BILL ANALYSIS Ó SENATE COMMITTEE ON GOVERNANCE AND FINANCE Senator Robert M. Hertzberg, Chair 2015 - 2016 Regular ------------------------------------------------------------------ |Bill No: |AB 160 |Hearing | 7/15/15 | | | |Date: | | |----------+---------------------------------+-----------+---------| |Author: |Dababneh |Tax Levy: |No | |----------+---------------------------------+-----------+---------| |Version: |6/16/15 |Fiscal: |Yes | ------------------------------------------------------------------ ----------------------------------------------------------------- |Consultant|Grinnell | |: | | ----------------------------------------------------------------- Criminal profiteering: counterfeit labels: sales and use taxes Applies the sales and use tax to goods with counterfeit or illicit labels held for resale; extends authority for asset forfeiture to specified crimes. Background and Existing Law I. Sales and Use Tax. State law imposes the sales tax on every retailer engaged in business in this state that sells tangible personal property, and requires them to collect the appropriate tax from the purchase and remit the amount to the Board of Equalization (BOE). Sales tax applies whenever a retail sale is made, which is basically any sale other than one for resale in the regular course of business. Unless the person pays the sales tax to the retailer, he or she is liable for the use tax, which is imposed on any person consuming tangible personal property in the state. The use tax rate is the same rate as the sales tax rate, and must be remitted on or before the last day of the month following the quarterly period in which the person made the purchase. The Legislature added the use tax in 1935 in response to complaints from in-state retailers that California residents would evade the sales tax it enacted in 1933 by purchasing property out-of-state, but use it here. Federal and state law make it a criminal act to willfully AB 160 (Dababneh) 6/16/15 Page 2 of ? manufacture, intentionally sell, or knowingly possess for sale any counterfeit of a mark registered with the Secretary of State or the Principal Register of the United States Patent and Trademark Office. Federal law also makes it a criminal act to traffic in: Goods and services knowingly using a counterfeit mark in connection with the goods and services, Specified products knowing that a counterfeit mark has been applied to it, the use of which is likely to cause confusion, a mistake, or deceive someone, Counterfeit military goods or service, knowing that the use, malfunction, or failure of which is likely to cause serious bodily injury or death, disclosure of classified information, impairment of or significant harm to combat operations, or to national security or a member of the armed forces, or Counterfeit drugs. Last year, the Legislature provided that for purposes of the sales and use tax. a sale includes any sale of tangible personal property with a counterfeit mark by an individual convicted of selling counterfeit merchandise under state or federal law, regardless of whether it's for resale (AB 2681, Dababneh, 2014). The measure essentially applied the sales tax on all the goods sold by individuals on or before the date they were convicted of selling counterfeit goods. II. Asset Forfeiture. In 1982, the California Legislature passed the California Control of Profits of Organized Crime Act to punish the activities of organized crime through the forfeiture of profits acquired and accumulated as a result of engaging in a pattern of criminal profiteering activity. To have a pattern of criminal profiteering activity, a person must engage in at least two incidents with (1) the same or similar purposes, victims, principals, results, or methods, or (2) were committed as a criminal activity of organized crime. State law defines organized crime as conspiratorial and which is either organized and seeks to provide illegal goods or a specified list of services, or seeks to conduct other services for profit. Existing law provides that where a defendant is convicted of a trademark counterfeiting, the court shall order the forfeiture and destruction of all of counterfeit marks and all counterfeit items. The court, with specified exceptions for community AB 160 (Dababneh) 6/16/15 Page 3 of ? property vehicles, shall also order forfeiture and destruction or other disposition of all means of making the marks, and all other devices for making or transporting the marks used in connection with the violation. BOE Chairman Jerome Horton wants to expand AB 2781's extension of the sales and use tax for goods held for resale that have counterfeit or illicit marks to account for a recent case where an individual was selling items labelled as gold bars. Proposed law. I. Sales and Use Tax. Assembly Bill 160 expands AB 2781's extension of the sales tax to sales of goods with counterfeit marks to also include sales of goods with counterfeit or illicit labels, as defined in the United State Code. The measure also makes a conforming change to the definition of "counterfeit seller." II. Criminal Law. Assembly Bill 160 adds offenses related to piracy and insurance fraud onto the list of criminal offenses for which prosecutors can seek asset forfeiture. The measure also expands the definition of "organized crime" to include supplying pimping and pandering, loan-sharking, counterfeiting a registered mark, the piracy of recording or audiovisual work, or conducting embezzlement, securities fraud, insurance fraud, grand theft, money laundering, or forgery for profit. State Revenue Impact BOE states that the measure's asset forfeiture provisions increase revenue by several million dollars annually, while its counterfeiting offense change results in $1.1 million in annual revenue. Comments 1. Purpose of the bill . According to the author, "Criminals should not profit from their crimes. Unfortunately, California's asset forfeiture laws for non-drug related crimes, like financial crimes and other white collar offenses are so AB 160 (Dababneh) 6/16/15 Page 4 of ? poorly drafted that they are almost unusable by District Attorneys and the Attorney General's office. As a result, white collar victims who sometimes have lost everything due to a defendant's fraud often cannot collect restitution to make them whole. Adding more examples of crimes to the definition of "organized crime" will ensure that prosecutors are able to seize unlawfully obtained assets. Equally problematic, underground economy crimes like insurance fraud that drain public resources from our schools, health services and law enforcement, are not even included among the list of crimes in which asset forfeiture is available. As found by the Little Hoover Commission, after an investigation of over a year, in the current climate, "Crime Actually Does Pay-- people participate in the underground economy because the rewards outweigh the risk." (Little Hoover Committee Report # 226, p. 30.) This bill fixes the internal inconsistencies in the language of the state's asset forfeiture laws, and adds certain underground economy crimes to the list of offenses that can trigger asset forfeiture of criminal profits. This bill is to make it so that crime no longer pays in California." 2. Effective ? Criminal law applies sanctions to individuals who sell counterfeit merchandise, which deprives honest owners of the economic returns justly due to them for the goods and services they provide. AB 2681 added to existing criminal law deterrents against counterfeiting by applying the sales and use tax to sales of good with counterfeit marks, which AB 160 would expand to counterfeit and illicit labels. As such, the bill only affects people convicted of crimes, who are unlikely to have sufficient income or assets to satisfy the debt, especially after satisfying criminal restitution orders to those that hold the rights to the counterfeited trademarks. As such, AB 160 may only add to the state's accounts receivables, and not to its revenues. The Committee may wish to consider the tangible effects of applying the sales and use tax to goods with counterfeit or illicit labels goods sold for resale. 3. 2/3 . AB 160 increases a tax on any taxpayers for the purpose of Section III of Article XIIIA of the California Constitution. As such, Legislative Counsel has assigned the measure a 2/3 vote key. 4. Incoming ! On June 30th, the Committee on Public Safety approved AB 160 by a vote of 7-0. The Committee on Governance AB 160 (Dababneh) 6/16/15 Page 5 of ? and Finance is hearing the measure as the Committee of second reference. Assembly Actions Senate Public Safety 7-0 Assembly Floor 77-0 Assembly Appropriations 15-0 Assembly Revenue and Taxation 9-0 Assembly Public Safety 7-0 Support and Opposition (7/9/15) Support : BOE Chair Jerome Horton; American Federation of State, County, and Municipal Employees; California Chamber of Commerce; California College and University Police Chiefs; California Police Chiefs Association; California District Attorneys Association; California State Sheriffs' Association; California Statewide Law Enforcement Association; Independent Insurance Agents; Liberty Mutual Insurance; Los Angeles Area Chamber of Commerce; Valley Industry and Commerce Association. Opposition : None received. -- END --