Ordinance
45A - Real Estate Sales Excise Tax
1. Title. This ordinance shall be known as the Tulalip Real Estate
Sales Excise Tax Ordinance of 1987.
2. Findings. The Board of Directors, after carefully considering
the need for further implementation of taxing powers in regard to reservation
activities, finds:
2.1 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.
2.2 With
increasing growth and land use pressures on reservation lands, the
demands for such tribal governmental services are increasing.
2.3 The
Tribe 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.
2.4 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.
3. Purposed/Appropriation of Funds. In order to generate badly needed
revenues 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 the Tulalip Planning Enabling
Act, Ordinance No. 56, 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.
4. Definitions.
4.1 Sale.
As used in this ordinance, the term "sale" 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 Tribe
or by or to the United States in trust for the Tribe or an Indian
person(s). Nor in 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.
4.2 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 vender's 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 vender'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 of 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 foreclosures
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 non-judicial foreclosure, a conveyance to the Federal
Housing Administration or Veterans Administration by an authorized
mortgage 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 ordinance 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 sub-division or a municipal
corporation thereof, nor a sale by or to the Tribe, 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 maybe,
to other than 1) the transferor and/or the transferor's spouse or
children; 2) 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 3) a corporation or partnership wholly owned by the
original transferor and/or the transferor's spouse or children, within
five (5) 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.
4.3 Seller.
As usual in this ordinance the term "seller" 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 otherwise; but it shall not include
the Tulalip Tribes, the United States or the State of Washington.
4.4 Selling
Price. As used in this ordinance, the term "selling price"
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 the 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.
4.5 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 section apply throughout this ordinance.
4.5.1
"Real estate" or "real property" means real
property but includes used mobile homes and used floating homes.
4.5.2
"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 RWC, 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.
4.5.3
"Mobile Home" means a mobile home as defined by RCW 46.04.302,
as now or hereafter amended.
4.5.4
"Used floating home" means a floating home in respect
to which tax has been paid under chapter 82.08 or 82.18 RCW.
4.5.5
"Floating home" means a building on a float used in whole
or in part for human habitation as a single-family dwelling, which
in 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.
5. Determining Selling Price of Lease 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 Tribe 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 leases 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 rules for case whether the
selling price is not separately stated or is not separately stated or
in 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, any nay further provide
for the termination of the selling price by appraisal shall be prima
facie evidence of the selling price of the real property.
6. Tax Imposed on Sale of Property - Additional Tax Imposed.
There is hereby imposed as of the effective date of this Ordinance,
an excise tax upon each sale of real property at the rate of one percent
(1.00%) of the selling price.
7. Tax is Seller's obligation - Choice of Remedies. The tax levied
under this ordinance 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.
8. Payment of Tax. The tax imposed by this ordinance shall be
paid to the collection by the tribal tax administrator.
9. Tax Payable at Time of Sale - Interest, Penalty, on Unpaid or
Delinquent Taxes - Prohibition of Certain Assessments or Refunds.
9.1 The
tax imposed under this ordinance is due and payable immediately at
the time of sale, and if not paid within thirty (30) days thereafter
shall bear interest at the rate of one percent (1%) per month from
the time of sale until the date of payment.
9.2
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 9.1 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 ordinance, a penalty of fifty
percent (50%) of the additional tax found to be due shall be added.
9.3 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
failure by the taxpayer to record documentation of sale or otherwise
report the sale to the county treasurer.
10. 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 family residential
property and a license real estate broker or one of the parties to the
transaction accepts transfer of said property, a credit for 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 of 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.
11. Rules for Reporting, Application and Collections 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 ordinance.
The Tribal
tax administrator shall also prescribe a real estate tax affidavit form
which shall require the following:
11.1
Identification of the seller and purchaser;
11.2
Description of the property involved including the tax parcel or account
number(s);
11.3
Date of sale, type of instrument of sale, nature of transfer;
11.4
Total or gross sales price;
11.5
Whether or not the land is exempt under this ordinance or federal
law;
11.6
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.
12. Applicability of General Administrative Provisions - Department
Rules, Scope - Department Audit.
12.1
In addition to other rules and procedures to be adopted under this
ordinance, the tribal tax administrator shall by rule provide for
such other procedures and standards for the effective administration
of this ordinance. The rules may include a manual which defines transactions
which are taxable under this ordinance. The tribal tax administrator
shall also annually conduct audits of transactions and affidavits
filed under this ordinance.
12.2
The tribal tax administrator shall be appointed by and be responsible
to the Board of Directors of the Tulalip Tribes of Washington.
12.3
All rules and procedures of the tribal tax administrator shall be
first reviewed and approved by the Board of Directors of the Tulalip
Tribes of Washington. Such rules and procedures may further set forth
and define the role and responsibility of the tribal tax administrator.
13. Tribal Court Review. Any person may seek review in the Tribal
Court, pursuant to the Court's civil procedures, of a tax imposed by
this Ordinance, so long as administrative remedies have first been exhausted,
and provided further, that nothing herein shall be ordered, adjudged
or decreed except to the extent of the tax in question so paid.
14. Review and Savings Clause.
14.1
Effective Data: This ordinance shall become effective forthwith as
provided by Article VI, Section 2 of the Constitution and By-laws
of the Tulalip Tribes of Washington.
14.2
Savings Clause: If any section, paragraph, clause or word of this
ordinance 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.
--------------------------
Legislative History
Adopted
Laws of May 22, 1987
Approved
June 1, 1987, Superintendent, Puget Sound Agency, BIA
Amended
by Tulalip Resolution No. 89-0164, Laws of December 15, 1989
Approved,
December 28, 1989, Superintendent, Puget Sound Agency, BIA
Amended
by Tulalip Resolution No. 04-022, Laws of January 16, 2004
--------------------------
Related Laws
Ordinance
#36, Laws of Laws of July 19, 1977 (Tobacco Regulation and Tax)
Ordinance
#41, Laws of April 5, 1980 (Business Organizations)
Ordinance
#43, Adopted by Laws of April 14, 1977 (Utility Tax)
Ordinance
#45, Adopted by Laws of November 6, 1979 (Business Licenses & Tax)
Ordinance
#46, Laws of April 5, 1980 (Revising and Repealing Certain Ordinances)
Ordinance
#46, Laws of May 10, 1980 (Revising and Repealing Certain Ordinances)
Back
to Top