BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  SB 901
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          Date of Hearing:  August 24, 2012

                     ASSEMBLY COMMITTEE ON REVENUE AND TAXATION
                                Felipe Fuentes, Chair
                  SB 901 (Steinberg) - As Amended:  August 22, 2012
           
           Majority vote.  Fiscal committee.  
           
          SUBJECT  :  California Opportunity and Prosperity Act:  
          undocumented immigrants:  state income taxes

           SUMMARY  :  Enacts the California Opportunity and Prosperity Act 
          (COPA).  Specifically,  this bill  :

          1)Establishes a voluntary program (Program) to be administered 
            by the Department of Justice (DOJ) until January 1, 2018.  

          2)Provides that a "qualified person" may participate in the 
            Program, as specified.  Specifically, a "qualified person's" 
            written application for the Program admission shall be made as 
            prescribed by the DOJ.  The application shall include a 
            photograph or other electronically transmissible image of the 
            applicant.  Upon receiving an application, the DOJ shall 
            determine whether the applicant meets the definition of a 
            "qualified person."

          3)Defines a "qualified person" as a natural person who:

             a)   Is not eligible to receive a social security number;

             b)   Files a state income tax return, with a valid individual 
               taxpayer identification (ID) number, for the most recent 
               taxable year that a return is required;

             c)   Is not employed by a federal or state public entity, as 
               defined;

             d)   Declares that he/she is able to speak and understand 
               English or is enrolled in, or has applied to enroll in, an 
               English-as-a-second-language class;

             e)   Has not been convicted of a felony;

             f)   Is not a member or suspected member of a terrorist 
               organization, as specified; 








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             g)   Is not a public charge within the meaning of federal 
               law; 

             h)   Declares that he/she has been a continuous resident of 
               California since at least January 1, 2008;

             i)   Consents to a background check and the disclosure of any 
               information necessary to confirm Program eligibility; and, 

             j)   Consents to the disclosure of his/her name and federal 
               taxpayer ID to the Franchise Tax Board (FTB), as specified. 
                

          4)Provides that the language requirement specified above shall 
            not apply to any person who:

             a)   Is unable to speak or understand English because of a 
               physical or developmental disability or mental impairment;

             b)   Is over 50 years old and has been living in the United 
               States (U.S.) for at least 20 years; or, 

             c)   Is over 55 years old and has been living in the U.S. for 
               at least 15 years.   

          5)Provides that if the DOJ determines that an applicant meets 
            the definition of a qualified person, the DOJ shall admit the 
            applicant into the Program and shall provide the applicant 
            with a confirmation of admission, which shall be valid for one 
            year.  

          6)Requires the DOJ to renew a person's Program admission 
            annually upon payment of a renewal application fee and a 
            demonstration that the person continues to meet the definition 
            of a qualified person. 

          7)Requires the DOJ to charge each Program applicant a fee or 
            annual renewal fee sufficient to cover the agency's reasonable 
            administrative costs, including startup costs and costs 
            associated with confirming Program eligibility.  

          8)Provides that, on or before December 31, 2013, and on or 
            before December 31 of each successive year, until January 1, 
            2018, the DOJ shall provide the FTB with the name and federal 








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            taxpayer ID number of each qualified person admitted into the 
            Program during that calendar year.  The FTB, in turn, shall 
            use this information solely to prepare a mandated report, and 
            shall not disclose the information for any purpose, unless 
            expressly provided by this bill. 

          9)Provides that, on or before December 31, 2014, and on or 
            before December 31 of each successive year, until January 1, 
            2019, the FTB shall submit a report to the Legislature that 
            details the tax receipts collected during the immediately 
            preceding taxable year from qualified persons who participated 
            in the Program.  This report shall not contain any information 
            that identifies any specific qualified person.  

          10)Provides that any information disclosed by a Program 
            applicant or participant shall be used solely to administer 
            the Program and for no other purpose. 

          11)Specifies that any record containing any identifying 
            information of a Program applicant or participant shall not be 
            disclosed for any purpose, except as provided, to the extent 
            necessary to enforce a liability under the Revenue and 
            Taxation Code or the Family Code, or as otherwise required by 
            federal or state law.  Provides that if identifying 
            information is disclosed for an authorized purpose, the 
            recipient "shall use the information solely for that purpose 
            and shall not disseminate the information any further."

          12)Provides that all identifying information shall be 
            confidential and exempt from disclosure under the California 
            Public Records Act.  

          13)Authorizes both the DOJ and FTB to adopt regulations 
            necessary to implement the Program.  

          14)Provides that, on January 1, 2019, or as soon thereafter as 
            practicable, all Program records containing any identifying 
            information shall be destroyed, including Program applications 
            and records provided to the FTB.  This provision, however, 
            shall not obligate the FTB to destroy any tax returns or other 
            records necessary to conduct an audit or appeal or to process 
            any taxpayer claim for refund.  

          15)Specifies that the above provisions shall automatically 
            sunset on January 1, 2020.  








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          16)Provides that, on or after July 1, 2013, the Governor is 
            "authorized and directed" to submit, as a ministerial act on 
            behalf of the state, a request to the President asking the 
            President to direct the Department of Homeland Security  
            (DHS), the U.S. Immigration and Customs Enforcement (ICE), and 
            other relevant federal agencies not to expend resources during 
            the Program's operation Ýon] either of the following:

             a)   The apprehension, detention, or removal of a qualified 
               person in the Program or the qualified person's spouse or 
               eligible dependent, unless the qualified person, spouse or 
               eligible dependent meets one of the priority enforcement 
               criteria set forth in the then-existing ICE policy on civil 
               immigration enforcement; or, 

             b)   The prosecution of a person, for employing a qualified 
               person, pursuant to 8 U.S. Code Section 1324a.  

          17)Provides that, on or after July 1, 2013, the Governor is 
            further authorized and directed, as a ministerial act on 
            behalf of the state, to request that the President provide any 
            available waivers, exemptions, or authorizations necessary to 
            provide a safe harbor for individuals and businesses from 
            federal civil and criminal liability arising out of a 
            qualified person's participation in the Program or the 
            employment of a qualified person.  

          18)Specifies that this bill's provisions are severable.  If any 
            provision or its application is held invalid, that invalidity 
            shall not affect other provisions or applications that can be 
            given effect.   

           EXISTING FEDERAL LAW  :

          1)Regulates immigration pursuant to the Immigration and 
            Nationality Act (INA), which governs the rights, duties, and 
            obligations associated with being an alien in the U.S.  The 
            INA also governs issues such as length of stay, and specifies 
            which aliens may become legal citizens.   

          2)Provides, per Presidential directive, that individuals who 
            demonstrate that they meet specified criteria will be 
            eligible, on a case by case basis, for deferred action with 
            respect to deportation.  








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          3)Defines "terrorist activity" as any activity that is unlawful 
            under the laws of the place where it is committed and which 
            involves certain specified acts, including the high-jacking or 
            sabotage of any conveyance, or the seizing or detaining of 
            another individual to compel a third party to do or abstain 
            from doing any act as a condition for the individual's 
            release.  

          4)Deems inadmissible any alien who, in the opinion of the 
            consular officer at the time of application for a visa, or in 
            the opinion of the Attorney General (AG) at the time of 
            application for admission or adjustment of status, is likely 
            at any time to become a public charge.  

           EXISTING STATE LAW  :

          1)Creates within state government the DOJ, under the direction 
            and control of the AG.  

          2)Requires the FTB to, among other things, administer personal 
            and corporation income tax laws and certain other nontax 
            programs, including the collection of specified delinquent 
            debt.  

           FISCAL EFFECT  :  Unknown.  According to the FTB, this measure 
          would not impact state revenues, and would likely result in 
          minor fiscal costs.  According to the Legislative Analyst's 
          Office analysis of a similar ballot initiative, the measure 
          would result in an unknown net change in annual state tax 
          revenues through fiscal year (FY) 2017-18, but probably without 
          a significant impact on overall General Fund (GF) revenues, and 
          annual state administrative costs through FY 2017-18 in the 
          hundreds of thousands or low millions of dollars, supported by 
          required participant fees.      

           COMMENTS  :

           1)Author's Statement  :  The author has provided the following 
            statement in support of this bill:

          "SB 901 gives qualified unauthorized residents who pay state 
            income taxes the option to enter a program whose participants 
            may gain relief from federal enforcement and whose labor may 
            be decriminalized.  In these difficult economic times, this 








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            program will also generate $325 million in new revenue as more 
            undocumented workers start filing taxes in hopes of enrolling 
            in the program."

           2)Arguments in Support  :  Proponents of this measure argue that 
            "SB 901 is a common sense policy that benefits responsible 
            immigrants and the state of California by potentially 
            generating over $300 million in new state taxes for the 
            general fund."  Proponents also state that this measure 
            "establishes a framework for long-term law-abiding California 
            resident undocumented taxpayers that will bring them out of 
            the shadows and allow them to contribute to our state."  
            Finally, proponents believe that more than one million hard 
            working immigrants and business owners "would finally be able 
            to pay hundreds of millions of dollars in taxes that can be 
            used to invest in education, law enforcement, and health 
            services and upon federal agreement receive exemption from 
            federal enforcement and sanctions."

           3)The COPA  :  SB 901 proposes an innovative approach to increase 
            tax compliance by encouraging undocumented immigrants to file 
            their California income tax returns and pay their 
            corresponding tax liability.  It creates a way for those 
            law-abiding undocumented immigrants, who pay their state taxes 
            and are certified as eligible by the DOJ, to potentially be 
            shielded from federal enforcement actions.  Specifically, SB 
            901 establishes a voluntary pilot program, until January 1, 
            2018, to be administered by the DOJ, and allows eligible 
            undocumented immigrants to participate in this program.  If 
            certified as eligible, the applicant will receive a 
            confirmation of admission, which will be valid for one year.  
            The benefits of participating in the Program include potential 
            relief from federal enforcement action for the participants, 
            their families, and participants' employers, provided the 
            Governor petitions the President, as directed by SB 901, and 
            the President agrees to grant relief.  The Program is intended 
            to help long-term California residents who have not been 
            convicted of a felony, are not members of a terrorist 
            organization, and do not pose a clear risk to national 
            security.  The eligibility criteria set forth by this measure 
            are similar to those outlined by J. Morton, Director of ICE, 
            in his letter addressing the factors that should be considered 
            by ICE personnel in exercising prosecutorial discretion (ICE 
            letter).  









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          According to its Director, ICE is confronted with more 
            administrative violations than its resources can address, and 
            thus, must regularly exercise prosecutorial discretion in the 
            ordinary course of enforcement.  "Prosecutorial discretion" is 
            "the authority of an agency charged with enforcing a law to 
            decide to what degree to enforce the law against a particular 
            individual."  (ICE letter, p.2).  Thus, on June 15, 2012, 
            President Obama issued an executive order that deferred 
            deportation action against certain young undocumented 
            immigrants, 30 years or younger.  Deferred action is a 
            discretionary determination to defer removal of an individual 
            as an act of prosecutorial discretion, and does not confer 
            lawful status upon an individual.  Janet Napolitano, Secretary 
            of the DHS, issued a statement explaining the exercise of the 
            agency's prosecutorial discretion in the case of certain young 
            people who were brought to the U.S. as children.  Under the 
            program, eligible immigrants, who came to the U.S. before they 
            were 16 and have graduated from high school or served in the 
            U.S. military, are allowed to request permission to stay in 
            the country and simultaneously apply for a work permit for two 
            years. The DHS describes steps that immigrants will need to 
            take - including a $465 paperwork fee designed to offset the 
            program's cost - and explains that those immigrants will not 
            be granted citizenship.  It is estimated that at least 700,000 
            young undocumented immigrants will be eligible for this 
            deferred federal action. 

          According to the Pew Hispanic Center, the estimated number of 
            undocumented immigrants in the U.S. was 11.5 million in 2011, 
            with 24% of those immigrants residing in California.  The 
            power to regulate national immigration policy rests with the 
            federal government.  Nevertheless, states have attempted to 
            impact immigration policy in different ways over the years, 
            both legislatively and through ballot initiatives.  For 
            example, the State of California has, in the past, attempted 
            to deny public services to undocumented immigrants, while 
            expanding responsibilities for persons to investigate or 
            report individuals with an unclear or uncertain immigration 
            status (Proposition 187, 1994).  
             
             SB 901 does not seek to change federal immigration law per se, 
            nor does it provide a pathway to citizenship or any other 
            benefits.  Instead, it is intended to influence the federal 
            government's exercise of "prosecutorial discretion."  An 
            initiative establishing a similar program - the COPA - was 








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            introduced last December.  According to the author's office, 
            after the introduction of the initiative, legal counsel 
            informed the initiative committee that legislation was also an 
            appropriate means by which to pursue this policy.  
            Consequently, the committee decided not to pursue the 
            initiative. 

           4)What is a Taxpayer Identification Number  ?:  A Taxpayer 
            Identification Number (TIN) is a federal identification number 
            issued by either the Social Security Administration (SSA) or 
            the Internal Revenue Service (IRS), and is used in the 
            administration of tax laws.  While Social Security numbers 
            (SSNs) are issued by the SSA, all other TINs are issued by the 
            IRS.  A TIN must be provided on returns, statements, and other 
            tax-related documents.    

            To obtain a SSN, an individual must complete Form SS-5 and 
            submit evidence of identity, age, and U.S. citizenship or 
            lawful alien status.  Generally, only noncitizens authorized 
            to work in the U.S. by the DHS can get a SSN.  

            The individual TIN (or ITIN), on the other hand, was 
            established so that taxpayers who do not qualify for a SSN can 
            still file taxes.  An ITIN is only available for certain 
            nonresident and resident aliens, their spouses, and dependents 
            who cannot obtain a SSN.  To obtain an ITIN, an individual 
            must complete and submit IRS Form W-7, which requires 
            documentation substantiating the applicant's true identity and 
            foreign or alien status.  Each ITIN applicant must also attach 
            a federal income tax return to the Form W-7 or present 
            evidence to substantiate an exception to the filing 
            requirement.  The IRS notes that ITINs are issued regardless 
            of immigration status because both resident and nonresident 
            aliens may have a U.S. filing or reporting obligation under 
            the Internal Revenue Code.  As such, an ITIN does not 
            authorize work in the U.S. or provide eligibility for either 
            Social Security benefits or the federal Earned Income Tax 
            Credit.  

           5)Increased Tax Compliance  :  Since undocumented immigrants are 
            not eligible to receive a SSN, many of them are forced to work 
            "under the table."  Advocates of SB 901 believe that this 
            measure will incentivize many undocumented immigrants who may 
            not currently pay their taxes to come into compliance with the 
            state's income tax laws, thereby increasing revenues to the 








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            GF.  According to the author's office, this measure may 
            potentially generate up to $325 million in GF revenues 
            annually.  Committee staff notes that, since there is no 
            guarantee that participants will be relieved from federal 
            enforcement efforts, it is unclear how many immigrants will 
            decide to participate in the Program. 

           6)Implementation Consideration  :  SB 901 would require the FTB to 
            destroy documents related to Program participants, unless the 
            documents are necessary to conduct an audit or appeal, or to 
            process any taxpayer claim for refund.  FTB staff notes that 
            this bill's language fails to address whether the information 
            could be maintained for purposes of collection.  FTB staff 
            recommends, in order to avoid possible conflicts between the 
            FTB and taxpayers, to amend this measure to allow FTB to 
            utilize the participant information for purposes of tax 
            collection.  
           
           7)Double-referral  :  This bill was double-referred with the 
            Assembly Judiciary Committee.  Should this bill pass out of 
            this Committee, please refer to the Assembly Judiciary 
            Committee's analysis of this bill for a more comprehensive 
            exploration of this bill's impact on immigration law.   

           8)Related Legislation  :  ACA 27 (Fuentes), introduced in the 
            2011-12 Legislative Session, proposes a similar voluntary 
            program to encourage undocumented immigrants to file their 
            state income tax returns and also directs the Governor, on or 
            after January 1, 2013, to request the President not to expend 
            any federal resources to detain or deport a qualified Program 
            participant, nor to prosecute a person employing such a 
            participant.  ACA 27 was never referred to committee.

           9)Suggested technical amendments  :  The author may wish to 
            consider the following technical amendments to this bill: 

               i)     On page 5, line 15, delete "during" and insert "with 
                 respect to"; and, 

               ii)    On page 6, line 29, delete "of" and insert "on".  

           REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           








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          Puerto el Triunfo Inc.
          Central American resource Center (CARECEN)
          Pueblo Y Salud, Inc.

           Opposition 
           
          None on file
           
          Analysis Prepared by  :  Oksana Jaffe & M. David Ruff / REV. & 
          TAX. / (916) 319-2098