BILL ANALYSIS                                                                                                                                                                                                    Ó






                                                                      AB 54


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          Date of Hearing:  May 11, 2015





                     ASSEMBLY COMMITTEE ON REVENUE AND TAXATION


                                 Philip Ting, Chair





          AB 54  
          (Olsen) - As Amended April 22, 2015





          Majority vote.  Fiscal committee.  Tax levy.


          SUBJECT:  Public accommodations:  construction-related  
          accessibility standards: tax credit.


          SUMMARY:  Modifies the Disability Access for Eligible Small  
          Business Credit (Disabled Access Credit) to include the amount  
          paid or incurred for a site to be inspected by a certified  
          access specialist (CAS).  Specifically, this bill:  


          1)Modifies, for taxable years beginning on or after January 1,  
            2016, under the Personal Income Tax (PIT) and Corporations Tax  
            (CT) Law, the Disability Access credit to include the amount  
            paid or incurred for a site to be inspected by a CAS.











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          2)Defines the terms "CAS," "inspected by a CAS," and "site" as  
            having the same meaning as provided for by Civil Code Section  
            55.52.


          3)Makes findings and declarations.


          4)Takes effect immediately as a tax levy.


          EXISTING FEDERAL LAW:  


          1)Allows a credit to eligible small businesses related to costs  
            paid or incurred for complying with the Americans with  
            Disabilities Act (ADA).  An eligible small business means an  
            electing taxpayer with either gross receipts for the preceding  
            taxable year of $1 million or less, or not more than 30  
            full-time employees during the preceding taxable year.  The  
            credit is computed as 50% of the eligible access expenditures  
            for the taxable year in excess of $250 but not more than  
            $10,250.


          2)Provides that eligible access expenditures must be made to  
            enable the qualified small business to comply with the ADA  
            requirements, including costs to remove the architectural,  
            communication, physical, or transportation barriers of persons  
            with disabilities.  Costs also include qualified interpreters  
            or equipment to make materials available to person with  
            hearing impairments, costs of qualified readers or equipment  
            to make material available to persons with visual impairments,  
            and costs to acquire or modify equipment for persons with  
            disabilities.













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          3)Provides that the tax credit may be used against the net tax  
            of the taxpayer and the excess, while not refundable, is  
            available for carryback to the immediately preceding tax year  
            and may be carried forward to the following 20 taxable years  
            or until exhausted.  Taxpayers may not increase the adjusted  
            basis of property or claim any deduction for eligible access  
            expenditures that qualify for the credit.


          EXISTING STATE LAW:


          1)Allows, in modified conformity to federal law, a tax credit  
            for the amount paid or incurred by eligible small business for  
            the improvements to the property in order to provide access to  
            disabled individuals of up to 50% of the eligible access  
            expenditures for the taxable year, but not to exceed $250.   
            The maximum allowed to a small business is $125.


          2)Defines a "CAS" as a person that has met the certification  
            requirements as provided for by the State Architect.


          FISCAL EFFECT:  The Franchise Tax Board (FTB) estimate General  
          Fund revenue loss of $1,000 in fiscal year (FY) 2015-16, $4,000  
          in FY 2016-17, and $4,000 in FY 2017-18.


          COMMENTS:  


           1)Arguments in Support  :  According to the California Chamber of  
            Commerce, "small businesses have, unfortunately, been targeted  
            by a limited group of attorneys to leverage extortion-type  
            settlements for technical construction-related standards,  
            which do not actually impeded physical access to the facility  
            for disabled patrons.  For example, the California Commission  
            on Disability Access has a top 10 list of construction-related  











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            accessibility claims set forth in demand letters or  
            complaints, which includes alleged violations for failure to  
            have the appropriate signage or symbol.  Such violations do  
            not necessarily impede physical access to the facility and  
            could easily be resolved.  However, businesses are pressured  
            into paying settlements for these lawsuits instead of focusing  
            their financial resources on improving access at their place  
            of business."


           2)Tax Expenditure vs. Direct 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).  Former Federal Reserve Chairman Alan  
            Greenspan has stated that tax expenditures are "misclassified"  
            because they are identical to outlays.  Additionally, Gregory  
            Mankiw, who led President George W. Bush's Council of Economic  
            Advisers, calls expenditures "stealth spending implemented  
            through the tax code."<1>


            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.  While this affords  
            taxpayers greater financial predictability, 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  

            --------------------------


          <1> Ezra Klein, Wonkbook: Tax Spending vs. Government Spending,  
          Washington Post, 2012.









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            existing tax expenditure absent a sunset date, effectively  
            resulting in a "one-way ratchet" whereby tax expenditures can  
            be conferred by a majority vote, but cannot be rescinded,  
            irrespective of their cost or efficacy, without a  
            supermajority vote.  This bill creates an appropriation of  
            funds, in the form of a tax credit, as a way of encouraging  
            individuals to move forward with a site inspection.  





           3)Certified Access Specialist Program (CASP)  :  The CASP was  
            created by SB 262 (Kuehl), Chapter 872, Statutes of 2003, and  
            is designed to meet the public's need for experienced,  
            trained, and tested individuals who can inspect buildings and  
            sites for compliance with applicable state and federal  
            construction accessibility standards.  Federal and state  
            disability laws are considered to be complicated and the CASP  
            helps businesses become aware of potential violations.  After  
            reaching out to several certified specialists, it was found  
            that a site inspection can cost anywhere between $500 and  
            $3,000, depending on the workload.  Some inspections are  
            conducted early in the designs and construction process but  
            others are conducted post-construction because of litigation  
            or fear of litigation.  



           4)Encouraging Compliance  :  It is unclear to Committee staff if a  
            nominal amount of $125 will have the desired effect of  
            encouraging compliance with federal and state disability laws.  
             As noted above, inspections can cost upwards of $3,000, and  
            several certified specialists cited $1,500 as the average cost  
            for an inspection.  The $125 tax credit would be less than 10%  
            of the average cost of inspecting a facility.  Additionally,  
            individuals may not be aware that a credit exists.  According  
            to the FTB, in 2012 taxpayers claimed a total of $40,000 in  
            Disability Access Credits.  If awareness is an issue,  











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            taxpayers may be less likely to be influenced by a tax credit,  
            irrespective of the amount.  Finally, according to several  
            specialists, conducting a site inspection does not always lead  
            to greater compliance.  The cost may be too expensive for the  
            owner to comply with recommendations, even though the  
            modifications could qualify the taxpayer for a maximum federal  
            Disability Access Credit of $5,125.  As a result,  
            accessibility is not always improved.  If anything, having the  
            site inspected by a CAS may serve only to put the owner on  
            notice that the property fails to meet disability access  
            standards.
           5)Ignorance of the Law Excuses No One  :  When opening a business,  
            an individual must become knowledgeable of extremely  
            complicated areas of the law: environmental, employment,  
            privacy, worker safety, health, intellectual property,  
            advertising, and tax law to name a few.  Despite the broad  
            range of local, state, and federal laws effecting business  
            owners, the legal system is based on the principle that  
            ignorance of the law excuses no one.  If ignorance was an  
            excuse, individuals charged with criminal offenses or subject  
            to civil suits could escape liability by claiming ignorance.   
            The principal also holds that a person engaged in an activity  
            outside what is common must make themselves aware of the law  
            that is necessary to engage in that activity.  Furthermore,  
            the government does not, in general, subsidize a business  
            owner's education of relevant laws.  The government does not  
            pay for a tax attorney to advise a business owner on how to  
            properly structure his/her company, nor does the government  
            pay for a certified public account to certify that a business  
            owner's financial statements comply with generally accepted  
            accounting principles.  As such, the Committee may wish to  
            consider whether it is appropriate to subsidize the education  
            of relevant disability access laws, especially since it may  
            not actually lead to greater disability access.


           6)Double Referral  :  This bill was double-referred to the  
            Assembly Committee on Judiciary, which passed this bill on  
            April 21, 0215, with a vote of 10-0.  For additional  











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            discussion of this bill, please refer to the analysis prepared  
            by the Assembly Committee on Judiciary.


          REGISTERED SUPPORT / OPPOSITION:




          Support


          Auburn Chamber of Commerce


          Building Owners and Managers Association California


          California Apartment Association


          California Building Industry Association


          California Business Properties Association


          California Chamber of Commerce


          California Restaurant Association


          Camarillo Chamber of Commerce


          Chamber of Commerce Alliance Ventura and Santa Barbara Counties













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          Chamber of Commerce Mountain View


          Chamber of the Santa Barbara Region


          Civil Justice Association of California 


          Fairfield-Suisun City Chamber of Commerce


          Fullerton Chamber of Commerce


          Goleta Chamber of Commerce


          Greater Fresno Area Chamber of Commerce


          Half Moon Bay Coastside Chamber of Commerce


          International Council of Shopping Centers


          Lake Tahoe South Shore Chamber of Commerce


          Lodi Chamber of Commerce


          NAIOP - Commercial Real Estate Development Association


          North Lake Tahoe Chamber of Commerce













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          Oxnard Chamber of Commerce


          Palm Desert Area Chamber of Commerce


          Rancho Cordova Chamber of Commerce


          Redondo Beach Chamber of Commerce & Visitors Bureau


          San Diego County Apartment Association


          San Diego Regional Chamber of Commerce


          Simi Valley Chamber of Commerce


          South Bay Association Chambers of Commerce


          Southwest California Legislative Council


          Torrance Area Chamber of Commerce




          Opposition


          None on file














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          Analysis Prepared by:Carlos Anguiano / REV. & TAX. / (916)  
          319-2098