Washington State Enacted Capital Gains Tax Currently Held to be Unconstitutional

  • Tax strategies
  • 3/22/2022
Couple review tax paperwork

Key insights

  • Beginning January 1, 2022, Washington state has instituted a 7% capital gains tax on Washington long-term capital gains in excess of $250,000.
  • The tax is generally imposed on Washington resident individuals, but the tax may also apply to nonresidents of Washington
  • Individual owners and beneficial owners (e.g., owners of pass-through entities) of property that generates long-term capital gains should consider the impact of this tax, especially alongside proposed federal capital gains tax rate increases.

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UPDATE: This article was originally published on July 1, 2021. On March 1, 2022, a Douglas County superior court judge struck down the Washington capital gains tax and determined that the tax is unconstitutional. The state intends to appeal the decision; the case will likely ultimately be decided by the State Supreme Court. This is good news for those who may have been impacted by the tax, however, practitioners and taxpayers should stay tuned for a ruling as to whether the tax is ultimately constitutional.

On May 4, 2021, Washington Governor Jay Inslee signed Senate Bill 5096 into law, creating a new individual excise tax on the sale or exchange of long-term capital assets. Beginning January 1, 2022, the tax is 7% of an individual’s Washington long-term capital gains. The tax applies to the sale or exchange of “long-term capital assets” owned by an individual, whether the individual was the legal or beneficial owner of such assets.

What qualifies as taxable long-term capital gains?

“Capital asset” has the same meaning as defined for federal income tax purposes and “long-term capital asset” means a capital asset that is held for more than one year. As such, long-term capital gains from the sale or exchange of stock, bonds, partnership interests, business assets, and other capital assets could be subject to the new tax.

Taxable Washington long-term capital gains start with the net federal long-term capital gain (determined as if alternative minimum tax and opportunity zone provisions did not exist). Adjustments are made for exempt gains and losses, gains and losses allocated outside of Washington, and loss carryforwards not allocated to Washington, to the extent included in the federal long-term capital gain or loss.

Tangible personal property

Long-term capital gains or losses from the sale or exchange of tangible personal property are allocated to and considered taxable in Washington if the property was located in the state at the time of the sale or exchange.

In addition, gains or losses are allocated to Washington even though the tangible personal property was not located in the state at the time of the sale or exchange if all three of the conditions below are met:

  1. The taxpayer was a resident at the time the sale or exchange occurred;
  2. The property was located in Washington at any time during the taxable year of sale or exchange or the immediately preceding taxable year; and
  3. The taxpayer is not subject to payment of an income or excise tax imposed on such capital gains or losses by another taxing jurisdiction.

Real property

Gain generated from the sale or exchange of real property is specifically exempt and not taxable. A real estate excise tax generally applies to the sale or exchange of real property.

Intangible personal property

Long-term capital gains or losses from the sale or exchange of intangible personal property (e.g., stocks and other intangible assets) are allocated to Washington if the taxpayer was domiciled in Washington at the time the sale or exchange occurred.

Who qualifies as a Washington resident?

The tax generally applies to resident individuals of Washington, although nonresident individuals could be subject to tax if certain criteria are met. The new law defines a “resident” as an individual who is domiciled in Washington during the taxable year. However, a domiciled resident will not be considered a resident if the individual maintained no permanent place of abode in Washington during the taxable year, maintained a permanent place of abode outside of Washington during the taxable year, and spent not more than 30 days in total in Washington during the taxable year.

A “resident” may also be an individual who is not domiciled in Washington during the taxable year, but who maintained a place of abode in Washington and was physically present in Washington for more than 183 days during the taxable year (often called a statutory resident).

Who is a beneficial owner?

Beneficial owners of capital assets may be subject to the tax. For example, an individual is considered to be a beneficial owner of long-term capital assets held by a pass-through or disregarded entity for federal tax purposes. This includes a partnership, limited liability company, S corporation, or grantor trust, to the extent of the individual’s ownership interest in the entity as reported for federal income tax purposes. It is important to note that a non-grantor trust may be deemed to be a grantor trust under certain circumstances. Therefore, long-term capital gains generated by these pass-through entities may be taxable to the beneficial owners.

Exemptions and deductions

There are a number of specific exemptions from the capital gains tax including, but not limited to, real estate, assets held under various retirement accounts, and property depreciable for federal purposes as property used in a trade or business under IRC Section 167(a)(1).

In addition, there are three deductions allowable against Washington long-term capital gains:

  1. Standard deduction
  2. A standard deduction of $250,000 per individual is allowed. For spouses or domestic partners, the combined standard deduction is limited to $250,000 regardless of whether filing joint or separate returns.

  3. Qualified family-owned small business
  4. A deduction is allowed for capital gain derived from the sale or transfer of substantially all of a taxpayer’s interest in a qualified family-owned small business. A qualified family-owned small business is specifically defined and includes holding period, material participation, and gross revenue requirements. The ownership requirements address situations where as many as three families may be involved.

  5. Charitable donations
  6. A deduction is allowed for the amount donated to one or more qualified organizations during the taxable year in excess of $250,000. The deduction may not exceed $100,000 for the taxable year and may not be carried forward or backward. A qualified organization is a nonprofit organization that is eligible to receive a charitable deduction for federal tax purposes and is principally directed or managed within the state of Washington.


There is a credit allowed against Washington business and occupation (B&O) tax due for a sale or exchange that is subject to both the B&O tax and the capital gains tax. The credit is equal to the amount of capital gains tax imposed, but it may not exceed the B&O tax otherwise due for the reporting period. Unused credit may not be carried forward or backward and no refunds may be granted for unused credit.

There is also a credit against the capital gains tax equal to the amount of any income or excise tax paid by the taxpayer to another taxing jurisdiction on capital gains, to the extent such capital gains are subject to the Washington capital gains tax. The credit may not exceed the total amount of tax due and there is no carryback or carryforward of any unused credits.

How CLA can help

This capital gains tax is the first of its kind in Washington and the new law is complex. New legislation can be overwhelming, especially when planning for transactions and the associated compliance. CLA’s state and local tax professionals can help you evaluate and plan for Washington capital gains tax impacts.

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