BILL ANALYSIS Ó SENATE GOVERNANCE & FINANCE COMMITTEE Senator Lois Wolk, Chair BILL NO: AB 1888 HEARING: 5/14/14 AUTHOR: Ting FISCAL: No VERSION: 3/27/14 TAX LEVY: No CONSULTANT: Weinberger COUNTY RECORDERS AND DOCUMENTARY TRANSFER TAXES Deletes the requirement that county recorders must, upon request, show the amount of documentary transfer tax due on a paper separate from the document subject to the tax. Background and Existing Law The Documentary Transfer Tax Act allows counties to levy a tax upon the recording of documents that transfer interests in real property. All 58 counties impose a documentary transfer tax (DTT), which is levied at a rate of 55 cents per $500 (or 0.11%) of the value of the real property or interest being transferred. The Act allows a city within a county that has adopted a DTT to impose a DTT at one-half of the county rate. The amount of tax paid to a city is a credit against the amount of the tax owed to a county. More than 450 cities levy a DTT pursuant to the Act. Under the "municipal affairs" doctrine established by Article XI, Section 5 of the California Constitution, some charter cities tax the transfer of ownership of real estate at rates that exceed the statutory limit on the DTT. County recorders administer documentary transfer taxes. State law prohibits a recorder from recording a document subject to the DTT unless the tax is paid at the time of recording. Generally, every document subject to the DTT, when it is submitted for recordation, must show on its face the amount of tax due. However, upon the request of the party submitting a document, the amount of tax due must be shown on a separate paper, which is not recorded but is affixed to the document after the recorder makes the permanent record. If the amount of tax paid is shown on a page that is separate from the recorded document, nobody can find out how much tax was paid simply by looking at the recorded copy of the document. However, a 2007 Attorney General's opinion noted that a county recorder will still AB 1888 -- 3/27/14 -- Page 2 have evidence of the amount of tax paid in his or her accounting records. The AG's opinion concluded that those records are subject to inspection pursuant to the California Public Records Act, which generally requires that government records must be provided to the public upon request, unless there is a reason specified in state law to withhold a record. An informal survey of county recorders indicates that recorders are interpreting state law and the Attorney General's opinion in a variety of ways, creating disparities from county to county in how information about DTTs can be obtained. In some counties, the recorder's office will disclose the amount of a DTT to anyone who requests that information for a specifically-identified recorded document. In other counties, a Public Records Act request must be filed to learn the amount of DTT paid on a recorded document. In at least one county, the amount of tax paid may not be provided even in response to a Public Records Act request. To address the lack of uniformity created by ambiguity in current law, real estate appraisal professionals and county officials want the Legislature to repeal the statutory language that allows documents that are subject to the documentary transfer tax to be recorded without showing the amount of tax due. Proposed Law Assembly Bill 1888 repeals the requirement that a county recorder, upon the request of a party submitting a document for recordation, must show the amount of documentary transfer tax due on a separate paper which must be affixed to the document by the recorder after the permanent record is made and before the original is returned. AB 1888 makes additional technical and conforming changes to state law. State Revenue Impact No estimate. AB 1888 -- 3/27/14 -- Page 3 Comments 1. Purpose of the bill . AB 1888 eliminates a statutory requirement that, in some counties, impedes public access to information about DTT amounts paid by taxpayers. By ensuring that this information will be easily available on copies of all recorded documents that are subject to the DTT, AB 1888 generates several public benefits. Interested parties will no longer have to obtain DTT information through Public Records Act requests, which can be needlessly time-consuming and costly both for requestors and for the local governments that fulfill the requests. The manner in which county recorders administer the tax will become more uniform and transparent, which will foster confidence in the fair administration of the tax laws. Additionally, real estate appraisers use DTT amounts to more accurately determine property values. By granting appraisers more reliable and complete access to information about DTT amounts, AB 1888 will help real estate professionals, and consumers, make more informed real estate decisions. 2. More public, or more private ? The Documentary Transfer Tax Act's language allowing recorders to show the amount of DTT paid on a page that is separate from a recorded document was likely enacted to protect property owners' privacy. Purchasers of highly valuable properties or property investors with extensive real estate holdings may prefer not to publicly disclose the amounts that they pay for real estate. By ensuring that the amount of DTT paid will always be publicly available on copies of the recorded documents that are subject to the tax, AB 1888 eliminates any opportunity for property owners to shield significant information about their real estate transactions from public scrutiny. As an alternative approach, which would maintain property owners' privacy, the Legislature could prohibit the release of taxpayers' DTT payment information pursuant to requests under the California Public Records Act. Assembly Actions Assembly Local Government Committee: 9-0 Assembly Floor: 75-0 AB 1888 -- 3/27/14 -- Page 4 Support and Opposition (5/8/14) Support : California Government Relations Subcommittee of the Appraisal Institute; California Newspaper Publishers Association; County Recorders' Association of California. Opposition : Unknown.