Wash. Admin. Code § 458-20-305
(1) Introduction. Chapter 82.59 RCW establishes a limited sales and use tax deferral program. The purpose of the program is to encourage the conversion of underutilized commercial property to multifamily housing units in targeted urban areas to increase affordable housing.
(2) Definitions. For the purposes of this rule, the following definitions will apply:
(a) "Affordable housing" means:
(ii) Related facilities of investment projects may also include, but are not limited to, the following:
• Driveways, parking lots, covered parking structures;
• Fitness facilities for residents (e.g., gyms, pools, recreational courts, bicycle storage areas);
• Laundry areas;
• Landscaping;
• Dining facilities for residents;
• Cooking facilities for residents;
• Event spaces for use by residents;
• Lobbies and/or elevators to access residences and commercial spaces;
• Conference rooms and other business facilities (e.g., leasing office, communal office space for use by residents);
• Dog runs/parks;
• Residential storage areas;
• Electric vehicle charging stations for residents;
• Permanent security fencing and/or gates for the project;
• Mailbox stations;
• Spaces used to manage and maintain the project (e.g., tool shed);
• Facilities used for business use in mixed-use development; or
• Other facilities approved by the department on a case-by-case basis.
(3) What types of property may be classified as "underutilized commercial property" eligible for the sales and use tax deferral program?
(a) An "underutilized commercial property" must currently be used or "intended to be used" for one or more of the following "qualifying uses": Retailing activities, office-related activities, or administrative activities.
(ii) "Qualifying activities" include selling goods and services to customers for their consumption, and professional, clerical, or administrative activities such as human resources, accounting, legal, sales and marketing, or executive management activities.
(iv) Buildings that are currently vacant may qualify for the tax deferral if the applicant can show that the building was used for one or more qualifying uses prior to the vacancy. To determine this, the department will review any relevant evidence or documentation that shows how the building was used prior to the vacancy.
Example 1: Underutilized commercial property currently used for qualifying activities.
Facts: Applicant currently leases commercial property to a tenant that uses the entire property for their restaurant business. The property has a kitchen, dining area, and an office area used for accounting and other managerial activities of the restaurant. The applicant's lease with the tenant establishes that the property will be used for this purpose.
Result: Presuming all other requirements of the statute are met, applicant's property qualifies as underutilized commercial property as the applicant has provided adequate substantiation that the entire property is being used for a qualifying use. Restaurant activities are qualifying activities as they involve the sale of services to an ultimate consumer. The tenant uses the remaining areas of the property to conduct or manage its restaurant business, so these other areas also qualify because the space is being used for eligible qualifying activities.
Example 2: Underutilized commercial property intended to be used for qualifying activities.
Facts: Applicant has a commercial building that is currently vacant, but applicant has previously leased the entire property to other businesses for use as office space. Applicant's marketing materials for the property promote the building as containing numerous offices, meeting areas, storage rooms, and a call center.
Result: Presuming all other requirements of the statute are met, applicant's building qualifies as underutilized commercial property as the applicant has provided adequate substantiation that the entire property is intended to be used for eligible qualifying activities.
Example 3: Underutilized commercial property under construction to be used for qualifying activities.
Facts: Applicant is in the process of constructing a commercial property. While construction is not complete, original blueprints and marketing materials used for promotion purposes demonstrate that the property is entirely comprised of meeting rooms, space for cubicles and offices, a mail room, and a reception area.
Result: Presuming all other requirements of the statute are met, applicant's property qualifies as underutilized commercial property as the applicant has provided adequate substantiation that the entire property is intended to be used for eligible qualifying activities.
Example 4: Vacant land marketed as being usable for qualifying activities.
Facts: Applicant owns a vacant lot and plans to sell the entire property to a developer. The marketing and promotional materials for the vacant lot provide that the site may be used for qualifying activities.
Result: Applicant's property does not qualify as underutilized commercial property because it is a vacant lot. The marketing and promotional materials do not adequately substantiate the intent that the property will be used for one or more eligible "qualifying activities."
(4) Application to the department is required. After receiving a conditional certificate from the local jurisdiction, but before the initiation of the construction of the investment project, recipients of a conditional certificate must submit an initial application to the department.
(b) What information does an application to the department need to include? Applicants must include the following information and materials with their application to the department:
(f) What happens if the conditional recipient's application is denied? If denied, a conditional recipient may request a review of the department's denial of their tax deferral application through the department's informal administrative review process within 30 days of the date of the denial notice. See WAC 458-20-100. The review of a denied deferral application under WAC 458-20-100 is not appealable to the board of tax appeals under RCW 82.03.190.
Example 5: Application requirements prior to initiation of construction.
Facts: Applicant owns a three-story building where the ground floor is being used as a coffee shop and the second and third floors are being used as office space. Applicant plans to convert the second and third floors of the building into multifamily housing, but intends to renovate the coffee shop on the ground floor. Applicant has divided the project into phases with the first being the renovation work on the coffee shop. The applicant requests guidance from the department as to whether they may apply for building permits for the coffee shop renovation before submitting their deferral application to convert the second and third floors into multifamily housing units.
Result: Applicant's renovation of the coffee shop does not qualify for deferral under chapter 82.59 RCW as applicant is not converting the existing retail space into multifamily housing units. However, presuming all other requirements of the statute are met, converting the second and third floors to multifamily housing units may be eligible for deferral as this space is currently being used for "qualifying activities."
To maintain eligibility for the potentially qualifying portions of the project, applicant cannot initiate construction on any eligible portion of the project (including what may be considered related facilities) until the applicant has submitted their application to the department. However, because "initiation of construction" applies to each phase of a project separately, the applicant may initiate construction for the coffee shop renovation phase of the project before submitting their application to the department without invalidating the potentially qualifying portions of the project that will occur in a separate phase of construction.
(7) When is apportionment of underutilized commercial properties appropriate? A deferral of sales or use tax under this program is only allowable for underutilized commercial properties that are currently used or are intended to be used for a "qualifying use." If a portion of an applicant's property is not used, or intended to be used, for a qualifying use at the time of application to the governing authority for conditional approval, that portion does not qualify for tax deferral treatment and the underutilized commercial property must be apportioned.
(a) How does the department apportion qualifying and nonqualifying underutilized commercial property? The apportionment method used depends on the status of the eligible investment project.
(i) Deferral estimate (required before issuance of deferral certificate): The department will use the estimated figures in the conditional recipient's application to the department to provide a preliminary estimate of the amount of costs for which taxes may be deferred. The department will use the following ratio to apportion an eligible investment property:
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(ii) Final deferred tax amount (required after investment project is operationally complete): The department will calculate the final deferred tax amount using the conditional recipient's actual construction costs for eligible purposes (multifamily housing) in the investment project. The department will determine the actual costs eligible for deferral by touring the operationally complete investment project and auditing the conditional recipient's records. The final deferral figure will supersede the department's preliminary deferral estimate.
Example 6: Apportionment of qualifying and nonqualifying activities.
Facts: An applicant seeks a deferral to convert a church into multifamily housing. Of the total 5,000 square feet of space in the church, a 4,000 square foot area is used for religious activities and a 1,000 square foot area is used by staff for administrative activities, such as accounting, organizing community events, and other administrative activities. The applicant estimates that the project will cost about $1,000,000. The combined sales/use tax rate at this location is 9%.
Result: Presuming all other requirements of the statute are met, the 1,000 square feet of space used for "qualifying activities" is eligible for deferral, but the remaining 4,000 square feet are not because space used for religious services is not an eligible qualifying use. In approving the application, the department will estimate the costs that may be deferred as follows:
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1,000 square feet of the investment property with a qualifying use is divided by the 5,000 total square footage of the property (which equals 20%). 20% is multiplied against the estimated cost of $1,000,000 to equal $200,000. When the department issues the deferral certificate to the applicant, the certificate will state an estimated amount of $200,000 for qualifying purchases. Although it will not appear on the deferral certificate, the estimated tax eligible for the deferral will be $18,000 (9% tax rate multiplied by $200,000 of estimated costs).
(8) What types of projects are eligible for deferral?
(a) Certain mixed-use projects may be eligible for deferral. Local jurisdictions may approve certain mixed-use projects (i.e., projects that have both a commercial and residential component). However, commercial activity must be restricted to the ground floor of the building and the remainder of the building must be used for multifamily housing units. "Ground floor" means the building floor that is level with the street. Points of access to both the commercial and residential components of a mixed-use project that are not on the ground floor may qualify as "related facilities" to an eligible investment project. Applicants are encouraged to request a letter ruling from the department prior to submitting their application to determine if the facilities in their investment project may qualify for deferral.
Example 7: Related facilities in mixed-use development projects.
Facts: Applicant applies for a conditional certificate of program approval for an existing mixed-use building. The ground floor of the building currently has several shops and a day care facility while the remainder of the building is used entirely for office-related activities. The day care facility has a fenced outdoor playground for the children. The applicant plans to convert the ground floor to a restaurant and renovate the outdoor playground to be used by the multifamily housing residents. The applicant reaches out to the department to clarify whether purchases for the outdoor playground qualify for deferral.
Result: Presuming all other requirements of the statute are met, purchases for the outdoor playground qualify for tax deferral. This is because the term "investment project" also includes investment in related facilities. In this case, the fenced outdoor playground would be related to the multifamily housing as it is for the use of the residents, and any renovation costs for the outdoor playground would be deferrable.
(b) Are additions eligible for deferral? The eligibility of an addition will depend on the facts and circumstances at issue. All areas of an investment project must qualify for the deferral, including any addition. Otherwise, areas that do not qualify for the deferral will be apportioned out under subsection (7) of this rule. If an applicant is unsure whether their project qualifies for the deferral, they may contact the department at 360-534-1443, or email at DORdeferrals@dor.wa.gov.
Example 8: Addition to previously renovated commercial building.
Facts: Applicant applies for a conditional certificate of program approval for a renovated commercial building that previously qualified for tax deferral under this program. The building, previously used for office-related activities, is now fully comprised of several multifamily housing units. However, the applicant would like to expand the current building to add additional units. Applicant reaches out to the department to clarify whether purchases for an addition to this property may qualify for deferral.
Results: Purchases for an addition to this property do not qualify for deferral. This is because the property is no longer used or intended to be used for a "qualifying use" as it has already been fully converted to multifamily housing units. As such, this building no longer qualifies as an underutilized commercial property for the purposes of tax deferral under this program.
[Statutory Authority: RCW 82.59.010(13), 82.32.300, and 82.01.060. WSR 25-07-034, s 458-20-305, filed 3/11/25, effective 4/11/25.]