BILL ANALYSIS SENATE REVENUE & TAXATION COMMITTEE Senator Michael Machado, Chair AB 115 - Klehs Amended: June 20, 2005 Hearing: June 29, 2005 Tax Levy Fiscal: YES SUBJECT: Income & Corporation Taxes: Conformity with federal law EXISTING LAW bases much of the tax code on the federal Internal Revenue Code. California does not automatically conform to new federal legislation. Rather, California may conform to specific enactments at the federal lever, or may conform to the IRC as of a specified date. The latest IRC to which California has conformed is that in effect as of January 1, 2001. Since the last "date change" legislation, California has adopted several provisions of federal legislation, but there remain many federal tax provisions representing selected areas of nonconformity, as explicitly stated in the California Revenue & Taxation Code. THIS BILL generally conforms California personal income tax and corporation tax laws to federal tax laws as set forth in the Internal Revenue Code as of January 1, 2005, with specific exceptions. Specifically, the bill: Conforms to may provisions of the numerous federal tax bills that have been enacted since the last conformity date, including: (1) expansion of the exclusion from income for qualified foster care payments and (2) creation of Health Savings Accounts. Adopts the uniform definition of "child," extension of provisions regarding Archer MSAs, and technical amendments related to the Working Families Tax Relief Act of 2004 (WFTRA). Conforms to numerous provisions of the American Jobs Creation Act of 2004 (AJCA), including: (1) miscellaneous technical and administrative provisions dealing with S corporations and real estate investment trusts; (2) transfers of certain AB 115 - Klehs Page 5 losses relating to divorce; (3) special rules for livestock sold on account of weather-related conditions; (4) expensing of reforestation expenditures; (5) modification of class life of certain track facilities; (6) changes related to charitable deductions including limitations on the amount of deduction for contributions of motor vehicles, boats and airplanes to the amount the charity receives on subsequent sale; (7) provisions related to reportable transactions and tax shelters; (8) limitation of employer deductions for entertainment expenses; (9) provisions allowing current expensing of capital costs relating to compliance with EPA sulfur regulations; (9) credits related to the EPA regulations. Does NOT conform to various provisions, including: (1) various depreciation-related provisions; (2) provisions related to foreign corporations and foreign tax credits; (3) deductions for dividends repatriated to the United States form foreign subsidiaries. AB 115 - Klehs Page 5 FISCAL EFFECT: Franchise Tax Board prepared the following estimates: ------------------------------------------------------------- | | Revenue Impact ($ | | | Millions) | | | | ------------------------------------------------------------- |------------------------------------+--------+-------+--------| | |2005-06 |2006-07|2007-08 | | | | | | | | | | | |------------------------------------+--------+-------+--------| |Expansion of exclusion from income |-$4 |-$3 |-$3 | |for qualified foster care payments | | | | | | | | | |------------------------------------+--------+-------+--------| |Deduction of student loan interest |0 |-8 |-15 | | | | | | |------------------------------------+--------+-------+--------| |Health Savings Accounts |-29 |-18 |-23 | | | | | | |------------------------------------+--------+-------+--------| |Uniform definition of "child" and |-10 |-7 |-7 | |other WFTRA provisions | | | | | | | | | |------------------------------------+--------+-------+--------| |Miscellaneous provisions of AJCA |+30.4 |+39.1 |+37.2 | | | | | | |------------------------------------+--------+-------+--------| |Conformity with EPA sulfur |-.4 |-1.1 |-1.2 | |regulation, etc. | | | | | | | | | |------------------------------------+--------+-------+--------| |TOTALS |-$13 |$2 |-$12 | | | | | | -------------------------------------------------------------- COMMENTS: AB 115 - Klehs Page 5 A. Purpose of the bill The author indicates that there have been no fewer than five federal tax bills during the period since California last conformed its tax laws to the IRC. California has adopted some of the tax law changes in a piece-meal fashion, but has not considered a general conformity measure for several years. Federal tax legislation enacted in late 2004 was so substantial as to warrant serious consideration of a "date change" conformity measure. The author proffers this "date change" conformity measure so that California will be one step closer to federal tax law, which should enhance compliance with the California tax laws. B. Why conform with federal tax laws? Failure to conform to federal law in some areas but not in other related areas can be confusing and may lead to improper tax reporting to California. Other areas of tax law should be adopted so that taxpayers who follow federal laws will not automatically violate California laws. An example is the ability to roll-over balances in an Archer MSA to a new HSA without triggering liability at the federal level, but would constitute a disqualified distribution for state purposes, subjecting taxpayers to tax and penalties for the transfer. Another desirable area of conformity involves definitions. For example, the federal tax law adopted a uniform definition of "child" for purposes of all provisions that provide tax benefits with respect to children (including head of household filing status, dependent care credit, child care credit, earned income credit, and the dependency exemption). The state and federal statutes use differing definitions or separate criteria, which cause some persons to be classified as a child for some tax purposes but not for others. C. Health Savings Accounts AB 115 - Klehs Page 5 HSAs were created by the Medicare bill signed by President Bush on December 8, 2003 and are designed to help individuals save for future qualified medical and retiree health expenses on a tax-free basis. Opponents of these accounts are concerned that it could result in employers no longer offering low deductible health plans, opting for high deductible plans instead, and shifting the costs to employees. The opponents further state that "high deductible health plans and savings accounts hurt poor people who simply cannot afford to buy high deductibles and are barely making ends meet." Opponents further state that HSAs are an example of adverse selection where one healthy group of people is more likely to use the high deductible programs than a less healthy group of people that cannot afford the deductibles. Proponents, however, note that this type of product offers consumers another option and flexibility when making health care coverage choices. The committee may wish to consider amending this provision out of the bill in order to consider the policy issues. D. Tax Credit for Sulfur The credit for sulfur operates in the following manner: The credit is awarded as follows: Between January 1, 2006-January 1, 2018 there would be a tax credit equal to five cents for each gallon of ultra low sulfur diesel produced. The credit cannot exceed 25% of the qualified capital costs. Qualified Capital Costs mean item that has been certified by CARB under compliance with the EPA or CARB regulations (Highway Diesel Fuel Sulfur Control Requirements) of reducing sulfur particulates from 500 to 15. Small refiner (for California purposes) is: A refiner that since 1978 has not had a capacity greater than 55,000 per stream day. Has not owned another refiner that produces more than 55,000 per stream day AB 115 - Klehs Page 5 Has not been owned by a refiner that has a capacity greater than 137,500 barrels per stream day The in-lieu deduction works as follows: Small refiners may elect to deduct 75% of the qualified capital costs paid or incurred during the period beginning on January 1, 2004 and ending on January 1, 2009. The basis of the items would be required to be reduced by the amount deducted during the taxable year. Discussion of the Credit California does not automatically conform to federal law; however, the state attempts to conform to items that make the administration of taxes easier. Credits, as a general rule, have not fallen into this category. This committee generally analyzes credits based on the effect they will have on behavior and whether they will provide an economic incentive. This credit certainly provides an economic reward which proponents state will increase state revenues by $40 million. However, it is unclear whether this credit will have an effect on behavior; that is, between the in-lieu depreciation and the fact that the credit complies with existing regulation, refiners seem to have no choice but to comply. E. Alternatives to the H.S.A. Provisions Passive Activity Losses On May 2, 2005 this bill included provisions to conform to the exception for passive activity loss rules for real estate professionals; that provision was subsequently amended out of the bill. The passive activity loss (PAL) rules limit deductions and credits from passive trade or business activities. Deductions attributable to passive activities, to the extent they exceed income from passive activities, generally may not be deducted against other income, such as wages, portfolio income, or business income that is not derived from a passive activity. A similar rule applies to credits. Deductions and credits that are suspended under these rules are carried forward and treated as deductions and credits from passive activities in the next year. The AB 115 - Klehs Page 5 suspended losses from a passive activity are allowed in full when a taxpayer disposes of his or her entire interest in the passive activity to an unrelated person. The PAL rules apply to individuals, estates, trusts, closely held C corporations, and personal service corporations. A special rule permits closely held C corporations to apply passive activity losses and credits against active business income (or tax liability allocable thereto) but not against portfolio income. Passive activities are defined to include trade or business activities in which the taxpayer does not materially participate. Rental activities (including rental real estate activities) are also treated as passive activities, regardless of the level of the taxpayer's participation. A special federal rule permits the deduction of up to $25,000 of losses from rental real estate activities (even though they are considered passive), if the taxpayer actively participates in them. This $25,000 amount is allowed for taxpayers with adjusted gross incomes (AGI) of $100,000 or less, and is phased out for taxpayers with AGI between $100,000 and $150,000. Conformity would provide an exception to passive activity loss rules for real estate professionals. The fiscal effect on this provision would be $35 million loss in 2005-06; and a $25 million loss thereafter. Real Estate Withholding Before the 2002 Budget Act, nonresidents who sold California real estate were subject to withholding on the proceeds; the buyer of the property was required to withhold 3 1/3% of the sales price and remit the money to FTB by April 15th of the following year. The Budget Act intended to subject residents to the same treatment of withholding as nonresidents. The new law, however, requires the purchaser to withhold 3 1/3% of the property sales price and withhold 3 1/3% at the time of sale. The committee may wish to consider amending this law to allow the taxpayer to withhold either 3 1/3% of the sales AB 115 - Klehs Page 5 price or the marginal rate of the profit. The revenue loss associated with this provision would be $35 million in the 2005-06 budget year and $4 million each year thereafter. Support and Opposition Support:Franchise Tax Board Kern Oil & Refining Co. Paramount Petroleum Oppose:California Tax Reform Association (H.S.A. Provision) ---------------------------------------------------- Consultants: Martin Helmke & Gayle Miller 08/16/05 16:15