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  




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          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  





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          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  





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          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.






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          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  





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               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





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           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.