BILL ANALYSIS Ó
AB 653
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Date of Hearing: August 12, 2013
ASSEMBLY COMMITTEE ON REVENUE AND TAXATION
Raul Bocanegra, Chair
AB 653 (V. Manuel Perez) - As Amended: August 5, 2013
SUSPENSE
2/3 vote. Urgency. Fiscal committee.
SUBJECT : Economic Development
SUMMARY : Establishes the California Innovation and Jobs Act,
which increases the amount of the research and development (R&D)
tax credit and codifies the California Innovation Hub (iHub)
Program. Specifically, the tax-related provisions of this bill :
1)Provide for an increased rate of the R&D tax credit under the
Personal Income Tax (PIT) Law, as follows:
a) 18% beginning on or after January 1, 2014, and before
January 1, 2015.
b) 21% beginning on or after January 1, 2015, and before
January 1, 2016.
c) 24% beginning on or after January 1, 2016, and before
January 1, 2017.
d) 27% beginning on or after January 1, 2017, and before
January 1, 2018.
e) 30% beginning on or after January 1, 2018, and before
January 1, 2019.
f) 15% beginning on or after January 1, 2019.
2)Provide for an increased rate of the R&D tax credit applied to
qualified research expenses, under the Corporate Tax (CT) Law,
as follows:
a) 18% beginning on or after January 1, 2014, and before
January 1, 2015.
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b) 21% beginning on or after January 1, 2015, and before
January 1, 2016.
c) 24% beginning on or after January 1, 2016, and before
January 1, 2017.
d) 27% beginning on or after January 1, 2017, and before
January 1, 2018.
e) 30% beginning on or after January 1, 2018, and before
January 1, 2019.
f) 15% beginning on or after January 1, 2019.
3)Provide for an increased rate of the R&D credit applied to
basic research payments, under the CT Law, as follows:
a) 27% beginning on or after January 1, 2014, and before
January 1, 2015.
b) 30% beginning on or after January 1, 2015, and before
January 1, 2016.
c) 33% beginning on or after January 1, 2016, and before
January 1, 2017.
d) 36% beginning on or after January 1, 2017, and before
January 1, 2018.
e) 39% beginning on or after January 1, 2018, and before
January 1, 2019.
f) 24% beginning on or after January 1, 2019.
EXISTING FEDERAL LAW :
1)Allows taxpayers engaged in a trade or business to deduct all
of the ordinary and necessary business expenses incurred.
2)Allows a R&D tax credit that is combined with several other
credits to form the general business credit. The R&D credit
is designed to encourage companies to increase their R&D
activities.
3)Specifies that the R&D credit is equal to 20% of the qualified
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research expenses that exceed the base year amount, as
defined, plus 20% of the amount paid or incurred during the
taxable year on research undertaken by an energy research
consortium.
4)Defines "base year amount" as the product of the average
annual gross receipt of the taxpayer for the four taxable
years preceding the taxable year the credit is earned times a
fixed percentage, but under no circumstances may the base year
amount be less than 50% of the qualified research for the
taxable year.
5)Authorizes an additional credit to corporate taxpayers equal
to 20% of expenses paid to fund "basic research" at
universities and certain nonprofit scientific research
organizations.
6)States that a taxpayer was allowed, prior to January 1, 2009,
to elect an alternative incremental research credit for
determining its R&D credit. The current federal percentages
are 3%, 4%, and 5%.
7)Allows an alternative simplified credit equal to 14% of
research expenses that exceed 50% of the average research
costs for the three preceding taxable year.
8)Specifies that, in order to qualify for the R&D credit,
research expenses must qualify as an expense or be subject to
amortization, be conducted in the U.S. and be paid by the
taxpayer.
9)Provides that "qualified research" is research that is:
a) Undertaken to discover information that is technological
in nature;
b) Primarily involves experimentation related to quality or
to a new or improved function or performance; and,
c) Its application will be useful in developing new or
improved business components for the taxpayer.
EXISTING STATE LAW :
1)Allows various tax credits designed to either provide tax
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relief for taxpayers who incur certain expenses or to
influence taxpayers' behavior.
2)Conforms California to the federal R&D credit but with the
following modifications:
a) The state R&D credit is not combined with other business
credits.
b) Both "qualified research" and "basic research" must be
undertaken in California.
c) The credit percentage for increasing qualified research
activities in California is 15%.
3)Provides an alternative credit of 24% (versus the 20% federal
credit) for "basic research", available for "C" corporations
only.
4)Sets the percentages for the alternative incremental research
portion of the credit lower than those of the federal credit.
5)Allows the R&D credit, which is permanent, for taxable years
beginning on or after January 1, 1987.
6)Allows taxpayers that are members of a combined reporting
group to make a one-time irrevocable assignment of eligible
credits to another member. However, the assigned credits may
be utilized to reduce tax only for taxable years beginning on
or after January 1, 2010.
FISCAL EFFECT : The FTB estimates an annual revenue loss of $20
million in fiscal year (FY) 2013-14, $95 million in FY 2014-15,
and $190 million in FY 2015-16.
COMMENTS :
1)The author has provided the following statement in support of
this bill:
The State of California was once regarded as the gold
standard of innovation and a leader of disruptive trends
and technologies that quite literally transformed the
world. It was California that gave rise to the personal
computer (Apple and Hewlett-Packard), the counter culture
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(Berkeley) and ground breaking software-based platforms
(Google, Facebook, eBay and Amazon). Today, the state is
suffering from an economic malaise. In numerous surveys,
California is consistently ranked as having a poor business
climate.
AB 653 proposes a coordinated economic revitalization
strategy that not only leverages the state's
entrepreneurial knowhow, but also incentivizes businesses
to risk their capital to develop and improve the next
generation of cutting edge technologies. It is time to
begin the process of developing an economic strategy that
focuses on California's greatest asset: our ability to
innovate.
2)What is a "tax expenditure"? : Existing law provides various
credits, deductions, exclusions, and exemptions for particular
taxpayer groups. In the late 1960s, U.S. Treasury officials
began arguing that these features of the tax law should be
referred to as "expenditures," since they are generally
enacted to accomplish some governmental purpose and there is a
determinable cost associated with each (in the form of
foregone revenues). This bill would enact new tax expenditure
programs in the form of a SUT exemption for manufacturing
equipment, and a new tax credit for private investments in
postsecondary institutions, and would increase the applicable
R&D tax credit percentages.
3)How is a tax expenditure different from a direct expenditure? :
As the Department of Finance notes in its annual Tax
Expenditure Report, there are several key differences between
tax expenditures and direct expenditures. First, tax
expenditures are reviewed less frequently than direct
expenditures once they are put in place. This can offer
taxpayers greater certainty, but it can also result in tax
expenditures remaining a part of the tax code without
demonstrating any public benefit. Second, there is generally
no control over the amount of revenue losses associated with
any given tax expenditure. Finally, it should also be noted
that, once enacted, it takes a two-thirds vote to rescind an
existing tax expenditure absent a sunset date. This bill does
not include a sunset date for any of the provisions increasing
or creating new tax expenditures. The author may wish to
include a sunset date on all of the provisions of this bill.
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4)R&D credit background : California enacted the credit for
research expenses in 1987 as part of two general federal tax
conformity bills [AB 1172 (Klehs), Chapter 1138, Statutes of
1987 and SB 572 (Garamendi), Chapter 1139, Statutes of 1987].
The original credit percentage was 8% of qualified research
expenses. Since that time, the California R&D credit rate was
amended several times and, finally, was increased from 12% to
15% in 2000 [AB 511 (Alquist), Chapter 107, Statutes of 2000].
The alternative incremental computation of the R&D credit
was adopted in 1997 [AB 1042 (Wayne), Chapter 613, Statutes of
1997] and was subsequently amended to reflect the changes to
the California research credit percentage [AB 2798 (Machado),
Chapter 323, Statutes of 1998]. Unlike the federal R&D
credit, the California R&D credit is permanent.
5)What does the R&D credit provision do? : Under the PIT Law,
the R&D credit provision of this bill would incrementally
increase the credit percentage applied to qualified research
expenses in excess of the base amount from 15% to 30%. The
increase will occur over a five-year period beginning on
January 1, 2014. Under the CT Law, the credit percentage
applied to qualified research expenses would be incrementally
increased from 15% to 40% over a five-year period beginning on
January 1, 2014.
Additionally, under the CT Law, the R&D provision would
increase the credit percentage applied to basic research from
24% to 40%. The increase would occur at a rate of 5% for
three years and an increase of 1% for the last year. For
taxable years beginning on or after January 1, 2018, the
credit percentage applied for basic research will be reduced
from 40% to 25%.
6)The R&D credit : There are two main purposes for the federal
and California R&D credit. First, it is intended to reduce
the after-tax cost of R&D investments, which is expected to
lead to an increase in R&D activity and to encourage taxpayers
to conduct R&D in the U.S. rather than in another country.
Similarly, the California R&D credit is designed to increase
R&D activity and to encourage manufacturing related to R&D to
be undertaken in California rather than elsewhere. The
California's R&D credit provides a powerful incentive for
firms to conduct R&D in this state because of its high credit
percentages that exceed that of other states and because it is
permanent. This credit, unlike many other tax incentives,
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does not serve as a reward for past behavior since it could
only be claimed for incremental increases in the taxpayer's
research activity. As explained by the Joint Committee on
Taxation's Report, "incremental credits attempt not to reward
projects that would have been undertaken in any event but to
target incentives to marginal projects." (Joint Committee on
Taxation, Description of Revenue Provisions Contained in the
President's Fiscal Year 2010 Budget Proposal, Part Two:
Business Tax Provisions, JCS-3-09, p. 17). It is impossible,
however, to determine which projects would be undertaken
without the credit, and thus, "most incremental credit
proposals rely on some measure of the taxpayer's previous
experience as a proxy for a taxpayer's total qualified
expenditures in the absence of a credit", i.e. "a base
amount." (Id., p.18). Nonetheless, the incentive effects of
incremental credits per dollar of revenue loss can be many
times larger than those of a flat credit.
The California R&D credit is believed to create additional R&D
jobs in the state which, arguably, are more desirable than
jobs in other industries. It also allows other California
businesses to adopt innovations developed locally more rapidly
than innovations developed elsewhere. As explained by the
FTB, the advantage to California "may come through something
economists call economies of agglomeration," which can be
described as the benefits several firms receive when locating
in close proximity. (California Income Tax Expenditures,
Compendium of Individual Provisions, Updated December 2009,
FTB, p.17). Specifically, cost of production may
significantly decline because there is a greater chance for
specialization and division of labor. If this is the case,
many California businesses, not just those receiving this
credit, will gain an advantage over their rivals in other
states.
7)Why subsidize R&D? : Positive externalities are benefits
resulting from an economic activity that are enjoyed by third
parties. It is a benefit that is not received directly by the
seller or the buyer. California's R&D credit creates a number
of positive externalities such as reducing the costs of other
firms' innovative activity, and providing newer, better, and
less expensive products to the market. (Bronwyn Hall and
Marta Wosinka, The California R&D Tax Credit: Description,
History, and Economic Analysis, June 1999). For example,
research conducted by a bio company may lead to the new
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medication, which can increase sales, but the benefits may
also include an overall healthier population. Because the bio
company does not necessarily receive a direct benefit from
having a healthier population, it may limit itself from
conducting additional R&D even though a greater amount of
research would be better for society. If this is the case,
the state can choose several avenues to encourage additional
research. The most common types are subsidies and mandates.
In a supply and demand model, the supply curve can be thought
of as marginal cost and the demand curve can be thought of as
marginal benefit. Equilibrium is reached where the marginal
cost equals marginal benefit. Everything to the left of the
equilibrium point and between the marginal benefit and
marginal cost curves is a benefit to society because the
marginal benefit is greater than the marginal cost. However,
in terms of R&D, the marginal benefit curve of a firm
investing in research may not necessarily capture the positive
externalities received by society. Because of this, a company
may choose to curtail R&D investment. Ideally, society would
want the private marginal benefit curve to be the same as
society's marginal benefit curve. The disparity can be
thought of as a "market failure," because the amount of
research conducted by individual firms is less than what is
needed to capture the additional marginal benefits enjoyed by
society. This could be remedied by providing a subsidy to a
researching firm, which federal and state governments already
provide. The subsidy will lower the cost of production and
increasing the amount of research conducted by a firm. The
subsidy works so long as investment is increased up to the
point where the marginal social benefit equals marginal cost.
Assuming current investment in research is less than the
optimal level, increasing the R&D tax credit can provide a
larger benefit to society than the cost of the subsidy.
It should also be noted that not all R&D activity provides the
same level of positive externalities. In other words, the
benefits received by society from increased research in
medicine are probably greater than the benefits received from
other forms of research. According to the Legislative
Analyst's Office (LAO), the following sectors claimed more
than $100 million per year in credits: computer and
peripheral equipment manufacturing, communications equipment
manufacturing, semiconductor and other electronic component
manufacturing, pharmaceuticals and medicine manufacturing, and
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software publishers. The subsidy may be better utilized by
focusing the tax credit on industries that provide the
greatest benefit to California.
8)Should the R&D credit be increased? : As noted above, the
quantity of R&D is optimal at the point where marginal social
benefit equals marginal cost. According to the Joint
Committee on Taxation, "there is evidence that the current
level of research undertaken in the United States, and
worldwide, is too little to maximize society's well-being."
(JCS-3-09, p. 11). However, the report also explained that
"it is difficult to determine whether, at the present levels
and allocation or additional tax benefits for research would
increase or decrease overall economic efficiency." Id.
Additionally, the purpose of the California R&D credit has
less to do with capturing the positive externalities and
spillovers associated with R&D and more to do with simply
bringing R&D research to California. Because barriers
preventing the flow of information across state lines are
virtually non-existent, encouraging companies to conduct
research in California may not necessarily confine the
benefits of that research in the state. (California R&D Tax
Credit, p. 4). It may be possible that the manufacturing
developed from research conducted in California will take
place in other states.
It has, however, been reported that state R&D credits are,
indeed, effective at increasing R&D in the state. (D. Wilson,
Beggar thy Neighbor? The In-State, Out-of-State, and
Aggregate Effects of R&D Tax Credits, Federal Reserve Bank of
San Francisco, January 2008). Specifically, it has been found
that a 1% point increase in a state's effective R&D credit
rate leads, in the long run, to a 3%-4% in R&D spending within
the state. (Id., pp. 14-15). However, the study has shown
that nearly all of this R&D increase "comes at the expense of
reduced R&D spending in other states," such that R&D
nationwide, essentially, has remained unchanged. (Id).
Undoubtedly, it is easier for some R&D firms to move their
activity to California than it would be for them to move it to
another country. Thus, a California credit appears to be
necessary for the state to remain competitive with other
states in attracting and maintaining research and development
business activity, which not only creates desirable jobs but
also allows other California businesses to adopt innovations
developed locally more rapidly.
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Accepting the notion that additional state subsidies for
research are warranted, California's budgetary limitations
need to be taken into account. There are various private
transactions among individuals that create positive
externalities, (e.g. education, healthcare, technology) but
California's limited budget allows for only so much in
subsidies. It is true that additional R&D could increase the
benefits California receives from medical research, but it can
also receive such benefits by investing directly in
educational institutions. Additionally, the Committee may
wish to consider whether the benefits of the marginal increase
in the amount of California research activities outweigh the
costs of reduced state funding for other important public
services. In 2003, The LAO prepared an overview of the
California R&D Tax Credit and suggested that no further
expansion of the state R&D tax credit occur without convincing
evidence that it is warranted. The LAO further recommended
that the Legislature consider reducing the credit or phasing
it out over time, especially in light of the substantial
direct revenue losses of the existing R&D tax credit and the
state's budgetary position.
9)Double-Referral : This bill was heard in the Assembly
Committee on Jobs, Economic Development, and the Economy on
April 23, 2013, and passed out of that Committee on a vote of
9 to 0.
10)Related Legislation :
AB 486 (Mullin), introduced in the current legislative
session, provides manufacturers, software producers,
biotechnology and life, engineering, and physical researchers
and developers, a SUT exemption for qualifying TPP. AB 486
was held in the Assembly Committee on Appropriations.
AB 2278 (Anderson), introduced in the 2009-10 legislative
session, conforms to the federal credit percentage for
increasing research activities and conforms to the federal
alternative incremental research credit. AB 2278 was held in
this Committee.
AB 1484 (Anderson), introduced in the 2009-10 legislative
session, conforms to the federal credit percentage for
increasing research activities and conforms to the federal
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alternative incremental research credit. AB 1484 was never
heard in this Committee.
REGISTERED SUPPORT / OPPOSITION :
Support
None on file
Opposition
None on file
Analysis Prepared by : Carlos Anguiano / REV. & TAX. / (916)
319-2098