Christensen v. Skagit County

401 P.2d 335, 66 Wash. 2d 95, 1965 Wash. LEXIS 827

• Court: Washington Supreme Court
• Decided: April 22, 1965
• Docket: 37293
• Status: Published

Opinions

Weaver, J.

Defendants’ motion for summary judgment having been granted, plaintiff appeals from a judgment dismissing his action with prejudice.

Plaintiff and his partners owned three supermarkets in different localities. Desiring to do business in corporate form, they organized three corporations and transferred to the respective corporations all partnership assets including real property, one parcel of which was mortgaged.

In each instance the partners were the only incorporators and the only ones to whom stock was issued. The only assets received by the respective corporations were those transferred from the partnerships in return for which the corporate stock was issued.

To record the deeds conveying the real property to each of the corporations the partners paid, under protest, to the treasurer of Skagit County an excise tax computed at the rate of 1 per cent of the value of the real property transferred.

The only question presented on appeal is whether the state-authorized (RCW 28.45), county-imposed (Skagit County ordinance No. 3005) 1 per cent excise tax applies to conveyances of real property by members of a partnership to a corporation in return for the issuance of corporate stock.

We conclude, as did the trial court, that the transaction is taxable; hence, the judgment of dismissal must be affirmed.

The tax, authorized by statute and levied by county ordinance, is levied upon each sale of real property located within the county. RCW 28.45.060. The term “sale” as used in RCW 28.45.050 is defined in RCW 28.45.010:

As used in this chapter, 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,

The major problem is whether the transfer of the ownership of real property from members of the partnership to the corporation in exchange for stock in the corporation constitutes a “sale” within the meaning of the term as defined in RCW 28.45.010, supra.

In Deer Park Pine Industry, Inc. v. Stevens Cy., 46 Wn.2d 852, 286 P.2d 98 (1955), this court held the conveyance was not taxable where a change of title to real property was effected solely as a result of its distribution to stockholders of a solvent corporation in the process of dissolution, except in a case where the stockholders assumed the liabilities of the liquidating corporation; and in such event, the real estate excise tax is applicable to the extent of the corporate liabilities assumed by the stockholders. The rationale of Deer Park was affirmed and applied in The Doric Co. v. King Cy., 57 Wn.2d 640, 358 P.2d 972 (1961).

With Deer Park and Doric as a board, plaintiff springs to the syllogistic conclusion that the transactions of the instant case are nontaxable because the present transactions are the converse of the situation in which corporate stock is surrendered in liquidation in exchange for a conveyance of the real property of the corporation to the shareholders.

Even though it might be said that the transfer of real property to a corporation in return for stock is at the opposite end of the spectrum from a transfer of real property by a liquidating trustee to the shareholders, there the analogy ends. Each transaction is based upon a different legal theory.

In Deer Park and Doric we pointed out, inter alia, that the ownership of corporate stock carries with it the inherent right to share in the assets of a corporation — after creditors —when it is in the process of liquidation; hence a transfer by a liquidating trustee was not a “sale” in the ordinary meaning of the term, or a transfer of title for a valuable consideration within the ambit of RCW 28.45.050, supra.

It is not necessary for us to discuss the various rights arising from individual or partnership ownership of real property as provided in RCW 25.04.100, 240, 250. It is sufficient for our purpose to note that following the transfer of the real property to the corporation, and receipt of shares of stock in exchange, the individual partner has none of his previous rights in the real property. They have been surrendered in return for his rights to participate as a stockholder in the management of the corporation. An individual shareholder has no property interest in physical assets of the corporation. California v. Tax Comm’n, 55 Wn.2d 155, 346 P.2d 1006 (1959). The corporations are separate organizations, each with its distinctive privileges and liabilities different from those enjoyed by plaintiff and his partners prior to incorporation. State v. Northwest Magnesite Co. 28 Wn.2d 1, 41, 182 P.2d 643 (1947). Thus we fail to find merit in plaintiff’s argument that “the incorporators are no more than taking it out of one pocket and putting it in another.”

Plaintiff and his partners received a valuable consideration in return for this partnership real property — the right to do business in corporate form.

We conclude that the transactions in question constituted transfers of ownership for a valuable consideration and were “sales” within the ordinary meaning of the statute.

Finally, plaintiff urges that the tax on the transfer of the property upon which there is a mortgage should be limited to 1 per cent of the amount of the mortgage indebtedness against the property. Skagit County ordinance No. 3005, as authorized by RCW 28.45.050, levies the excise tax against the “selling price.” RCW 28.45.030 requires that “ ‘selling price’ means the consideration . . . paid . . . and shall include the amount of any lien, mortgage . . . or other incumbrance . . . remaining unpaid on such property at the time of sale.” (Italics ours.) Defendants followed the mandate of the statute.

The judgment is affirmed.

Ott and Hamilton, JJ., and Foley, J. Pro Tern., concur.