(dissenting)
¶23 A tax paid during life is not a transfer at death. Where no transfer exists, Washington’s Constitution prohibits the imposition of an excise tax. In order to satisfy this constitutional dictate, we must do more than ask what the legislature would like “transfer” to mean; the legislature cannot, by its will, transform a non-transfer into a transfer. And we must do more than ask whether particular property is already included in the taxable estate. Rather, we must engage with the substance of the matter and ask whether a transfer occurred.
¶24 Here, the federal gift taxes were fully and finally paid during life. Therefore, no transfer of gift taxes occurred at death. I must respectfully dissent.
I. Washington’s Estate Tax Must Involve a Transfer
¶25 Washington’s Constitution requires uniformity for direct taxation. Wash. Const, art. VII, § 1; see also U.S. Const. art. I, § 8, cl. 1. A direct tax is imposed on the ownership of property based on the value of the property. In re Estate of *917Lloyd, 53 Wn.2d 196, 199, 332 P.2d 44 (1958). Washington’s estate tax cannot be a direct tax because the tax is not imposed at a uniform rate.
¶26 Unlike direct taxes, excise taxes are imposed on “ ‘a particular use or enjoyment of property or the shifting from one to another of any power or privilege incidental to the ownership or enjoyment of property.’ ” In re Estate of Hambleton, 181 Wn.2d 802, 811, 335 P.3d 398 (2014) (quoting Fernandez v. Wiener, 326 U.S. 340, 352, 66 S. Ct. 178, 90 L. Ed. 116 (1945)). The estate tax “is imposed on every transfer of property located in Washington.” RCW 83.100.040(1). Because the estate tax is imposed on a “transfer of property,” it is an excise tax, not a direct tax. And because the tax is not a direct tax, it is not subject to the uniformity requirement of the Washington Constitution.
¶27 Since the estate tax falls on “every transfer of property,” the legislature has defined “transfer”: “ ‘Transfer’ means ‘transfer’ as used in section 2001 of the internal revenue code and includes any shifting upon death of the economic benefit in property or any power or legal privilege incidental to the ownership or enjoyment of property.” RCW 83.100.020(14). Internal Revenue Code section 2001(a), in turn, sheds very little light on the definition of “transfer,” which it defines as follows: “A tax is hereby imposed on the transfer of the taxable estate of every decedent who is a citizen or resident of the United States.” 26 U.S.C. § 2001(a).
¶28 To recapitulate, both Washington law and federal law describe the estate tax as a tax on transfer of property, specifically as a shifting “upon death” of any economic benefit. See In re Estate of Bracken, 175 Wn.2d 549, 563-64, 290 P.3d 99 (2012); see also Hambleton, 181 Wn.2d at 832. We have previously held that a testamentary transfer is broadly defined, involving" ‘an event, namely, death, where the death brings about certain described changes in legal relationships affecting property.’ ” Hambleton, 181 Wn.2d at 832-33 (quoting Chickering v. Comm’r, 118 F.2d 254, 258 (1st Cir. 1941)). *918Here, however, for purposes of the Washington estate tax, Ackerley’s death occasioned no change in any legal relationship with respect to the gift taxes Ackerley paid during his lifetime.
¶29 Since the gift taxes Ackerley paid during his life do not shift any interest in any property at the time of Ackerley’s death, there is no transfer of property, and without some transfer or other shifting of property rights upon death, the estate tax does not fall on the gift taxes paid during Ackerley’s life. And without a transfer or shift of ownership of the previously paid gift taxes, there cannot be an excise tax on the previously paid gift taxes. And if a tax on the previously paid gift tax is not an excise tax, it would necessarily be a direct tax on the amount of the gift tax, which would be unconstitutional because it would not be uniform, as required by our Washington Constitution. Thus, the majority’s interpretation of the estate tax leads to a nonuniform, unconstitutional tax.
¶30 While the majority recites the word “transfer,” it discards the word’s meaning. The majority defines “transfer” as whatever is “part of the taxable estate.” Majority at 915. This is inherently circular. Whether something is permitted to enter the taxable estate depends on the existence of a transfer; whether something is a transfer, therefore, cannot depend on whether it is in the taxable estate.
¶31 The majority supports its reading by reference to legislative intent, asserting that the legislature intended to adopt “the broad federal definition” of transfer. Id. at 913. Yet the legislature cannot define a constitutional precept out of existence. While a transfer “extends to the creation, exercise, acquisition, or relinquishment of any power or legal privilege . . . occasioned by death,” even the broadest definition must not deprive the word of this root meaning. Fernandez, 326 U.S. at 352. Something must still change.
¶32 In Chickering, for example, the mother’s death “removed the possibility that the son’s interest under the trust *919deed might be destroyed by an exercise of the reserved power held by his mother.” 118 F.2d at 258. This change in legal relationships caused something of value to pass “ ‘from the dead to the living.’ ” Id. (quoting Porter v. Comm’r, 288 U.S. 436, 444, 53 S. Ct. 451, 77 L. Ed. 880 (1933)). Something must move; something must change. Death remains the key moment of measurement.
II. Ackerley’s Gift Taxes Paid during Life Are Not Transfers at Death
¶33 With respect to the gift taxes Ackerley paid while alive, death prompted no “ripening of property rights,” id., no “changes in legal relationships,” id., no “shifting from one to another of any power or privilege incidental to the ownership or enjoyment of property,” Fernandez, 326 U.S. at 352. Nothing changed upon death. The only justification for construing the gift taxes Ackerley paid during life as transfers at death is if the gifts themselves are deemed testamentary transfers. While the federal system adopts such an interpretation, this reasoning rests on federal rules that do not exist and are not applicable in Washington.2
¶34 Since the gift taxes are not included in the federal taxable estate, they are not included in the state taxable *920estate and the majority is incorrect. Ackerley’s gift tax payments, fully and finally made during his life, do not qualify as transfers made at death. As a result, I would reverse the decision of the Thurston County Superior Court. Accordingly, I respectfully dissent.
González, Gordon McCloud, and Yu, JJ., concur with Wiggins, J.For efficiency, the federal government has been permitted to construe lifetime transfers made within three years of death as testamentary transfers for estate tax purposes. This pragmatic approach is intended to prevent estate tax avoidance; previously, one could avoid paying estate taxes by gifting away one’s entire estate just before death. United States v. Wells, 283 U.S. 102, 116-17, 51 S. Ct. 446, 75 L. Ed. 867 (1931). To foreclose this strategy, Congress first enacted a rule establishing lifetime gifts made “in contemplation of death’’ as part of the testamentary estate. Id. at 116. Later, in response to excessive litigation over testamentary motive, Congress created a bright line rule: all gifts made within three years of death are functionally testamentary, regardless of the decedent’s subjective motive. See Estate of Armstrong v. Comm’r, 119 T.C. 220, 231 (2002) (citing Tax Reform Act of 1976, Pub. L. 94-455, 90 Stat. 1848). As a result, the associated taxes on those gifts have also been construed as transfers at death. See Estate of Ekins v. Comm’r, 797 F.2d 481, 485-86 (7th Cir. 1986). However, Washington does not impose a gift tax, nor does it construe gifts made in the three years before death as testamentary transfers. See WAC 458-57-105(2)(b); see also RCW 83.100.020(7) (defining “gross estate’’ as the federal gross estate). Because Washington does not treat lifetime gifts as testamentary transfers, it lacks the federal system’s predicate reasoning for treating the associated gift taxes as testamentary transfers.