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            apply the tax, which is modeled after the repealed Federal  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  








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                 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  








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            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  








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            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;  








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            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  








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            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



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            Consultant: Colin Grinnell