BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                     AB 405


                                                                    Page  1





          Date of Hearing:  April 27, 2015





                     ASSEMBLY COMMITTEE ON REVENUE AND TAXATION


                                 Philip Ting, Chair





          AB 405  
          (Brough) - As Introduced February 19, 2015


          


                                      SUSPENSE


          Majority vote.  Fiscal committee.


          SUBJECT:  State Board of Equalization:  administration:   
          interest


          SUMMARY:  Applies the same interest rate to both late tax  
          payments and overpayment refunds, for purposes of the tax and  
          fee programs administered by the State Board of Equalization  
          (BOE). Specifically,  this bill  :











                                                                     AB 405


                                                                    Page  2







          1)Amends Revenue and Taxation Code Section 6591.5 to revise the  
            definition of "modified adjusted rate per annum".  

          2)Provides that the rate shall be determined by adding three  
            percentage points to the rate specified in Internal Revenue  
            Code (IRC) Section 6621(a)(2), which establishes the IRC  
            underpayment rate. 



          3)Results in determining the interest on overpayments in the  
            same manner as interest on underpayments. 





          EXISTING LAW:  


          1)Requires those who are late in paying their BOE-administered  
            taxes, fees, or surcharges to pay a penalty equal to 10% of  
            the tax, plus interest on the unpaid tax, from the date the  
            tax became due.  The underpayment interest rate is established  
            by adding three percentage points to the rate specified in IRC  
            Section 6621, and is adjusted semiannually.  The underpayment  
            rate is currently 6%. 



          2)Grants credit to taxpayers who have overpaid their  
            BOE-administered taxes.  The credit is first applied to offset  
            any additional taxes owed.  Then any remaining credit will  
            accrue interest until remitted back to the taxpayer.  The  
            overpayment interest rate is based on 13-week treasury bills  
            auctioned, adjusted semi-annually, and rounded to the nearest  
            full percent.  Since July 2009, that rate has been 0%.








                                                                     AB 405


                                                                    Page  3








          3)Additionally, the BOE is required to pay interest on tax  
            overpayments only if the overpayment was unintentional or not  
            due to carelessness. 



          FISCAL EFFECT:  Assuming the overpayment interest is 6%, the BOE  
          estimates state and local revenue losses of $3.5 million in  
          fiscal year (FY) 2015-16, $13 million in FY 2016-17, $29.5  
          million in 2017-18, and $30.1 million in 2018-19.


          COMMENTS:  


           1)Author's Statement  .  The author has provided the following  
            statement in support of this bill:



               AB 405 revises the interest calculation for tax and fee  
               programs administered by the Board of Equalization so that  
               the same rate of interest is applied to both underpayments  
               and overpayments of tax.  In 1991, the Legislature  
               significantly reduced the interest rates on overpayments to  
               avoid substantial interest payments on refunds owed as a  
               result of an unfavorable court decision.  We should not  
               hold the government to a different standard than taxpayers.  
                Allowing the Board of Equalization to pay taxpayers  
               interest on their overpayments at the same rate as the  
               interest rate these taxpayers are charged when they are  
               late in paying their taxes is not only a taxpayer friendly  
               concept, but it is a matter of principle and fairness.   
               This bill attempts to fix a gross inequity in the law under  
               which taxpayers have been treated unfairly for over two  
               decades.








                                                                     AB 405


                                                                    Page  4










           2)Arguments in Support  .  The California Chamber of Commerce  
            states "[m]andating the payment of interest on taxpayers for  
            underpayments to the state, without imposing the same burden  
            on the state is simply unfair."  The Howard Jarvis Taxpayers  
            Association notes that "[t]axpayers are often required to pay  
            what they owe before entering litigation.  In the event they  
            win their case, they should receive a fair interest rate for  
            the time the government has been holding their money. . .  
            [t]axpayers willing to expend their time, energy, and  
            resources to contest their taxes deserve nothing less than  
            just treatment by tax agencies."

           3)Arguments in Opposition  :  The California Tax Reform  
            Association states that this bill "addresses a problem that  
            does not exist and would remove from current law an incentive  
            for taxpayers to take due care when paying and calculating  
            their tax.  . . .  Providing interest for such overpayments,  
            as this measure suggests, could incentivize overpayments at  
            the expense of the state."  The California Professional  
            Firefighters notes that, "interest paid by the state on  
            carelessly or intentionally made overpayments is needed  
            revenue that could otherwise be earmarked for critical  
            firefighting and other vital public safety services.  . . .  "



           4)Background  .  From 1937 to 1991, the BOE's interest rate for  
            overpayment and late payment were the same.  However, in 1991,  
            the Legislature reduced the interest rate on overpayments as a  
            result of an unfavorable court decision in Aerospace Co. v.  
            State Board of Equalization (1990) 218 Cal.App.3d 1300  
            [requiring the state to refund significant amounts with  
            interest].  The State has since repaid the balance and  
            proponents argue the disparity is outdated and lacks continued  








                                                                     AB 405


                                                                    Page  5





            justification.  There have been 15 previous attempts to enact  
            legislation to address the issue and only one bill reached the  
            Governor's desk; that bill was subsequently vetoed by Governor  
            Wilson.  Governor Wilson noted the following in his veto  
            message:





               Imposing a lower rate for refunds minimizes the impact on  
               the state in the event of large taxpayer refund liability.   
               Imposing a higher rate on amounts owed by taxpayers serves  
               as an incentive for taxpayers to remit those amounts in a  
               timely manner as well as to comply with the law.  I do not  
               wish to change these incentives.





           5)The Overpayment Interest Rate:  Internal Revenue Services  
            (IRS) and Franchise Tax Board (FTB)  .  The IRS and the FTB have  
            the same interest rates for non-corporate overpayments and  
            underpayments.  The IRS has only a 1% disparity for corporate  
            overpayments (the disparity is higher if the corporate  
            underpayment is over $100,000 or the corporate overpayment  
            [exceeds $10,000]).  The FTB has a 3% disparity for corporate  
            overpayments.   The Committee may want to consider adjusting  
            BOE's overpayment interest rate to bring it in-line with the  
            rates used by the IRS and the FTB.



           6)Interest v. Penalty  .  BOE staff, in its analysis of this bill,  
            notes that the law "imposes penalties for late payments of  
            tax.  Interest, however, is a charge for the use of funds.  In  
            the same manner the state charges interest when a taxpayer  
            makes a late payment, the state too should pay interest when  








                                                                     AB 405


                                                                    Page  6





            taxpayers overpay."  Charging interest is what allows banks  
            and other institutions to continue lending and provide the  
            necessary funding to drive the economy.  Penalties are  
            consequences intended to prevent a certain pattern of  
            behavior. 



            Requiring the State to pay an equitable interest rate for  
            overpayments, while minimizing the impact on the state's  
            General Fund, and maintaining the efficacy of a penalty are  
            not incompatible goals.  If the concern is to minimize the  
            impact on the State in the event of large taxpayer refund  
            liability, the State could temporarily lower interest rates as  
            it did in the past when Aerospace Co. v. State was decided.   
            Additionally, adjusting the overpayment interest rate to  
            conform to the underpayment rate would not reduce the  
            incentive created by the penalty because both rates address  
            fundamentally different purposes.  As noted above, interest  
            incentivizes the use of money, penalties incentivizes the  
            cessation of a pattern of behavior.  In other words,  
            increasing the interest rate on overpayments would not  
            disincentivize taxpayers to pay on time.  Moreover, existing  
            law prevents taxpayers from gaming the system by intentionally  
            overpaying and acquiring a greater return from the government  
            than from the marketplace. 





           7)Prior legislation  : 



             a)   AB 2429 (Patterson), of the 2013-2014 Legislative  
               Session, contained provisions identical to this bill.  AB  
               2429 was held in this Committee.  









                                                                     AB 405


                                                                    Page  7







             b)   AB 1049 (Harkey), of the 2013-13 Legislative Session,  
               contained provisions identical to this bill.  AB 1049 was  
               held in this Committee. 



             c)   AB 2048 (Donnelly), of the 2011-12 Legislative Session,  
               contained provisions nearly identical to this bill.  AB  
               2048 was held in the Assembly Appropriations Committee.



             d)   SB 421 (Correa), of the 2011-12 Legislative Session,  
               would have reduced the interest rate on underpayments by  
               3%.  SB 421 was held in the Senate Appropriations  
               Committee. 



             e)   AB 1926 (Horton), of the 2007-08 Legislative Session,  
               would have equalized the underpayment and overpayment  
               interest rates.  AB 1926 was held in this Committee. 
          


          REGISTERED SUPPORT / OPPOSITION: 


           


          Support


           










                                                                     AB 405


                                                                    Page  8





          California Chamber of Commerce 


          California Taxpayers Association 


          Howard Jarvis Taxpayers Association 


          Member, First District, State Board of Equalization 


          Member, Second District, State Board of Equalization


          Member, Fourth District, State Board of Equalization


          State Board of Equalization 


           


          Opposition





           American Federation of State, County and Municipal Employees


          California Profession Firefighters 


          California Tax Reform Association 










                                                                     AB 405


                                                                    Page  9







          Analysis Prepared by:Paul Kim / REV. & TAX. / (916) 319-2098