*1 judgment is affirmed in and reversed in part. Thompson, C.J., Green, J., concur. August 16, 1989.] 11305-8-II. Division Two.

[No. Respondent, Company, v. Cowlitz Appellant. County, Bridgewater, Prosecuting Attorney, Jr., David C.C. Deputy, appellant. Koss, R. *2 Bogle respondent. Gates, & for R. Johnston and

James County appeals summary judg- J. Cowlitz Petrich, plus requiring $84,456.45 it to refund in taxes interest Longview Company. presents to case the follow- Fibre This taxpayer, pays property ing issue: When the who taxes taxes, installments, in semiannual deems its paid thereof, excessive, must each installment be preserve the to a refund of the excessive to paid tax? We conclude that each installment be complete of an the refund overpayment. Superior Therefore, Court. we reverse the dispute

This case arose a valuation between Cowlitz County Longview County Fibre over Assessor's property appraisal Longview paper mill Fibre's for appealed prop- payable Longview in 1981. Fibre taxes Equal- erty tax assessment to the Cowlitz Board upheld ization, It then commenced a which assessment. Longview repeated in court. Fibre refund action year parties process to 1983. The this each from 1980 dispute agreed Longview in 1985 and resolved property during million had been overvalued $17 Fibre's years question. in resulted The overvaluation each of overpayment taxes, 1981 amounted which $168,912.90. paid

Longview each its taxes two installments Fibre Longview year, permitted 1981, In 84.56.020.1 as RCW arose, pro 84.56.020, of this case in effect when facts 1The former RCW lot, part: on block or tract real "That total amount vided in when the more, payable person of such tax property ten one-half one dollars or day April, paid then the time for the said thirtieth on or before be due and and said remainder shall thereof shall be extended remainder $2,544,968.66, Fibre's taxes were of which it April 31, half on Pur- and half October 1981. Longview 84.68.020, suant protest.2 second installment under parties finalizing settlement, When the were County refused to refund more half of the 1981 over- payment, Longview because of Fibre's failure to first installment its 1981 taxes. The amount only remaining in 1981 for was the issue. parties agreed question that there was no fact and summary judgment on cross motions the court entered judgment Fibre in $84,456.45, the amount of overpayment, plus half of interest. unambiguous

Statutes that are clear and not subject judicial Empl. 1 v. construction. PUD Public Comm'n, Relations

(1988) (quoting Irrig. State, Roza Dist. (1972)). 635, 497 P.2d We find neither RCW permits installments, taxes to nor RCW *3 provides protest 84.68.020, which the means to excessive ambiguous. tax, to be

Longview protest Fibre contends statute explicitly permits "any pay part" a taxes, of its thereby installment, such as one under become any overpayment, up entitled a refund of to the amount payable thirty-first day October, following before or after which date remaining delinquent, eight such one-half shall become and interest at the rate of percent per upon charged annum shall said remainder date delin- quency paid ..." until provides part 2RCW 84.68.020 as follows: public "In all cases of the of taxes for revenue which are deemed unlawful person, corporation property or excessive firm or . . such whose is taxed . person, corporation may pay firm or or such tax thereof deemed unlaw- ful, protest setting grounds upon under written forth all of the which such tax is excessive; thereupon person, corporation claimed be unlawful or firm or legal paying, representatives assigns, may bring his or so or its or an action state, county municipality by . . or court. whose officers the collected, thereof, tax, any portion same to recover such or under protest..." protested. plain language disagree. of the statute We protest, taxpayer may pay under that the tax a any meaning tax, that it deems entire paid under then seek to recover the tax so unlawful, and protest. percent approximate in valuation reduction in the 1981 in an reduction

resulted across-the-board Viewing unit, as we tax as taxes. pursuant 216, 22 must, v. 173 Wash. to Morf pro applies rata we hold that the reduction P.2d 663 Having paid only half of 1981 taxes to each installment. only is entitled under written overpayment. This result is dictated of its 1981 half long-standing rule that statute and both the voluntarily paid cannot be recovered. void Pacific Corp. Spokane Cy., 101, 102, 15 P.2d 652 Fin. (1932). Detroit, 272 Mich. Bank Detroit We find National (1935) authority. persuasive There, 262 N.W. taxes, first half of its

the bank by assessors. an incorrect valuation which were based on protest. half of the taxes The bank the second question, prevailed Although on the valuation the bank recover held that it was entitled to protest. overpayment on the The court relied Washington's, general rule, that of common law identical to " voluntary though void, tax, it be even [a] recovery." subsequent National Bank to a a bar Detroit, 614-15. Superior is reversed.

The decision of Court separately (concurring write J. Reed, separately) —I statute. submit a distinct aged, acknowledge means rather also *4 Attorney supports opinion General obsolete, State of the Though majority's result we reach conclusion. Detroit, Bank Detroit National with that consistent opinion 272 Mich. 262 N.W. 422 is devoid any analysis rely. on which can And we while Morf (1933) might 22 P.2d indi- rectly support position, proposed my the dissent's under reading any part statute, of the "or thereof language, relies, deemed unlawful" on dissent apply would not to Fibre's situation. language quoted

The in footnote types is intended to First, describe two different taxes. may e.g., beyond "unlawful", taxes authority be invalid or taxing against exempt district, or assessed exempt taxpayer. or an Second, taxes be upon "excessive”, i.e., overvaluation, based as in the present phrase case. "or deemed category. language unlawful" refers to the former payments portions not intended to create divisible allegedly excessive assessments and therefore posed. Indeed, solution to the issue in most cases of a valu- dispute, here, ation as was the case the extent which dispute tax is excessive cannot be determined until the finally left, therefore, We resolved. with the condition that all installments of taxes claimed excessive must before refunds will be authorized. Attorney Opinion quoted

Further, General below directly presented tackles the issue in this case. AGO 234 (1956), responding King request to a from the Prosecuting Attorney, provides as follows:

TAXES, REFUNDS, TAX PROTEST. First-half taxes must be if the made

taxpayer taxes, possible is to his refund of such and an unlawful of taxes cannot be deducted county treasurer, from the total amount due the amount shown must be illegal with no deduction or set off of still already paid. due or A referring incorporating by short form of to and ref- comprehensive already county erence a file form treasurer, is valid. *5 requested following opinion You our in answer to the have litigation ques- questions of current which have arisen because chapter 1955: tioning constitutionality of Laws of protest, [year's] 1. If first taxes are without half year's] taxes are determined to portion and thereafter a [the invalid, taxpayer: can a a. pay has the first half his without who proper protest of the total second half of taxes under thereby preserve his and payments invalid amount of both right protested . . . to recover amount

Analysis question negative. in the There 1. answered Your first must be statutory provision pertaining to the factual situ- specific is no ation by any applicable posed your question nor have we found However, controlling pro- tax general principles court decision. provisions coupled with the tests for refund of tax and actions fully if his indicate that one is RCW 84.68.020 tax, pays in two portion a void where he pursuant proper he make installments protest to RCW installment. with each As 84 C.J.S. 1290 stated "* * * statutory only requirement intended not [to] made, involuntarily proof payment

furnish tax warn tax is claimed also to collector filing purposes, has two serve illegal; and the of the tax- government notice on the dissatisfaction grounds on which the payer, and to define the stands." part:

RCW 84.68.020 public "In cases taxes for revenue which all by person whose unlawful or excessive deemed is enforced, taxed, or whom the tax is demanded or person may pay tax or thereof deemed such unlawful, protest setting all of the forth under written grounds upon tax is be unlawful which such claimed * * * may excessive; thereupon person paying, so * * * state, bring an action county, or municipality by the tax was col- whose officers thereof, lected, protest. any portion it or to recover * * *" added) (Emphasis contest the the exclusive method to RCW 84.68.070makes this respect to cases validity except payment covered if requires 84.68.010. This section action for refund of tax or thereof is to be maintained paid" may it must be under written "so such action be maintained. Whatever of is have been legislative requirement the reason for tax, as a condition to the to sue it for refund of apparent permitting the first half of protest that when the legislative purpose. would frustrate the It is to be noted this section was enacted legislature the 1931 at a time legislature already had chapter authorized § 1925, payment Laws of of taxes two installments. Per- mitting recovery out paid upon of taxes the first installment with- *6 protest clearly would purposes defeat one of the for the C.J.S., enactment of the quotation statute as stated in the possible since it would then taxpayer for a to not advise the county he paying until after levies had the been made. cials RCW 84.56.020 and RCW 84.52.030.The offi- Cf. responsible imposing levy fund, for a for the tax refund would thus knowledge have no of the amount potential facing refunds the district.

Thus, purpose for a requiring as a condition to receiving a is officials give responsible imposing a for the tax refund fund of the knowledge amount potential refunds facing local Allow- agency. ing Fibre to recover in the first installment protest would, therefore, defeat that purpose protest statute because the County Cowlitz officials did not have notice of Fibre's dissatisfaction with the tax until payment of the second installment.

Attorney General Opinions, while not controlling, entitled to considerable weight. Elovich v. Nationwide Ins. Co., 543, 550, (1985); Washington 707 P.2d 1319 Smith, Educ. Ass'n P.2d (1981). As the quoted AGO seems to answer directly the hand, I read, issue at find it dispositive. Strictly result; is, AGO would suggest all-or-nothing that given the purpose taxpayer each requiring expressed installment as in the opinion, one who fails to April installment would not be entitled to a amount, refund of invalid or though excessive even October installment is paid protest.

Finally, "taxing submit that RCW 84.68.020 not a reported statute," as term is used decisions. that Accordingly, proposition that the dissent's reliance on ambiguous "taxing statutes” are construed favor taxpayer placed. is not well equitable,

Although here is the mat- the result less Legislature. ter should be addressed to the On the other hand, in this Fibre is case has conceded that judg- Thus, to one-half of the excessive tax. entitled requested reversed, ment should be but to the extent appellant. by the (dissenting) I believe C.J. dissent because —I Alexander, majority misinterprets stat- RCW 84.68.020. That requires challenge who wishes to an assess-

ute "pay deemed such tax mine.) (Italics protest." under . . . In cases such unlawful, taxpayer agrees one, that tax is valid as this where the clearly challenges amount, statute does not protested. provision require that tax be cited interpreted readily mean the tax- above could payer protest only the tax which he or logical light objects. she This holding Morf by majority. held the taxes cited That court *7 any year parcel not is unit and is on a one pay- paid, discharged until the last dollar owed is whether Wash, 216-17. Morf, in installments or not. 173 at able specific lan- rule case and the Under the enunciated certainly arguable guage statute, it that the tax- is required object payer has no until the Certainly pay more he thinks he or she should. pay- designating is no reason for there obvious legal obligation as excess has been satis- ment before fied.3 course, equal taxpayer challenges to more than half 3Of an amount assessed, payment he make the first as well.

the tax

317 requirement necessary serve is such a Neither any purpose purpose the statute. The system give right to taxation is to notice that the collect disputed. required State the tax is This is unwittingly it has no not receive of a tax which thereby against legal right, subject will, itself, to the Skagit Cy., costs of an action to recover it back. Tozer v. 34 (1904); P. Wash. 638 see also Ozette R.R. v. Grays Cy., (1943), 459, Harbor 133 P.2d 983 grounds King Corp. Cy., overruled on other in Xerox 284, 289-90, Wn.2d P.2d one protest, apparently half-payment made after first was complied statutory requirements. due, held Here, was sufficient. had notice objection any to the tax it before had collected funds challenged. purpose to which its was requirement good satisfied, was and there reason denying Longview equitably Fibre a refund to which it was entitled.

Finally, majority agrees my whether or not with apparent interpretation certainly of RCW it is that more than one the statute reason meaning taxing able. If there is doubt as to the a taxing power. it must be construed Hoppe, 249, Duwamish Warehouse Co. v. (1984); Shurgard Mini-Storage Depart 684 P.2d 703 (1985). App. Rev., 40 Wn. interpreted apply Long- This statute should have been improper view Fibre's to the entire amount of the Therefore, assessment. dissent. (1989). granted

Review at 113 Wn.2d 1028