BILL ANALYSIS SENATE REVENUE & TAXATION COMMITTEE Senator Lois Wolk, Chair SB 816 - Ducheny Introduced: February 27, 2009 Hearing: April 22, 2009 Fiscal: Yes SUMMARY: Makes Three Changes to Enhance Enforcement and Administration of the Documentary Transfer Tax I. The Documentary Transfer Tax EXISTING LAW (California Constitution, Article XIIIA, Section 4) prohibits transaction taxes or sales taxes on transfers of real property; however, the Revenue and Taxation Code authorizes counties to approve an ordinance to impose a documentary transfer tax (DTT), which applies to deeds of transfer of realty within that jurisdiction and is based on the value of the transfer. In counties, the rate is fifty-five cents ($0.55) for each five hundred dollars ($500) of value. All of California's 58 counties apply the tax, which is modeled after the repealed Federal Documentary Stamp Tax. EXISTING LAW also allows cities to enact ordinances to impose a DTT: Noncharter cities within a County that impose a DTT may apply its tax at half of the rate of the county and applies as a credit against the county rate. Charter cities may impose a DTT at a higher rate under the municipal affairs doctrine in the California Constitution (Article XI, Section 5). If they do so SB 816 - Ducheny Page 4 at a higher rate than the non-charter rate, then the city DTT does not serve as a credit against the county tax. EXISTING LAW provides several exemptions to the tax, including when any public agency acquires land, land acquired as a result of a plan of reorganization or adjustment such as bankruptcy, and certain transfers in lieu of foreclosure, among others. THIS BILL allows DTT ordinances to include an administrative appeal process to resolve disputes. The measure additionally states that the when this administrative process or a court of law fixes the value of the property for purposes of applying the DTT, that determination does not bind the value for property tax purposes. II. Assessor Records EXISTING LAW provides that any information and records in the Assessor's office are not public documents and shall not be open to public inspection, unless specifically exempted by law. Exemptions include information for law enforcement agencies, county grand jury, or the Board of Supervisors. THIS BILL requires the Assessor to disclose information, furnish abstracts, and permit access to all records to the County Recorder when conducting an investigation to determine whether the documentary transfer tax is due. II. Change of Ownership Statements EXISTING LAW requires the person acquiring ownership or control of a corporation, partnership, limited liability SB 816 - Ducheny Page 4 company, or other legal entity to submit a change in ownership statement to the Board of Equalization (BOE), signed under penalty of perjury, listing all the counties in which the firm operates. If the person fails to file the statement within 45 days of a written request from the BOE, a penalty applies of 10% of the taxes applicable to the new base year reflecting the change in ownership or control. However, the penalty is extinguished if the person files a change in ownership statement within 60 days of BOE notification of the penalty. THIS BILL instead provides that the penalty applies if the person acquiring the corporation, partnership, limited liability company, or other legal entity does not file the change of ownership statement within the earlier of 45 days from the BOE request or 45 days from the date in change of control or ownership. The bill changes two sections of law, the first which applies to changes in control of a firm, the second which applies to changes in ownership. THIS BILL also deletes the provision requiring the penalty to be extinguished if the person files the statement within 60 days of notification of the penalty. FISCAL EFFECT: Committee staff estimates that SB 816 will result in some increased revenue for local agencies as a result of increased DTT collections due to increased application of existing penalties. COMMENTS: A. Author's Statement According to the Author, "SB 816 requires that the existing 10% penalty be applied on taxes due for the year SB 816 - Ducheny Page 4 when a new business owner fails to file a change in ownership statement with the BOE within 45 days of a change of ownership or control. Under current law, the penalty is only applied after a written request for filing is sent from the BOE. This has resulted in multi-year delays in reassessments of business properties and losses of hundreds of millions in taxes to State and Local Governments." B. The DTT The Documentary Transfer Tax, enacted in 1967, allows cities and counties to enact taxes on documents that serve to transfer real property. The tax may be used for general or specific purposes, although all DTTs levied thus far are general taxes. The tax is administered by county recorders, who cannot by law record the property transfer until the tax is paid. Counties collect the tax but remit the city tax to the appropriate city. Hundreds of California Cities levy the tax, ranging from the general law city rate of fifty-five cents per $1000 of value up to $15.00 in the City of Oakland. SB 816 provides a firmer deadline to file change of ownership statements and removes a sixty day grace period, thereby encouraging taxpayers to file the legally required forms, which may or may not trigger the DTT. Additionally, by providing access to assessor information, SB 816 will help recorders determine whether the DTT applies to certain changes of ownership. C. Gears and Wheels When property or control of a firm changes hands, the acquiring person must submit one of two reports. When a new owner acquires property, he or she must attach a Preliminary Change of Ownership Report (PCOR) to with any document effecting a change of ownership to the County Recorder, or pay an additional recording fee of $20; SB 816 - Ducheny Page 4 however, the recorder must record the property change documents if the person pays the additional recording fee. The County Recorder will then share the PCOR information along with grant deeds with the County Assessor, who then determines whether to reassess the property. If the PCOR is not filed, the person must file a Change in Ownership Statement (COS). However, no penalty applies for failing to file the COS unless the assessor asks for one, in which case the person must file the COS within 45 days of the assessor's written request or face a penalty of the greater of $100 or 10% of the taxes applicable to the new base year reflecting the change of ownership, not to exceed $2,500, unless the failure was willful, in which case the penalty reflects the full amount of the taxes applicable to the new base year. Typically, a person acquiring control or ownership of the firm notes the change when answering specific questions on his or her state income tax forms filed with FTB, which notifies BOE. BOE then notifies the person of the COS requirement, who must file the form with the BOE at its office in Sacramento listing all the counties in which the firm does business. The California Assessors' Association states that only 9% of COSs are filed voluntarily according to BOE, showing that persons usually respond only after prodding from the BOE. After receiving the COS, the BOE then notifies the affected counties of the change in control or ownership of the firm, and assessors determine whether to reassess property owned by that firm as a result of the change in control or ownership. The Assessors state that BOE takes an average of five months, and occasionally up to five years, to inform the person acquiring ownership or control to file a COS, and SB 816 hastens this process by placing an affirmative responsibility on the person acquiring control or ownership of the firm to file the legally-required forms. Currently, the penalty of 10% of the taxes applicable to the new base year reflecting the change in ownership or control only applies if the person acquiring ownership or control does not file a COS within 45 days of BOE's request. SB 816 instead provides that the penalty applies SB 816 - Ducheny Page 4 from the earlier of 45 days of the BOE's request, or 45 days from the change in control or ownership, meaning that affected persons must now submit the form or face a penalty regardless of whether BOE files a request. D. Suggested Amendments On Page 3, Line 10, delete "due" and insert "imposed" to reflect the appropriate verbage of the Documentary Transfer Tax Act. Support and Opposition Support:California Assessors' Association Oppose: None Received --------------------------------- Consultant: Colin Grinnell