BILL ANALYSIS                                                                                                                                                                                                    




                                                                  AB 1341
                                                                  Page A
          CONCURRENCE IN SENATE AMENDMENTS
          AB 1341 (Bonnie Lowenthal)
          As Amended  August 2, 2010
          Majority vote
           
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          |ASSEMBLY:  |     |(May 18, 2009)  |SENATE: |34-0 |(August 18,    |
          |           |     |                |        |     |2010)          |
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                                (vote not relevant)

          Original Committee Reference:    REV. & TAX.  

           SUMMARY  :  Provides that there is no taxable possessory interest  
          if the possession is pursuant to a project agreement entered  
          into by the Judicial Council with a nongovernmental entity for  
          the purpose of replacing the Long Beach Courthouse, and if other  
          specified criteria are met.   

           The Senate amendments  delete the Assembly version of this bill,  
          and instead:

          1)Include the following legislative findings:

             a)   The existing courthouse located at 415 West Ocean  
               Boulevard in the City of Long Beach is in unsatisfactory  
               physical condition, is a potential public safety risk to  
               court staff and the public, and is in need of immediate  
               replacement;

             b)   This bill is designed to expedite the facility's  
               replacement by resolving a disputed property tax issue that  
               could potentially delay the replacement project and add an  
               element of unpredictable financial risk to the project's  
               public sponsor; 

             c)   It is the Legislature's intent in enacting this bill to  
               provide legislative direction to county assessors, the  
               State Board of Equalization, the courts, and other involved  
               parties regarding the interpretation of the term  
               "independent" as it relates to the Long Beach Courthouse;  
               and,

             d)   A special law is necessary because of the need to  
               resolve the property tax issues potentially delaying the  









                                                                  AB 1341
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               Long Beach Courthouse replacement project and to mitigate  
               the attendant risks of that delay to the citizens of Los  
               Angeles County and the State of California.  

          2)Provides that there is no "independent" possession or use of  
            land or improvements (and, therefore, no taxable possessory  
            interest) if the possession is pursuant to a project agreement  
            entered into by the Judicial Council (JC) with a  
            nongovernmental entity in accordance with Government Code (GC)  
            Section 70391.5 for the purpose of replacing the Long Beach  
            Courthouse, and if all the following conditions are met:

             a)   The nongovernmental entity is required to design, build,  
               finance, operate, and maintain the Long Beach Courthouse;

             b)   The JC establishes performance expectations and  
               benchmark criteria for the court facility proposal in  
               accordance with GC Section 70391.5 that serve as the basis  
               for selecting the nongovernmental entity;

             c)   The JC and other governmental entities have exclusive  
               use and control of the Long Beach Courthouse for court and  
               related activities for 35 years;

             d)   The JC holds title to the land and improvements of the  
               Long Beach Courthouse;

             e)   The nongovernmental entity is not treated as the owner  
               of the improvements of the Long Beach Courthouse for any  
               purpose, including federal income tax purposes, and does  
               not deduct any depreciation on the improvements; and, 

             f)   Any lease-leaseback of land and improvements of the Long  
               Beach Courthouse with the nongovernmental entity is solely  
               for the purpose of providing security for the payment by  
               the JC of the service fee for services provided by the  
               nongovernmental entity in connection with a court facility.  


          3)Provides that this possessory interest safe harbor shall not  
            apply to any lease of, or improvements to, the Long Beach  
            Courthouse by the JC with a nongovernmental entity to the  
            extent the land or improvements are used by the  
            nongovernmental entity as commercial office space, retail  
            space, or paid parking spaces not designated for use for  









                                                                  AB 1341
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            governmental purposes or court facilities. 

          4)Provides that, notwithstanding existing law, the state shall  
            not reimburse any local agency for any property tax revenue  
            lost as a result of this bill.  

          5)Takes immediate effect as a tax levy.  

          EXISTING LAW  :
           
             1)   Requires all property subject to tax to be assessed at  
               its full value.  For property tax purposes, full value  
               generally equals the post-Proposition 13 acquisition price,  
               adjusted annually for inflation (not to exceed 2%).   
               Although public land is exempt from property tax, private  
               real property interests held in connection with public land  
               may be taxed as "possessory interests."  

             2)   Provides that, for a taxable possessory interest to be  
               found, the possession must generally be "independent,"  
               "durable," and "exclusive" of rights held by others in the  
               property.<1>  Possession is considered "independent" if the  
               holder has the ability to exert control over the property's  
               management, separate and apart from the public owner's  
               rules and policies.  In other words, a possession or use is  
               independent if it is sufficiently autonomous to constitute  
               something more than a mere agency.     


             3)Provides that, if specified conditions are met, there is no  
               "independent" possession of land or improvements if the  
               possession is pursuant to a contract that includes a  
               long-term lease for the private construction, renovation,  
               or maintenance of housing for active duty military  
               personnel and their dependents.  
           AS PASSED BY THE ASSEMBLY  , this bill: 

          1)Deleted obsolete references to the disabled veterans' basic  
          ---------------------------
          <1> Property Tax Rule 20(a)(1) additionally requires that the  
          possessor derive a "private benefit" from the property's use.  A  
          "private benefit" means "that the possessor has the opportunity  
          to make a profit, or to use or be provided an amenity, or to  
          pursue a private purpose in conjunction with its use of the  
          possessory interest."  









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            exemption amount of $40,000 and the low-income exemption  
            amount of $60,000, which were increased by the Legislature in  
            1989 to $100,000 and $150,000, respectively. 

          2)Corrected a transposition error in Revenue and Taxation Code  
            (R&TC) Section 276, intending a cross reference to R&TC  
            Section 4985, rather than Section 4895, relating to a disabled  
            veterans' partial exemption for outstanding property taxes. 

          3)Made a minor, technical change to the provision relating to  
            the procedure for canceling outstanding property taxes when a  
            claim for the exemption is filed late. 

           FISCAL EFFECT  :  This bill would result in foregone possessory  
          interest taxes in Los Angeles County of between $4 million and  
          $5 million.  However, the JC indicates that, in the absence of  
          this bill, the state would be required to pay any possessory  
          interest taxes related to the Long Beach Courthouse on behalf of  
          the nongovernmental entity, which could result in annual General  
          Fund payments of $4 million to $5 million.  

           COMMENTS  :  The author has provided the following statement in  
          support of this bill:

               Long Beach is ready for its new courthouse.  In fact,  
               it is long overdue.  Experts say its existing  
               50-year-old facility is perhaps the worst in the state  
               when it comes to security, safety and overcrowding.

               The Administrative Office of the Courts has found a  
               way to deliver the project three years earlier than  
               might otherwise occur, by use of a public-private  
               partnership.  

               Unfortunately, a dispute over property tax has arisen,  
               which, if left unresolved, could increase the cost of  
               the project to the point it would no longer be  
               fiscally viable.

               To resolve this problem without creating precedent or  
               altering existing code, AB 1341 declares that the  
               unique needs and nature of the Long Beach courthouse  
               project exempt its state functions from possessory  
               interest taxation.   










                                                                  AB 1341
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               If the courthouse were funded the traditional way,  
               possessory tax revenue would of course not exist.   
               Likewise, if the courthouse construction were  
               postponed, there would be no economic activity of any  
               kind to tax.  Any revenue to be gained by applying  
               possessory tax to this project is an illusion. 

          Committee staff notes that this bill was substantially amended  
          in the Senate and the Assembly-approved provisions of this bill  
          were deleted.  This bill, as amended in the Senate, is  
          inconsistent with Assembly Actions.  
           
          Analysis Prepared by  :  M. David Ruff / REV. & TAX. / (916)  
          319-2098 

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