BILL ANALYSIS Ó SB 901 Page 1 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; SB 901 Page 2 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 SB 901 Page 3 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. SB 901 Page 4 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. SB 901 Page 5 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 SB 901 Page 6 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). SB 901 Page 7 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 SB 901 Page 8 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 SB 901 Page 9 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 SB 901 Page 10 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