BILL ANALYSIS                                                                                                                                                                                                    Ó



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

                              
          
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          |Bill No:  |AB 160                           |Hearing    | 7/15/15 |
          |          |                                 |Date:      |         |
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          |Author:   |Dababneh                         |Tax Levy:  |No       |
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          |Version:  |6/16/15                          |Fiscal:    |Yes      |
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          |Consultant|Grinnell                                              |
          |:         |                                                      |
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              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  







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          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  








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          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  








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          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  








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          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.



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