BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                     AB 321


                                                                    Page  1





          Date of Hearing:  May 18, 2015





                     ASSEMBLY COMMITTEE ON REVENUE AND TAXATION


                                 Philip Ting, Chair





          AB 321  
          (Chávez) - As Amended May 11, 2015





          Majority vote.  Tax levy.  Fiscal committee.  


          SUBJECT:  Personal income taxes: exclusion: servicemembers


          SUMMARY:  Excludes from gross income any basic pay received by a  
          servicemember in the United States Armed Forces (Armed Forces),  
          in the reserve components of the Armed Forces, or in the  
          National Guard, derived from his or her position as a  
          servicemember, while serving his or her "active duty in the  
          state".  Specifically, this bill:  


          1)Excludes all of the following from gross income:










                                                                     AB 321


                                                                    Page  2





             a)   Any basic pay received by a servicemember in the Armed  
               Forces, in the reserve components of the Armed Forces, or  
               in the National Guard, derived from his or her position as  
               a servicemember, while serving his or her active duty in  
               California;


             b)   Any income received by a servicemember separated from  
               the Armed Forces, the reserve components of the Armed  
               Forces, or the National Guard, for 12 calendar months from  
               the date he or she is honorably discharged, derived from  
               his or her position as a servicemember, while located in  
               California; and, 


             c)   Any income received by a servicemember hospitalized  
               within the state for an injury received while on active  
               duty in the Armed Forces, in the reserve components of the  
               Armed Forces, or in the National Guard, derived from his or  
               her position as a servicemember, during the period of  
               hospitalization.  


          2)Provides that all the gross income exclusions set forth above  
            shall be allowed cumulatively.  


          3)Takes immediate effect as a tax levy.  


          EXISTING FEDERAL LAW:


          1)Defines "gross income" as all income from whatever source  
            derived, except as otherwise provided.  (Internal Revenue Code  
            (IRC) Section 61.)  Gross income specifically includes  
            compensation for services, business income, gains from  
            property, interest, rents, royalties, dividends, and pensions.









                                                                     AB 321


                                                                    Page  3






          2)Excludes from gross income compensation received for active  
            service as a member below the grade of commissioned officer in  
            the Armed Forces for any month during any part of which such  
            member:


             a)   Served in a combat zone, as defined; or, 


             b)   Was hospitalized as a result of wounds, disease, or  
               injury incurred while serving in a combat zone, as  
               specified.  (IRC Section 112(a).)  


          3)Excludes from gross income amounts received as a pension,  
            annuity, or similar allowance for personal injuries or  
            sickness resulting from active service in the armed forces of  
            any country, as specified.  (IRC Section 104(a)(4).)


          4)Excludes from gross income any "qualified military benefit".   
            (IRC Section 134(a).)  A "qualified military benefit" is  
            defined as any allowance or in-kind benefit that:


             a)   Is received by any member or former member of the  
               uniformed services of the United States or any dependent of  
               such member by reason of the member's status or service;  
               and, 


             b)   Was excludable from gross income on September 9, 1986,  
               under any provision of law, regulation, or administrative  
               practice in effect on such date, as provided.  (IRC Section  
               134(b).)  


          EXISTING STATE LAW:  








                                                                     AB 321


                                                                    Page  4







          1)Provides that IRC Section 61, relating to the definition of  
            gross income, shall apply, except as specified.  (Revenue and  
            Taxation Code (R&TC) Section 17071.) 


          2)Provides various exclusions from gross income in determining  
            tax liability under the Personal Income Tax Law.  (R&TC  
            Section 17131 et seq.) 


          3)Excludes from gross income specified death benefits received  
            by the surviving spouse or designated beneficiary of any  
            member of the California National Guard, State Military  
            Reserve, or Naval Militia who dies or is killed in the  
            performance of  duty, as specified.  (R&TC Section 17132.4.)  


          4)Defines the term "Armed Forces of the United States" to  
            include all regular and reserve components of the uniformed  
            services which are subject to the jurisdiction of the  
            Secretary of Defense, the Secretary of the Army, the Secretary  
            of the Navy, or the Secretary of the Air Force, and the Coast  
            Guard.  The members of such forces include commissioned  
            officers and personnel below the grade of commissioned  
            officers in such forces.  (R&TC Section 17022.)


          FISCAL EFFECT:  The Franchise Tax Board estimates that this bill  
          would reduce General Fund revenues by $150 million in fiscal  
          year (FY) 2015-16, by $100 million in FY 2016-17, and by $100  
          million in FY 2017-18.  


          COMMENTS:  


          1)The author has provided the following statement in support of  








                                                                     AB 321


                                                                    Page  5





            this bill: 


               It's unacceptable that young women and men, who put  
               themselves in harm's way, are living paycheck-to-paycheck  
               in order to support their families.  Eliminating this tax  
               burden will offer some financial relief to our military  
               members and veterans who served honorably.  


          2)Committee Staff Comments


              a)   What is a "tax 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). 

              b)   How is a tax expenditure different from a direct  
               expenditure  ?  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 existing  
               tax expenditure absent a sunset date, effectively resulting  
               in a "one-way ratchet" whereby tax expenditures can be  
               conferred by majority vote, but cannot be rescinded,  
               irrespective of their efficacy or cost, without a  








                                                                     AB 321


                                                                    Page  6





               supermajority vote.


              c)   General background  :  The FTB notes that, for taxable  
               years beginning December 22, 1972 through January 1, 1986,  
               California law provided taxpayers an annual $1,000 income  
               exclusion for compensation received during active duty in  
               the Armed Forces or State Military Reserve.  State law also  
               provided taxpayers an exclusion of up to $500 a month for  
               any compensation received during active duty in the  
               National Guard in connection with an emergency.   
               Additionally, an income exclusion applied to pensions or  
               retirement pay received by an individual for his or her  
               service in the Armed Forces, the State Military Reserve, or  
               the National Guard.  (See former R&TC Section 17146.)  


               For taxable years beginning on or after January 1, 1987 and  
               before January 1, 1992, a member of the Armed Forces was  
               allowed a credit, rather than an exclusion from gross  
               income, in an amount equal to 4% of the eligible income  
               received by an individual whose adjusted gross income was  
               less than $27,000.  Eligible income included salary, wages,  
               bonuses, allowances, pensions, retirement pay, and other  
               compensation received by an individual for his or her  
               services on extended active duty as a member of the Armed  
               Forces, including the California National Guard, or the  
               State Military Reserve.  This law remained in effect until  
               January 1, 1992, and was repealed by its own terms as of  
               that date.  (See former R&TC Section 17053.13.)  


              d)   Lack of conformity  :  This bill would allow an exclusion  
               from gross income for certain income types for which  
               federal law has no counterpart, thus bringing state law out  
               of conformity.  State conformity with federal law promotes  
               greater simplicity and eases the administration of complex  
               tax laws.









                                                                     AB 321


                                                                    Page  7






              e)   A potential precedent  :  While cognizant of the personal  
               and professional sacrifices made by members of the  
               military, Committee staff notes that this bill would favor  
               one group of taxpayers over another, thereby establishing a  
               precedent for excluding certain income received by other  
               taxpayers the state wishes to recognize (e.g., police,  
               firefighters, teachers).   


              f)   Absence of a sunset date  :  In its current form, this  
               bill's proposed tax expenditure lacks an automatic sunset  
               provision.  This Committee has a longstanding policy  
               favoring the inclusion of sunset dates to allow the  
               Legislature periodically to review the efficacy and cost of  
               such programs.  The author may wish to consider the  
               addition of appropriate sunset provisions. 


              g)   Related legislation  :  


               i)     AB 505 (Melendez) excludes from gross income  
                 concurrent retirement and disability pay payments  
                 received by an "eligible individual", defined as an  
                 active, reserve, or retired member of the United States  
                 military who served in active duty.  AB 505 is scheduled  
                 to be heard by this Committee on May 18, 2015.


               ii)    AB 1275 (Gray) excludes from gross income, for  
                 taxable years beginning on or after January 1, 2015,  
                 retirement pay received by a taxpayer from the federal  
                 government for military service performed in the Armed  
                 Forces, the reserve component of the Armed Forces, or the  
                 National Guard.  AB 1275 is scheduled to be heard by this  
                 Committee on May 18, 2015.  










                                                                     AB 321


                                                                    Page  8





              h)   Prior legislation  :


               i)     AB 2329 (Melendez), of the 2013-14 Legislative  
                 Session, would have excluded from gross income Concurrent  
                 Retirement and Disability Pay payments received by an  
                 eligible individual, defined as an active, reserve, or  
                 retired member of the United States military who served  
                 in active duty.  AB 2329 was held on the Assembly  
                 Appropriations Committee's Suspense File.  


               ii)    AB 1077 (Anderson), of the 2009-10 Legislative  
                 Session, would have excluded from gross income retired  
                 pay and survivor annuities received by an individual as a  
                 result of the active service of a member of the Armed  
                 Forces.  AB 1077 was held on this Committee's Suspense  
                 File.


          REGISTERED SUPPORT / OPPOSITION:




          Support


          American Legion-Department of California


          AMVETS-Department of California


          California Association of County Veterans Service Officers


          California State Commanders Veterans Council









                                                                     AB 321


                                                                    Page  9






          Military Officers Association of America, California Council of  
          Chapters


          VFW-Department of California


          Vietnam Veterans of America-California State Council




          Opposition


          None on file




          Analysis Prepared by:M. David Ruff / REV. & TAX. / (916)  
          319-2098