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DOR Starts Capital Gains Rulemaking

July 28, 2023

by Mike Nelson

The Washington State Department of Revenue (DOR) recently published a draft rule proposing modifications to the Washington Capital Gains Tax. As many CPAs and taxpayers have been grappling with this new tax, it has become evident that numerous challenges are associated with this new type of tax. 

While the draft rules represent progress in the right direction, other areas remain problematic or need additional clarity. In response to the current draft rules, the WSCPA provided extensive comments to the DOR, highlighting 10 key points. These points encompass many of the common concerns raised by CPA firms and WSCPA members, though there are additional outstanding issues to be addressed.  

Two primary concerns stand out in the draft rules. First, the draft rules seem to preclude the ability to carry forward capital losses, which we believe contradicts the statutory language passed by the legislature. 

Second, we have proposed a two-pronged test to determine which transactions are subject to the tax. While the statute clearly states a transaction must occur through a “sale or exchange” and be included in Federal Long Term Capital Gains, examples two through five in the draft rules leave the results “[Reserved]” for public comment. We contend that examples two, three, and five, would not pass the two-pronged test and should, therefore, be excluded based on the statutory language of the tax. 

If you would like to provide comments, please email Although there is no specific comment period, the DOR has expressed its commitment to review the feedback to the best of their ability. They aim to have a final rule adopted in time for the extended deadline in October 2023.  

Regardless of the outcome of this round of rulemaking, it is likely that further changes to the tax will occur before the 2024 tax season. These changes could encompass additional rulemaking, further guidance, modifications to the technology filing system, and potential legislative updates in the coming months. While legislative changes are the least probable among these possibilities, it is worth noting that DOR had attempted to pursue agency request legislation in 2022 to address what they deemed as technical corrections needed in the law. While that process did not result in legislation before the tax went into effect this year, it shows there is an understanding from the DOR that at least some legislative changes are needed.  

Mike Nelson is WSCPA Manager of Government Affairs. You can contact Mike via email.  

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