[Legislativecommittee1] FW: SB 5111 DOR Feedback

Sat Jan 11 13:32:01 PST 2025

Thought and do we have anyone willing to tackle this?

From: Carrie Tellefson <carrie at sound-gov.com>
Sent: Saturday, January 11, 2025 1:17 PM
To: Maureen Pfaff <maureen at olypentitle.com>; Jp Kissling <jpkissling at fitico.com>; Michelle Taylor <mjtaylor at firstam.com>; Jim Blair <jblair4 at figtitle.com>; George Peters <execdirector at washingtonlandtitle.com>
Cc: Sam Miller <sam at sound-gov.com>
Subject: FW: SB 5111 DOR Feedback
Importance: High

Hi All – Senator Chapman just texted me to let me know he is sending an email from the DOR to him.  He is asking for our advice on how to respond.

There is a lot in here that I don’t understand.  I need your help wading through it and offering a solution.  DOR proposes to change the bill so the focus is only on removing sales tax on the recording fees, not B&O.  Is that workable?

I would like help from you understanding their comment about the bifurcation of escrow agent services.  Do we need to fix that?

Please let me know your thoughts.  I would like to get back to him this weekend.

Thanks,

Carrie

Carrie Tellefson, JD, President
Sound Government Solutions
253-576-9908 (cell)

[cid2387524142*81be06f7-0e2f-4cbb-ba84-52a5c8d90d15]

I understand that everyone has their own way of working.  I’m sending this email at a time that suits my schedule, but there’s no expectation for you to read, reply or act on it outside your regular work hours.

From: Chapman, Sen. Mike <Mike.Chapman at leg.wa.gov<mailto:Mike.Chapman at leg.wa.gov>>
Date: Saturday, January 11, 2025 at 12:57 PM
To: Carrie Tellefson <carrie at sound-gov.com<mailto:carrie at sound-gov.com>>
Subject: Fw: SB 5111 DOR Feedback
Carrie, hopefully this makes sense to you and you can advise me on how I should reply:)
Thx!
________________________________
From: Armstrong, Kate (DOR) <KateA at DOR.WA.GOV<mailto:KateA at DOR.WA.GOV>>
Sent: Friday, January 10, 2025 3:54 PM
To: Chapman, Sen. Mike <Mike.Chapman at leg.wa.gov<mailto:Mike.Chapman at leg.wa.gov>>
Cc: Arndt, Meagan <Meagan.Arndt at leg.wa.gov<mailto:Meagan.Arndt at leg.wa.gov>>; Ewing, Steve (DOR) <SteveE2 at DOR.WA.GOV<mailto:SteveE2 at DOR.WA.GOV>>
Subject: SB 5111 DOR Feedback

CAUTION:External email.

Hi Senator Chapman,

I hope you are doing well! I am contacting you today regarding SB 5111<https://url.avanan.click/v2/r01/___https:/app.leg.wa.gov/BillSummary/?BillNumber=5111&Year=2025&Initiative=false___.YXAzOmZpZGVsaXR5dGl0bGVjbzphOm86NTJjOWZmOGMzNjU1YTg3NDFjYWQ1YzQ2N2Q4MmE4YTk6NzphZTgxOjY4MWZiM2VlYjhhNGVhYjhlNDljYjcyZDg5NjE5OTUyNDg3MzIzMTU0MjhlNDU4NDk5Zjc1MmZmYmI3N2M3ZGQ6aDpUOkY> – Concerning the excise tax treatment of amounts received by title and escrow businesses from clients for remittance to a county filing office for the purpose of recording documents.

What this proposal does
This proposal swaps escrow services with escrow agent services that do not include amounts remitted to a county filing office for the purpose of recording documents in the list of business activities whose charges for their services are considered sales at retail. This proposal also exempts document and recording fees filed with the county filing office by escrow agent services from B&O tax.

Possible unintended consequences
We understand this proposal to result in a bifurcation of escrow agent service taxation.

  *   One group will be businesses that provide escrow agent services which do not include separately stated document and recording fees as part of their charges.

     *   The escrow agent services will be subject to retailing B&O and must charge retail sales tax on their services.

  *   The other group will be all other businesses that provide escrow agent services including ones that separately state document and recording fees as part of their escrow agent service charges.

     *   The escrow agent services will be subject to service and other B&O tax.

This is our understanding because the section being amended in this proposal defines the businesses engaging in sales at retail and not the charges that are subject to retailing B&O tax.
Section 2(3) “The term "sale at retail" or "retail sale" includes the sale of or charge made for personal, business, or professional services … received by persons engaging in the following business activities:
…
“(g) Escrow agent services … that do not include amounts remitted to a county filing office for the purpose of recording documents, if separately identified on a settlement statement, HUD-1, or closing disclosure”
(emphasis added). Thus, any charge for services by a business engaged in the escrow agent services as defined in Section 2(3)(g) would be subject to retailing B&O tax.

We assume that creating two different B&O tax treatments on similar transactions is likely not the intent. Instead, we assume the intent is to exempt the document and recording fees collected and remitted to the county filing office by escrow agent as a service to their customer from B&O tax and retail sales and use tax.

Policy concern
The B&O tax is, by design, broadly applied to gross income at a low rate. A feature of the B&O tax is that it does not allow deductions for a cost of doing business. Instead, the B&O tax is pyramiding in nature, meaning the gross income is taxable at each stage of a process regardless of whether tax was due at an earlier stage. Retail sales and use tax applies when a sale is made to an end-consumer who does not intend to resell the good/services purchased.

Government fees-for-service are generally taxable when they are included in a larger retail transaction to a customer/client such as the sale of escrow services. In the case of abstract, title insurance, or escrow services, the customer/client is purchasing a whole host of services which includes document recording. Document and recording fees are incidental to the larger retail sale of services and merely a cost of doing business for the industry.

As a note, the department generally has no concerns with the creation of a retail sales and use tax exemption as these do not undermine the fundamental feature of a B&O tax that it does not allow deductions for the cost of doing business.

Suggested alternative approach
If amenable to limiting this proposal to the retail sales and use tax due on the document and recording fees paid the escrow services, we recommend simply exempting amounts that are remitted to a county filing office from retail sales tax and use tax under RCW 82.04 and 82.12 and removing any provision making changes to the B&O tax under chapter 82.04 RCW.

This approach has two key advantages:

  1.  It preserves the lower B&O retailing tax rate for all taxable escrow agent services.
  2.  It avoids creating a carve-out from the definition of a “retail sale” for the cost of doing business for a specific industry, which the department has consistently viewed with caution.

If this approach does not meet your needs, it would be helpful to confirm the intent of your proposal with respect to the B&O tax treatment escrow agent services. This will help ensure any fiscal note we produce accurately estimate the impact of the proposed tax changes.

Intent section of the proposal
The department has consistently taken the position that these document and recording fees are taxable under current law and the department’s position has not changed.

Therefore, we take issue with the mischaracterization in the intent section of the proposed legislation that the department has had a change of position that would trigger a rulemaking process. We also have concerns that this proposal purports to “clarify” rather than change the tax treatment of document and recording fees. Thus, we respectfully request that the intent section be removed from the bill.

I hope you find this helpful. We are happy to answer any questions you may have or review any future drafts.

Have a great weekend!

Sincerely,

Kate Armstrong
Assistant Legislative Liaison | Executive Division
Washington State Department of Revenue
6400 Linderson Way SW, Tumwater, WA 98501
o: (360) 534-1537
c: (360) 584-3742
KateA at dor.wa.gov<mailto:KateA at dor.wa.gov> | dor.wa.gov<https://url.avanan.click/v2/r01/___https:/dor.wa.gov/___.YXAzOmZpZGVsaXR5dGl0bGVjbzphOm86NTJjOWZmOGMzNjU1YTg3NDFjYWQ1YzQ2N2Q4MmE4YTk6NzpkNDRhOmRhYTlkZTJjMjU2ZmMwM2ZkZmM1ZmZmMjUzN2JhMDFjOGQ4YjRmZmYxODZhZWE2NTUyMDFkZTkzMzZkZTE0NjA6aDpUOkY>

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