The department may physically inspect the property in order to verify exempt use. Additional information may be requested about the ownership and use of the property, if the department needs this information to determine whether the property qualifies for exemption. An exemption declaration is not considered complete until the department receives all required information. The department shall then determine the taxable status of the property. The burden is upon the tribe to demonstrate exempt use and ownership. The department may deny the exemption declaration, in whole or in part, if it believes the property does not qualify for exemption. If the exemption declaration is denied for any portion of the property, the department must clearly state the reason(s) for denial in the written determination. A denial may be appealed, as explained in subsection (12) of this rule.

(E) When will the property be exempt from payment of taxes? If an exemption declaration is approved, the property is exempt from property taxes due the year immediately following the year in which the declaration is submitted and for all subsequent years unless the property is sold or transferred or the tribe ceases to use the property exclusively for essential government services (see subsection (10) of this rule).

(4) Essential government services as defined in RCW 84.36.010. For the purposes of this section, "essential government services" mean services such as tribal administration, public facilities, fire, police, public health, education, sewer, water, environmental and land use, transportation, and utility services. Property used for essential government services includes property:

(a) Providing access to water or land as reasonably necessary to the exercise of treaty rights by a tribe or tribal members;

(b) Used for the protection and stewardship of forest land, shoreline, watershed, or other environmentally sensitive areas;

(c) Used for the preservation of historically or culturally significant sites; and

(d) Used by a utility company providing services to residents of Indian country, as defined in WAC 458-20-192. The property of a utility company that provides services to an area extending outside of Indian country does not qualify for exemption.

In order for property to be used for essential governmental services there must be significant governmental action with respect to the property. Property does not qualify for the exemption under this rule because it has cultural or historical significance, for example. Property qualifies as the result of ongoing governmental action with respect to the property, such as being designated as a cultural site and used for public purposes related to such designation.

(5) Examples regarding essential government services. The following examples identify a number of facts and then state a conclusion. These examples should be used only as a general guide and are not to be used to determine eligibility for exemption. All examples assume exclusive ownership of property located in the state by a federally recognized tribe.

(a) A tribe uses property for a courthouse, police station, fire station, hospital, library, and public schoolhouse. Each of these uses is a use for essential government services.

(b) A tribe acquires off-reservation land along the headwaters of a stream flowing into the reservation. The land is maintained as a conservation zone, limiting pollution and protecting water quality. The property is used for essential government services.

(c) A tribe operates a fish hatchery as part of its fisheries program. The property is used for essential government services.

(d) A tribe operates a fish cannery and processing center. The property is used for a commercial activity and is not used for essential government services.

(e) A tribe maintains and operates a parking lot or garage that is adjacent to its tribal administration building and courthouse. The parking lot or garage is integrally related to the essential government services provided in close proximity to its location. The property is used for essential government services. However, if the parking lot or garage is also used for ineligible purposes, it is taxable.

(f) A tribe operates a sawmill and log yard used to process and store timber or logs removed from its forest lands. Both the sawmill and log yard are commercial activities. The property is not used for essential government services.

(g) A tribe purchases land for the purpose of preserving historically significant sites. The tribe establishes a covenant prohibiting development, adopts a resolution designating the land as a historically significant site, and budgets money for historical research and field trips by local schools. The property is used for essential government services.

(h) A tribe's members are unable to reach a stretch of river in order to exercise fishing rights without crossing private property. The tribe purchases a parcel in order to allow access and establishes a footpath to the river. The property is used for essential government services.

(6) Property jointly owned by an Indian tribe and another individual or entity used exclusively for essential government services - eligibility for exemption. The percentage of the property owned exclusively by a tribe and used exclusively for essential government services is eligible for exemption.

(7) Property used for qualifying and nonqualifying purposes - mixed use of property - eligibility for exemption. If property belongs exclusively to an Indian tribe and is used for qualifying and nonqualifying purposes and if the two uses are physically separate on the real property, the department shall administratively segregate the portion of the property that is used exclusively for essential government services and exempt that portion of the property from property tax. The portion of the property that is used for nonqualifying uses is subject to taxation.

(a) An administrative segregation occurs when the department separates the exempt value from the taxable value. The assessor may create a new tax parcel number that exists solely for property tax purposes.

(b) Example: A tribal administrative office may be located in the same building as a convenience store run as a commercial enterprise. The portion of the building used for tribal administration offices is exempt and the portion of the building used as a convenience store is taxable.

(c) If the property is used at times for exempt or qualifying services and at other times for nonexempt purposes, the "exclusively used" standard is not met and the property is taxable.

(8) Property owned by an Indian tribe that is leased - eligibility for exemption. If property belonging exclusively to an Indian tribe is leased to an individual, a for-profit or nonprofit entity, a tribal member, or another governmental entity, the tenant's or lessee's activities will determine whether the property qualifies for exemption.

(9) Property used for commercial or enterprise activities - ineligible for exemption. Property used for commercial or enterprise activities does not qualify for exemption. For purposes of this section, a "commercial or enterprise activity" means an activity financed and operated in a manner similar to a private business enterprise. The burden is upon the tribe to prove that the property is not used for commercial or enterprise activities. The collection of a fee, such as a fee for the use of the picnic area in a park, does not make an activity a commercial or enterprise activity. Property used for a commercial or enterprise activity will not qualify for the exemption when funds received from the activity are used to provide essential government services. For example, if a tribe owns exclusively property on which it operates a gas station and the profits from the gas station are used to pay for essential government services, the property does not qualify for the exemption.

(10) Sale, transfer, or cessation of use of exempt property. If a tribe sells or transfers property or ceases to use real property for an essential government service as required under RCW 84.36.010, the exemption will be canceled as of the date the property was sold or transferred or the exempt use of the property ceased. Real property that no longer retains its exempt status will be assessed a pro rata portion of the taxes allocable to the property for the remaining portion of the tax year after the date the property lost its exempt status. If only a portion of the property has lost its exempt status, only that portion of the property is subject to tax. See RCW 84.40.350 through 84.40.390 for a more complete explanation of what occurs when the status of real property changes from exempt to taxable.

(a) Duty to notify department. A tribe must notify the department of any change in the ownership or use of the property that might affect its exempt status within a reasonable amount of time. If any portion of the exempt property is loaned or rented, the tribe is required to report this change to the department because the loan or rental may affect the taxable status of the property. Any other person who knows or has information regarding a change in ownership or use of exempt property may notify the department of any such change. Upon receipt of change notice, the department will determine whether the property retains its exempt status.

(b) Notice to tribe. The department must notify the tribal owner of the exempt property if the exemption is being removed, in whole or in part. The tribe may appeal the removal of the exemption to the BTA. At the same time, the tribe may provide additional information to the department for reconsideration of the determination.

(11) Can the exemption be claimed for prior years - refunds? A tribe may submit an exemption declaration for previous years, up to a maximum of three years from the date taxes were paid on the property, if the taxpayer provides the department with acceptable proof that the property qualified for exemption during the pertinent assessment years. If the exemption is granted, the tribe must submit a refund claim to the county treasurer. RCW 84.69.020(2) and 84.69.030. However, no exemption can be claimed for any time period prior to 2004, the first assessment year affected by RCW 84.36.010 as amended by chapter 236.

(12) Administrative appeal rights - board of tax appeals. The tribe or assessor may appeal an exemption determination made by the department to the BTA under RCW 82.03.130 (1)(c). A notice of appeal can be obtained from the department or the BTA, or downloaded from the BTA internet site, http://bta.state.wa.us/.

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Washington State Code Reviser's Office