BILL ANALYSIS                                                                                                                                                                                                    Ó



          SENATE COMMITTEE ON GOVERNANCE AND FINANCE
                         Senator Robert M. Hertzberg, Chair
                                2015 - 2016  Regular 

                              
          
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          |Bill No:  |AB 88                            |Hearing    |7/1/15   |
          |          |                                 |Date:      |         |
          |----------+---------------------------------+-----------+---------|
          |Author:   |Gomez                            |Tax Levy:  |Yes      |
          |----------+---------------------------------+-----------+---------|
          |Version:  |6/30/15                          |Fiscal:    |Yes      |
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          |Consultant|Bouaziz                                               |
          |:         |                                                      |
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              SALES AND USE TAXES:  EXEMPTION:  ENERGY OR WATER EFFICIENT  
                                   HOME APPLIANCES



          Provides sales and use tax exemption for the sale of energy or  
          water efficient home appliances, purchased by a public utility  
          that is provided at no cost to a low income participant in an  
          energy efficiency program. 


           Background and Existing Law

           State law imposes a sales and use tax on the sale, storage, or  
          use of tangible personal property unless exempted by state law.   
          Generally, nonprofits, public agencies, and charities are  
          subject to sales and use tax, unless otherwise exempted.  Cities  
          and Counties may increase the sales and use tax rate up to 2% as  
          a transactions and use tax for either specific or general  
          purposes with a vote of the people.


           Proposed Law

           Assembly Bill 88 provides sales and use tax exemption for the  
          sale of energy or water efficient home appliances, purchased by  
          a public utility that is provided at no cost to a low income  
          participant in an energy efficiency program.  The bill specifies  
          that any savings from the exemption must be used by the public  
          utility to purchase additional energy or water efficient home  







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          appliances.  AB 88 applies to federal, state, or  
          ratepayer-funded energy or water efficiency programs.

          The bill defines "energy or water efficient home appliance" as a  
          refrigerator or clothes washer that meets performance  
          requirements under the ENERGY STAR program.  The bill defines a  
          low-income participant as a person who is a participant in the  
          California Public Utilities Commission's Energy Savings  
          Assistance Program (ESAP), or a similar energy or water  
          efficiency program, provided by a public utility with income  
          guidelines that do not exceed the income guidelines for ESAP  
          participants.

          AB 88 becomes operative on the first day of the first calendar  
          quarter commencing more than 90 days after the effective date of  
          this act and shall remain in effect only until January 1, 2021.


           State Revenue Impact

           The Board of Equalization (BOE) estimates an annual loss of $4.5  
          million.  This estimate only takes into account refrigerator and  
          clothes washer expenditures for four large investor-owned  
          utilities, and two large publicly-owned utilities.  In  
          California, there are 6 investor-owned utilities, and 46  
          publicly-owned utilities.  


           Comments

           1.  Purpose of the bill.   According to the author, "AB 88 creates  
          a tax exemption for Energy Star clothes washers and  
          refrigerators that are purchased through the Energy Savings  
          Assistance Program for low income utility customers.  Maximizing  
          rate payer funds to benefit rate payers participating in ESAP is  
          another effective tool to helping California achieve energy  
          efficiency and water reduction goals.  While the bill is a tax  
          levy, it has a delayed effective date to provide the Board of  
          Equalization a timeline for notifying businesses that would be  
          retailing the appliances.  To provide appropriate review of the  
          legislation, AB 88 has a five year sunset to review its  
          effectiveness."  

           2.  Legal woes.   The sponsor of AB 88, Appliance Recycling  








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          Centers of America (ARCA), supplies and recycles ENERGY STAR  
          appliances for low income individuals in the Los Angeles area  
          through the Los Angeles Department of Water & Power's (LADWP),  
          and the Southern California Gas Company's low income programs.   
          ARCA bills LADWP and Southern California Gas Company after  
          delivering the new appliance, and recycling the old appliance.  
          Since 2006, ARCA has provided 140,533 refrigerators and clothes  
          washers in the Los Angeles area.

          ARCA failed to assess, collect, or remit sales and use tax to  
          BOE for the sale of ENERGY STAR appliances to LADWP and Southern  
          California Gas Company, and underwent a BOE managed audit as a  
          result.  The audit covered the period from January 1, 2011  
          through September 30, 2014, and was expected to be completed by  
          March 31, 2015.  ARCA estimated that the audit will likely  
          result in a Notice of Determination from BOE of an assessment of  
          at least $4.0 million.  In a press release dated February 11,  
          2014, ARCA stated the assessment is subject to protest and  
          appeal, would not need to be funded until the matter has been  
          fully resolved.  The press release also stated the company was  
          pursuing Legislation to help resolve the matter. 

          In March of this year, a federal securities class action was  
          filed against ARCA.  The complaint claims ARCA made false and/or  
          misleading statements in their financial statements concerning  
          sales tax related to its appliance replacement program, among  
          other allegations.  Specifically, the complaint states ARCA knew  
          or recklessly disregarded that material facts were being  
          misrepresented or omitted in their financial statements  
          concerning sales tax.  To ensure that legal disputes are  
          determined using the law in place at the time the sales and use  
          tax should have been collected and remitted, the Committee may  
          wish to consider amending the bill to include "no inference"  
          language so that any pending, or future litigation, does not  
          consider the bill's exemption.  

          3.  Effect of exemption.   AB 88's exemption aids low income  
          individuals and families by providing low or no cost  
          refrigerators and washing machines, but reduces revenues for  
          cities, counties, and the state, which means less funds for  
          programs that may also benefit low income individuals and  
          families.  For example, if the City of Blue purchases $100,000  
          in refrigerators in neighboring City of Green, the City of Blue  
          will save $7,500 in sales and use tax, allowing the City of Blue  








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          to purchase additional refrigerators.  The City of Green, where  
          the refrigerators were sold, will lose approximately $2,063.   
          The county City of Green is in will lose $1,000, and the State  
          General Fund will lose $4,438.  In effect, the State, city, and  
          county governments would subsidize the purchase of tax-free  
          refrigerators.

          4.  Related legislation.   AB 816 (Hall), of the 2013-14  
          Legislative Session, would have provided a sales and use tax  
          exemption for energy- or water-efficient home appliances  
          purchased by a public utility and provided at no cost to a  
          participant in a federal, state, or ratepayer-funded energy  
          efficiency program.  AB 816 originally related to alcoholic  
          beverages, was gutted and amended with the sales and use tax  
          exemption, and was withdrawn from the Senate Government  
          Organization Committee to Senate Rules.


           Assembly Actions

           Assembly Revenue and Taxation   9-0
          Assembly Appropriations       17-0
          Assembly Floor                78-0

           Support and  
          Opposition   (7/2/15)


           Support  :  Appliance Recycling Centers of America (ARCA); Asian  
          Pacific Environmental Network; California Apartment Association;  
          California Board of Equalization Chairman, Jerome Horton;  
          California Building Industry Association; California Contract  
          Cities Association; California League of Conservation Voters;  
          California Retailers Association; California Rural Legal  
          Assistance Foundation; Californians Against Waste; Center for  
          Employment Training; Center on Race Poverty and the Environment;  
          Central Basin Municipal Water District; City of Lancaster; City  
          of Long Beach; City of Oakland; Coalition of California Welfare  
          Rights Organization; Coalition for Humane Immigrant Rights of  
          Los Angeles;  Community Water Center; Employers Training  
          Resource; Independent Cities Association; La Cooperativa  
          Campesina de California; Los Angeles Chamber of Commerce; Los  
          Angeles County Supervisor, Don Knabe; Los Angeles County  
          Supervisor, Michael Antonovich; Los Angeles Mayor Eric Garcetti;  








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          Proteus Inc.; San Diego County Water Authority ; Sierra Club  
          California; State Board of Equalization; Western Center on Law  
          and Poverty.

           Opposition  :  California State Association of Counties; League of  
          California Cities.



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