BILL ANALYSIS                                                                                                                                                                                                    




                                                                  SB 1250
                                                                  Page A
          Date of Hearing:  June 28, 2010

                     ASSEMBLY COMMITTEE ON REVENUE AND TAXATION
                            Anthony J. Portantino, Chair

                    SB 1250 (Ducheny) - As Amended:  June 2, 2010

          Majority vote.

           SENATE VOTE  :  33-0
           
          SUBJECT  :  Taxation:  military housing

           SUMMARY  :  Modifies the statute that provides a possessory  
          interest tax exemption to private contractors that construct and  
          maintain military housing, provided certain conditions are met.   
          Specifically,  this bill  :  

           1)Eliminates the requirement that the housing be for "military  
            personnel and their dependents" and instead specifies that the  
            housing be for military personnel  or  their dependents, or  
            both, thereby allowing the exclusion to apply to long-term  
            leases of nonfamily or "bachelor" housing.

          2)Specifies that the exclusion applies to housing used  solely   
            for active duty military personnel.  

           EXISTING LAW  :

             1)   Requires all property subject to tax to be assessed at  
               its full value.  For property tax purposes, full value  
               generally equals the post-Proposition 13 acquisition price,  
               adjusted annually for inflation (not to exceed 2%).   
               Although public land is exempt from property tax, private  
               real property interests held in connection with public land  
               may be taxed as "possessory interests."  

             2)   Provides that, for a taxable possessory interest to be  
               found, the possession must generally be "independent,"  
               "durable," and "exclusive" of rights held by others in the  














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               property.<1>  Possession is considered "independent" if the  
               holder has the ability to exert control over the property's  
               management, separate and apart from the public owner's  
               rules and policies.  In other words, a possession or use is  
               independent if it is sufficiently autonomous to constitute  
               something more than a mere agency.     


             3)Provides that, if specified conditions are met, there is no  
               "independent" possession of land or improvements if the  
               possession is pursuant to a contract that includes a  
               long-term lease for the private construction, renovation,  
               or maintenance of housing for active duty military  
               personnel  and  their dependents.  Among other things, the  
               military family housing so constructed and managed must be  
               situated on a military facility under military control.  In  
               addition, existing law provides that any reduction in  
               property taxes on the leased property shall insure solely  
               to the benefit of the military housing residents through  
               improvements, such as a child care center provided by the  
               private contractor.

           FISCAL EFFECT  :  Unknown.  The Board of Equalization's staff  
          analysis notes:
               This bill does not have a revenue impact since the Pacific  
               Beacon project is not subject to the property tax under  
               existing law.  To date, the Pacific Beacon [project] is the  
               only privatized housing for unaccompanied service members  
               located in California.  Depending on the success of the  
               pilot unaccompanied housing privatization projects,  
               Congress may decide to authorize the privatization of other  
               unaccompanied housing quarters as well.  We are not aware  
               of any other projects on the horizon - but should there be  
               such a project in the future (that is not structured like  
               the fact pattern in this particular project) then this bill  
               might have some future, unknown revenue impact. 

           COMMENTS  :
          ---------------------------
          <1> Property Tax Rule 20(a)(1) additionally requires that the  
          possessor derive a "private benefit" from the property's use.  A  
          "private benefit" means "that the possessor has the opportunity  
          to make a profit, or to use or be provided an amenity, or to  
          pursue a private purpose in conjunction with its use of the  
          possessory interest."  









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          1)The author states:

               In 2004 SB 451 was passed and signed into law and added  
               [S]ection 107.4 to the Revenue and Taxation [C]ode.  This  
               new provision clarified that "military family housing"  
               meeting certain specified criteria did not rise to an  
               "independent" possession of federal land.

               Section 107.4 does not apply to housing designed for  
               bachelor, or non-family military personnel.  The need for  
               military housing exists for both married and unmarried  
               military personnel, and it is important to ensure that all  
               military [personnel] have access to adequate housing.  

          2)The County of San Diego (County) is sponsoring this bill.  The  
            County notes:

               The County is sponsoring SB 1250 to address an inadvertent  
               omission in SB 451 (Ducheny), Ch. 853 of the Statutes of  
               2004, which exempted military "family" housing projects  
               from the possessory interest classification.  The intent of  
               SB 451 was to also include unaccompanied or single housing  
               which is in short supply as well.  SB 1250 will further  
               promote the development of on-base military housing,  
               thereby increasing the supply of available affordable  
               housing for  all  military personnel.  

          3)Opponents state that, "by inserting the word "solely" into the  
            legislation, it effectively nullifies Rev. and Tax Section  
            107.4 for all privatized on-base military housing projects for  
            several reasons."  Specifically, opponents state:

               To satisfy lender requirements, every Military Housing  
               Privatization Initiative (MHPI) housing project contains  
               provisions in their lease that if there are not enough  
               active duty military personnel to occupy the units, a  
               hierarchy of other tenants may occupy the units with the  
               approval of the base commander.  This hierarchy includes  
               Department of Defense personnel, retired military, and  
               finally, the general public.  While no projects in the  
               State of California are currently utilizing this provision,  
               the fact that these provisions exist mean that the project  
               cannot meet the amended language "  a long-term lease, for  
               the private construction, renovation, rehabilitation,  









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               replacement, management, or maintenance of housing solely  
               for active duty military personnel or their dependents."  

          4)Committee Staff Comments:

              a)   Background  :  In 1996, Congress established the Military  
               Housing Privatization Initiative (MHPI) to give the  
               military a tool to improve the quality of military housing.  
                The MHPI was designed to attract private sector financing  
               and expertise to provide much-needed housing more  
               efficiently than traditional military construction  
               practices would allow.  Under the MHPI, the military is  
               authorized to enter into agreements with private developers  
               selected in a competitive process to maintain and operate  
               family housing during a 50-year lease.  In this manner, the  
               MHPI was aimed at addressing the generally poor condition  
               of military-owned housing, and the shortage of quality,  
               affordable private housing.

             In response to the MHPI, SB 451 (Ducheny), Chapter 853,  
               Statutes of 2004, added Revenue and Taxation Code (R&TC)  
               Section 107.4, which provides specific rules for a private  
               contractor's interest in military housing to be exempt from  
               taxation as a possessory interest.<2>  As noted above,  
               however, R&TC Section 107.4 only applies to housing for  
               "military personnel and their dependents."  

               In 2003, however, Congress authorized the Department of the  
               Navy to undertake up to three pilot projects for the  
               privatization of unaccompanied housing.  On March 26, 2009,  
               the Department of the Navy and Clark Realty Capital  
               celebrated the opening of Pacific Beacon at Naval Base San  
               Diego - the nation's first large-scale privatized housing  
               community for unaccompanied military personnel.    

               This bill would simply extend the possessory interest  
               exemption to projects for unaccompanied service personnel  
               (i.e., bachelor housing).   

              b)   Related Legislation  :  The following related bills were  
               introduced in the current legislative session:  
             --------------------------
          <2> Among other things, R&TC Section 107.4(m) provides that any  
          reduction in property taxes resulting from the exclusion must be  
          used solely to benefit the military housing residents through  
          improvements like the provision of a child care center.








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                i)     AB 1332 (Salas)  :  AB 1332 would have extended the  
                 possessory interest tax exemption to long-term leases of  
                 nonfamily housing.  In addition, AB 1332 would have  
                 modified the requirement that all property tax savings  
                 resulting from the exclusion be used solely to benefit  
                 the military housing residents.  Finally, AB 1332 would  
                 have required the private contractor, at the county  
                 assessor's request, to provide certain substantiating  
                 documentation.  AB 1332 was held in the Assembly  
                 Appropriations Committee. 

                ii)    AB 1344 (Fletcher)  :  AB 1344 would have modified the  
                 conditions that must be met for a private contractor's  
                 long-term lease of military housing to be excluded from  
                 classification as a possessory interest subject to  
                 property taxation.  AB 1344 died in this Committee.  

                iii)   AB 1945 (Fletcher)  :  AB 1945 would have allowed, by  
                 implication, the tax savings to be held in a reserve  
                 account for use in future project construction if the  
                 military so required.  The bill's hearing in this  
                 Committee was cancelled at the request of the author.  

           REGISTERED SUPPORT / OPPOSITION :

           Support 
           
          County of San Diego (Sponsor)
          Clark Realty Capital 
          County of San Diego Assessor/Recorder/County Clerk David L.  
          Butler
          San Diego Regional Chamber of Commerce
           
            Opposition 
           
          De Luz Family Housing

           Analysis Prepared by  :  M. David Ruff / REV. & TAX. / (916)  
          319-2098