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