BILL ANALYSIS SB 816 Page 1 Date of Hearing: June 22, 2009 ASSEMBLY COMMITTEE ON REVENUE AND TAXATION Charles M. Calderon, Chair SB 816 (Ducheny) - As Amended: April 28, 2009 Majority vote. Fiscal committee. SENATE VOTE : 32-2 SUBJECT : Property taxation. SUMMARY : Implements various changes to the Revenue & Taxation Code (R&TC) sponsored by the California Assessors' Association. Specifically, this bill : 1)Requires the county assessor to disclose information, furnish abstracts, or permit access to all records in his/her office to the county recorder when conducting an investigation to determine whether a documentary transfer tax is imposed. 2)Modifies the trigger for imposing an existing penalty for the failure to file a change in ownership statement. Specifically, the penalty shall be imposed for the failure to file a change in ownership statement within 45 days from the earlier of: a) The date of the change in control (or ownership) of the corporation, partnership, or limited liability company (LLC); or, b) The date of a written request by the Board of Equalization (BOE). 3)Deletes statutory language providing that the penalty shall be automatically extinguished if the relevant party files a complete statement no later than 60 days after the date on which the party is notified of the penalty. 4)Provides that any ordinance adopted pursuant to the Documentary Transfer Tax Act may include an administrative appeal process for resolution of disputes related to the documentary transfer tax. SB 816 Page 2 5)Specifies that, whether the amount of documentary transfer tax is determined by an administrative appeal process or established by a court, the value of the property established for purposes of determining the amount of documentary transfer tax due shall not be binding on the determination of the value of that property for property tax purposes. 6)Specifies that, if the Commission on State Mandates determines that this bill contains costs mandated by the state, reimbursement to local agencies and school districts shall be made. EXISTING LAW : 1)Requires the county assessor to disclose information, furnish abstracts, or permit access to all records in his/her office to law enforcement agencies, the county grand jury, and other specified entities. 2)Provides that, whenever there is a change in control of any corporation, partnership, LLC, or other legal entity, the party acquiring ownership control must file a signed change in ownership statement with the BOE at its office in Sacramento. Similarly, whenever there is a change in ownership of any corporation, partnership, or LLC, a signed change in ownership statement must be filed. 3)Imposes a penalty for the failure to file a change in ownership statement within 45 days from the date of a written request by BOE. The penalty is equal to 10% of the taxes applicable to the new base year value reflecting the change in control (or ownership) of the real property owned by the business (or 10% of the current year's taxes on that real property if no change in control or ownership occurred). FISCAL EFFECT : BOE notes that this bill has no direct revenue impact. However, establishing a penalty for not self-reporting and filing a change in ownership statement with BOE may be an incentive for legal entities to properly file a change in ownership statement when a change in ownership occurs. COMMENTS : 1)The author states, "SB 816 requires that the existing 10% penalty be applied on taxes due for the year when a new SB 816 Page 3 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." 2)Supporters note, "Under Proposition 13, changes in ownership typically result in higher assessments and therefore increased property taxes. The 10% penalty provision of this bill can be expected to accomplish two things. First, it will improve the discovery of reappraisable changes in ownership, reducing the number of escape assessments. Second, the time between a change in ownership and discovery of unrecorded transfers will be reduced, resulting in more timely receipt of increased property taxes." 3)BOE notes the following in its staff analysis of this bill: a) "Under current law, a penalty is incurred only if a legal entity does not respond to a written request by the Board to file a statement. Legal entities are given two opportunities to provide the information before a penalty is levied. This bill would impose a penalty on those legal entities that do not initiate filing a change in ownership statement within the required time period." b) "As an aid in discovering change in control or change in ownership of property owned by legal entities, the Board routinely sends statements to legal entities based on information from the property tax question on the state income tax return and from monitoring various business publications. This bill would not modify the requirement to file a statement upon Board request and the penalty for failure to respond to the Board request for information. These penalties can apply whether or not a change in ownership actually occurred. However, this bill does eliminate the automatic penalty extinguishment provisions." 4)Committee Staff Comments a) Discovering a change in ownership : i) R&TC Section 255.7 provides that, whenever a change SB 816 Page 4 of ownership is recorded in the county recorder's office, the county recorder must provide the assessor with a copy of the transfer of ownership document as soon as possible. BOE notes that county assessors discover most changes in real property ownership through grant deeds or other recorded documents. However, with respect to property owned by a legal entity, the property may "change ownership" under the law, but no grant deed or other document is recorded to alert the assessor to the need for reassessment. Thus, discovery of these ownership changes is largely dependent on self-reporting by the legal entities. ii) Existing law provides that, whenever there is a change in control of any corporation, partnership, LLC, or other legal entity, the party acquiring ownership control must file a signed change in ownership statement with BOE. Similarly, whenever there is a change in ownership of any corporation, partnership, or LLC, a signed change in ownership statement must be filed. However, no penalty is imposed if the statement is not filed within the 45 day period specified in law. Rather, the penalty applies only if a legal entity does not timely respond to a direct BOE request to file a change in ownership statement. iii) BOE notes that, while there is no penalty for failing to notify property tax administrators within the required 45 day period, there is, nevertheless, a long-term consequence to not reporting "reassessable events" promptly. This is because existing law provides that when it is eventually discovered that a property should have been reassessed and it was not reported, then the property must be reassessed as of the date of that event and all the back taxes (plus interest and a potential fraud penalty) must be repaid. Specifically, so-called "escape assessments" are levied for every tax year in which the property owned by the legal entity was not assessed at the proper amount to reflect the change in ownership. iv) This bill would amend existing law to provide for the imposition of a penalty if a change in ownership statement is not filed within 45 days of the earlier of: (1) The date of the event triggering the reassessment, SB 816 Page 5 or, (2) the date BOE makes a written request to file a statement. Thus, when there is a change in control or ownership of a business entity, the business must file a change in ownership statement within 45 days of the event, with or without a written request from BOE, or a penalty will be imposed. b) Penalty abatement : R&TC Section 482(b) provides that the penalty for failing to file a statement will be automatically extinguished if the responsible party files a complete statement with BOE no later than 60 days after the date on which the party is notified of the penalty. This bill would amend R&TC Section 482(b) to delete the automatic extinguishment provisions. However, BOE notes that a legal entity could continue to seek penalty abatement for reasonable cause under existing law. c) The documentary transfer tax : i) Existing law requires county assessors to keep certain information confidential. R&TC Section 408(b) provides an exception to this general rule of confidentiality for certain governmental agencies or representatives. Specifically, it requires the assessor to disclose information, furnish abstracts, or permit access to all records in his/her office to specified entities. ii) This bill would amend R&TC Section 408(b) to add the county recorder to the list of entities that may have access to all records in the assessor's office for purposes of determining whether a documentary transfer tax is to be imposed. The documentary transfer tax is administered at the local level by the county recorder. iii) This bill would also expressly provide for an administrative appeal process to resolve documentary transfer tax disputes. d) Technical amendments : BOE has suggested technical amendments referenced in its staff analysis of this bill. REGISTERED SUPPORT / OPPOSITION : Support SB 816 Page 6 California Assessors' Association Los Angeles County Board of Supervisors Opposition None on file Analysis Prepared by : M. David Ruff / REV. & TAX. / (916) 319-2098