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  






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                   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.





























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            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:








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            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








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            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






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                   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  






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            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  






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            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