BILL ANALYSIS                                                                                                                                                                                                    Ó



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

                              
          
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          |Bill No:  |AB 437                           |Hearing    |7/8/15   |
          |          |                                 |Date:      |         |
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          |Author:   |Atkins                           |Tax Levy:  |No       |
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          |Version:  |5/28/15                          |Fiscal:    |Yes      |
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          |Consultant|Grinnell                                              |
          |:         |                                                      |
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                RESEARCH AND DEVELOPMENT:  SMALL BUSINESS GRANT PROGRAM



          Allows qualified small businesses to convert research and  
          development credits into cash grants.


           Background and Existing Law

           California law allows various income tax credits, deductions,  
          and sales and use tax exemptions to provide incentives to  
          compensate taxpayers that incur certain expenses, such as child  
          adoption, or to influence behavior, including business practices  
          and decisions, such as motion picture production credits.  The  
          Legislature typically enacts such tax incentives to encourage  
          taxpayers to do something that but for the tax credit, they  
          would not do.  The Department of Finance is required to annually  
          publish a list of tax expenditures, currently totaling around  
          $51 billion per year.

          Similar to federal law, California allows taxpayers a research  
          and development credit designed to provide incentives for  
          taxpayers to increase their year-over-year spending on research  
          and development.  In 2011, the credit resulted in $1.77 billion  
          in foregone revenue, 95% of which is attributable to firms with  
          more than $1 billion in annual gross receipts.  To qualify for  
          the credit, research expenses must be conducted in California,  
          and:
                 Qualify as expenses under Internal Revenue Code §174,







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                 Must be undertaken for the purpose of discovering  
               information that is technological in nature,
                 Must be undertaken for the purpose of discovering  
               information the application of which is intended to be  
               useful in the development of a new or improved business  
               component of the taxpayer,
                 Substantially all of the research activities must  
               constitute elements of a process of experimentation for a  
               qualified purpose.

          The R&D credit is an incremental credit, which increases as the  
          taxpayer incrementally grows its research expenditures over a  
          comparable base-year period.  To calculate the credit, taxpayers  
          multiply the credit rate (generally 15%) by the amount by which  
          their current year research expenditures exceeds the "base  
          amount," which is derived by multiplying its "fixed base  
          percentage" (the ratio that its total qualified research  
          expenses for the 1984-1988 period bears to its total gross  
          receipts for that period, with a 16% maximum) by its average  
          gross receipts for the four previous taxable years.  The base  
          amount can't be less than 50% of qualified research expenditures  
          for the credit year.  For example, Computer Chips Inc., had an  
          average of $20 million in gross receipts and $2.5 million in  
          research expenditures from 1984-1988, for a fixed based  
          percentage of 12.5%.  However, the company grew to have $80  
          million in average gross receipts in the past four years, and  
          $20 million in research spending last year.  Computer Chips,  
          Inc. can claim a research credit of $1.5 million this year [15%  
          x $10 million ($20 million - $80 million x 12.5%).   

          Taxpayers who weren't in business from 1984-1988 are assigned a  
          fixed-base percentage of three percent for each of its first  
          five taxable years after 1993 in which it incurs qualified  
          research expenses, then for its sixth through tenth taxable  
          years after 1993, its fixed-base percentage is a phased-in ratio  
          based on the firm's actual research experience.  For all  
          subsequent taxable years, the taxpayer's fixed-base percentage  
          is its actual ratio of qualified research expenses to gross  
          receipts for any five years selected by the taxpayer from its  
          fifth through tenth taxable years after 1993.  

          If the taxpayer has no gross receipts, defined as the sales of  
          tangible personal property in the state, they can use the  
          minimum base amount of 50% of qualified research expenditures,  








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          according to Franchise Tax Board (FTB) Legal Division Guidance  
          2012-03-01, after it initially stated that such companies  
          couldn't claim the credit (Legal Division Guidance 2011-06-01).   
          Due to this ruling, if Computer Chips, Inc. instead split into a  
          sales company and a research company (which didn't sell tangible  
          property in California), the research company would generate  
          credits of $10 million instead of $1.5 million.  The research  
          company could then assign the credit to the sales company to  
          reduce its tax generated from the sales of computers, based on  
          authority added by the Legislature in 2008 that allows  
          corporation taxpayers to assign credits within their unitary or  
          combined groups (AB 1452, Committee on Budget).

          Taxpayers can also elect to calculate the credit using a  
          different method, known as the "Alternative Incremental Credit"  
          (AIC).  Taxpayers claiming the AIC instead use graduated  
          percentages of 1.5%, 2%, or 2.5%, as applied to a percentage of  
          expenses in excess of a specified percentage of average annual  
          gross receipts.  Congress has since repealed the AIC for federal  
          purposes, and replaced it with the "Alternative Simplified  
          Credit," (ASC) equal to 14% of qualified research expenses that  
          exceed 50 percent of the average qualified research expenses for  
          the three previous years, or 6% of qualified research expenses  
          if a taxpayer has no qualified research expenses in any one of  
          the three preceding taxable years.  California does not conform  
          to the ASC, but unlike the federal credit, California's doesn't  
          have a sunset clause.

          If a business taxpayer's expenses exceed its gross receipts in a  
          taxable year, it doesn't pay income tax, so it cannot make use  
          of a tax credit that year.  Many California companies are in  
          this situation, with products or services not yet ready for  
          market, but having spent funds on research expenses in the hopes  
          of developing it, yet it need of the capital necessary to  
          experiment further or start manufacturing a product.  While  
          state law allows taxpayers to carry forward most credits to a  
          specified number of taxable years, the only refundable tax  
          credit is the newly-enacted Earned Income Tax Credit, which  
          allows taxpayers to receive a refund equal to difference left  
          over after using the credit to reduce the tax due below zero  
          when appropriated by the Legislature (SB 80, Committee on Budget  
          and Fiscal Review, 2015).  The author wants to allow small firms  
          with research and development credits to convert them into cash  
          grants.








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           Proposed Law

           Assembly 437 allows a qualified small business to convert into  
          cash grants 10% of the value of research and development credits  
          carried over from the 2014 and 2015 taxable years to the 2016  
          year, or 15% for credits generated in the 2016 to 2021 taxable  
          years, remaining after reducing tax for the year to zero.  The  
          measure also provides that its grants are not taxable income for  
          California purposes.  

          Taxpayers apply for grants by timely filing an original return  
          with FTB, who allocates grants on a first-come, first-served  
          basis, and can allocate $100 million in credits for the 2016 tax  
          year, with not more than $50 million of that amount for the 2014  
          and 2015 years, and $50 million each year starting in 2017 and  
          ending in 2023.  FTB can only allocate credits to taxpayers:

                 Certified as qualified small businesses by the  
               Governor's Office of Business and Economic Development  
               (GO-Biz),

                 With less than $5 million in gross receipts in the  
               taxable year using the Internal Revenue Code's definition,  
               and not California's definition;  and

                 Who are not members of combined group of corporations  
               for tax purposes.

          FTB must provide taxpayers with certificates within 90 days of  
          receiving the return with the application.  Taxpayers cannot  
          share grants under the authority to share credits within unitary  
          or combined groups of corporations.  The bill directs the  
          Controller to pay the taxpayer upon receipt of the certificate,  
          and continuously appropriates funds from the General Fund  
          necessary to do so.  The Controller must report to the Assembly  
          Committee on Revenue and Taxation regarding the recipients of  
          the grants for the previous calendar year and the grant amount  
          each recipient received.

          The measure applies rules for pass through entities, treats as a  
          deficiency any grant amount the taxpayer subsequently claims as  
          a credit, and allows FTB to issue any rules and regulations  
          necessary to implement the credit.  The bill also makes  








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          technical and conforming changes, and sunsets on January 1,  
          2023.  


           State Revenue Impact

           According to FTB, AB 437 results in revenue losses of $22  
          million in 2015-16, $27 million in 2016-17 and 2017-18.


           Comments

           1.   Purpose of the bill  .  According to the author, "AB 437  
          allows small businesses to receive a grant from the state in  
          proportion to the amount of research and development tax credits  
          they have earned.  This will allow small businesses to reinvest  
          real dollars in further research and development projects as  
          well as business expansion.  According to data from the FTB, for  
          taxpayers that have $1 million - $10 million in gross receipts  
          there was $100 million in tax credits were generated.  Of that  
          amount, $87 million of those credits were not used.  This data  
          shows that often small and medium sized companies are able to  
          earn the tax credits but not able to use them and reinvest those  
          resources in to more R&D efforts because they don't have enough  
          taxable liabilities.  AB 437 allows small businesses to receive  
          a grant from the state in proportion to the amount of the  
          research and development tax credits they have earned.  This  
          will allow small businesses to reinvest in further research and  
          development projects. AB 437 is not a reimbursable credit. It is  
          a grant program which uses the R &D tax credit to determine how  
          much investment the state should provide the small business."

          2.   Highest and best  ?  AB 437 would set a significant precedent  
          in state tax law by allowing small businesses to convert tax  
          credits into cash, accelerating the taxpayer's ability to  
          monetize the credits.  As such, the measure prioritizes these  
          cash grants above all other state spending, as moneys that the  
          Controller must spend to provide the grants comes out of the  
          General Fund before the Legislature appropriates what's left in  
          the Budget Act.  While the firms that AB 437 would help with  
          cash grants will likely claim the credits against net income in  
          the future, or transfer them to a firm that subsequently  
          acquires or merges with it, the bill transfers the time value of  
          money to the taxpayer at the expense of the Legislature, who  








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          won't have those funds available today for other state  
          priorities such as education, health care, and public safety.   
          However, the Legislature will likely have more funds in  
          whichever years the taxpayer would've eventually claimed the  
          credit, and the business can put the grant funds to work right  
          away.  Additionally, some of the firms that obtain AB 437 grants  
          may never generate sufficient income, or go out of business,  
          before they could ever monetize the credit, in which case the  
          measure would result in a fiscal loss.  The Committee may wish  
          to consider the preceded AB 437 sets, and whether grants to  
          these businesses represents the highest and best use of state  
          funds.

          3.   Benefits and costs  .  In 2005, the Federal Reserve Bank of  
          San Francisco studied California's research and development  
          credit, and found that it was both effective in increasing  
          research and development in the state, and does so by drawing  
          away research and development that would've taken place in other  
          states that lack a credit  ("Beggar Thy Neighbor? The In-State,  
          Out-of-State, and Aggregate Effects of R&D Tax Credits."  Daniel  
          J. Wilson, August, 2007).  However, the Legislative Analyst  
          Office (LAO) recommended reducing the state's credit or phasing  
          it out over time, because measuring the credit's benefits are  
          not enough to offset its substantial revenue loss.   
          Additionally, direct research related spending through  
          California's public universities could be a more cost-effective  
          way of subsidizing R&D.  

           4.   Slippery slope  .  In recent years, accounting firms and tax  
          consultants have stretched the definition of "qualified  
          research" to encompass products and services not generally  
          considered scientific.  According to Citizens for Tax Justice,  
          Deloitte advertises the credit to food service companies  
          developing new or redesigning existing packaging, while another  
          firm, R&D Tax Savers, advertises the credit on its website by  
          pointing to Starbuck's, Pepsi, and Coke using it for costs to  
          make new soda machines, and Chili's to cut more than 40 hours of  
          labor each week.  Its website states:

               "In addition, many states are considering raises to the  
          minimum wage, including the                            wage of  
          tipped workers.  Meanwhile, fast food workers in cities like New  
          York have                                              staged  
          protests and walk-outs regarding issues of compensation.  The  








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          ability to reduce                                      labor  
          needs through machine innovation is therefore a major way  
          restaurants can continue                               `to  
          maintain margins."  

          Additionally, recent decisions from the State Board of  
          Equalization have expanded the kinds of products that qualify as  
          research expenditures.  In the recent appeal of Pacific Coast  
          Building Products, BOE overturned FTB's denial of research and  
          development Credits for normal manufacturing equipment used to  
          make building products, which the company claimed on amended  
          returns generated by a PriceWaterhouseCoopers tax credit study  
          of the company's operations despite any documentation of  
          experimentation.  The Committee may wish to consider whether the  
          definition of qualified research should be limited to genuine  
          scientific research and experimentation before allowing cash  
          grants in-lieu of credits.     

          5.   Taxing  .  The United States Tax Court ruled in 2015 that tax  
          credits where the state allows taxpayers to claim a credit  
          without paying tax are considered grants, and therefore taxable  
          income for federal purposes in Maines v. Commissioner, 144 T.C.  
          No. 8.  As such, AB 437 will allow qualified small businesses to  
          obtain cash grants in-lieu of credits, but these businesses will  
          have to include the grant amount in income for federal purposes.  
           However, because the measure includes an explicit exclusion,  
          grant amounts won't be included for California purposes. 

          6.   Who certifies  ?  AB 437 calls on Go-Biz to certify small  
          businesses; however, the information necessary to certify, such  
          as gross receipts on whether the business is part of a unitary  
          or combined group, will be on the return submitted to FTB.  As  
          such, it's unclear why the measure should assign administrative  
          responsibility to Go-Biz instead of FTB, especially when Go-Biz  
          would be entirely reliant on FTB information to fulfil the  
          responsibility.

          7.   Parity  .  AB 437 directs the Controller to report to the  
          Assembly Committee on Revenue and Taxation regarding the  
          recipients of the grants for the previous calendar year and the  
          grant amount each recipient received, a surely unintentional  
          oversight of the Senate.  While the Committee on Governance and  
          Finance dutifully reads all reports state law requires be sent  
          to it, perhaps the measure should instead direct the Controller  








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          to send the report to the Joint Legislative Budget Committee  
          instead, which is the recipient of similar reports.


           Assembly Actions

           Assembly Floor                79-0

          Assembly Appropriations       17-0
          Assembly Revenue and Taxation   9-0

          Support and  
          Opposition   (7/2/15)


           Support  :  BIOCOM, California Asian Chamber of Commerce,  
          California Association for Microenterprise Opportunity,  
          California Chamber of Commerce, California Healthcare Institute,  
          California Life Sciences Association, California Metals  
          Coalition, Flex Tech Alliance, National Federation of  
          Independent Business, SEMI, Small Business California, 


           Opposition  :  California Tax Reform Assocition.



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