BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                     AB 428


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          Date of Hearing:  May 18, 2015





                     ASSEMBLY COMMITTEE ON REVENUE AND TAXATION


                                 Philip Ting, Chair





          AB 428  
          (Nazarian) - As Amended May 12, 2015





          Majority vote.  Tax levy.  Fiscal committee.  


          SUBJECT:  Income taxes:  credit:  seismic retrofits


          SUMMARY:  Allows a credit equal to 30% of a "qualified  
          taxpayer's" "qualified costs" incurred for "seismic retrofit  
          construction", as specified.  Specifically, this bill:  


          1)Allows the credit for taxable years beginning on or after  
            January 1, 2016, and before January 1, 2021.  

          2)Defines a "qualified taxpayer" as an owner of a "qualified  
            building" located in California.  A taxpayer that owns a  
            proportional share of a "qualified building" may claim the  








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            credit based on the taxpayer's share of the "qualified costs".

          3)Defines "qualified costs" as costs paid or incurred by the  
            qualified taxpayer for any completed "seismic retrofit  
            construction" on a "qualified building", including any  
            engineering or architectural design work necessary to permit  
            or complete the "seismic retrofit construction".  "Qualified  
            costs" shall not include any of the following:

             a)   Maintenance, including abatement of deferred or  
               inadequate maintenance, and correction of violations  
               unrelated to the "seismic retrofit construction";

             b)   Repair, including repair of earthquake damage;

             c)   "Seismic retrofit construction" required by local  
               building codes as a result of addition, repair, building  
               relocation, change of use, or occupancy;

             d)   Other work or improvement required by local building or  
               planning codes as a result of the intended "seismic  
               retrofit construction";

             e)   Rent reductions or other associated compensation,  
               compliance actions, or other related coordination involving  
               the qualified taxpayer and any other party, including a  
               tenant, insurer, or lender;

             f)   Replacement of existing building components, including  
               equipment, except as needed to complete the "seismic  
               retrofit construction"; 

             g)   Bracing or securing nonpermanent building contents;

             h)   The offset of costs, reimbursements, or other costs  
               transferred from the qualified taxpayers to others; or, 

             i)   Amounts paid to the jurisdiction with authority for  
               building code enforcement for issuing the certification  








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               required by this bill.   

          4)Defines "seismic retrofit construction" as alteration of a  
            "qualified building" or its components to substantially  
            mitigate seismic damage.  Seismic retrofit construction shall  
            be for work performed voluntarily, and for which qualified  
            costs were paid or incurred, on or after January 1, 2016.   
            Seismic retrofit construction shall include the following:

             a)   Anchoring the structure to the foundation;

             b)   Bracing cripple walls;

             c)   Bracing hot water heaters;

             d)   Installing automatic gas shutoff valves;

             e)   Repairing or reinforcing the foundation to improve the  
               foundation's integrity against seismic damage;

             f)   Anchoring fuel storage; and,

             g)   Installing an earthquake-resistant bracing system for  
               mobile homes registered with the California Department of  
               Housing and Community Development. 

          5)Defines a "qualified building" as a building that has been  
            certified as an "at-risk property" by "the local building code  
            enforcement" for the area within which the building is  
            located.  A qualified building specifically includes a mobile  
            home registered by the Department of Housing and Community  
            Development.    

          6)Defines an "at-risk property" as a building deemed hazardous  
            and in danger of collapse in the event of a catastrophic  
            earthquake, including soft story buildings, nonductile  
            concrete residential buildings, and pre-1994 concrete  
            residential buildings.









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          7)Provides that, to be eligible for the credit, the following  
            must apply:

             a)   The qualified taxpayer must obtain certification from  
               the appropriate jurisdiction with authority for building  
               code enforcement, upon a review of the building, that the  
               completed construction satisfies the definition of seismic  
               retrofit construction.  The certification shall identify  
               what part of the completed construction, if any, is not  
               seismic retrofit construction.  Upon request of the  
               Franchise Tax Board (FTB), the qualified taxpayer must  
               provide a copy of the certification to the FTB.  

             b)   The jurisdiction with authority for building code  
               enforcement in which a qualified building is located has  
               entered into an agreement with the state to provide  
               certifications and to not seek reimbursement for any costs  
               incurred in providing those certifications.  

          8)Requires the credit amount allowed to be claimed by a  
            qualified taxpayer at the rate of 1/5th of the credit amount  
            for the taxable year in which the credit is allowed, and  
            one-fifth of the credit amount for each of the subsequent four  
            taxable years.  

          9)Provides that, in cases where the credit amount exceeds the  
            taxpayer's tax liability, the excess credit amount may be  
            carried over to the following taxable year, and succeeding  
            four taxable years, until the credit has been exhausted. 

          10)Provides that, for purposes of computing the credit, the  
            qualified costs shall be reduced by any grant provided by a  
            public entity for the seismic retrofit construction.  

          11)Provides that this credit shall be in lieu of any other  
            credit or deduction that the qualified taxpayer may otherwise  
            claim with respect to qualified costs.  

          12)Allows the credit under both the Personal Income Tax (PIT)  








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            Law and the Corporation Tax (CT) Law.

          13)Provides that Revenue and Taxation Code (R&TC) Section 41  
            shall not apply to the credit.  

          14)Takes immediate effect as a tax levy.

          15)Sunsets the credit provisions on December 1, 2021.  

          EXISTING LAW:  


          1)Allows various tax credits under both the PIT Law and the CT  
            Law.  These credits are generally designed to encourage  
            socially beneficial behavior or to provide relief to taxpayers  
            who incur specified expenses.

          2)Allows taxpayers engaged in a trade or business to deduct  
            expenses considered ordinary and necessary in conducting that  
            trade or business.

          3)Requires any bill authorizing a new credit to contain all of  
            the following: 


             a)   Specific goals, purposes, and objectives that the tax  
               credit will achieve;


             b)   Detailed performance indicators for the Legislature to  
               use when measuring whether the tax credit meets the goals,  
               purposes, and objectives stated in the bill; and,


             c)   Data collection requirements to enable the Legislature  
               to determine whether the tax credit is meeting, failing to  
               meet, or exceeding those specific goals, purposes, and  
               objectives. The requirements shall include the specific  
               data and baseline measurements to be collected and remitted  








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               in each year the credit is in effect, for the Legislature  
               to measure the change in performance indicators, and the  
               specific taxpayers, state agencies, or other entities  
               required to collect and remit data.  (R&TC Section 41.)

          FISCAL EFFECT:  The FTB estimates that this bill will reduce  
          General Fund revenues by $1.4 million in fiscal year (FY)  
          2015-16, by $5.2 million in FY 2016-17, and by $9.1 million in  
          FY 2017-18.    


          





          COMMENTS:  


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


                 The recent earthquakes, which shook Southern California  
                 cities [in] 2014, remind us that an earthquake can strike  
                 at any given moment and it is imperative that we ensure  
                 our structures are suitable to withstand a catastrophic  
                 earthquake.  According to the Southern California  
                 Earthquake Center, California has a 99.7% chance of  
                 having a magnitude 6.7 or larger earthquake during the  
                 next 30 years, and the likelihood of an even more  
                 powerful quake of magnitude 7.5 or greater in the next 30  
                 years is 46%.  It is imperative that we take every  
                 precaution to make sure that human life and property is  
                 saved in the event of a catastrophic earthquake.  This  
                 measure will improve California's resilience against  
                 earthquakes, saving the public money that would otherwise  
                 have been required for disaster relief.  








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          2)Proponents of this bill note the following:


                 We all know that the cost to retrofit a building is very  
                 expensive.  While older buildings were constructed  
                 according to building codes in place at the time, new  
                 studies have found that some of these buildings may not  
                 survive a strong earthquake.  Your bill will help and  
                 encourage property owners to have work done to their  
                 buildings to ensure they are safe.  Your bill is  
                 important not only to property owners, but also to  
                 tenants who live in these buildings.  


          3)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  








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               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 cost or efficacy, without a  
               supermajority vote.


              c)   What would this bill do  ?  This bill would allow a credit  
               equal to 30% of a qualified taxpayer's qualified costs  
               incurred for seismic retrofit construction.  According to  
               the United States Geological Survey, there is a 99.7%  
               chance that a major earthquake of 6.7 in scale will strike  
               California in the next 30 years.  This bill's tax credit is  
               designed to lower the overall cost for property owners to  
               improve the seismic safety of their buildings.  Proponents  
               note that such action, in turn, could save countless lives  
               in the event of a catastrophic earthquake, and would reduce  
               the demand for state and local emergency services by  
               hopefully minimizing structural damage.  Older concrete  
               structures are particularly vulnerable to earthquake  
               damage; last year, the author noted that recent research  
               has identified 1,500 concrete buildings that are  
               seismically vulnerable in the Los Angeles area alone.   


              d)   Implementation considerations  :  Committee staff has  
               identified certain implementation concerns with this bill's  
               current language.  Committee staff is available to work  
               with the author's office to resolve these and any other  
               concerns that may be identified.  These issues include the  
               following:


               i)     This bill currently requires a taxpayer to obtain a  
                 "certification" from the "appropriate jurisdiction with  
                 authority for building code enforcement."  This  








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                 certification, in turn, must attest to the fact that the  
                 completed construction satisfies the statutory definition  
                 of "seismic retrofit construction."  The certification  
                 must also identify what part of the completed  
                 construction, if any, is not seismic retrofit  
                 construction.  This bill does not, however, currently  
                 require this certification to verify a building's  
                 "at-risk" status prior to construction, which may ease  
                 administration of the credit.   


                 These provisions raise a number of additional issues.   
                 First, this bill provides little definitional guidance  
                 for identifying the "appropriate jurisdiction" with  
                 building code enforcement authority.  Additional  
                 ambiguity is created by this bill's definition of a  
                 "qualified building", which is deemed one that has been  
                 certified as an at-risk property by the local "building  
                 code enforcement" for the area within which the building  
                 is located.  The author may wish to consider appropriate  
                 amendments clarifying which entities will have  
                 certification authority.


               ii)    This bill defines an "at-risk property" as a  
                 building deemed hazardous and in danger of collapse in  
                 the event of a catastrophic earthquake, including, but  
                 not limited to, soft-story buildings, nonductile concrete  
                 residential buildings, and pre-1994 concrete residential  
                 buildings.  This language may create ambiguity regarding  
                 which building types potentially qualify for this  
                 designation.  On one hand, this language would appear to  
                 vest local building code entities with unfettered  
                 discretion to designate any building as "at-risk" as long  
                 as it is deemed in danger of collapse in the event of an  
                 earthquake.  On the other hand, references to specific  
                 building types such as "pre-1994" concrete residential  
                 buildings may suggest that concrete buildings constructed  
                 after 1994 do not qualify.  








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               iii)   This bill currently specifies that seismic retrofit  
                 construction must be for work performed "voluntarily"; it  
                 is not entirely clear what this term means.  If a local  
                 government were to enact an ordinance requiring certain  
                 seismic safety improvements for specified buildings,  
                 would compliance with this ordinance be considered  
                 "voluntary"?  What if the ordinance gave all property  
                 owners three years to comply? Would improvements  
                 completed before the ordinance's operative date be  
                 considered "voluntary"?  The author may wish to consider  
                 amendments clarifying these issues, especially given that  
                 tax credits are generally allowed, as a matter of  
                 legislative grace, to encourage action that otherwise  
                 would not occur.   


              e)   R&TC Section 41 shall not apply  :  On September 29, 2014,  
               Governor Brown signed into law SB 1335 (Leno), Chapter 845,  
               Statutes of 2014, which added R&TC Section 41.  SB 1335  
               recognized that the Legislature should apply the same level  
               of review used for government spending programs to tax  
               preference programs, including tax credits.  Thus, Section  
               41 requires any bill introduced on or after January 1, 2015  
               that allows a new credit to contain specific goals,  
               purposes, and objectives that the tax credit will achieve.   
               In addition, Section 41 requires detailed performance  
               indicators for the Legislature to use when measuring  
               whether the tax credit meets the goals, purposes, and  
               objectives so-identified.


               The present bill provides that R&TC Section 41 shall not  
               apply to this credit.  The Committee may wish to consider  
               the appropriateness of this Section 41 exemption.  Critics  
               of a Section 41 exemption might argue that the exemption  
               exacerbates one of the primary problems inherent in  
               crafting tax expenditure measures - namely, it is often  








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               unclear what objectives the Legislature is aiming to  
               achieve.  


              f)   Prior legislation  :  


               i)     AB 1510 (Nazarian), of the 2013-14 Regular Session,  
                 would have allowed a credit equal to 30% of a "qualified  
                 taxpayer's" "qualified costs" incurred for "seismic  
                 retrofit construction".  AB 1510 was held on the Assembly  
                 Appropriations Committee's Suspense File.    

               ii)    AB 1756 (Scott), of the 1999-2000 Regular Session,  
                 would have allowed a credit equal to 55% of the amount  
                 incurred for seismic retrofit construction on residential  
                 dwellings built prior to 1979.  AB 1756 was held on the  
                 Assembly Committee on Appropriations' Suspense File.

               iii)   SB 677 (McPherson), of the 2001-02 Regular Session,  
                 would have allowed a credit equal to an unspecified  
                 percentage of the final cost of seismic retrofitting, as  
                 specified.  SB 677 was never heard by the Senate  
                 Committee on Revenue and Taxation.

          REGISTERED SUPPORT / OPPOSITION:




          Support


          California Apartment Association


          Western Manufactured Housing Communities Association










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          Opposition


          None on file




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