Petition for Writ of Certiorari — Lewis County v. United States

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In the

SUPREME COURT OF THE UNITED STATES

October Term, 1998

LEWIS COUNTY , WASHINGTON; BILL BROOKS, County

Assessor, Lewis County, Washington; DONNA KARVIA, Clerk,

Lewis County Superior Court; JOE COOKE, Treasurer, Lewis

County, Washington; GARY ZANDEL, County Auditor, Lewis

County Washington, KEVIN E. MURPHY, BERNICE MURPHY,

Petitioners,

V.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT

OF APPEALS FOR THE NINTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

AND APPENDIX

Of Counsel: Douglas E. Jensen

Jeffrey P. Helsdon Counsel of Record

Christopher M. Constantine 360 NW North Street

3730 South Pine Street Chehalis, WA 98532

Tacoma, WA 98409 (360) 740-1240

(253) 471-1200

QUESTIONS PRESENTED

1. Does 7 U.S.C. §1984 waive the immunity of the United States

of America from interest, penalties and foreclosure imposed by

Lewis County, Washington on real property held by respondent?

2. Did the Court of Appeals, in ruling that the waiver of immunity

in 7 U.S.C. §1984 did not extend to interest, penalties and

foreclosure, violate the doctrine of separation of powers?

3. Did the Court of Appeals, in ruling that the waiver of immunity

in 7 U.S.C. §1984 did not extend to interest, penalties and

foreclosure, violate principles of federalism?

4. Should 7 U.S.C. §1984 be liberally construed in favor of the

taxing authority of Lewis County, Washington?

5. Does the commercial character of FSA’s activities preclude any

claim of immunity from interest, penalties or foreclosure?

aie

RULE 29.1 STATEMENT

Pursuant to Supreme Court Rule 29.1, petitioners state that

there are no parent corporations nor any non-wholly owned

subsidiaries of corporate filers.

TABLE OF CONTENTS

Page

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STATUTORY PROVISION INVOLVED ................. Xi

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REASONS FOR GRANTING THE PETITION .............. 7

I. The Court of Appeals Decision That 7 U.S.C. §1984

Does Not Waive the Immunity of The United States With Respect

to Interest, Penalties and Foreclosure Misinterpreted the Statute’s

Requirement That All Property Acquired or Held by the Secretary

of Agriculture Shall be Subject to Taxation by State and Local

Political Subdivisions in the Same Manner and to the Same Extent

ill

eg RR PP ee re nee 7

II. The Court of Appeals Decision Violated the Doctrine of

SIS GE TS a as osia es HSER 12

III. The Court of Appeals Decision Violated Principles of

POA, o505 60 60d cas cewktin oe sns an Viren eee seds 16

IV. The Court of Appeals Decision is in Conflict With

California State Board of Equalization v. Sierra Summit, Inc.,490

Soa PROD Vs ans haueenseuess ba ucbenenlseeksaeee 17

V. The Court of Appeals Decision Failed to Adequately

Consider the Legislative History of the Statute. ............. 18

VI. The Court of Appeals Decision that 7 U.S.C. §1984

Does Note Waive the Immunity of the United States with Respect

to Interest, is in Conflict With Library of Congress v. Shaw, 478

CO. . BOR. SETS CIS os oe wh Fee MO ES cca 20

VII. The Court of Appeals Decision is in Conflict With

United States v. Kimbell Foods, Inc., 440 U.S. 715 (1979). ....21

VIII. The Court of Appeals Decision Failed to Consider

the Effect of the Commercial Character of FSA’s Activities Upon

Respondent’s Claim of Immunity From Interest, Penalties and

iV

PON. os HT i FAs ooo 22

IX. The Court 0: .°« deals Decision is in Conflict With

Reconstruction Finance Corporation v. Beaver County, 328 U.S.

204 (1946) and Federal Reserve Bank v. City of Richmond, 957

Fis Be GAs ROME 6 obec eccavcdvuccecece douse then 24

X. The Court of Appeals Decision is in Conflict With 7

CF aes SEER ass EPROM <dccscansesetacesneeteteseias 26

XI. The Court of Appeals Decision Misplaced Reliance

Upon United States v. Alabama, 313 U.S. 274 (1941). ........ 27

XII. The Court of Appeals Decision Erred in Concluding

that Petitioners Murphy Were Not Prevailing Parties Under 28

[EERE 0rcenenncvadwencecpnmen an eae manmetc ieee 29

RROD hikes cndek eg ekckaseebisee feces 30

APPENDIX A

- APPENDIX B

APPENDIX C

APPENDIX D

APPENDIX E

a

TABLE OF AUTHORITIES

Federal

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Se Cres Os 42 silkely a Swe san eet ieee nea 10, 25

FP Ries ORG 685s 0c Furs ve Fees bs Pree era 7

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Pe ENE ove Cea vivivevesecaccweuweesseas- Venta 24

eR aFare BOON. 6. bec enous vcanveceeseeuueads weenie 1]

Bees BONES Si Nccasoevedvenerstiees sy eneyeneenae 6, 29

eg gk ee ang er pee iv, 8, 26, 27

Figel aes GUO 8 sk 0s eve babes hewn ens eeeueeee iv, 26, 27

State

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Fk FF PUES TTT OUT TT PTT TTT TEESE ETE Cre 11

Ape PTE Sei cevdetedstesiddedeccevecset sea 11

Case Law

Arizona Department of Revenue v. Blaze Construction, Inc., 67

Cs Wes UE 0 SSCL LERREENS See IUIRLOM Wiee 16

Arkansas v. Farm Credit Services of Arkansas, 520 U.S. 821

() Se pene bee sa perc rs Ape QRS PIER eee bee | 24

BFP v. Resolution Trust Corporation, 511 U.S. 531 (1994) .... 16

California State Board of Equalization v. Sierra Summit, Inc., 490

SRE 6c nove uceksdencnveeeeves iv, 9, 14, 17, 18, 28

Department of Employment v. United States, 385 U.S. 355

SRE OX sv os Sed are he cane hes $y ek mbededeseech bu CsRTs 12

Federal Reserve Bank v. City of Richmond, 957 F.2d 134 (4th Cir.

SR SA va ORs CNUs seek kd iere Sade eeecckabeeedua v, 24

First Agricultural National Bank of Berkshire County v. State Tax

COE, Soe Se. Se CUED 6 08 deck dete dée ceo ecves 14

Graves v. New York, ex rel. O'Keefe, 306 U.S. 466 (1939)...... 9

Jefferson County, Alabama v. Acker, 1999 WL 401256, 7 (U.S.) 14

Library of Congress v. Shaw, 478 U.S. 310 (1986) ........ iv, 20

North Dakota v. United States, 495 U.S. 423 (1990) ......... 13

Vil

Oklahoma Tax Commission v. Texas Company, 336 U.S. 342

Se cheery nei en ie braun amare earn e Weg erie 9

Oklahoma Tax Commission vy. United States, 319 U.S. 598

GUUS a. Ca vvobaWenwandetecaed hobcersaves er etern 9,14

Pearlstein v. SBA, 719 F.2d 1169 (C.A.D.C. 1983) .......... 23

Reconstruction Finance Corporation v. Beaver County, 328 U.S.

PE 55 5 FAR EL eee eaaa eek es v, 8, 10, 24, 25, 28

Rockford Life Insurance Company v. Illinois Department of

I EE As SIE v6 Si ccwnwehadeasibee lean sews s 14

Standard Oil Co. v. United States, 267 U.S. 76 (1925) ........ 19

United States v. Alabama, 313 U.S. 274 (1941) ........... v, 27

United States v. Broward County, 901 F.2d 1005 (11th Cir. 1990)

ee a ee) Ee Or re i Ce eee a eT 12

United States v. California, 932 F.2d 1346 (9th Cir. 1991),

I, EF Cie PUNE own ci cewindewesdneeve sewer 12

United States v. City of Richmond, 957 F.2d 134 (4th Cir.

OE 8:40 44h a de keh otha di ede keene uroencokees ee 26

United States v. Consumers Scrap Iron Corporation, 384 F.2d 62

oo eee rer ha pene e rays Weary Fe 7, 22

United States v. Dansby, 509 F.Supp. 188 (N.D. Ohio 1981) ... 23

United States v. Hynes, 20 F.3d 1437 (7th Cir. 1994) ......... 13

United States v. Kimbell Foods, Inc., 440 U.S. 715

“SRR RA Repeat Pip re ng Ri wa at oe, Vi lgea ak See ae iv, 21-23, 28

United States v. Lewis County, 94 F.3d 654 (9th Cir. 1996) ...x, 5

United Staies v. Marion County, Florida, 826 F.Supp. 1400

Sees WU I Fo ese RE ee cereWehvcacehecan seeueenas 23

United States v. New Mexico, 455 U.S. 720 (1982) ........ 14-16

United States vy. Tipton, 898 F.2d 770 (10th Cir. 1990) ........ 23

Vail v. Brown, 841 F.Supp. 909 (D.Minn. 1994) ............. 23

Wilder's S.S. Company v. Low, 112 F. 161 (9th Cir. 1901)..... 10

mn horiti

Bankhead-Jones Farm Tenant Act of 1937, Act of July 22, 1937,

rp ee FI SON Os EAS aa re eee ears: 19

Black's Law Dictionary (4th Ed.1968) p.1631 ............... 8

Farmers Home Administration Act of August 14, 1946, Ch. 964,

I aetna Re res eee ee aed 19

Public Law 87-128, Title III, Subtitle D § 334, 75 Stat. 315 ....19

Senate Report No. 566, 87th Cong., Ist Sess. ............ 15, 28

eT ns 53 ea ae 30

iX

|

OPINIONS BELOW

The opinion of the Court of Appeals (App. A, Al-A24) is

not yet reported. An opinion of the Court of Appeals in a prior

appeal in this case is reported at 94 F.3d 654. The opinion of the

district court (App. B, B1-B14) is unreported.

JURISDICTION

The Court of Appeals entered its judgment on April 19,

1999. (App. A, Al-A24). The jurisdiction of this Court is invoked

under 28 U.S.C. §1254(1).

STATUTORY PROVISION INVOLVED

7 U.S.C. §1984 provides, in relevant part, as follows:

All property subject to a lien held by the United

States or the title to which is acquired or held by the

Secretary under this title other than property used

for administrative purposes shall be subject to

taxation by State, territory, district and local

political subdivisions in the same manner and to the

same extent as other property is taxed....

STATEMENT

A. The Subject Properties

Petitioner Lewis County is geographically large, but

lightly-populated subdivision of the state of Washington, with

significant portions of its lands in state and federal ownership. It

has been experiencing socio-economic woes within its

timber/agricultural-based economy in sharp contrast to the general

economic panacea enjoyed nationwide. Petitioners Kevin and

Bernice Murphy are residents of Lewis County who purchased a

foreclosure property, as below described, and reestablished a

working dairy farm on the property.

At various times between 1984 and 1990, the Farmers

Home Administration (FmHA)', now known as the Farm Services

Administration (FSA), acting pursuant to the authority conferred

by Congress under the Consolidated Farm and Rural Development

Act, 7 U.S.C. §1921 et seq., acquired title, by various means, to

several parcels of property in Lewis County. Those parcels, known

1. FmHA was succeeded by the Consolidated Farm Service Agency (FSA) in 1994.

7 U.S.C. §6932(a), (b)(3).

as the “Best,” “Curtis,” “Adams,” “Aust,” “Harris,” and “Evans”

properties had, prior to their acquisition by FmHA, been subject to

mortgages in fav rof FmHA.

While the foregoing properties were owned by FSA, Lewis

County continued to levy ad valorem property taxes against those

properties. FSA refused to the taxes on those properties when due.

Consequently, Lewis County imposed interest and penalties

against those properties for nonpayment of the taxes.

On March 20, 1990, Lewis County served FSA with a

Notice of Application for Judgment Foreclosing Tax Liens and

Summons, pursuant to R.C.W. 84.64.050, including the Best

property. The taxes claimed due in the notice were imposed during

FSA’s ownership. On or about June 6, 1990, the Superior Court of

the State of Washington for Lewis County entered a Judgment and

Order of Sale which included the Best property. On or about June

21, 1990, the Lewis County Treasurer issued a Notice of Tax

Judgment Sale which included the Best property. On July 13,

1990, Lewis County conducted a tax sale and purchased the Best

property.

On January 19, 1994, Lewis County published a Notice of

Applicati 2n for Judgment Foreclosing Tax Liens and Summons.

The notice included the Adams, Aust, Curtis and Harris properties.

On or about February 1, 1994, the Office of the United States

Attorney for the Western District of Washington received by

certified mail a copy of the notice. The taxes claimed in the notice

to be due on those properties were imposed during FSA’s

ownership of those properties. A real property tax Judgment and

Order of Sale which included that Adams, Aust, Curtis and Harris

properties was entered by the Superior Court of the State of

Washington for Lewis County on March 25, 1994. On or about

April 18, 1994, the Lewis County Treasurer issued a Notice of Tax

Judgment Sale scheduled for May 13, 1994. The notice included

the Adam, Aust, Curtis and Harris properties. On or about May 5,

1994, FSA paid under protest all the property taxes, penalties,

interest and other charges owing to Lewis County on the Adams,

Aust, and Curtis properties for the tax years 1990-1994. The total

of the taxes, penalties, interest and other charges paid at that time

i by FSA on the Adams, Aust and Curtis properties was $24,958.27.

3

In 1994, Lewis County, acting pursuant R.C.W. 84.34.108

removed the Adams, Aust and Curtis properties from an

agricultural use classification. Removal of those properties from

an agricultural use classification resulted in both the Aust and

Curtis properties and all but one of the Adams properties being

taxed at a higher rate and in the imposition of a recapture tax and

interest in the amount of $58,356.82. On May 5, 1994, FSA also

paid that amount under protest.

In contrast, FSA did not pay the accrued taxes, penalties

and interest on the Harris property Consequently, on May 13,

1994, petitioners Kevin and Bernice Murphy purchased the Harris

property at the Tax Judgment Sale from Lewis County for $53,500.

Upon acquiring the Harris property from Lewis County,

petitioners Murphy, at their own expense, cleaned and repaired the

property. Thereafter, petitioners Murphy rented the property for

use as a dairy.

B. Proceedings Below

On September 7, 1994, respondent filed a complaint for

declaratory and injunctive relief, restitution and other relief in the

4

United States District Court for the Western District of

Washington. On or about September 30, 1994, petitioners

Murphy filed an Answer and Affirmative Defenses and

Counterclaim.

Petitioners filed a Motion to Dismiss pursuant to Fed R.

Civ. P. 12(b)(1). Petitioner Lewis County joined in the motion of

petitioners Murphy to dismiss. Respondent filed a memorandum

opposing petitioners’ motion to dismiss. Respondent also filed a

Motion for Partial Summary Judgment. The district court in an

unreported decision granted petitioners’ Motion to Dismiss and

denied respondent’s Motion for Partial Summary Judgment.

Respondent appealed. The Court of Appeals reversed and

remanded. United States v. Lewis County, 94 F.3d 654 (9th Cir.

1996).

Upon remand to the district court, petitioners filed a motion

for judgment on the pleadings. Respondent opposed the motion.

The district court in an unreported opinion granted petitioners’

motion. (App. B, B1-B14).

Respondent appealed. Petitioners Murphy filed a cross-

5

appeal. The Court of Appeals affirmed in part, reversed in part,

and remanded. (App. A, Al-A24). The Court of Appeals

concluded that the congressional waiver of immunity in 7 U.S.C.

§1984 did not waive the immunity of the United States from

interest penalties and foreclosure. (App. A, Al2-A20). The Court

of Appeals remanded to the District Court respondent’s claim

regarding imposition by petitioner Lewis County of a higher non-

agricultural tax rate on three of the twenty FSA parcels for the

1994 tax year. (App. A, Al9, A20). The Court of Appeals also

held that respondent need not exhaust state remedies before raising

claims under federal law in District Court. (App. A, A22). The

Court of Appeals left for the District Court’s determination the

issues of exhaustion of state remedies and state limitations on

respondent’s claim for improper classification of FSA lands as

non-agricultural. (App. A, A22). The Court of Appeals also

denied, as premature, the claim of petitioners Murphy for attorneys

fees pursuant to the Equal Access to Justice Act, 28 U.S.C. §2412.

(App. A, A22-A23).

Petitioners timely filed a Petition for Rehearing. The

6

Court of Appeals denied the Petition for Rehearing by Order dated

May 20, 1999. (App. C). Petitioners timely filed a Motion for

Stay of Mandate. The Court of Appeals stayed the mandate by

order filed on June 10, 1999. (App. D). Petitioners thereafter

timely filed this Petition for Writ of Certiorari.

REASONS FOR GRANTING THE PETITION

I. The Court of Appeals Decision That 7 U.S.C. §1984 Does

Not Waive the Immunity of the United States With Respect to

Interest, Penalties and Foreclosure Misinterpreted the

Statute’s Requirement That All Property Acquired or Held by

the Secretary of Agriculture Shall be Subject to Taxation by

State Subdivisions in the Same Manner and to the Same Extent

as Other Property is Taxed.

7 U.S.C. §1984 provides that the subject properties, while

owned by FSA, were “subject to taxation.” The Court of Appeals

decision failed to adequately interpret the term “taxation.” Instead,

the Court of Appeals adopted the Sixth Circuit’s view of the term

“taxes” as announced in United States v. Consumers Scrap Iron

Corp., 384 F.2d 62, 64-65 (6th Cir. 1967). (App. A, Al4). The

7

statute at issue in Consumers Scrap Iron Corp., 15 U.S.C. §646,

did not include the term “taxation.” Moreover, the Court of

Appeals’ reliance on the definition of “taxes” in Consumers Scrap

Iron fails to address FSA’s definition of “tax” in 7 C.F.R. 1925.2.

(App. E).

The Court of Appeals decision apparently makes no

distinction between the statute’s use of the term “taxation” and

“taxes.” Petitioners understand the term “taxation” as referring to

“(t]he process of taxing or imposing a tax.” Black's Law

Dictionary (4th Ed.1968) p.1631. Further, this Court has

construed the term “taxation” in a Congressional waiver of tax

immunity to include assessment, collection and refunding.

Reconstruction Finance Corporation v. Beaver County, 328 U.S.

204, 209 (1946). The failure of the Ninth Circuit Court of

Appeals to recognize the distinction between the words “taxation”

and “‘tax”’ thus seriously undermines the plain intent of the statute;

namely, to secure to local taxing authorities the ability to levy and

timely collect tax revenue from lands acquired by FSA. Review by

this Court is warranted to clarify the meaning of the term

8

“taxation” in the statute.

The Court of Appeals reasoned that “‘taxation’ does not

unequivocally include interest and penalties.” (App. A, Al-A16).

Implicit in the reasoning of the Court of Appeals is the view that

the United States is immune from interest and penalties unless

Congress unequivocally provides otherwise. Such a view is

contrary to the principle, frequently recognized by this Court, in

the area of tax immunity, that “[s]ilence of Congress implies

immunity no more than does silence of the Constitution.” Graves

v. New York, ex rel. O'Keefe, 306 U.S. 466, 480 (1939); Oklahoma

Tax Commission v. United States, 319 U.S. 598, 604 (1943);

Oklahoma Tax Commission v. Texas Co., 336 U.S. 342, 365-67

(1949); California State Board of Equalization v. Sierra Summit,

Inc.,490 U.S. 848, 851-52 (1989). Review by this Court is

therefore warranted to correct the Court of Appeals on this issue.

The Court of Appeals’ extension by way of negative

implication to respondent of immunity from interest, penalties and

foreclosure cannot be reconciled with the rejection of such

reasoning by this Court in Sierra Summit. 450 U.S. 851. Review

9

by this Court is necessary to correct the Court of Appeals’

extension by ‘negative implication’ of immunity to FSA from

interest, penalties and foreclosure.

Addressing the statute’s use of the phrase “in the same

manner,” the Court of Appeals found the language ambiguous.

(App. A, Al6, Al7). In so doing, the Court of Appeals overlooked

the meaning given that phrase by federal precedent. Wilder's S.S.

Co. v. Low, 112 F. 161, 164 (9th Cir. 1901). (“[T]he phrase ‘in the

same manner’ has a well understood meaning in legislation, and

that meaning is not one of restriction or limitation, but of

procedure.”). Further, in Reconstruction Finance Corporation v.

Beaver County, this Court determined the phrase “to the same

extent according to its value as other property is taxed” in 15

U.S.C. §610 as indicating Congressional intent to integrate

Congress’ permission to tax with established local tax assessment

and collection machinery. 328 U.S. 210. Likewise, 7 U.S.C. §1984

evidences, by the similar phrase “in the same manner and to the

same extent,” a Congressional intent to integrate permission to tax

with established state tax collection procedure. Review by this

10

Ao ine >

i

5

:

Court is appropriate to give the phrase “in the same manner and to

the same extent” appearing in 7 U.S.C. §1984 a meaning consistent

with federal precedent.

The Court of Appeals’ narrow construction of 7 U.S.C.

§1984 also fueled the rejection of petitioners’ argument that the

United States must first exhaust state remedies before raising its

claims in federal district court. (App. A, A22). An accurate

reading of 7 U.S.C. §1984, to recognize Congressional consent to

the “manner” and “extent” of state “taxation,” necessarily subjects

property acquired by FSA to the entirety of the State of

Washington’s real property tax code. Review by this Court is

therefore necessary to resolve whether, by reason of the language

of 7 U.S.C. §1984, Congress has thereby subjected property

acquired by FSA to the requirement of payment of the tax under

protest (R.C.W. 84.68.020); statute of limitations (R.C.W. _

84.68.060); and exclusive remedies provision (R.C.W. 84.68.070).

The Court of Appeals supported its conclusion regarding

exhaustion of state remedies by invoking 28 U.S.C. §§1331, 1345.

(App. A, A22). Review by this Court is appropriate to resolve

11

whether the Court of Appeals’ reliance upon general federal

question jurisdiction statutes was warranted in light of the specific

waiver of tax immunity in 7 U.S.C. §1984.

The Court of Appeals, in support of its conclusion that

respondent need not exhaust state remedies, also relied upon

Department of Employment v. United States, 385 U.S. 355, 357-58

(1966) and United States v. Broward County, 901 F.2d 1005 (11th

Cir.1990). (App. A, A22). In Department of Employment, this

Court had no occasion to construe a Congressional waiver of tax

immunity such as 7 U.S.C. §1984. In relying upon Broward

County, the Court of Appeals overlooked its earlier refusal to

follow Broward County in United States v. California, 932 F.2d

1346, 1351-52 (9th Cir. 1991), affirmed, 507 U.S. 746 (1993).

Review by this Court of the Court of Appeals decision is

appropriate to determine whether the Court of Appeals misplaced

reliance upon Department of Employment and Broward County.

Il. The Court of Appeals Decision Violated the Doctrine of

Separation of Powers.

Central to the Court of Appeals decision regarding FSA’s

12

wate! M

So Gee GST OR err. ew #40261

immunity from interest, penalties and foreclosure is that Court’s

application of the principle that waivers of sovereign immunity are

narrowly construed in favor of the sovereign. (App. A, A15-A16).

By invoking a principle of sovereign immunity in developing its

opinion, the Court of Appeals refused to consider or was unaware

that sovereign immunity and tax immunity are distinct concepts.

United States v. Hynes, 20 F.3d 1437, 1444 n.1 (7th Cir.1994) (en

Banc) (Cudahy, J., concurring). Review of the Court of Appeals

decision is appropriate to clarify whether principles applicable to

sovereign immunity are properly invoked on issues of tax

immunity.

Decisions of this Court repeatedly recognize “the primary

role of Congress in resolving conflicts between the national and

state governments.” North Dakota v. United States, 495 U.S. 423,

435 (1990) (citing United States v. County of Fresno, 429 U.S.

452, 467-68 (1977)). The deference afforded by the decisions of

this Court to the primary role of Congress on matters of tax

immunity derives from the doctrine of separation of powers.

United States v. New Mexico, 455 U.S. 720, 737-38 (1982);

13

Jefferson County, Alabama v. Acker, 1999 WL 401256, 7 (U.S.).

The deference due Congress on matters of tax immunity

has prompted this Court to decline recognition of an exemption

from state taxation that Congress has not clearly established.

Rockford Life Ins. Co. v. Illinois Department of Revenue,

482 U.S. 182, 191 (1987); California State Board of Equalization

v. Sierra Summit, Inc., 490 U.S. 851-52; First Agricultural

National Bank of Berkshire County v. State Tax Commission, 392

U.S. 339, 346 (1968): Oklahoma Tax Commission v. United States,

319 U.S. 606-07.

The Court of Appeals decision violates the foregoing

principles by affording FSA an immunity from interest, penalties

and foreclosure where Congress has not clearly established such

immunity. The Court of Appeals recognized such immunity by

simply invoking a rule of statutory construction. The Court of

Appeals made no attempt to support its invocation of a rule of

strict construction of the statute in favor of the federal sovereign

with any language in the text of 7 U.S.C. §1984.

The Court of Appeals found support for FSA’s immunity

14

from foreclosure in the following excerpt from Senate Report No.

566, 87th Cong., Ist Sess.:

Property acquired in liquidation of loans is

disposed of promptly, so that the incident of the tax

does not greatly interfere with the resale of the

property or the recovery of security value. (App. A,

Al8).

The foregoing excerpt from the Senate Report fails to

“1 aS ee ee :

mention anything with respect to foreclosure of FSA properties for

nonpayment of taxes, thus failing to provide the clear expression of

Congressional intent to exempt property from state taxation

required by this Court’s decisions in Rockford and Sierra Summit.

By employing a rule of statutory construction to confer

immunity from interest, penalties and foreclosure, the Court of

Appeals assumed the role of final arbiter of the competing

q demands between two sovereigns. The Court of Appeals has failed

to heed this Court’s admonition that “the political process is

‘uniquely adapted to accommodating the competing demands’ in

; this area.” United States v. New Mexico, 455 U.S. 738 (quoting

15

Massachusetts v United States, 435 U.S. 444, 456 (1978)).

Review by this Court of the Court of Appeals decision will

provide an opportunity for this Court to give needed guidance on

the role of a federal court in construing a Congressional waiver of

tax immunity such as 7 U.S.C. §1984.

Ill. The Court of Appeals Decision Violated Principles of

Federalism.

Principles of federalism require that a federal court take a

narrow approach to questions of governmental tax immunity.

United States v. New Mexico, 455 U.S. 735-36; Arizona

Department of Revenue v. Blaze Construction, Inc., 67 U.S.L.W.

4156, 4157 (1999). The Court of Appeals decision violates those

principles by depriving petitioner Lewis County access to

traditional means of enforcing taxes and raising operating revenue

from properties acquired by FSA. Instead, the Court of Appeals

“assume[s]” that the FSA will “pay its taxes when due,” or at least

before “convey[ing] marketable title,” whenever that date arrives.

(App. A, Al9).

This Court has further recognized that to displace

16

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a NURS eae Sa LRTI SU RIER Re RRR et Se

traditional state regulation, the federal statutory purpose must be

‘clear and manifest’”. BFP v. Resolution Trust Corp., 511 U.S.

531, 544 (1994) (quoting English v. General Electric Co., 496 U.S.

72, 79 (1990)). The Court of Appeals decision makes no pretense

of identifying such purpose in 7 U.S.C. §1984. Review by this

Court of the Court of Appeals decision is therefore needed to

resolve whether 7 U.S.C. §1984 can be said to clearly and

manifestly evidence a Congressional intent to displace petitioner

Lewis County’s access to traditional property tax collection

devices and needed tax revenue.

1V. The Court of Appeals Decision is in Conflict With

California State Board of Equalization v. Summit, Inc., 490 U.S.

844 (1989).

The Court of Appeals’ reasoning with respect to FSA's

claim of immunity from interest, penalties and foreclosure rests on

the premise that “waivers of sovereignty must be strictly construed

in favor of the sovereign.” The Court of Appeals’ adoption of such

a premise places the Court of Appeals’ decision irreconcilably in

conflict with this Court’s decision in Sierra Summit. Central to

17

this Court’s decision in Sierra Summit was a liberal construction of

the Congressional waiver of tax immunity in 28 U.S.C. §960 in

favor of state taxes. 490 U.S. 852 n.9. The Court of Appeals

decision fails to even mention Sierra Summit. Petitioners know of

no plausible reason why the Congressional waiver of tax immunity

in 28 U.S.C. §960 should be afforded a liberal construction in

favor of state taxation by this Court in Sierra Summit, while in this

case the similar Congressional waiver of tax immunity in 7 U.S.C.

$1984 be narrowly construed by the Court of Appeals in favor of

the federal sovereign. Only by undertaking review of the Court of

Appeals decision can this Court resolve the conflict with Sierra

Summit raised by the Court of Appeals’ narrow construction of 7

U.S.C. §1984 in favor of the federal sovereign.

V. The Court of Appeals Decision Failed to Adequately

Consider the Legislative History of the Statute.

The Congressional intent behind 7 U.S.C. §1984 is evident

from the evolution of Congressional enactments in this area.

Congress first spoke on FSA’s exemption from state taxes in

Section 40(1) of the Bankhead-Jones Farm Tenant Act of 1937,

18

Act of July 22, 1937, Ch. 517, 50 Stat. 522, 531. (App. E).

Congress progressed to the limited waiver of tax immunity in

§501(a) of the Farmers Home Administration Act of August 14,

1946, Ch. 964, 60 Stat. 1062. (App. E). Congress expanded the

waiver of tax immunity to its present form by passage of 7 U.S.C.

§1984, adopted in 1961 as Public Law 87-128, Title III, Subtitle

D§334, 75 Stat. 315. (App. E). Thus, it is evident that the policy

of Congress for the past 50 years has been to expand, rather than to

contract, the scope of the waiver of FSA’s immunity from state and

local taxation.

The Court of Appeals decision gives little, if any

recognition to Congress’ expansion of the waiver of FSA’s waiver

of tax immunity. The Court of Appeals’ narrow construction of 7

U.S.C. §1984 therefore cannot be reconciled with the statute’s

history. Review by this Court of the Court of Appeals’ decision

will provide an opportunity for this Court to resolve the conflict

between the Court of Appeals’ decision and the legislative history

of 7 U.S.C. §1984.

19

VI. The Court of Appeals Decision that 7 U.S.C. §1984 Does

Not Waive the Immunity of the United States With Respect to

Interest, is in Conflict With Library of Congress v. Shaw, 478

U.S. 310, 317 n.5 (1986).

In concluding that 7 U.S.C. §1984 did not waive FSA’s

immunity from interest, the Court of Appeals relied upon Library

of Congress v. Shaw, 478 U.S. 310, 319-20 (1986). (App. A,

A15). The Court of Appeals overlooked this Court’s recognition in

Shaw of an exception to the no-interest rule when a federal entity

engages in a commercial activity. “[T]he no-interest rule is simply

inapplicable where the Government has cast off the cloak of

sovereignty and assumed the status of a private commercial

lender.” 478 U.S. 318 n.6 (citing Standard Oil Co. v. United States,

267 U.S. 76, 79 (1925)).

FSA’s activities in this case, in acquiring title to properties

securing loans made by FSA, are clearly commercial in character.

United States v. Kimbell Foods, Inc., 440 U.S. 715, 734-35 (1979).

The Court of Appeals decision fails to recognize the

commercial activity exception to the ‘no- interest rule.’ The Court

20

of Appeals decision is therefore in direct conflict with Shaw.

Review by this Court of the Court of Appeals decision is

appropriate to resolve the conflict created by the Court of Appeals’

failure to apply the commercial activity exception to the no-interest

rule recognized in Shaw.

VII. The Court of Appeals Decision is in Conflict With United

States v. Kimbell Foods, Inc., 440 U.S. 715 (1979).

The Court of Appeals expressed doubt that Congress

intended the outcome whether FSA was subject to interest,

penalties and foreclosure to depend upon varying characterizations

of state law. (App. A, Al4). Such a view of 7 U.S.C.§1984 is at

odds with this Court’s recognition of FSA’s high degree of

integration of its regulations with state law. United States v.

Kimbell Foods, Inc., 440 U.S. 715, 730-31. In Kimbell Foods, the

integration of FSA’s regulations with state law prompted this

Court’s conclusion that a uniform federal rule of priority was

unnecessary to protect FSA’s interests. 440 U.S. 732.

Such a conclusion is no less warranted here. The Court of

Appeals decision fails to identify any activity on the part of FSA

21

that would require departure from this court’s analysis in Kimbell

Foods.

The Court of Appeals cited Kimbell Foods, but did so

without discussion. (App. A, Al2). Instead, the Court of Appeals

chose the view of the Sixth Circuit in Consumers Scrap Iron, 384

F.2d 64-65. The construction given the Small Business Act in

Consumers Scrap Iron must give way to the analysis of that Act in

Kimbell Foods. Review by this Court of the Court of Appeals

decision is therefore necessary to resolve whether 7 U.S.C.§1984

should be construed in accordance with this Court’s opinion in

Kimbell Foods.

VIII. The Court of Appeals Decision Failed to Consider the

Effect of the Commercial Character of FSA’s Activities Upon

FSA’s Claim of Immunity From Interest, Penalties and

Foreclosure.

Conspicuously absent from the Court of Appeals decision

is any meaningful discussion of the commercial character of FSA’s

activities. In Kimbell Foods, this Court concluded that the status

of FmHA as a quasi-commercial lender deprived FmHA of any

22

a

PR ae Se 22 eS ee 2h hh sie ss i pare ad pu iris ay re iia Re ee ne o eden pO

special priority to which the federal sovereign is entitled in its tax

collecting capacity. 440 U.S. 737-38.

Kimbell Foods has provided persuasive authority to federal

courts in resolving claims of tax immunity asserted by federal

lending entities against state or local taxing authorities. United

States v. Tipton, 898 F.2d 770 (10th Cir. 1990); Pearlstein v. SBA,

719 F.2d 1169, 1176-77 (C.A.D.C. 1983); United States v. Dansby,

509 F.Supp. 188, 193-95 (N.D. Ohio 1981); United States v.

Marion County, Fla., 826 F.Supp. 1400, 1402 (M.D., Fla. 1993);

Vail v. Brown, 841 F.Supp. 909 (D.Minn.), affirmed, 39 F.3d 208

(8th Cir. 1994), cert. denied, 515 U.S. 1102 (1995).

More recently, in Arkansas v. Farm Credit Services of

Arkansas, 520 U.S. 821 (1997), this Court again concluded that the

commercial character of a federal lending entity’s activities

deprived the entity of any claim of exemption from the Tax

Injunctions Act. 28 U.S.C. §1341. 520 U.S. 531-32.

The Court of Appeals’ failure to afford any weight to the

commercial character of FSA’s activities in this case places the

Court of Appeals decision in conflict with Kimbell F oods and its

23

progeny and with Farm Credit Services. Review by this Court of

the Court of Appeals decision is therefore necessary to resolve this

conflict.

IX. The Court of Appeals Decision is in Conflict With

Reconstruction Finance Corporation v. Beaver County, 328 U.S.

204 (1946) and Federal Reserve Bank v. City of Richmond, 957

F.2d 134 (4th Cir. 1992).

The Court of Appeals refused to read “taxation” in 7 U.S.C.

$1984 to include interest, penalties and foreclosure. (App. A,

A16). In contrast, in Reconstruction Finance Corporation vy.

Beaver County, 328 U.S. 204 (1946), this Court construed the term

“taxation” in 15 U.S.C. §610° to include assessment, collection and

refunding. 328 U.S. 209. Further, in Beaver County, this Court

concluded that the language of 15 U.S.C. §610 precluded any

assumption that Congress intended a rule of uniform results

regarding the taxation of real property. 328 U.S. 209. Further, in

Beaver County, this Court construed Congress’ use, in 15 U.S.C.

2. 47 Stat. 5, 55 Stat. 248.

§610, of the phrase “to the same extent according to its value as

other real property is taxed” as indicating “an intent to integrate

Congressional permission to tax with established local tax

assessment and collection machinery.” 328 U.S. 210.

The Court of Appeals’ construction of 7 U.S.C. §1984

cannot be reconciled with this Court’s construction in Beaver

County of similar language in 15 U.S.C. §610. Review by this

Court is therefore necessary to provide a construction of 7 U.S.C.

§610 that is consistent with this Court’s decision in Beaver County.

Review by this Court of the Court of Appeals decision is

also necessary to resolve the conflict created by the court of

Appeals’ refusal to follow the reasoning of the Fourth Circuit in

United States v. City of Richmond, 957 F.2d 134 (4th Cir. 1992), in

which the Fourth Circuit followed Beaver County in resolving

whether the term “tax” in 12 U.S.C. §531 included interest and

penalties. 957 F.2d 136.

The Court of Appeals read City of Richmond’s reference to

the State of Virginia’s definition of “tax” to include interest and

penalties as warranting an opposite conclusion under Washington

25

law. (App. A, Al4 n.6). The use of the term “taxation” in 7 U.S.C.

§1984 precludes such a conclusion in this case.

Review by this Court of the Court of Appeals decision is

therefore necessary to resolve the conflict created by the Court of

Appeals’ refusal to follow Beaver County and City of Richmond.

X. The Court of Appeals Decision is in Conflict with 7 C.F.R.

§§1925.2, 1925.4(b).

The Court of Appeals concluded that 7 U.S.C. §1984 does

not waive FSA's immunity from penalties. (App. A, Al6). The

Court of Appeals decision fails to cite FSA’s regulations on point.

7 C.F.R. §1925.4(b) directs FSA officials, in the event the

borrower is unable or unwilling to pay the delinquent tax, to pay

the amount of the delinquent taxes plus the amount of any accrued

penalty. (App. E). The practical effect of the Court of Appeals’

decision regarding penalties is to invalidate 7 C.F.R. §1925.4(b).

Such an outcome represents an unprecedented interference by a

federal court with the powers delegated by Congress to a federal

executive department. 7 U.S.C. §1989. Review by this Court is

therefore necessary to construe 7 U.S.C. §1984 in a manner

26

consistent with FSA’s regulations.

XI. The Court of Appeals Decision Misplaced Reliance Upon

United States v. Alabama, 313 U.S. 274 (1941).

In concluding that 7 U.S.C. §1984 does not waive FSA's

immunity from foreclosure, the Court of Appeals misplaced

reliance on United States v. Alabama, 313 U.S. 274 (1941).

Alabama predates both 7 U.S.C. §1984 and its predecessor statute.

Alabama must therefore be read in light of these subsequent

legislative enactments. Alabama must also be read in light of

Beaver County, Kimbell Foods and Sierra Summit. Review by this

Court of the Court of Appeals decision regarding FSA’s immunity

from foreclosure is therefore warranted.

The Court of Appeals also reasoned that foreclosure against

FSA property would interfere with FSA’s statutory obligation to

offer forfeited property for re-sale to qualified farmers, citing 7

U.S.C. §1985(c)(1)(B). (App. A, A18). The Court of Appeals’

reasoning overlooks FSA’s opportunity to eliminate any such

interference with its statutory mission by simply following the

mandate of 7 U.S.C. §1984 and paying the taxes assessed by Lewis

27

County at the time the taxes were due.

The Court of Appeals supported its reasoning regarding

FSA’s immunity from foreclosure with the following excerpt from

S.Rep. No. 566, 87th Cong., Ist Sess.:

Property acquired in liquidation of loans is disposed

of promptly, so that the incident of a tax does not

greatly interfere with the re-sale of the property or

the recovery of security value. (App. A, A18).

The Court of Appeals’ reliance upon the following excerpt

from the Senate Report cannot be reconciled with FSA’s activities

in this case in holding the subject properties for years. Such

activity cannot fairly be said to constitute the prompt disposal of

property acquired in liquidation of loans contemplated by Congress

in enacting 7 U.S.C. §1984. Review by this Court of the Court of

Appeals’ decision is necessary to resolve whether foreclosure

against FSA property would thwart the intent of Congress.

28

XII. The Court of Appeals Decision Erred in Concluding that

Petitioners Murphy Were not Prevailing Parties Under 28

U.S.C. §2412.

The errors in the Court of Appeals decision discussed

above undermine the Court of Appeals’ conclusion that petitioners

Murphy were not prevailing parties under 28 U.S.C. §2412.

Review of the Court of Appeals decision on the status of

petitioners Murphy as prevailing parties under 28 U.S.C. §2412 is

warranted.

29

CONCLUSION

“And David put his hand in his bag, and took thence a

stone, and slang it ... “(1 Samuel 17:49).

The petition for a writ of certiorari should be granted.

Of Counsel:

Jeremy Randolph

Lewis County, Washington

Prosecuting Attorney

360 NW North Street

Chehalis, WA 98532

(360) 740-1240

Counsel for Petitioner Lewis

County, Washington

Jeffrey P. Helsdon

Christopher M. Constantine

3730 South Pine Street

Tacoma, WA 98409

(253) 471-1200

Counsel for Petitioners Kevin

and Bernice Murphy

Respectfully submitted

Dougjias E. Jensen

Couhse} of Record

Chyef Civil Deputy, Lewis

County Prosecuting Attorney

360 NW North Street, MSPROO1

Chehalis, WA 98532

(360) 740-1240

Counsel for Petitioner Lewis

County, Washington

30

APPENDIX A

Opinion, United States of America v. Lewis County, U.S.C.A. 9

Nos. 97-35720 and 97-35510 (filed April 19, 1999)

APPENDIX B

Amended Order Granting Defendants Murphys’ Motion for

Judgment on the Pleadings, United States of America v. Lewis

County, U.S.D.C. W.D.WA No. C94-5474FDB

Judgment, United States of America v. Lewis County, U.S.D.C.

W.D.WA No. C94-5474FDB

APPENDIX C

Order Denying Rehearing, United States of America v. Lewis

County, U.S.C.A. 9 Nos. 97-35510, 97-35720 (filed May 20, 1999)

APPENDIX D

Order Staying Mandate, U.S.C.A. 9 Nos. 97-35510, 97-35720

(filed June 10, 1999)

APPENDIX E

Constitutional Provisions, Treaties, Statutes, Ordinances and

Regulations

APPENDIX A

UNITED STATES of America,

Plaintiff-Appellant-Cross-Appellee,

v.

LEWIS COUNTY, WA; Bill Brooks, County Assessor, Lewis

County, Washington; Donna

Karvia, Clerk, Lewis County Superior Court; Joe Cooke,

Treasurer, Lewis County,

Washington; Gary Zandel, Defendants-Appellees,

and

Kevin E. Murphy; Bernice Murphy, Defendants-Appellees-

Cross-Appellants.

Nos. 97-35510, 97-35720.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted July 7, 1998.

Decided April 19, 1999.

Federal government brought action against county,

challenging county's assessment of taxes, interest, and penalties on

farm property acquired by the federal Farm Service Agency (FSA)

l

and county's foreclosure on one parcel. Government also asserted

claims against purchasers who bought one FSA parcel from county

at foreclosure sale. The United States District Court for the Western

District of Washington, Franklin D. Burgess, J., entered judgment for

county and purchasers on the pleadings, and government appealed.

Purchasers cross-appealed. The Court of Appeals, Canby, Circuit

Judge, held that: (1) county could tax property held by FSA; (2)

taxation did not improperly discriminate against federal government

under doctrine of intergovernmental tax immunity; (3) federal

government's waiver of immunity did not extend to interest, penalties,

or foreclosure; (4) whether property was properly characterized as

agricultural had to be determined by state law; and (5) purchasers’

counterclaims were either not properly raised or were premature.

Affirmed in part, dismissed in part, reversed in part, and

remanded.

David English Carmack, Bridget M. Rowan, Tax Division, United

States Department of Justice, Washington, D.C., for plaintiff-

appellant-cross- appellee.

Douglas E. Jensen, Office of the Prosecuting Attorney, Chehalis,

2

Washington, for defendants-appellees.

Christopher M. Constantine, Tacoma, Washington, for defendants-

appellees- cross-appellants.

Appeals from the United States District Court for the Western District

of Washington; Franklin D. Burgess, District Judge, Presiding. D.C.

No. CV-94- 05474-FDB.

Before: CANBY and TASHIMA, Circuit Judges, and TAKASUGI,'

District Judge.

CANBY, Circuit Judge:

A federal statute, 7 U.S.C. § 1984, partially waives the

immunity of the federal government from state taxation by

authorizing state and local governments to tax farm property owned

by the federal Farm Service Agency ("FSA") "in the same manner

and to the same extent as other property is taxed." Id. Lewis County,

Washington, imposed taxes, interest and penalties upon twenty

parcels of farm property acquired by the FSA, and foreclosed on one

of the parcels. The United States filed this action in district court,

1. The Honorable Robert M. Takasugi, Senior United States District Judge for the

Central District of California, sitting by designation.

3

challenging these actions of the County. The United States contends

that, because the County does not tax a comparable state agency, its

tax is discriminatory and does not meet the requirements of § 1984

that the federal property be taxed "in the same manner and to the

same extent as other property.” Id. The United States also argues that,

in any event, § 1984 does not authorize the County to collect interest

and penalties, or to foreclose in the event of delinquency. The United

States also disputed the County's application of a higher

nonagricultural tax rate to three of the parcels. The United States now

appeals from the district court's judgment for the County on the

pleadings, entered pursuant to Fed. R. Civ. Pro. 12(c). We review de

novo. See McGann v. Ernst & Young, 102 F.3d 390, 392 (9th

Cir.1996). We conclude that Lewis County may tax the FSA

properties in issue, but that it may neither impose interest and

penalties nor foreclose on those properties. We also conclude that the

United States may challenge the imposition of the higher non-

agricultural tax rate on the ground that it discriminates against the

United States. Accordingly, we affirm in part, reverse in part, and

remand for further proceedings.

The United States named Kevin and Bernice Murphy as co-

defendants because they had purchased an FSA parcel from Lewis

County during a tax foreclosure sale. As cross-appellants, the

Murphys seek to strike the declaration of a witness and obtain

attorneys fees. They also assert affirmative defenses in their cross

appeal. We do not rule upon most of the Murphys’ contentions

because they are improperly or prematurely raised.

BACKGROUND

The FSA, an agency of the Department of Agriculture, lends

money to farmers and ranchers unable to obtain loans elsewhere.” 7

U.S.C. § 1922 (1988 and Supp.1998). The agency may acquire title

to property securing a particular loan if the borrower defaults. 7

U.S.C. § 1985(a). Title 7 U.S.C. § 1984 provides that:

All property ... the title to which is acquired or held by

the Secretary under this chapter other than property

used for administrative purposes shall be subject to

taxation by State, territory, district, and local political

2. The FSA succeeds the Farmers Home Administration, which Congress abolished in

1994. 7 U.S.C. § 6932 (Supp.1998). Although the events of this case span the

reorganization of the agency, we will refer to the agency only as the FSA.

5

subdivisions in the same manner and to the same

extent as other property is taxed....

Thus, state and local authorities may apply a

nondiscriminatory tax to property acquired by the FSA through loan

default.

Lewis County assessed property taxes against twenty parcels

of farmland held by the FSA. The FSA initially refused to pay the

taxes, as well as the related interest and penalties. The FSA also

objected to the County's taxation of three of the parcels at a higher

nonagricultural rate. The County then initiated foreclosure actions

against the parcels. Under protest, the FSA paid the taxes, penalties,

and interest with regard to nineteen of the parcels in order to pass

clear titles to eligible buyers. The County foreclosed on the remaining

parcel and the Murphys purchased it at the foreclosure sale.

The United States then sued for damages and declaratory

relief. The district court dismissed the complaint for lack of

jurisdiction pursuant to the Tax Injunction Act, 28 U.S.C. § 1341

(1993). This court reversed in an unpublished decision and remanded

for a consideration of the substantive issues. United States v. Lewis

6

a siaidiaieiauaiiel

County, 94 F.3d 654 (9th Cir.1996)(Table). On remand, the Murphys

and the County moved for judgment on the pleadings. The district

court granted the motion, reasoning that 7 U.S.C. § 1984 provided a

broad waiver of the federal government's immunity from state and

local taxation with regard to agricultural property acquired by the

FSA.

DISCUSSION

I. Taxation of FSA Property

A. 7 U.S.C. § 1984

Washington's property tax scheme exempts from taxation

"[a]ll property belonging exclusively to the United States, the state,

any county or municipal corporation." Wash. Rev. Code § 84.36.010

(1991). The state's tax scheme also provides that, notwithstanding §

84.36.010, federally owned property is taxable whenever authorized

by federal law. See id. § 84.40.315.° Thus, property acquired by the

FSA through loan default is taxable pursuant to 7 U.S.C. § 1984.

The United States emphasizes that all state and local

3. A State may not directly tax the United States without the federal government's

consent. See United States v. New Mexico, 455 U.S. 720, 733, 102 S.Ct. 1373, 71

L.Ed.2d $80 (1982).

government property in Washington is tax-exempt, including

property acquired by the Washington State Housing Finance

Commission ("Housing Commission"). The Housing Commission

performs a mission that is similar to the mission of the FSA. The

United States then points out that Lewis County may tax FSA

property only "in the same manner and to the same extent as other

property is taxed." 7 U.S.C. § 1984. It insists that property acquired

by Washington's Housing Commission is the relevant "other

property." It reasons that, because Lewis County may not tax property

held by the Housing Commission, or any other state or local

government property, the County may not tax property held by the

FSA. Thus, the United States would construe "other property" as

"other publicly held property."

We do not read "other property" so narrowly. Congress must

have known that states uniformly exempt state and local property

from taxation. See Van Brocklin v. Tennessee, 117 U.S. 151, 173-75,

6 S.Ct. 670, 29 L.Ed. 845 (1886). If we construe 7 U.S.C. § 1984 to

subject FSA property to taxation only where state and local

government property is also taxed, then the waiver would rarely (if

8

ever) take effect. By enacting 7 U.S.C. § 1984, however, Congress

plainly intended to preserve the local tax base in counties where the

FSA operates. We decline to interpret the provision in a way that

would frustrate the obvious intent of Congress. See Philbrook v.

Glodgett, 421 U.S. 707, 713, 95 S.Ct. 1893, 44 L.Ed.2d 525 (1975);

United States v. Hynes, 20 F.3d 1437, 1442 (7th Cir.1994) (en banc).

"Other property" must mean "other non- exempt property." Thus,

Lewis County did not violate 7 U.S.C. § 1984 because it taxed FSA

property just as it taxed other non-exempt property.’

B. Intergovernmental Tax Immunity

The United States also invokes the general principle of

intergovernmental tax immunity that prohibits discrimination against

a state taxpayer because of that taxpayer's connection with the federal

sovereign. See Davis v. Michigan Dept. of the Treasury, 489 U.S.

803, 816, 109 S.Ct. 1500, 103 L.Ed.2d 891 (1989) (citing Phillips

Chem. Co. v. Dumas Indep. Sch. Dist., 361 U.S. 376, 383, 80 S.Ct.

474, 4 L.Ed.2d 384 (1960)). The relevant inquiry in such cases is

4. We are not faced in this case with a contention that the state has established such a

comprehensive system of exemptions that a grossly disproportionate share of the total tax

burden falls on the United States. Our decision does not address such a situation.

9

whether the inconsistent treatment is justified by significant

differences between the class of persons or items taxed and the class

that is not taxed. Id.

Washington's tax scheme undeniably discriminates between

farmland that is held by the FSA and farmland that is similarly held

by the state. State and local governments have traditionally exempted

themselves from state and local taxation, however. See, e.g., Burr v.

Boston, 208 Mass. 537, 538-39, 95 N.E. 208, 209-10 (1911). The

state or local government would gain no revenue, and would incur

some expense, by taxing itself. Taxation of federally owned property,

however, does generate revenue for the state. It is possible that this

distinction might not be sufficiently significant in the absence of

congressional action because, in evaluating the difference in

treatment, " 'the [federal] Government's interests must be weighed in

the balance.’ " Davis, 489 U.S. at 816, 109 S.Ct. 1500 (quoting

Phillips Chemical, 361 U.S. at 385, 80 S.Ct. 474). Here, however,

Congress has made its assessment of the federal interest in 7 U.S.C.

§ 1984 and, as we have already pointed out, that statute reflects an

intent to prevent federal repossession from causing farm land to be

10

removed from the state's tax rolls. Congress's action sufficiently

qualifies the intergovernmental immunity of the United States to

permit the state to make the distinction it has. We see no reason why

state or local governments must engage in a circular process of taxing

themselves in order to impose the tax on the federal government that

Congress has authorized.

It is also worth noting that the County's tax on FSA-owned

farmland is also imposed on privately-owned farmland in general.

Thus there is a political check against excessive taxation. See South

Carolina v. Baker, 485 U.S. 505, 525 n. 15, 108 S.Ct. 1355, 99

L.Ed.2d 592 (1988).

A "political check" is provided when a state tax falls

on a significant group of state citizens who can be

counted upon to use their votes to keep the State from

raising the tax excessively, and thus placing an unfair

burden on the Federal Government. It has been

thought necessary because the United States does not

have a direct voice in the state legislatures.

Washington v. United States, 460 U.S. 536, 545, 103 S.Ct.

11

1344, 75 L.Ed.2d 264 (1983). In the present case, Lewis County

taxed private farmland to the same extent, and in the same manner, as

it taxed FSA farmland.* See Wash. Rev. Code § 84.36.005.

Excessive taxation of the United States is accordingly unlikely.

II. Interest and penalties

The parties dispute whether federal or state law determines the

extent of Congress's waiver of immunity from "taxation" in § 1984.

We agree with the United States that the question of the scope of a

congressional waiver of the federal government's immunity is one of

federal law. See Reconstruction Finance Corp. v. Beaver County, 328

U.S. 204, 208, 66 S.Ct. 992, 90 L.Ed. 1172 (1946) ("What meaning

Congress intended [in its waiver] is a federal question which we must

determine"). As Beaver County indicates, however, Congress may

intend, as a matter of federal law, to apply a state rule. See also

United States v. Kimbell Foods, Inc., 440 U.S. 715, 727-28, 99 S.Ct.

1448, 59 L.Ed.2d 711 (1979).

In Beaver County, the issue was whether Congress, in

5. We address in Section IV, infra, the contention of the United States that the state has

improperly taxed three of its farmland parcels at a higher, non-agricultural rate.

12

as

consenting to local taxation of certain federally-owned "real

property,” permitted Beaver County to tax heavy factory machinery

because under state law such machinery was considered part of the

factory real estate. The Supreme Court held that, the phrase being

undefined by Congress, "the Congressional purpose can best be

accomplished by application of settled state rules as to what

constitutes 'real property." Beaver County, 328 U.S. at 210, 66 S.Ct.

992. Two circuits have held that the rule of Beaver County applies as

well to the question whether interest and penalties were within §

1984's meaning of "taxation." See Federal Reserve Bank of Richmond

v. Richmond, 957 F.2d 134 (4th Cir.1992); Reconstruction Finance

Corp. v. Texas, 229 F.2d 9 (Sth Cir.1956). The Fourth Circuit

concluded that the Federal Reserve Bank must pay interest and

penalties because Virginia law provided that those charges were

taxes. Richmond, 957 F.2d at 137. The Fifth Circuit concluded that

the Reconstruction Finance Corporation was not liable for those items

because interest and penalties were no part of the tax under Jexas

law. Reconstruction Finance Corp. v. Texas, 229 F.2d 9, 11-12 (Sth

Cir.1956).

13

With all due respect, we disagree with the approach of the

Fourth and Fifth Circuits. We do not read Beaver County so broadly.

Its ruling that Congress intended "real estate" to be determined by

state law was grounded in part on the Supreme Court's recognition

that "[c]oncepts of real property are deeply rooted in state traditions,

customs, habits, and laws." Beaver County, 328 U.S. at 210, 66 S.Ct.

992. In contrast, there is a strong federal interest in the question

whether the United States should be subject to state-imposed interest,

penalties and foreclosures, and we doubt that Congress intended the

outcome to depend upon varying characterizations of state law.° We

prefer the view of the Sixth Circuit, which held that the meaning of

a waiver of immunity from state "taxes" was to be determined by

federal law, notwithstanding Beaver County. See United States v.

Consumers Scrap Iron Corp., 384 F.2d 62, 64-65 (6th Cir.1967); see

6. We note, however, that if state law were determinative, the County would fare no

better. The Washington Supreme Court has ruled that "[t]he provision exacting payment

of interest for delinquency in the payment of taxes does not make the interest a part of

the tax." Henry v. McKay, 164 Wash. 526, 533, 3 P.2d 145, 148 (1931). It treats penalties

in the same fashion. See id.; cf. State ex rel. Kern v. Emerson, 90 Wash. 565, 572, 155 P.

579, 582 (1916). A Washington statute defines "tax" to include interest and penalties, but

only for the purpose of an application for refund. Wash. Rev. Code § 84.69.010(2). That

definition permits taxpayers to recover interest and penaities erroneously paid, but does

not purport to characterize the nature of those impositions for other purposes.

14

also Missouri Pacific R. Co. v. Ault, 256 U.S. 554, 565, 41 S.Ct. 593,

65 L.Ed. 1087 (1921) (whether an award is compensation or is a

penalty not included in a waiver of immunity is a question of federal,

not state, law).

As a matter of federal law, there is a long tradition

establishing that "in the absence of constitutional requirements,

interest can be recovered against the United States only if express

consent to such a recovery has been given by Congress.... There can

be no consent by implication or by use of any ambiguous language."

United States v. N.Y. Rayon Importing Co., 329 U.S. 654, 659, 67

S.Ct. 601, 91 L.Ed. 577 (1947); see Library of Congress v. Shaw, 478

U.S. 310, 314-16, 106 S.Ct. 2957, 92 L.Ed.2d 250 (1986). The same

principle applies with at least equal force to penalties. See United

States Dept. of Energy v. Ohio, 503 U.S. 607, 615, 112 S.Ct. 1627,

118 L.Ed.2d 255 (1992); Consumers Scrap, 384 F.2d at 65. The

Supreme Court has also repeatedly stated that waivers of sovereign

immunity must be strictly construed in favor of the sovereign. See

United States v. Nordic Village, Inc., 503 U.S. 30, 34, 112 S.Ct. 1011,

117 L.Ed.2d 181 (1992); McMahon v. United States, 342 U.S. 25, 27,

15

72 S.Ct. 17, 96 L.Ed. 26 (1951).

Applying these principles, we conclude that Congress has not

waived the immunity of the United States from interest and penalties.

The term "taxation" does not unequivocally include the assessment

of interest and penalties. A closer question is whether immunity from

interest and penalties is waived by the provision of § 1984 that FSA-

held property is subject to taxation "in the same manner and to the

same extent as other property is taxed." 7 U.S.C. § 1984. There is

some force to the County's argument that this provision is a broad

waiver intended to permit the states to apply their entire system of

enforcement machinery against the United States, "in the same

manner" as the states would apply that machinery against private

taxpayers. See Beaver County, 328 U.S. at 210, 66 S.Ct. 992; but see

Library of Congress v. Shaw, 478 U.S. 310, 319-20, 106 S.Ct. 2957,

92 L.Ed.2d 250 (1986) ("[s]tatutes placing the United States in the

same position as a private party ... have been read narrowly to

preserve certain immunities that the United States has enjoyed

historically"). The difficulty with the County's approach is that, even

though Congress could have entertained that intent, it did not express

16

it unequivocally. The requirement that federally-held property be

subject to taxation "in the same manner" as other property can refer

to the time when the tax is due, the manner of valuation, or any

number of other elements of the state taxing process other than the

imposition of interest, penalties and foreclosure. This plausible

interpretation is sufficient to render the meaning of the phrase "in the

same manner" ambiguous and preclude us from accepting it as an

unequivocal waiver of immunity from interest, penalties and

foreclosure. See Nordic Village, 503 U.S. at 37, 112 S.Ct. 1011;

Dept. of Energy v. Ohio, 503 U.S. at 619-20, 626-27, 112 S.Ct. 1627;

see also Lane v. Pena, 518 U.S. 187, 116 S.Ct. 2092, 2100, 135

L.Ed.2d 486 (1996).’

III. Foreclosure

Foreclosure against federally-owned property is a suit against

the United States, which cannot be prosecuted without its consent.

See United States v. Alabama, 313 U.S. 274, 282, 61 S.Ct. 1011, 85

7. The Third Circuit permitted the imposition of civil penalties on the Postal Service

without an unequivocal waiver, but in doing so the court distinguished the autonomous

Postal Service from the government itself. Pennsylvania v. U.S. Postal Service, 13 F.3d

62, 67 (1993). The Third Circuit recognized that the United States had been held immune

from penalties under the same statute in Dept. of Energy v. Ohio, supra.

17

L.Ed. 1327 (1941). The district court concluded that 7 U.S.C. § 1984

empowered Lewis County to foreclose on FSA property on the

ground that "taxation ... in the same manner" refers to the procedures

for collecting taxes, which include foreclosure. For the reasons

already discussed in the preceding section, we cannot accept that

phraseology as an unequivocal waiver of immunity.

Foreclosure against FSA property would also interfere with

the statutory mission of that agency. The FSA is required, for

example, to offer forfeited property for resale to qualified farmers.

See 7 U.S.C. § 1985(c)(1)(B). A state foreclosing for a tax debt is

under no such compulsion, and thus might frustrate Congress's intent

in imposing the restriction. Congress apparently did not contemplate

any such possibility in enacting § 1984. See S.Rep. No. 566, 87th

Cong., Ist Sess., reprinted at 1961 U.S.C.C.A.N. 2243, 2316

("Property acquired in liquidation of loans is disposed of promptly,

so that the incident of the tax does not greatly interfere with the resale

of the property or the recovery of security value"). We conclude,

therefore, that § 1984 does not waive the immunity of the United

States from foreclosure of its property by the County.

18

It is true that the inability to foreclose impairs the County's

ability to collect its tax. Such dislocations are not unknown when a

taxing authority deals with another sovereign. See Oklahoma Tax

Comm'n v. Potawatomi Tribe, 498 U.S. 505, 514, 111 S.Ct. 905, 112

L.Ed.2d 1112 (1991). We assume, however, that, now that its liability

for taxes (but not interest or penalties) has been established, the

United States will pay its taxes when due. Payment of such taxes

would seem to be a prerequisite to the ability to convey marketable

title.

For these reasons, we reverse the judgment of the district

court with respect to the County's foreclosure.’

IV. Nonagricultural Tax Rate

Lewis County imposed a higher nonagricultural tax rate on

three of the twenty FSA parcels for the 1994 tax year. The County

also imposed a recapture tax on the ground that it should have applied

the higher tax rate in previous years. The United States argued in its

complaint that the higher tax rate was inappropriate because the

8. The Murphys assert that they are entitled to compensation for the improvements that

they made to the property. We leave this question to the district court for consideration

on remand.

19

parcels had remained agricultural. The district court did not address

this claim.

In contrast to the question whether the United States is subject

to interest, penalties, and foreclosure, the question whether the state

properly characterized the land as agricultural must be determined

according to state law. The issue falls directly within Beaver County.

The congressional purposes behind § 1984 are best accomplished by

"application of settled state rules" geared to state real-property

concepts. Beaver County, 328 U.S. at 210, 66 S.Ct. 992. The only

issue to be determined purely as a matter of federal law is whether the

County has discriminated against the United States in the

establishment or implementation of its rules. See id. We remand the

claim concerning the non-agricultural tax rates to the district court for

determination according to these standards.

V. The Murphys’ Cross-Appeal

In addition to joining many of the arguments of the County as

appellees, the Murphys’ cross-appeal from the district court's

judgment. They claim that: (1) the district court erred in ruling on a

motion to strike portions of certain declarations; (2) in the event of

20

remand, they are entitled to relief on their counterclaim for cost of

improvements to the property; (3) the United States failed to exhaust

state administrative remedies and is barred by limitations from doing

so now; and (4) they are entitled to attorneys fees under the Equal

Access to Justice Act.

Claims (1) and (2) are not properly raised because the

Murphys wholly prevailed in district court when the court granted

judgment against the United States on the pleadings. A party who is

not aggrieved by a judgment ordinarily may not appeal from it. See

Deposit Guaranty Natl. Bank v. Roper, 445 U.S. 326, 333, 100 S.Ct.

1166, 63 L.Ed.2d 427 (1980). The rulings challenged by the Murphys

are not collateral matters that fall within an exception to this rule. See

id. at 333-34, 100 S.Ct. 1166.’

For the same reason, claim (3) is not a proper subject of cross-

appeal, although failure to exhaust can be raised in the main appeal

as an alternative argument in support of the district court's judgment.

See Charley's Taxi Radio Dispatch Corp. v. SIDA of Hawaii, Inc.,

9. Claim (2) is also premature to the extent that it addresses matter to be determined on

remand.

21

810 F.2d 869, 874 (9th Cir.1987) ("We may affirm the district court

on any ground supported by the record, even if the ground is not

relied on by the district court"). With regard to the claims of the

United States that the County violated its sovereign immunity or

discriminated against the United States in violation of its

intergovernmental immunity, the Murphys’ contention is without

merit. The United States need not exhaust state remedies before

raising claims arising under federal law in district court. See 28

U.S.C. §§ 1331, 1345 (1993); Department of Employment v. United

States, 385 U.S. 355, 357-58, 87 S.Ct. 464, 17 L.Ed.2d 414 (1966);

United States v. Broward County, 901 F.2d 1005, 1007-08 (11th

Cir.1990). On the state-law question whether three parcels were

properly classified as non-agricultural land, we prefer to have the

district court rule in the first instance on the question of exhaustion

and state limitations for exhaustion. We therefore leave that matter

for disposition by the district court on remand, as the government

concedes to be appropriate.

With regard to the Murphys’ claim for attorneys fees, the issue

is premature. The Equal Access to Justice Act provides for the award

22

of fees to "a prevailing party ... unless the court finds that the position

of the United States was substantially justified." 28 U.S.C. §

2412(d)(1)(A). In light of our disposition of this appeal, the Murphys

have not established themselves as a "prevailing party." Whether they

prevail to any extent upon remand in a manner to require an award of

fees is yet to be determined; the Murphys may renew their request in

district court at the conclusion of further proceedings.

CONCLUSION

Lewis County may tax property held by the FSA pursuant to

7 U.S.C. § 1984, even though Washington law exempts state and

local government property (including that of the Housing

Commission) from taxation. Congress did not waive federal

sovereign immunity from state or local interest, penalties, and

foreclosure with regard to FSA property in Washington. The

Murphys' cross- appeal is without merit.

The parties will bear their own costs in these appeals.

No. 97-35510 (Main Appeal): AFFIRMED IN PART; REVERSED

IN PART, and REMANDED.

No. 97-35720 (Cross-Appeal): AFFIRMED IN PART; DISMISSED

23

IN PART.

24

APPENDIX B

UNITED STATES of America,

Plaintiff,

v.

LEWIS COUNTY, WA; Bill Brooks, County Assessor, Lewis

County, Washington; Donna

Karvia, Clerk, Lewis County Superior Court; Joe Cooke,

Treasurer, Lewis County,

Washington; Gary Zandel; Kevin E. Murphy;

Bernice Murphy

Defendants.

No. C94-5474FDB

United States District Court,

Western District of Washington at Tacoma.

Filed April 14, 1997.

AMENDED ORDER GRANTING DEFENDANTS

MURPHYS’ MOTION FOR JUDGMENT ON THE

PLEADINGS

This matter comes before the court upon Defendants

Murphys’ Motion for Judgment on The Pleadings. Defendants

|

Lewis County, and named current and former elected officials Bill

Brooks, Assessor; Donna Karvia, Clerk; Joe Cooke, (former)

Treasurer, and Gary Zandell, Auditor join in the Murphys’ Motion.

This matter arises out of the Defendants Murphy’s purchase of

certain property from Lewis County at a tax sale. The property

was formerly owned by the Farmer’s Home Administration

(FmHA)(the predecessor to the Farm Service Agency (FSA).

Defendants took possession of the property, made improvements

on it, and have leased it for use as a diary.

The plaintiff's Complaint contains five counts. Count I

alleges that since real property owned by the State of Washington,

its agencies, or subdivisions is exempt from property taxation, and

: Lewis County does not, therefore, tax that property, the United

States property held by the FmHA is unconstitutional because it

discriminates against the United States in violation of the

Supremacy Clause.

Count III alleges that 7 U.S.C. § 1984 does not waive

immunity from imposition of the higher tax rate for nonfarm and

agricultural land, and the imposition of taxes, penalties, and

2

interest against the United States is a violation of the United

States” sovereign immunity.

Count IV alleges that 7 U.S.C. § 1984 does not waive

immunity from imposition of penalties, interests, and other

charges, and imposition of such charges is a violation of the United

States sovereign immunity.

County V alleges that the conducting of tax and/or

foreclosure sales or other collection actions impinging on the

United States’ property interests is prohibited by the Supremacy

Clause and that such foreclosure and sale of the subject property

herein is void ab initio.

The United States prays for (1) declaratory judgment

(Lewis County is prohibited from assessing, collecting, etcetera,

Washington property tax, recapture tax, penalties, interests and

other casts on property owned by the United States and held by the

FmiiA ursier 7 U.S.C. §§ 1921 et seq.; the conveyances of the

subject property at the foreclosure sale is null and void); (2)

injunctive relief (restrain defendants from acting in concert to

assessing, collecting; etcetera, the Washington property taxes); an

3

accounting from the Defendants Murphy; (3) monetary judgment

for the United States for restitution of taxes paid under protest and

for rents earned on the subject property; and (4) judgment quieting

title in the subject property.

There is no dispute about whether the court may entertain a

motion for judgment on the pleadings after remand or the

timeliness of the motion, but Plaintiffs do oppose the motion on its

merits. Each argument will be addressed in turn.

I. Timeliness of Motion

The Plaintiff objects to the attempt to secure a dismissal

prior to undertaking any discovery, and based on comments by this

Court in its earlier order. Plaintiff also objects to the Murphys

challenging the merits of any claims except those in Count V,

because there is no case or controversy with respect to the

underlying tax, the higher tax rate for nonfarm land, and penalties

and interest, as these disputes are solely between the United States

and Lewis County.

Contrary to Plaintiff's argument, the Murphys’ interests in

the subject property are threatened by this lawsuit. The issues

4

raised in Counts I through V are inextricably intertwined. The

issues presented are legal in nature, and there is no showing how a

period of discovery would enhance the Court’s ability to decide a

purely legal issue. Moreover, the parties have thoroughly briefed

the issues, so that the Court is fully advised in the premises without

need to resort to the earlier order, except to note that statements

may have been made therein that would harmonize with the

analysis here.

II Claims for Relief

Plaintiff argues that with respect to Counts I and II, it is

immune from taxation by Lewis County on FSA property, and that

the purported waiver of that immunity in 7 U.S.C. § 1984 is an

affirmative defense that Lewis County must establish.

Alternatively, the taxing statues at issues are discriminatory in

violation of the Supremacy Clause. Plaintiff argues the statute

must be read narrowly and that FSA property is subject to taxation

only “in the same manner and to the same extent as other property

is taxed.” Plaintiff argues that the statute is not a broad waiver of

immunity. Moreover, Plaintiff argues that it cannot be held to

5

know that Washington would set up an instrumentality similar to

FSA, called the Washington Housing Finance Commission, and

give it a tax exemption that it did not give to FSA, but, FSA,

continues, if the State has this exemption, the FSA property is

similar and should have the exemption, too.

Defendants Murphy argue that the United States has

subjected itself to taxation by the State of Washington through 7

U.S.C. §§ 1984 and related 7 C.F.R. §§ 1925.2 and 1925.4(b). The

Section dealing with taxation is found in the Administrative

Provisions subchapter of Chapter 50, Agricultural Credit, which

concerns real estate loans, operating loans, and emergency loans.

The purposes of the loans are for, amount other things, improving

farms, for enterprises needed to supplement farm income, for

refinancing existing indebtedness, for loan closing costs. 7 U.S.C.

§ 1923. Persons eligible for these loans are, inter alia, farmers and

ranchers, farm cooperatives, private domestic corporations, and

partnerships. 7 U.S.C. § 1922. In making loans for the purchase

of farms, preference is to be given persons who have dependent

families and to those capable of making initial down payments. 7

U.S.C. § 1923(a). Against this background, the taxation section

provides:

All property subject to a lien held by the

United States or the Title to which is acquired or

held by the Secretary under this chapter other than

property used for administrative purposes shall be

subject to taxation by State, territory, district, and

local political subdivisions in the same manner and

to the same extent as other property is taxed ... .

7 U.S.C. § 1984. It is difficult to read this statute in any way other

than as a broad waiver of sovereign immunity from taxation by a

State. Defendants note the competing interests of federal

operations being free from local controls and the need for state and

local governments to raise revenues. See S.R.A. Inc. v. State of

Minnesota, 327 U.S. 558, 562 (1946). It also appears appropriate

to consider the commercial character of a federal instrumentality’s

activities when deciding the degree of immunity from state law

enjoyed by the federal entity. See United States v. Kimbell Foods,

Inc., 440 U.S. 715, 733-739 (1979)(The court did not find

-

sutumnneuitumnianne nication ae

convincing the argument that because government lenders make

loans where private entities would not it was entitled to greater

protection.) In determining the scope of a congressional waiver of

sovereign immunity, the commercial character of a federal

instrumentality’s activities have been a determining factor. E.g.,

Federal Deposit Insurance Corp. v. Meyer, 510 U.S. 471 (1994).

The “commercial activity” theory also allows for the assessment of

interest against a Federal entity. See Vail v. Brown, 841 F. Supp.

909 (D.Minn. 1994) affirmed, 39 F.3d 208 (8th Cir. 1994), cert.

den., 115 S.Ct. 2245 (1995). A similar conclusion seems

inescapable as to penalties. FSA’s own regulations direct the

payment of delinquent taxes plus accrued penalties in certain

circumstances. 7 C.F.R. § 1925.4(b) provides:

Prior (usually about 90 days) to the time it is

legally possible for action to be taken that will cause

the borrower to lose title or right of possessions of

the security property or the use of essential water,

the County Supervisor will contact the borrower is

unable or unwilling to pay the delinquent tax with

8

his own funds after every appropriate effort has

been made to have him do so, the County

Supervisor will refer to FmHA or its successor

agency under Public Law 103-354 Instruction 2014-

A and utilize the Type 60 Purchase Order System to

pay the amount of the delinquent taxes plus the

amount of any accrued penalty to bring taxes

current.

(Emphasis supplied.) In Reconstruction Finance Corp. v. Beaver

County, 328 U.S. 204 (1946), the Court was interpreting language

which subjected the Plaintiff to state or local taxation “to the same

extent as other real property is taxed,” and concluded that such

language indicated an intent “to integrate Congressional

permission to tax with established local tax assessment and

collection machinery.” /d. at 210. If the Federal government

entity is not entitled to any greater protection than private

institutions engaging in lending activities, then there is no

principled reason to differentiate between a monetary penalty and

foreclosure sale by a state in order to recoup delinquent taxes. A

9

Federal government entity such as FSA is subject to the same tax

assessment and collection machinery when it subjects itself to State

and local taxation. There is no prohibition in 7 U.S.C. § 1984

against levy, foreclosure, or sale, and Congress is fully capable of

enacting such a provision as it did when waiving tax immunity for

the Federal Deposit Insurance Corporation in 12 U.S.C. § 1825(b)

where levy, attachment, garnishment, foreclosure, or sale of FDIC

property for nonpayment of real property taxes without consent of

FDIC was prohibited. The purposes of the FDIC are different that

the purposes of the FSA, thus the broader waiver provision of FSA

property would seem appropriate.

| Also, as it is such common practice for states to exempt

certain property, 7 U.S.C. § 1984 is most logically viewed as

having been enacted with this knowledge. The only qualification

on the waiver is regarding property used for administrative

purposes. If Congress had meant to subject the FSA property to

taxation only if state property under an entity analogous to FSA is

also subject to taxation, it could have phrased the waiver more

precisely. Such a provision doesn’t make sense, however. A more

10

rational interpretation is that the FSA is acting as a private

commercial lender and will subject itself to the State’s taxation

plan to accommodate the State’s legitimate revenue raising

interests. The State in exempting a state entity has control over the

amount of property it exempts, but it cannot control a Federal

program that proceeds to take an interest on property in the state

and exempts it; it is appropriate under such circumstances when

the government is acting as a commercial entity, to allow its

property to be taxed.

Count III of the Complaint asserts that the United States

has not waived immunity from the imposition of the higher tax rate

for nonfarm and agricultural land and the additional tax imposed

by that provision for the last seven years. The same rationale as

discussed above applies here as to property held by the Secretary

under the relevant chapter. There is no qualification on the type of

tax to be applied to such property.

Count IV of the Complaint asserts that Lewis County’s

imposition of penalties, interest, and other charges against the

United States is an unconstitutional violation of sovereign

ll

immunity. Plaintiff cites Blackburn v. United States, 100 F.3d

1426 (9th Cir. 1996) for the proposition that absent a waiver of

sovereign immunity, the United States is not subject to liability

under state statutes which are penal in nature. There, a diver sued

the United States for injuries he suffered from diving off a bridge

in a national park; his theory was that the National park Service

failed to warn of the dangers of jumping off the bridge, and that it

negligently designed and maintained the bridge and the

watercourse beneath it. The Plaintiff argued that the Assimilative

Crimes Act (ACA) incorporated a state criminal statute that had no

Federal equivalent. The Court held that “absent a waiver of

sovereign immunity, the United States is not subject to liability

under state statutes which are penal in nature.” 100 F.3d at 1435.

The Court reasoned that “[a}pplication of the Resort Act in the

present case would violate the Supremacy Clause by constituting a

direct and intrusive regulation by the State of the Federal

Government’s operation of its property at Yosemite.”’ /d.

Blackburn is not at all analogous to the situation with Lewis

County. An express waiver is provided in 7 U.S.C. § 1984, and

la

taxation of the FSA property is unremarkable and in recognition of

the State’s interest. The discussion under Counts I and II above

regarding penalties is also relevant here.

County V asserts that 7 U.S.C. § 1984 did not waive

immunity from process to collect taxes by foreclosure sales or

other methods. This assertion is not well taken, however, and the

discussion above applies here, also. The United States waived

immunity and subjected property held by the Secretary under

Chapter 50 to taxation “in the same manner and to the same extent

as other property is taxed.” Moreover, “the phrase ‘in the same

manner’ has a well understood meaning in legislation and that

meaning is not one of restriction or limitation, but of procedure.”

Wilder’s S.S. Co. v. Low, 112 F. 161, 164 (9th Cir. 1901). If the

State is entitled to collect taxes on property, when the property

owner fails to pay the taxes, the State must be entitled to collect

them in the same manner from a United States entity as a private

entity, barring a narrower waiver than is present in Lewis County’s

case.

Therefore, pursuant to the foregoing analysis and the

13

arguments presented by the Defendants Murphys, they are entitled

to judgment on the pleadings.

Accordingly, it is hereby

ORDERED: Defendants Murpby’s Motion for Judgment

on the Pleadings is GRANTED and this cause of action against

Defendants Kevin E. Murphy and Bernice Murphy; Lewis County,

Bill Brooks, Donna Karvia, Joe Cooke, and Gary Zandell is

DISMISSED.

DATED and SIGNED the 14th day of April, 1997.

By: Franklin D. Burgess

United States District Judge

14

UNITED STATES of America,

Plaintiff,

v.

LEWIS COUNTY, WA; Bill Brooks, County Assessor, Lewis

County, Washington; Donna

Karvia, Clerk, Lewis County Superior Court; Joe Cooke,

Treasurer, Lewis County,

Washington; Gary Zandel; Kevin E. Murphy;

Bernice Murphy

Defendants.

No. C94-5474FDB

United States District Court,

Western District of Washington at Tacoma.

Filed June 27, 1997

JUDGMENT IN A CIVIL CASE

___Jury Verdict. This action came before the Court for a trial by

jury. The issues have been tried and the jury has rendered its

verdict.

—X_Decision by Court. This action came to consideration before

the Court upon the motion for the Defendants. The issues have

been considered and a decision has been rendered.

IT IS ORDERED AND ADJUDGED

This cause of action against Defendants Kevin E. Murphy and

Bernice Murphy; Lewis County; Bill Brooks; Donna Karvia; Joe

Cooke; and Gary Zandell is DISMISSED.

DATED and SIGNED the 27th day of June, 1997.

By: B. Kay McDermott, Deputy Clerk

APPENDIX C

UNITED STATES of America,

Plaintiff-Appellant/Cross-Appellee,

v.

LEWIS COUNTY, WA; Bill Brooks, County Assessor, Lewis

County, Washington; Donna

Karvia, Clerk, Lewis County Superior Court; Joe Cooke,

Treasurer, Lewis County,

Washington; Gary Zandel,

Defendants-Appellees,

and

Kevin E. Murphy; Bernice Murphy

Defendants-Appellees/Cross-Appellants.

CA Nos. 97-35510, 97-35720

United States Court of Appeals,

i Ninth Circuit.

Filed May 20, 1999.

ORDER

BEFORE: CANBY and TASHIMA, Circuit Judges, and

TAKASUGI,' District Judge.

The petition for rehearing filed by appellees and cross-

appellants is DENIED.

1. The Honorable Robert M. Takasugi, Senior United States District Judge for the

Centrai District of California, sitting by designation.

APPENDIX D

UNITED STATES of America,

Plaintiff-Appellant/Cross-Appellee,

v.

LEWIS COUNTY, WA; Bill Brooks, County Assessor, Lewis

County, Washington; Donna

Karvia, Clerk, Lewis County Superior Court; Joe Cooke,

Treasurer, Lewis County,

Washington; Gary Zandel,

Defendants-Appellees,

and

Kevin E. Murphy; Bernice Murphy

Defendants-Appellees/Cross-Appellants.

CA Nos. 97-35510, 97-35720

United States Court of Appeals,

Ninth Circuit.

Filed June 10, 1999.

ORDER

BEFORE: CANBY and TASHIMA, Circuit Judges, and

TAKASUGI,' District Judge.

Appellees and cross-appellants’ motion to stay the mandate

is GRANTED. Pursuant to Fed. R. App. P. 41(b), the issuance of

the mandate is stayed for thirty (3) days from the date this order is

filed. If, within that period, the Clerk of the Supreme Court

advises the Clerk of this Court that a petition for certiorari has been

filed, then the mandate shall be further stayed until final

disposition of the matter by the Supreme Court.

The Honorable Robert M. Takasugi, Senior United States District Judge for the Central

District of California, sitting by designation.

APPENDIX E

CONSTITUTIONAL PROVISIONS

FEDERAL

United States Constitution, Article III, Section 1:

The judicial Power of the United States, shall be vested in one

supreme Court, and in such inferior Courts as the Congress may

from time to time ordain and establish ...

United States Constitution, Article VI, Cl. 2:

This Constitution, and the Laws of the United States which shall be

made in Pursuance thereof; and all Treaties made, or which shall

be made, under the Authority of the United States, shall be the

supreme Law of the Land, and the Judges in every State shall be

bound thereby, and Thing in the Constitution or Laws of any State

to the Contrary notwithstanding.

United States Constitution, Amendment X:

The powers not delegated to the United States by the Constitution

nor prohibited by it to the States, are reserved to the States

respectively, or to the people.

STATE

Washington Constitution, Article VII, Section 3:

The United States and its agencies and instrumentalities, and their

property, may be taxed under any of the tax laws of this state,

whenever and in such manner as such taxation may be authorized

or permitted under the laws of the United States, notwithstanding

anything to the contrary in the Constitution of this state.

STATUTES

FEDERAL

7 U.S.C. §1921:

The Congress finds that the statutory authority of the Secretary of

Agriculture, hereinafter referred to in this chapter as the

“Secretary,” for making and insuring loans to farmers and ranchers

should be revised and consolidated to provide for more effective

credit services to farmers.

7 U.S.C. §1984:

All property subject to a lien held by the United States or the title

to which is acquired or held by the Secretary under this title or

other than property used for administrative purposes shall be

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subject to taxation by State, territory, district, and local political

subdivision in the same manner and to the same extent as other

property is taxed: Provided however, That no tax shall be imposed

or collected on or with respect to any instrument if the tax is based-

(1) the value of any notes or mortgages or other lien

instruments held by or transferred to the Secretary;

(2) any notes or lien instruments administered under this

title which are made, assigned, or held by a person

otherwise liable for such tax; or

(3) the value of any property conveyed or transferred to the

Secretary,

Whether as a tax on the instrument, the privilege of conveying or

transferring or the recordation thereof; nor shall the failure to pay

or collect any such tax be a ground for refusal to record or file such

instruments, or for failure to impart notice, or prevent the

enforcement of its provisions in any State or Federal court.

7 U.S.C. §1985:

(c) Sale of property. (1) In general. Subject to this subsection and

subsection (e)(1)(A), the Secretary shall offer to sell real property

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that is acquired by the Secretary under this title using the following

order and method of sale:

(B) Beginning farmer or rancher. (i) In general. Not later than 75

days after acquiring real property, the Secretary shall offer to sell

the property to a qualified beginning farmer or rancher at current

market value based on a current appraisal.

(11) Random selection. If more than 1 qualified beginning farmer

or rancher offers to purchase the property, the Secretary shall select

between the qualified applicants on a random basis.

(iii) Appeal of random selection. A random selection or denial by

the Secretary of a beginning farmer or rancher for farm inventory

property under this subparagraph shall be final and not

administratively appealable.

7 U.S.C. §1989:

The Secretary is authorized to make rules and regulations,

prescribe the terms and conditions for making or insuring loans,

security instruments and agreements, except as otherwise specified

herein, and make such delegations of authority as he deems

necessary to carry out this title.

7 U.S.C. §6932(a)(b)(3):

(a) Establishment: The Secretary is authorized to establish and

maintain in the Department of Consolidated Farm Service Agency.

(b) Functions of the Consolidated Farm Service Agency: If the

Secretary establishes the Consolidated Farn Service Agency under

subsection (a), the Secretary is authorized to assign to the Agency

jurisdiction over the following functions ...

(3) Agricultural credit programs assigned before the date of

the enactment of this Act [enacted Oct. 13, 1994] by law to

the Farmers Home Administration ownership and

operating, emergency, and disaster loan programs) and

other lending programs for agricultural producers and

others engaged in the production of agricultural

commodities.

12 U.S.C. §531:

Federal reserve banks, including the capital stock and surplus

therein and the income derived therefrom shall be exempt from

Federal, State, and local taxation, except taxes upon real estate.

15 U.S.C. §610 (Repealed):

SEC 10. Any and all notes, debentures, bonds, or other such

obligations issued by the corporation shall be exempt both as to

principal and interest from all taxation (except surtaxes, estate,

inheritance, and gift taxes) now or hereafter imposed by the United

States, by any Territory, dependency, or possession thereof, or by

any State, county, municipality, or local taxing authority. The

coproration, including its franchise, its capital, reserves, and

surplus, and its income shall be exempt from all taxation now or

hereafter imposed by the United States, by any Territory,

dependency, or possession thereof, or by any State, county,

municipality, or local taxing authority; except that any real

property of the corporation shall be subject to State, Territorial,

county, municipal, or local taxation to be the same extent

according to its value as other real property is taxed.

15 U.S.C. §646:

Any interest held by the Administration in property, as security for

a loan, shall be subordinate to any lien on such property for taxes

due on the property to a State, or political subdivision thereof, in

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any case where such lien would, under applicable State law, be

superior to such interest if such interest were held by any party

other than the United States.

28 U.S.C. §960:

Any officers and agents conducting any business under authority of

a United States court shall be subject to all Federal, State and local

taxes applicable to such business to the same extent as if it were

conducted by an individual or corporation.

28 U.S.C. §1254(1):

Cases in the courts of appeals may be reviewed by the Supreme

Court by the following methods:

(1) By wnt of certiorari granted upon the petition of any

party to any civil or criminal case, before or after rendition

of judgment or decree;

28 U.S.C. §1331:

The district courts shall have original jurisdiction of all civil

actions arising under the Constitution, laws or treaties of the

United States.

28 U.S.C. §1341:

The district courts shall not enjoin, suspend or restrain the

assessment, levy or collection of any tax under State law where a

plain, speedy and efficient remedy may be had in the courts of such

State.

28 U.S.C. §1345:

Except as otherwise provided by Act of Congress, the district

courts shall have original jurisdiction of all civil actions, suits or

proceedings commenced by the United States, or by any agency or

officer thereof expressly authorized to sue by Act of Congress.

28 U.S.C. §2412:

(a) (1) Except as otherwise specifically provided by statute, a

judgment for costs, as enumerated in section 1920 of this

title, but not including the fees and expenses of attorneys,

may be awarded to the prevailing party in any civil action

brought by or against the United States or any agency or

any Official of the United States acting in his or her official

Capacity in any court having jurisdiction of such action. A

judgment for costs when taxed against the United States

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(2)

shall, in an amount established by statute, court rule, or

order, be limited to reimbursing in whole or in part the

prevailing party for the costs incurred by such party in the

litigation.

A judgment for costs, when awarded in favor of the United

States in an action brought by the U.ited States, may

include an amount equal to the filing fee prescribed under

section 1914(a) of this title. The preceding sentence shall

not be construed as requiring the United States to pay any

filing fee.

Unless expressly prohibited by statute, a court may award

reasonable fees and expenses of attorneys, in addition to

costs which may be awarded pursuant to subsection (a), to

the prevailing party in any civil action brought by or

against the United States or any agency or any official of

the United States acting in his or her official capacity in any

court having jurisdiction of such action. The United States

shall be liable for such fees and expenses to the same extent .

that any other party would be liable under the common law

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or under the terms of any statute which specifically

provides for such an award.

(c) (1) Any judgment against the United States or any agency and

any official of the United States acting in his or her official

capacity for costs pursuant to subsection (a) shall be paid as

provided in sections 2412 and 2517 of this title and shall be

in addition to any relief provided in the judgment.

(2) Any judgment against the United States or any agency and

any official of the United States acting in his or her official

capacity for fees and expenses of attorneys pursuant to

subsection (b) shall be paid as provided in sections 2414

and 2517 of this title, except that if the basis for the award

is a finding that the United States acted in bad faith, then

the award shall be paid by any agency found to have acted

in bad faith and shall be in addition to any relief provided

in the judgment.

(d) (1) (A) Except as otherwise specifically provided by statute, a

court shall award to a prevailing party other than the United

States fees and other expenses, in addition to any costs

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CSRS

awarded pursuant to subsection (a), incurred by that party

in any civil action (other than cases sounding in tort),

including proceedings for judicial review of agency action,

brought by or against the United States in any court having

jurisdiction of that action, unless the court finds that the

position of the United States was substantially justified or

that special circumstances make an award unjust.

(B) A party seeking an award of fees and other expenses

shall, within thirty days of final judgment in the action,

submit to the court an application for fees and other

expenses which shows that the party is a prevailing party

and is eligible to receive an award under this subsection,

and the amount sought, including an itemized statement

from any attorney or expert witness representing or

appearing in behalf of the party stating the actual time

expended and the rate at which fees and other expenses

were computed. The party shall also allege that the

position of the United States was not substantially justified.

Whether or not the position of the United States was

1]

substantially justified shall be determined on the basis of

the record (including the record with respect to the action or

failure to act by the agency upon which the civil action is

based) which is made in the civil action for which fees and

other expenses are sought.

(C) The court, in its discretion, may reduce the amount to

be awarded pursuant to this subsection, or deny an award,

to the extent that the prevailing party during the course of

the proceedings engaged in conduct which unduly and

unreasonably protracted the final resolution of the matter in

controversy.

(D) If, in a civil action brought by the United States or a

proceeding for judicial review of an adversary adjudication

described in section 504(a)(4) of title 5, the demand by the

United States is substantially in excess of the judgment

finally obtained by the United States and is unreasonable

when compared with such judgment under the facts and

circumstances of the case, the court shall award to the party

the fees and other expenses related to defending against the

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SSE Ee TE

(2)

excessive demand, unless the party has committed a willful

violation of law or otherwise acted in bad faith, or special

circumstances mai. an award unjust. Fees and expenses

awarded under this subparagraph shall be paid only as a

consequence of appropriations provided in advance.

For the purposes of this subsection -

(A) “fees and other expenses” includes the reasonable

expenses of expert witnesses, the reasonable cost of any

study, analysis, engineering report, test, or project which is

found by the court to be necessary for the preparation of the

party’s case, and reasonable attorney fees (The amount of

fees awarded under this subsection shall be based upon

prevailing market rates for the kind and quality of the

services furnished, except that (i) no expert witness shall be

compensated at a rate in excess of the highest rate of

compensation for expert witnesses paid by the United

States; and (ii) attorney fees shall not be awarded in excess

of $125 per hour unless the court determines that an

increase in the cost of living or a special factor, such as the

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limited availability of qualified attorneys for the

proceedings involved, justifies a higher fee.);

(B) “party” means (i) an individual whose net worth did not

exceed $2,000,000 at the time the civil action was filed, or

(ii) any owner of an unincorporated business, or any

partnership, corporation, association, unit of local

government, or organization, the net worth of which did not

exceed $7,000,000 at the time the civil action was filed, and

which had not more than 500 employees at the time the

civil action was filed; except that an organization described

in section 501(c)(3) of the Internal Revenue Code of 1954

(26 U.S.C. 501(c)(3)) exempt from taxation under section

501(a) of such Code, or a cooperative association as

defined in section 15(a) of the Agricultural Marketing Act

(12 U.S.C. 114(a)), may be a party regardless of the net

worth of such organization or cooperative association or for

purposes of subsection (d)(1)(D), a small entity as defined

in section 601 of title 5;

(C) United States” includes any agency and any official of

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the United States acting in his or her official capacity;

(D) position of the United States” means, in addition to the

position take by the United States in the civil action, the

action of failure to act by the agency upon which the civil

action is based; except that fees and expenses may not be

awarded to a party for any portion of the litigation in which

the party has unreasonably protracted the proceedings;

(E) “civil action brought by or against the United States”

includes an appeal by a party, other than the United States,

from a decision of a contracting officer rendered pursuant

to a disputes clause in a contract with the Government or

pursuant to the Contracts Disputes Act of 1978;

(F) “court” includes the United States Claims Court

[United States Court of Federal Claims] and the United

States Court of Veterans Appeals;

(G) “final judgment” means a judgment that is final and

not appealable, and includes an order of settlement;

(H) “prevailing party,” in the case of eminent domain

proceedings, means a party who obtains a final judgment

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(3)

(other than by settlement), exclusive of interest, the amount

of which is at ieast as close to the highest valuation of the

property involved that is attested to at trial on behalf of the

property owner as it is to the highest valuation of the

property involved that is attested to at trial on behalf of the

government; and

(1) “demand” means the express demand of the United

States which fed to the adversary adjudication, but shall not

include a recitation of the maximum statutory penalty (i) in

the complaint, or (11) elsewhere when accompanied by an

express demand for a lesser amount.

In awarding fees and other expenses under this subsection

to a prevailing part in any action for judicial review of an

adversary adjudication, as defined in subsection (b)(1)(C)

of 504 of title 5, United States Code, or an adversary

adjudication subject to the Contract Disputes Act of 1978,

the court shall include in that award fees and other expenses

to the same extent authorized in subsection (a) of such

section, unless the court finds that during such adversary

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(4)

adjudication the position of the United States was

substantially justified, or that special circumstances make

an award unjust.

Fees and other expenses awarded under this subsection to a

party shall be paid by any agency over which the party

prevails from any funds made available to the agency by

appropriation or otherwise.

(e) The provisions of this section shall not apply to any

costs, fees, and other expenses in connection with any

proceeding to which section 7430 of the Internal Revenue

Code of 1954 [26 USCS § 7430] applies (determined

without regard to saleonesbions (b) and (f) of such section (26

USCS § 8430(b), (1)]). Nothing in the preceding sentence

shall prevent the awarding under subsection (a) 2412 of

title 28, United States Code, of costs enumerated in section

1920 of such title (as in effect on October 1, 1981).

(f) If the United States appeals on an award of costs or fees

and other expenses made against the United States under

this section and the award is affirmed in whole or in part,

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interest shall be paid on the amount of the award as

affirmed. Such interest shall be computed at the rate

determined under section 19161(a) of this title, and shall

run from the date of the award through the day before the

date of the mandate of affirmance.

Act of July 22, 1937, Chapter 517:

SEC. 50. (a) All property which is being utilized to carry out the

purposes of title I or title II of this Act (other than property used

solely for administrative purposes) shall, notwithstanding that legal

title to such property remains in the Secretary or the Corporation,

be subject to taxation by the State, Territory, District, dependency,

and political subdivision concerned, in the same manner and to the

same extent as other similar property is taxed.

(b) All property to which subsection (a) of this section is

inapplicable which is held by the Secretary or the Corporation

pursuant to this Act shall be exempt from all taxation now or

hereafter imposed by the United States or any State, Territory,

District, dependency, or political subdivision, but nothing in this

subsection shall be construed as affecting the authority or duty of

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the Secretary under any other law to make payments in respect of

any such property in lieu of taxes.

Farmers Home Administration Act of August 14, 1946,

Chapter 964:

Sec. 50. (a) All property which is being utilized to Carry out the

purposes of title I of this Act (other than property used solely for

administrative purposes) shall, notwithstanding that legal title to

such property remains in the Secretary, be subject to taxation by

the State, Territory, district, dependency, and political subdivision

concerned, in the same manner and to the same extent as other

similar property is taxed.

(b) All property to which subsection (a) of this section Is inap-

plicable which is held by the Secretary pursuant to this Act shall be

exempt from all taxation now or hereafter imposed by the United

States or any State, Territory, district, dependency, or political

subdivision, but the Secretary shall make payments in respect of

any such property In lieu of taxes.

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STATE

R.C.W. 84.34.108:

(1)When land has once been classified under this chapter, a

notation of such classification shall be made each year upon the

assessment and tax rolls and such land shall be valued pursuant to

RCW 84.31.060 or 84.34.065 until removal of all or a portion of

such classification by the assessor upon occurrence of any of the

following:

(a)Receipt of notice from the owner to remove all or a portion of

such classification;

(b)Sale or transfer to an ownership, except a transfer that resulted

from a default in loan payments made to or secured by

a..governmental agency that intends to or is required by law or

regulation to resell the property for the same use as before, making

all or a portion of such land exempt from ad valorem taxation;

(c)Sale or transfer of all or a portion of such land to a new owner,

unless the new owner has signed a notice of classification

continuance, except transfer to an owner who is an heir or devisee

of a deceased owner shall not, by itself, result in removal of

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a

classification. The signed notice of continuance shall be attached to

the real estate excise tax affidavit provided for in *RCW

82.45.120, as now or hereafter amended. The notice of continuance

shall: be on a form prepared by the department of revenue. If the

notice of continuance is not signed by the new owner and attached

to the real estate excise tax affidavit, all additional taxes calculated

pursuant to subsection (3) of this section shall become due and

payable by the seller or transferor at time of sale. The county

auditor shall not accept an instrument of conveyance of classified

land for filing or recording unless the new owner has si gned the

notice of continuance or the additional tax has been paid. The

seller, transferor; or new owner may appeal the new assessed

valuation calculated under subsection ( 3) of this section to the

county board of equalization. Jurisdiction is hereby conferred on

the county board of equalization to hear these appeals;

(d) Determination by the assessor, after giving the owner written

notice and an opportunity to be heard, that all or a portion of such

land no longer meets the criteria for classification under this

chapter. The criteria for classification pursuant to this chapter

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continue to apply after classification has been granted.

The granting authority, upon request of an assessor, shall provide

reason able assistance to the assessor in rnaking a determination

whether such land continues to meet the qualifications of RCW

3134.020 (1) or (3). The assistance shall be provided within thirty

days of receipt of the request.

(2) Within thirty days after such removal of all or a portion of such

land from current use classification, the assessor shall notify the

owner in writing, setting forth the reasons for such removal. The

seller, transferor, or owner may appeal such removal to the county

board of equalization.

(3)Unless the removal is reversed on appeal, the assessor shall

revalue the affected land with reference to full market value on the

date of removal from classification. Both the assessed valuation

before and after the removal of classification shall be listed and

taxes shall be allocated according to that part of the year to which

each assessed valuation applies. Except as~ provided in subsection

(5) of this section, an additional tax, applicable interest, and

penalty shall be imposed which shall be due and payable to the

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county treasurer thirty days after the owner is notified of the

amount of the additional tax. As soon as possible, the assessor

shall compute the amount of such an additional tax, applicable

interest, and penalty and the treasurer shall mail notice to the

owner of the amount thereof and the date on which payment is due.

The amount of such additional tax, applicable interest, and penalty

shall be determined as follows:

(a)The amount of additional tax shall be equal to the difference

between the property tax paid as open space land, “farm and

agricultural land” or “timber land” and the amount of property tax

otherwise due and payable for the seven years last past had the land

not been so classified;

(b)The amount of applicable interest shall be equal to the interest

upon the amounts of such additional. tax paid at the same statutory

rate charged on delinquent property taxes from the dates on which

such additional tax could have been paid without penalty if the

land had been assessed at a value without regard to this chapter;

(c)The amount of the penalty shall be as provided in RCW

84.34.080. The penalty shall not be imposed if the removal

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satisfies the conditions of RCW 84.34.070. (4)Additional tax,

applicable interest, and penalty, shall become a lien on such land

which shall attach at the time such land is removed from

classification, under this chapter and shall have priority to and shall

be fully paid and satisfied before any recognizance, mortgage,

judgment, debt, obligation or responsibility to or with which such

land may become charged or liable. Such lien may be foreclosed

upon expiration of the same period after delinquency and in the

same manner provided by law for foreclosure of liens for

delinquent real property taxes as provided in RCW 84.64.050 now

or as hereafter amended. Any additional tax unpaid on its due date

shall thereupon become delinquent. From the date of delinquency

until paid, interest shall be charged at the same rate applied by law

to delinquent ad valorem property taxes.

(5)The additional tax, applicable interest, and penalty specified in

subsection (3) of this section shall not be imposed if the removal of

classification pursuant to subsection (1) of this section resulted

solely from:

(a)Transfer to a government entity in exchange for other land

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located within the state of Washington;

(b)(i) A taking through the exercise of the power of eminent

domain, or (ii) sale or transfer to an entity having the power of

eminent domain in anticipation of the exercise of such power, said

entity having manifested its intent in writing or by other official

action;

(c) A natural disaster such as a flood, windstorm, earthquake, or

other such calamity rather than by virtue of the act of the

landowner changing the use of such property;

(d) Official action by an agency of the state of Washington or by

the county or city within which the land is located which disallows

the present use of such land;

(e) Transfer of land to a church when such land would qualify for

exemption pursuant to RCW 84.36.020;

(g) Acquisition of property interests by state agencies or agencies

or organizations qualified under RCW 84.34.210 and 64.04.130 for

the purposes enumerated in those sections: PROVIDED, That at

such time as these property interests are not used for the purposes

enumerated in RCW 84.34.210 and 64.04.130 the additional tax

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specified in subsection (3) of this section shall be imposed; or

(g) Removal of land classified as farm and agricultural land under

RCW 84.34.020(2)(d).

R.C.W. 84.64.050:

After the expiration of three years from the date of delinquency,

when any property remains on the tax rolls for which no certificate

of delinquency has been issued, the county treasurer shall proceed

to issue certificates of delinquency on said property to the county

treasurer, with the consent of the county legislative authority, may

elect to issue a certificate for fewer than all years’ taxes, interest,

and costs to a minimum of the taxes, interest, and costs for the

earliest year.

The county treasurer may include in the certificate of

delinquency any assessments which are due on the property and are

the responsibility of the county treasurer to collect. For purposes

of this chapter, “taxes, interest, and costs” include any assessments

which are so included by the county treasurer.

The change to a three-year grace period shall first be effective on

May 1, 1983. Prior to that date, the county treasurer shall send a

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notice to all taxpayers with taxes delinquent for two years or more,

notifying them of the change in the grace period. The treasurer

shall file said certificates when completed with the clerk of the

court, and the treasurer shall thereupon, with such legal assistance

as the county legislative authority shall provide in counties having

a population of thirty thousand or more, and with the assistance of

the county prosecuting attorney in counties having a population of

less than thirty thousand, proceed to foreclose in the name of the

county, the tax liens embraced in such certificates, and the same

proceedings shall be had as when held by an individual: Provided.

That notice and summons must e served or notice given in a

manner reasonably calculated to inform the owner or owners, and

any person having a recorded interest in or lien of record upon the

property, of the foreclosure action. Either (1) personal service

upon the owner or owners and any person having a recorded

interest in or lien of record upon the property, or (2) publication

once in a newspaper of general circulation, which is circulated in

the area of the property and mailing of notice by certified mail to

the owner or owners and any person having a recorded interest in

27

or lien of record upon the property, or, if a mailing address is

unavailable, personal service upon the occupant of the property, if

any, is sufficient. In addition to the legal description on the tax

rolls, the notice must include the local street address, if any. It

shall be the duty of the county treasurer to mail a copy of the

published summons, within fifteen days after the first publication

thereof, to the treasurer of each city or town within which any

property involved in a tax foreclosure is situated, but the

treasurer’s failure to do so shall not affect the jurisdiction of the

court nor the priority of any tax sought to be foreclosed. Said

certificates of delinquency issued to the county may be issued in

one general certificate in book form including all property, and the

proceedings to foreclose the liens against said property may be

brought in one action and all persons interested in any of the

property involved in said proceedings may be made codefendant’s

in said action, and if unknown may be therein named as unknown

owners, and the publication of such notice shall be sufficient

service thereof on all persons interested in the property described

therein, except as provided above. The person or persons whose

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name Or names appear on the treasurer’s rolls as the owner or

owners of said property shall be considered and treated as the

owner or owners of said property for the purpose of this section,

and if upon said treasurer’s rolls it appears that the owner or

owners of said property are unknown, then said property shall be

proceeded against, as belonging to an unknown owner or owners,

as the case may be, and all persons owning or claiming to own, or

having or claiming to have an interest therein, are hereby required

to take notice of said proceedings and of any and all steps

thereunder: Provided, That prior to the sale of the property, if such

property is shown on the tax rolls under unknown owners or as

having an assessed value of three thousand dollars or more, the

treasurer shall order or conduct a title search of the property to be

sold to determine the legal description of the property to be sold

and the record title holder, and if the record title holder or holders

differ from the person or persons whose name or names appear on

the treasurer’s rolls as the owner or owners, the record title holder

or holders shall be considered and treated as the owner or owners

of said property for the purpose of this section, and shall be entitled

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to the notice provided for in this section.

The county treasurer shall not issue certificates of delinquency

upon property which is eligible for deferral of taxes under chapter

84.38 RCW but shall require the owner of the property to file a

declaration to defer taxes under chapter 84.38 RCW.

R.C.W. 84.68.020:

In all cases of the levy of taxes for public revenue which are

deemed unlawful or excessive by the person, firm or corporation

whose property is taxed, or from whom such tax is demanded or

enforced, such person, firm, or corporation may pay such tax or

any part thereof deemed unlawful, under written protest setting

forth all of the grounds upon which such tax is claimed to be

unlawful or excessive; and thereupon the person, firm or

corporation so paying, or their legal representatives or assigns, may

bring an action in the superior court or in any federal court of

competent jurisdiction against the state, county or municipality by

whose officers the same was collected, to recover such tax, or any

portion thereof, so paid under protest: Provided That R.C.W.

84.68.010 through 84.68.070 shall not be deemed to enlarge the

30

grounds upon which taxes may now be recovered: And provided

further, That no claim need be presented to the state or county or

municipality, or any of their respective officers, for the return of

such protested tax as a condition precedent to the institution of

such action.

R.C.W. 84.68.060:

No action instituted pursuant to this chapter or otherwise to recover

any tax levied or assessed shall be commenced after the 30th day

of the next succeeding June following the year in which said tax

became payable.

R.C.W. 84.68.070:

Except as permitted by RCW 84.68.010 through RCW 84.68.070

and chapter 84.69 RCW, no action shall ever be brought or defense

interposed attacking the validity of any tax, or any portion of any

tax: Provided, however, That this section shall not be construed as

depriving the defendants in any tax foreclosure proceeding of any

valid defense allowed by law to the tax sought to be foreclosed

therein except defenses based upon alleged excessive valuations,

levies or taxes.

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REGULATIONS

FEDERAL

7 C.F.R. §1925.2:

For the purpose of this instruction, the word “tax” means all taxes,

assessments, levies, irrigation and water charges or other similar

obligations which are or will, on nonpayment, become a lien upon

the real estate prior to the mortgage securing the Farmers Home

Administration or its successor agency under Public Law 103-354

(FmHA or its successor agency under Public Law 103-354) loan.

7 C.F.R. §1925.4(b):

Prior (usually about 90 days) to the time it is legally possible for

action to be take that will cause the borrower to lose title or nght of

possession of the security property or the use of essential water, the

County Supervisor will contact the borrower and definitely

‘letermine if he will pay the delinquent tax immediately. If the

borrower is unable or unwilling to pay the delinquent tax with his

own funds after every appropriate effort has been made to have

him do so, the County Supervisor will refer to FmHA Instruction

2024—-A and utilize the Type 60 Purchase Order system to pay the

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amount of the delinquent taxes plus the amount of any accrued

penalty to bring taxes current.

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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