BILL ANALYSIS SENATE REVENUE & TAXATION COMMITTEE Senator Lois Wolk, Chair SB 402 - Wolk Amended: April 16, 2009 Hearing: April 22, 2009 Fiscal: Yes SUMMARY: Enacts the Financial Institution Record Match Program EXISTING LAW established the Financial Information Data Match (FIDM) program, which requires financial institutions to match its customer records against a list of child support obligors. Financial institutions may comply with the requirement by sending its depositor information to the Franchise Tax Board (FTB), or match the names themselves, either in-house or contracting with a data management firm. Once a name from the child support obligors list matches a name on the financial institution's customer records, the FTB issues an order to withhold (OTW) to the financial institution, which must then freeze the taxpayer's assets, hold the assets for ten days, and then remit to the department all cash or cash equivalents necessary to meet the amount owed. Federal law bars any FIDM information from being used for any other purposes. Additionally, FIDM prohibits collecting against any income tax debts, allowing only for outstanding child support. EXISTING LAW generally prohibits unlawful disclosure or inspection of any income tax return information except as specified in law. Criminal sanctions, including imprisonment apply to FTB personnel convicted of unlawful disclosure or inspection of tax records. The Franchise SB 402 - Wolk Page 4 Tax Board (FTB) must notify a taxpayer if criminal charges have been filed for willful unauthorized inspection or disclosure of their tax data. THIS BILL enacts the Financial Information Record Match (FIRM) program, modeled after FIDM and administered by FTB, which requires financial institutions to match a list for delinquent tax debtors against its customer records. FIRM applies only to individuals who are delinquent tax debtors on or after the enactment date of the bill. Financial institutions must provide to the FTB on a quarterly basis the name, record address, social security number or taxpayer identification number for each delinquent tax debtor in its customer records. Financial institutions shall not disclose to a depositor that their name and information has been submitted to FTB except as otherwise required by law. THIS BILL requires FTB to reimburse a financial institution for its actual costs incurred to implement FIRM. Financial institutions must supply FTB with an invoice, which will then pay up to $2,500 for startup costs and no more than $250 per calendar quarter thereafter. THIS BILL ensures that financial institutions cannot be held liable for furnishing information to the FTB as required by FIRM, failing to disclose to a depositor that their name and information was supplied to FTB, and any other action taken in good faith to comply with the program. THIS BILL allows FTB to apply a penalty of $50 to a financial institution for each record not provided, not to exceed $100,000 per institution, for willfully failing to comply with FIRM unless reasonable cause can be shown. FTB may also pursue civil penalties. THIS BILL provides definitions for its terms to ensure consistency with FIDM. THIS BILL allows FTB to prescribe any rules and regulations necessary to implement FIRM, including: SB 402 - Wolk Page 4 A file matching structure for FTB and financial institutions or their data processing agents. An option for financial institutions without the technical ability to process the data or hire a data processing agent to forward customer information to FTB to perform the match instead. Authority for the FTB to suspend the requirements of the section if FTB determines that the financial institution is undercapitalized according to Federal Deposit Insurance Corporation regulations. THIS BILL states that implementing FIRM is contingent on an appropriation of funds, and is not operative until 120 days after the date the funds are appropriated. The bill further limits the first data file to 600,000 data records, and subsequent data files cannot increase by more than 600,000 records. THIS BILL also provides an exception to laws barring unlawful inspection and disclosure to allow FTB to disclose names and information to financial institutions to effectuate the program; however, the measure ties in criminal sanctions that currently apply to FTB to any use of information other than collection of taxes and non-tax debt referred to FTB for collection. The bill also exempts FIRM from the provisions of the California Right to Financial Privacy Act. FISCAL EFFECT: According to FTB, the measure would result in increased tax collections of $35 million in 2010-11, $63 million in 2011-12, and $99 million in 2012-13, plus some increases in non tax-debt collections. The measure also incurs implementation costs to FTB of $3.9 million in 2009-10, $7.2 million in 2010-11, and $5.3 million in SB 402 - Wolk Page 4 2011-12. COMMENTS: A. Purpose of the Bill According to the Author, "In today's times of fiscal strife, where key public services face tremendous cuts and law-abiding taxpayers pay higher sales and income tax rates than ever before, the state must do a better job of employing modern collection techniques and information technology to collect uncollected taxes due. SB 402 presents such a step by requiring financial institutions to match its customer records against the FTB's database of individuals with final tax delinquencies. Tax delinquents are often very smart - moving money from account to account before the state can catch them. SB 402 is a smart approach - it allows FTB to share data with banks and credit unions to identify depositors with unpaid tax obligations and quickly issue orders to withhold, resulting in the state collected delinquent taxes before tax cheats can evade collections again. Banks and credit unions already perform this data matching to collect outstanding child support, and SB 402 builds on this infrastructure by helping enhance tax collections without an unworkable administrative difficulty for financial institutions. Several other states use data matching for income tax delinquencies, and there's never been a more crucial time to update its efforts to collect outstanding taxes." B. Building on Success California has made several efforts to reduce the "tax gap," the difference between the actual amount of taxes owed under current law and the amount actually collected. While estimates of the tax gap vary, reducing the tax gap provides revenue for public services without increasing taxes on taxpayers who comply with the law. The FIDM program has been successful in detecting individuals who SB 402 - Wolk Page 4 owe child support, and FTB wants to apply similar steps to delinquent income tax accounts to increase collections. Financial institutions are familiar with FIDM, and SB 402 closely resembles that program to maximize collections at a minimum administrative difficultly for financial institutions. SB 402 allows California to join Indiana, Kentucky, Maryland, Massachusetts, Minnesota, New Jersey, and New York, among others, to build upon the FIDM and reduce the tax gap. C. Only the Lonely Can Play SB 402 grants FTB a powerful tool to use to collect unpaid income taxes; data matching will result in more orders to withhold on taxpayers who have previously eluded other collections efforts. Data matching is currently limited only to delinquent child support obligations. With these considerations in mind, SB 402 is limited only to final delinquent taxes, so its data matching tools cannot be used for any taxpayer who is still in adjudicatory process. The bill does not allow data matching for accounts of taxpayers' currently protesting tax due in the FTB administrative process, pursuing an income tax appeals at BOE, or seeking relief from a court of law on a tax case. D. Suggested Amendments SB 402 currently allows FTB to issue regulations that exempt banks that are undercapitalized according to FDIC regulations because banks in financial difficulty should deploy its finite resources toward maintaining capital levels instead of helping the state collect its income tax debts. The Committee may wish to consider amendments that instead of directing FTB to make a decision regarding a financial institution's level of capitalization, instead allows financial institutions to provide FTB a written notice from its appropriate regulator that the firm meets regulatory definitions of undercapitalized, significantly SB 402 - Wolk Page 4 undercapitalized, or critically undercapitalized. Part of these amendments should include a provision to ensure that these written notices are confidential and criminal sanctions that apply to FTB personnel for unlawful inspection and disclosure. On Page 1, Line 31, before "if," insert: "if a financial institution provides to" On Page 1, Line 31, strike out "determines," and insert: "a formal order from its supervisory banking authority that it is determined to be." On Page 1, Line 32, after "capitalized," insert: ", significantly undercapitalized, or critically undercapitalized" On Page 1, Line 33, after "(2))," insert: "or NCUA Regulation 702.102. The notice provided to FTB pursuant to this section shall be subject to Section 19542." Support and Opposition Support:Franchise Tax Board California School Employees Association Oppose:None Received --------------------------------- Consultant: Colin Grinnell SB 402 - Wolk Page 4