BILL ANALYSIS Ó SENATE GOVERNANCE & FINANCE COMMITTEE Senator Lois Wolk, Chair BILL NO: SB 1035 HEARING: 4/24/2014 AUTHOR: Huff FISCAL: Yes VERSION: 4/10/2014 TAX LEVY: Yes CONSULTANT: Bouaziz PERSONAL INCOME TAXES: HEALTH SAVINGS ACCOUNTS Conforms state law to federal law regarding Health Savings Accounts (HSAs). Background and Existing Law Congress enacted the Medicare Prescription Drug, Improvement, and Modernization Act of 2003 (Public Law 108-173), establishing HSAs, beginning in tax year 2004. An HSA is defined as a tax-exempt trust or custodial account created exclusively to pay for the qualified medical expenses of the account holder and his/her spouse and dependents. An HSA may be established when an individual has a high deductible health plan (HDHP). For taxable year 2014, a HDHP is a health plan that has an annual deductible that is at least $1,250 for self-only coverage or $2,500 for family coverage and that has an out-of-pocket expense limit of no more than $6,350 in the case of self-only coverage, and $12,700 in the case of family coverage. Federal law allows a deduction for contributions to HSAs. Distributions from a HSA for qualified "medical expenses" of the eligible individual, spouse or dependents are not includible in gross income. Any balance in an HSA grows on a tax-free basis. A "qualified medical expense" includes expenses for diagnosis, cure, mitigation, treatment, or prevention of disease, including prescription drugs, transportation primarily for and to such care, and qualified long-term care expenses. Distributions made for non-qualified medical expenses are includible in gross income and are also subject to an additional 20% penalty, unless the distributions are made after death, disability, or after SB 1035 -- 04/10/14 -- Page 2 the individual attains the age of 65. Medical expenses paid via distributions that are excludable from income and may not be claimed as medical expenses for purposes of reporting itemized deductions. Employer contributions to a HSA are excluded from income and employment taxes. Eligible individuals include those covered by high-deductible health plans and, in general, not eligible for other health coverage. The maximum aggregate annual HSA contribution for 2014 is the lesser of: (a) 100% of the annual deductible under the HDHP, or (b) $3,300 in the case of self-only coverage and $6,550 in the case of family coverage. Those limits are indexed for inflation. The maximum contribution is increased by $1,000 per year for catch-up contributions for persons over age 55. Contributions in excess of the maximum contribution amount are generally subject to a 6% excise tax. A one-time contribution to an HSA of amounts distributed from an individual retirement account (IRA) as a direct trustee-to-trustee transfer are permitted. The transfer amount is excluded from the gross income of the accountholder and from the 10% penalty on early IRA distributions. California has not conformed to the federal tax treatment of HSAs created as part of the 2003 federal legislation. Due to the lack of conformity, California taxpayers will be disadvantaged financially if they roll over (transfer) their IRAs to HSAs. Although specifically approved for federal tax purposes, the transfer is a disqualified distribution for California tax purposes, includable in income and subject to tax as well as an additional 10% penalty. Similarly, transfers of funds from IRAs will be treated as income subject to tax, and potentially subject to the 2% penalty for early distribution. Proposed Law SB 1035 conforms to federal law by allowing taxpayers to deduct contributions to HSAs from income and allows employers to exclude from an employee's gross income employer HSA contributions, effective for taxable years SB 1035 -- 04/10/14 -- Page 3 beginning on or after January 1, 2015. SB 1035 reduces the disqualified distribution penalty applicable to HSAs from the federal percentage of 20% to 2.5% for state purposes, consistent with state law regarding Individual Retirement Accounts (IRAs). The measure allows tax-free rollovers from IRAs and MSAs to HSAs. SB 1035 also does not conform to the federal 6% excise tax on excess contributions. SB 1035 takes effect immediately as a tax levy and applies to taxable years beginning on or after January 1, 2015. State Revenue Impact The Franchise Tax Board (FTB) estimates that this bill would reduce General Fund revenues by $30 million in fiscal year (FY) 2014-15, $55 million in FY 2015-16, and $55 million in FY 2016-17. This estimate does not account for changes in employment, personal income, or gross state product that could result from this bill. Comments 1. Purpose of the bill . According to the author, "Tax-deductible HSAs help people plan ahead by saving for future medical expenses on a tax-free basis. This gives individuals more control of their own healthcare and improves upon existing tax deductible savings options because contributions to an employee's HSA can be made without increasing the employee's taxable income. Consistent with federal law, SB 1035 encourages the use of HSAs by allowing for a state tax deduction for contributions made to an HSA by, or on behalf of, an eligible individual. In an era of skyrocketing, mandated healthcare costs and an uncertain job market, SB 1035 offers an affordable option and more control to employees in their healthcare choices. " 2. HSAs. Under federal law, individuals with a high deductible health plan, and no other health plan other than a plan that provides certain permitted coverage, may establish an HSA. In general, HSAs are tax-exempt trusts SB 1035 -- 04/10/14 -- Page 4 or custodial accounts established exclusively to pay for the qualified medical expenses of the account holder, his/her spouse and dependents. Within certain limits, contributions to an HSA are deductible. An HSA is a savings account that provides for tax-deductible deposits and allows tax-free withdrawals, as long as the funds are used for qualified medical expenses. In contrast, a traditional IRA allows tax-deductible contributions but subjects distributions to tax. Further, in the case of a Roth IRA, contributions to the account are taxable, but qualified distributions are tax-free. In addition, both a traditional IRA and a Roth IRA have income limitations restricting eligibility. HSAs have no income restrictions and are available to anyone. 3. Tax Incentive for High-Income Taxpayers . In its 2008 report, the United States (U.S.) Government Accountability Office (GAO) found that the median income of tax filers reporting an HSA contribution in 2005 was $139,000, and 59% of those tax filers contributing to HSAs had an adjusted gross income (AGI) of $60,000 or more. It appears that HSAs disproportionately benefits high-income individuals. According to the report, many HSA participants appear to be using their accounts purely or primarily as a tax shelter rather than paying for out-of-pocket health care costs. The GAO found that "a stunning 41 percent of tax filers reporting HSA contributions in 2005 did not withdraw any funds from their accounts at any time during the year." In recent Congressional testimony, the GAO stated that "this was consistent with the view held by industry experts that many HSA users are people who primarily use their HSAs as a tax-advantaged savings vehicle." 4. The Recent Federal Health Care Reform and Its Effect on HSAs . The Affordable Care Act (ACA), passed in March 2010, requires most citizens and legal residents of the U.S. to have health insurance by January 1, 2014. The legislation outlines the minimum coverage and essential health benefits that need to be provided for a plan to qualify for the mandated coverage; ultimately, these requirements could limit the types of plans offered to individuals. The ACA affected HSAs in two minor ways. First, ACA Section 9003 establishes a new uniform standard for medical expenses. Effective January 1, 2011, only prescribed medicines and drugs are considered "qualifying medical SB 1035 -- 04/10/14 -- Page 5 expenses" and are subject to preferred tax treatment. Secondly, the ACA increases the tax penalty on HSA distributions for unqualified medical expenses from 10% to 20%. The ACA may reduce the need for HSAs given the expansion of Medicaid coverage. Individuals who would have signed up for an HSA may not do so if they are able to purchase more affordable health care or are covered under Medicaid. Conversely, the ACA may also encourage the use of HSAs. Starting with 2014, businesses with 50 or more full-time employees have to offer health insurance plans. Thus, individuals and companies might opt for high-deductible plans that can be coupled with HSAs. Some experts state that, HDHP coupled with HSAs will be the most affordable plans that meet the requirements for minimal essential coverage. 5. California Adjustments . Only three states (among those that impose an income tax) do not conform to the federal HSA deduction rules: California, Alabama, and New Jersey. Pennsylvania allows a deduction for employer's contribution only. Because California has not conformed to any of the federal HSA provisions, a taxpayer taking a deduction on his/her federal personal income tax return is required to increase his/her AGI on the California personal income tax return by the amount of that deduction. In addition, any interest earned on the HSA account must be added to the taxpayer's AGI for California tax purposes, and any contributions made by the taxpayer's employer to the HSA, must be included in the taxpayer's AGI. 6. Implementation Concerns . This bill does not address the impact of HSAs created before the effective date of this bill. Without addressing the tax treatment of HSAs created before 2015, this bill would raise implementation concerns because part of the HSA will be pre-tax dollars and part will be post-tax dollars. Additional legislation or regulations would be required to provide guidance to the FTB with respect to treatment of qualified and disqualified distributions from such HSAs. Because California is one of only three states that have not adopted federal HSA deduction rules, there may be implementation concerns from employees that move into California from a conforming state. SB 1035 -- 04/10/14 -- Page 6 7. Conformity Bill. This bill fully conforms California law to federal HSA provisions beginning with tax year 2015. California does not automatically conform to federal law but instead considers each provision individually. The last California-federal conformity bill was enacted in 2010 (SB 401 (Wolk) of 2010). It appears that the omnibus California-federal conformity bill would be a more appropriate vehicle for conforming to the federal HSA provisions. 8. Partial Conformity . An alternative step to full conformity would be to remove the penalty associated with rollovers of Archer MSA and IRA funds, which are both allowed tax-free for federal purposes. As mentioned above, the Archer MSA rollover is a nonqualified distribution and is subjected to both income tax and a penalty for nonqualified distributions. The transfer of funds from an IRA is subject to income tax and might be similarly subject to a penalty (if the transferor/IRA owner is less than age 59 when the transfer is made). California could choose to exempt those distributions or transfers from penalty. 9. Related Legislation . HSA federal conformity legislation has been proposed in every legislative session since the federal law was enacted. i. AB 2576 (Harkey), of the 2013-14 Legislative Session, would have conformed California PIT law to the federal HSA deduction rules. AB 2576 is currently in the Assembly Committee on Revenue and Taxation. ii. AB 1129 (Gaines), of the 2013-14 Legislative Session, would have conformed California PIT law to the federal HSA deduction rules. AB 1129 was held under submission by the Assembly Committee on Revenue and Taxation. iii. AB 1510 (Garrick), of the 2011-12 Legislative Session, would have conformed California PIT law to the federal HSA deduction rules. AB 1510 was held by the Assembly Committee on Revenue and Taxation. iv. AB 854 (Garrick), of the 2010-11 Legislative Session, was nearly identical to this bill, but would have applied to taxable years beginning on or after January 1, 2012. AB 854 was held by the Assembly SB 1035 -- 04/10/14 -- Page 7 Committee on Revenue and Taxation. v. AB 1178 (Portantino), of the 2009-10 Legislative Session, contained a provision similar to the provisions of this bill. AB 1178 was held in the Senate Appropriations Committee. vi. AB 326 (Garrick), of the 2009-10 Legislative Session, was similar to this bill, but would have applied to taxable years beginning on or after January 1, 2010. AB 326 was held by the Assembly Committee on Revenue and Taxation. vii. SB 353 (Dutton), of the 2009-10 Legislative Session, was similar to this bill. SB 353 was held in the Senate Revenue and Taxation Committee. viii.SB 1262 (Aanestad), of the 2009-10 Legislative Session, was similar to this bill. SB 1262 was held in the Assembly Rules Committee. ix. SBx6 13 (Dutton), of the 2009-10 Legislative Session, was similar to this bill. SBx6 13 was held in the Senate Rules Committee. 10. FTB and Committee Staff Suggest the Following Technical Amendments . On page 2, line 25, after "relating to", strikeout "the exception" and insert: exceptions. On page 2, strikeout lines 31 to 37 inclusive. On page 3, line 1, strikeout "SEC. 5", and insert: SEC. 4 On page 3, line 9, strikeout "SEC. 6", and insert: SEC. 5 On page 3, line 17, strikeout "SEC. 7", and insert: SEC. 6 On page 3, lines 28-29, strikeout "for"20 percent," contained therein.", and insert: for "10 percent", contained therein. On page 3, line 30, strikeout "SEC. 8", and insert: SEC. 7 SB 1035 -- 04/10/14 -- Page 8 On page 4, line 2, strikeout "medical savings accounts", and insert: reports On page 4, line 26, strikeout "SEC. 9", and insert: SEC. 8 Support and Opposition (04/24/14) Support : The California Chamber of Commerce; The California Chapter of the American College of Emergency Physicians (California ACEP); California Taxpayers Association; Peace Officers Research Association of California (PORAC). Opposition : The American Federation of State, County and Municipal Employees (AFSCME); California Labor Federation.