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