BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  SB 365
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          SENATE THIRD READING
          SB 365 (Wolk)
          As Introduced  February 20, 2013
          Majority vote 

           SENATE VOTE  :22-11  
           
           REVENUE & TAXATION  5-2                                         
           
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          |Ayes:|Bocanegra, Gordon,        |     |                          |
          |     |Mullin, Pan, Ting         |     |                          |
          |     |                          |     |                          |
          |-----+--------------------------+-----+--------------------------|
          |Nays:|Dahle, Nestande           |     |                          |
          |     |                          |     |                          |
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           SUMMARY  :  Provides that a new tax credit, enacted by a bill  
          introduced on or after January 1, 2014, shall be operative for a  
          period of 10 years and shall include specified goals,  
          objectives, and purposes, as well as other detailed information  
          relating to the credit's effectiveness.  Specifically,  this  
          bill  :  
           
           1)Requires any bill that would authorize a new credit under  
            either the Personal Income Tax (PIT) Law or the Corporation  
            Tax (CT) Law to include all of the following:

             a)   Specific goals, purposes, and objectives that the tax  
               credit will achieve.

             b)   Detailed performance indicators for the Legislature to  
               use when measuring whether the tax credit meets the goals,  
               purposes, and objectives stated in this bill.

             c)   Data collection requirements to enable the Legislature  
               to determine whether the tax credit is meeting, failing to  
               meet, or exceeding those specific goals, purposes, and  
               objectives.

             d)   A requirement that the tax credit shall cease to be  
               operative 10 years after its enactment date.

          1)Makes legislative findings and declarations regarding the need  








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            for review of tax preference programs, including tax credits.

          2)Applies to bills introduced on or after January 1, 2014. 
           
          FISCAL EFFECT  :  The Franchise Tax Board (FTB) staff estimates  
          that this bill would not impact General Fund revenue.
           
          COMMENTS  :  

          1)Author's Statement  .  The author states, "Today's public  
            finance system in California requires major reform.  While I  
            have pushed changing our budgeting system to apply performance  
            measurements for spending programs, I am trying to do the same  
            with SB 365, which applies a performance-based methodology to  
            future tax expenditures enacted by the state.  There is no  
            good reason not to evaluate tax expenditure programs with the  
            same rigor that we use when judging spending decisions,  
            especially when California's tax preference portfolio now  
            exceeds $47 billion, equal to half of our total revenue.   
            While we cannot change existing tax preferences, we can at  
            least start keeping better track of future ones." 
           
          2)Arguments in Support  .  As noted by the proponents of this  
            bill, California spends about $47 billion annually in tax  
            expenditures and despite this large amount, tax expenditures  
            are not given the "same amount of scrutiny and examination as  
            direct programmatic expenditures."  The proponents assert that  
            it is "in the interest of California taxpayers to have  
            requirements placed upon tax expenditures that are designed to  
            clearly identify the intent and purpose" as well as their  
            "overall effectiveness."  The proponents argue that this bill  
            brings much needed performance review and oversight to tax  
            expenditure programs in order to make those programs more  
            transparent and effective.
           
          3)Arguments in Opposition  .  The opponents, in contrast, argue  
            that this bill would create uncertainty regarding long-term  
            tax planning.  The opponents state that, "When businesses  
            choose to locate in a state, factors such as the availability  
            of a skilled workforce, infrastructure, regulatory  
            environment, and tax structure all play a significant role,  
            and businesses evaluate whether they can rely on these factors  
            to remain relatively stable and consistent in the long term."   
            The opponents contend that the imposition of a mandated  








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            10-year sunset on all future tax credits will have an adverse  
            effect on businesses because it would create uncertainty with  
            respect to the future of the state's tax structure.  While  
            many of the opponents recognize that the state needs to  
            analyze the effectiveness of tax policies and make sure that  
            they are sensible for the future of California's economy, they  
            stand firm in believing that this bill will negate that  
            purpose.  The opponents suggest amending this bill to  
            eliminate the 10-year sunset.
           
          4)What is a "Tax Expenditure  "?  Existing law provides various  
            credits, deductions, exclusions, and exemptions for particular  
            taxpayer groups.  According to legislative analyses prepared  
            for prior related measures, United States Treasury officials  
            and some Congressional tax staff began arguing in the late  
            1960s 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 forgone  
            revenues).  A recent report by the Legislative Analyst's  
            Office (LAO) shows that tax expenditure programs cost the  
            state nearly $50 billion in fiscal year (FY) 2008-09.  The LAO  
            report noted that resources are allocated to a new tax  
            expenditure program automatically each year, with limited, if  
            any, legislative review, and there is no limit or control over  
            the amount of money forgone since the Legislature does not  
            appropriate funds for tax expenditure programs.  The LAO  
            report also stated that the tax expenditure programs offer  
            many opportunities for tax evasion, given the relatively low  
            level of audits. 
           
          5)Current Review of Tax Expenditures  .  Although there is no  
            requirement for the Legislature itself to review existing tax  
            expenditures, several state agencies are required to issue  
            annual tax expenditure reports.  In 1985, the Legislature  
            passed ACR 17 (Bates), Res. Chapter 70, which called upon the  
            LAO to prepare a biennial "tax expenditure" report.   
            Additionally, the Department of Finance (DOF) currently  
            publishes an annual report on tax expenditures, pursuant to  
            Government Code (GC) Section 13305, and provides it to the  
            Legislature by no later than September 15 of each year.  The  
            DOF report includes a list of tax expenditures exceeding $5  
            million in annual cost.  Finally, since 2007, the FTB is  
            required to prepare an annual report, "California Income Tax  








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            Expenditures," describing tax expenditures found in the PIT  
            and the CT Laws. 
           
          6)How is a Tax Expenditure Different from a Direct Expenditure  ?   
            As the DOF 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.  While infrequent legislative review offers taxpayers  
            greater certainty, it also results in tax expenditures  
            remaining a part of the tax code in perpetuity without  
            demonstrating any public benefit.  Secondly, there is  
            generally no control over the amount of revenue losses  
            associated with any given tax expenditure.  Finally, the vote  
            requirements for direct expenditures and tax expenditures are  
            different.  While it takes a two-thirds vote to make a  
            budgetary appropriation, a tax expenditure measure can be  
            enacted by a simple majority vote.  It should also be noted  
            that, once enacted, it generally takes a two-thirds vote to  
            rescind an existing tax expenditure.  This effectively results  
            in a "one-way ratchet" whereby tax expenditures can be  
            conferred by majority vote, but cannot be rescinded,  
            irrespective of the efficacy, without a supermajority vote.
           
          7)How Much Do Tax Expenditures "Cost" the State  ?  According to  
            the DOF, the vast majority of tax expenditures are included in  
            the PIT Law.  To this end, the DOF estimates that tax  
            expenditures would reduce PIT revenues by roughly $33 billion  
            in FY 2012-13.  The Sales and Use Tax (SUT) Law, in turn,  
            contains identifiable state tax expenditures worth about $10  
            billion annually, and CT expenditures amount to roughly $6  
            billion.  

          8)What Does This Bill Do  ?  SB 365 is intended to create a  
            mechanism for the legislative review of certain tax  
            expenditures for the purpose of evaluating their effectiveness  
            and compatibility with present day state policy objectives.   
            Specifically, it requires each bill enacting a new tax credit  
            to describe the goals, purposes, and objectives for  
            authorizing such a credit, to specify detailed performance  
            indicators intended to measure the effectiveness of the  
            credit, and to mandate an automatic 10-year sunset for the  
            operation of the credit.  This bill is narrowly tailored to  
            apply only to tax credits, as opposed to all tax expenditures.  








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             Furthermore, it would only apply to new tax credits, i.e.,  
            tax credits that are enacted by bills introduced on or after  
            January 1, 2014.  

          9)The 10-Year Sunset  .  This bill limits the operation of every  
            new tax credit to a 10-year period, as long as it is enacted  
            by a bill introduced on or after January 1, 2014.  Business  
            representatives often argue that companies need  
            predictability, and that a short-term business tax credit  
            would not be of any particular benefit to a taxpayer whose  
            business projections span over decades.  However, this sunset  
            date may be easily extended by a subsequent statute enacting  
            or re-enacting a tax expenditure.
          
          10) How Effective is This Bill  ?  Both the Assembly Revenue and  
            Taxation Committee and its Senate counterpart already require  
            the vast majority of tax expenditure measures that pass out to  
            contain a built-in repeal date. However, while the Assembly  
            Revenue and Taxation Committee routinely requires sunset dates  
            to be added to tax expenditure measures, there is nothing in  
            existing law that would require it to do so in the future.  
            Moreover, in the past few years, some of the most dramatic  
            changes to our tax code have been enacted as part of the  
            budgetary process beyond the review of the Assembly Revenue  
            and Taxation Committee. However, even if a general sunset  
            requirement were included in statute, there would be nothing  
            to prevent a future Legislature from enacting an open-ended  
            tax expenditure "notwithstanding" the statutory prohibition.   
            Indeed, there is considerable question as to whether such a  
            prohibition would have any binding effect.  [See e.g., United  
            Milk Producers of California v. Cecil (1941) 47 Cal.App.2d  
            758, 764-65, noting that the Legislature cannot declare in  
            advance the intent of a future Legislature].  Courts have long  
            held that one legislative body may not limit or restrict its  
            own power or that of subsequent Legislatures, and the act of  
            one Legislature may not bind its successors [County of Los  
            Angeles v. State of California (1984) 153 Cal.App.3d 568,  
            573].  In practical terms, it means that subsequent  
            Legislatures are under no legal obligation to comply with the  
            provisions of this bill. Furthermore, since this bill is a  
            statutory and not a constitutional measure, any subsequent  
            Legislature could easily dispense with this requirement by  
            simply including a provision in a statute that would override  
            Revenue and Taxation Code Section 41.








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           Analysis Prepared by  :    Oksana Jaffe / REV. & TAX. / (916)  
          319-2098 


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