BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                       AB 449


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          ASSEMBLY THIRD READING


          AB  
          449 (Irwin)


          As Amended  May 5, 2015


          Majority vote


           ------------------------------------------------------------------- 
          |Committee       |Votes |Ayes                |Noes                  |
          |                |      |                    |                      |
          |                |      |                    |                      |
          |----------------+------+--------------------+----------------------|
          |Revenue &       |9-0   |Ting, Brough,       |                      |
          |Taxation        |      |Dababneh, Gipson,   |                      |
          |                |      |Roger Hernández,    |                      |
          |                |      |Mullin, Patterson,  |                      |
          |                |      |Quirk, Wagner       |                      |
          |                |      |                    |                      |
          |----------------+------+--------------------+----------------------|
          |Appropriations  |17-0  |Gomez, Bigelow,     |                      |
          |                |      |Bonta, Calderon,    |                      |
          |                |      |Chang, Daly,        |                      |
          |                |      |Eggman, Gallagher,  |                      |
          |                |      |                    |                      |
          |                |      |                    |                      |
          |                |      |Eduardo Garcia,     |                      |
          |                |      |Gordon, Holden,     |                      |
          |                |      |Jones, Quirk,       |                      |
          |                |      |Rendon, Wagner,     |                      |
          |                |      |Weber, Wood         |                      |
          |                |      |                    |                      |
          |                |      |                    |                      |
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                                                                       AB 449


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          SUMMARY:  Establishes a California Achieving a Better Life  
          Experience (ABLE) program, and generally conforms income tax law  
          to the federal income tax treatment of ABLE accounts.   
          Specifically, this bill:  


          1)Conforms, with specified modifications, the Personal Income Tax  
            (PIT) Law and the Corporations Tax (CT) Law to the Internal  
            Revenue Code (IRC) Section 529A, relating to qualified ABLE  
            programs.


          2)Provides that a copy of the report required to be filed with the  
            Secretary of the Treasury (Secretary) under IRC Section 529A  
            shall be filed, at the same time and in the same manner, with  
            the Franchise Tax Board (FTB).


          3)Establishes a qualified ABLE program and the qualified ABLE fund  
            for purposes of implementing the federal ABLE Act pursuant to  
            IRC Section 529A.


          4)Provides that the Secretary shall administer the ABLE program  
            and shall be responsible for ensuring that the program is in  
            compliance with the requirements of the federal ABLE Act.


          5)Allows a person to make contributions for a taxable year, for  
            the benefit of an eligible individual for that taxable year, to  
            an ABLE account that is established for the purpose of meeting  
            the qualified disability expenses of the designated beneficiary  
            of the account, if both of the following are met:


             a)   The designated beneficiary is limited to one ABLE account;  
               and 








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             b)   The ABLE account is established only for a designated  
               beneficiary who is a resident of California.


          6)Provides that, notwithstanding any other law, money in,  
            contributions to, and any distribution for qualified disability  
            expenses from an ABLE account, not to exceed $100,000, shall not  
            count towards determining eligibility for state or local  
            means-tested programs.


          7)Defines an "ABLE account" or an "account" as an account to which  
            an eligible individual makes contributions for the purpose of  
            meeting the qualified disability expenses of the designated  
            beneficiary of the account.


          8)Defines an "ABLE fund" or a "fund" as a fund established for  
            purposes of implementing the federal ABLE Act.


          9)Defines an "eligible individual" as an individual who is  
            eligible under a qualified ABLE program for a taxable year if  
            during that taxable year both of the following are met:


             a)   The individual is entitled to benefits based on blindness  
               or disability under Title II or XVI of the federal Social  
               Security Act, and that blindness or disability occurred  
               before the date on which the individual attained the age of  
               26; and,


             b)   A disability certification, as defined in the federal ABLE  
               Act, is filed pursuant to the requirements set forth in the  
               federal ABLE Act.









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          10)Defines a "designated beneficiary" as the eligible individual  
            who established an ABLE account and is the owner of the account.


          11)Defines the "federal ABLE Act" as the federal Stephen Beck Jr.,  
            Achieving a Better Life Experience Act of 2014.


          12)Defines a "qualified ABLE program" or a "program" as a program  
            established to implement the federal ABLE act pursuant to IRC  
            Section 529A.


          13)Defines "qualified disability expenses" as any expenses related  
            to the eligible individual's blindness or disability that are  
            made for the benefit of an eligible individual who is the  
            designated beneficiary.  These expenses include education,  
            housing, transportation, employment training and support,  
            assistive technology and personal support services, health,  
            prevention and wellness, financial management and administrative  
            services, legal fees, expenses for oversight and monitoring,  
            funeral and burial expenses, and other expenses, which are  
            approved by the Secretary of the Treasury under regulations and  
            consistent with the purposes of the federal ABLE Act.


          14)Provides that the Treasurer shall adopt regulations to track  
            all ABLE accounts in California and may adopt further  
            regulations to implement this program.


          15)Provides that this chapter shall remain in effect only until  
            January 1, 2022, and as of that date is repealed unless a later  
            enacted statute that is enacted before January 1, 2022, deletes  
            or extends that date.


          FISCAL EFFECT:  According to the Assembly Appropriations  








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          Committee: 


          1)Administrative costs of approximately $330,000 to the Treasurer  
            to administer the program; potentially significant  
            administrative costs to the Franchise Tax Board. 


          2)Estimated General Fund revenue decreases of approximately  
            $900,000 per fiscal year once the program becomes fully  
            implemented. 


          


          COMMENTS:  


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


               In California many people with disabilities and their  
               families depend on a variety of public benefits for  
               income, health care, food and housing assistance  
               provided by the state and federal government.  There are  
               strict eligibility requirements for public benefits,  
               such as Supplemental Security Income/State Supplementary  
               Payment (SSI/SSP), CalFresh and Medi-Cal, which often  
               don't allow an individual to have more than $2,000 in  
               savings.  To remain eligible for these public benefits,  
               an individual cannot save for the future. 


               The ABLE Act recognizes the extra and significant costs  
               of living with a disability.  These include costs  
               related to raising a child with significant disabilities  
               or a working age adult with disabilities, for accessible  








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               housing and transportation, personal assistance  
               services, assistive technology and health care not  
               covered by insurance, Medicaid or Medicare. 


               Eligible individuals and families will be allowed to  
               establish ABLE savings accounts that will not affect  
               their eligibility for SSI, Medicaid and other public  
               benefits.  The legislation explains further that an ABLE  
               account will, with private savings, "secure funding for  
               disability-related expenses on behalf of designated  
               beneficiaries with disabilities that will supplement,  
               but not supplant, benefits provided through private  
               insurance, Medicaid, SSI, the beneficiary's employment  
               and other sources."  However, pursuant to federal law  
               once an ABLE account reaches $100,000 SSI benefits are  
               suspended until the balance goes below that amount. 


               Specifically, the bill will give eligible Californians  
               with disabilities access to federally recognized 529A  
               ABLE accounts.  Eligibility is federally defined as  
               entitlement to benefits based on blindness or disability  
               under the Federal Social Security Act that occurred  
               before the date on which the individual reached 26 years  
               of age.  The California ABLE program will be  
               administered by the State Treasurer, who also  
               administers 529 college savings accounts. 


               AB 449 will provide people with disabilities and  
               families raising a child with disabilities an  
               opportunity to save money without being penalized with  
               loss of public social services.


          2)What Does the ABLE Act Do?  The ABLE Act allows individual  
            states to establish ABLE programs, under which a blind or  
            disabled person may establish a tax-favored savings account that  








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            may accept contributions and make distributions for the  
            individual to pay certain qualifying disability expenses.   
            Assets in an ABLE account, up to a $100,000, are not taken into  
            account when determining eligibility for federal welfare benefit  
            programs.  Furthermore, the structure and tax treatment of the  
            account generally follows the same rules as a 529 educational  
            savings account.  In this regard, after-tax contributions are  
            placed in the account, amounts earned in the account are  
            tax-deferred, and distributions are not included in income so  
            long as they are used for qualifying disability expenses.


          3)Substantial Benefits:  The new ABLE program provides disabled  
            individuals and their families with two primary benefits.   
            First, the program dramatically expands eligibility for federal  
            and state welfare programs by eliminating asset tests for many  
            of the means-tested welfare programs.  By excluding up to  
            $100,000 in an ABLE account from means-tested federal programs,  
            disabled individuals who may not have qualified for SSI or  
            Medicaid in the past can now receive benefits.  Second, the  
            program provides an alternative, but not necessarily a  
            replacement, to more expensive and more complicated special  
            needs trusts currently being used to shield assets.  


          4)ABLE Accounts are excluded from Federal and State Means Testing:  
             One of the largest benefits afforded by the ABLE Act is the  
            ability to exclude certain assets from federal means-tested  
            programs.  As an example, in order for an individual to obtain  
            SSI, the countable resources must be worth not more than $2,000  
            for an individual or $3,000 for a couple.  In essence, the ABLE  
            Act has increased countable assets from $2,000 to $100,000 for  
            disabled individuals seeking eligibility for SSI.  


            Unfortunately, this bill's language may not accomplish the same  
            goal with respect to California specific means-tested programs.   
            IRC Section 103 provides, in part, that any amount in an ABLE  
            account, any contribution to an ABLE account, and any  








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            distribution for qualified expenses shall not be considered for  
            federal means-tested programs.  This bill, however, states that  
            "notwithstanding any other law, money in an ABLE account shall  
            not count towards determining eligibility for state or local  
            means-tested programs."  This bill makes no mention of  
            contributions or distributions for qualified expenses.  The  
            plain reading of the statute suggests that only the funds in the  
            account shall be excluded from means testing and nothing else.   
            The lack of clarity with respect to assets that are excluded  
            from state and local means-tested programs may lead to disabled  
            individuals losing eligibility for certain California welfare  
            programs.  The author may wish to consider clarifying the  
            language in this bill to ensure that contributions and earnings  
            are excluded from state and local means-tests programs. 


          5)Alternative to Special Needs Trusts:  If the goal was to merely  
            increase the cap on assets that disabled individuals can hold to  
            qualify for various federal means-tested programs, it would have  
            been easier for the Federal Government to simply increase asset  
            limitations instead of creating 529 accounts that exclude assets  
            from means-tested programs.  It appears that the ABLE act may  
            have also attempted to address the more legally technical and  
            potentially expensive use of Special/Supplemental Needs Trust.   
            A special needs trust is a specific type of trust that can be  
            created by a parent or guardian to benefit a person with a  
            disability.  The goal of a special needs trust is to allow a  
            person with a disability to benefit from funds placed in the  
            trust while, at the same time, receiving public benefit.   
            Depending on how the trust is created, different restrictions  
            apply.  


            There are primarily two types of special needs trusts:   
            first-party trusts and third-party trusts.  A first-party trust  
            is a trust that is funded with assets owned by the beneficiary.   
            Most first-party trusts that hold the beneficiary's assets are  
            considered countable resources for federal means-tested  
            programs.  However, the Medicaid program provides for the  








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            creation of certain first-party trust that can be funded with  
            the beneficiary's own assets, which will not be counted towards  
            Medicaid's asset test.  These types of trusts are "D-4A Special  
            Needs Trusts", named after the federal code section.  These  
            accounts require that some or all of the income remaining be  
            paid to the state equal to the total medical assistance paid to  
            the beneficiary.


            The second category of special needs trust is a third-party  
            trust, which is a trust that is funded by assets of a person  
            other than the beneficiary.  These trusts, if properly drafted,  
            are generally not countable as an asset available to the  
            beneficiary for SSI or Medicaid purposes.  Appropriate operative  
            language must be used so that the assets are not counted for  
            Medicaid purposes.  Additionally, unlike first-party trusts, the  
            government is not entitled to recover expenses of SSI or  
            Medicaid paid to the beneficiary. 


            The ABLE Act specifically provides that in the event the  
            beneficiary dies, all amounts remaining in the ABLE account not  
            in excess of the amount equal to the medical assistance paid to  
            the beneficiary shall be distributed to the state.   
            Additionally, a contribution to an ABLE account is treated as a  
            completed gift to the beneficiary of the account.  Unlike  
            first-party trusts, ABLE accounts do not require specialized  
            attorneys to ensure that the beneficiary remains eligible for  
            federal benefits.  It appears, therefore, that the ABLE Act  
            provides a less complicated and less expensive way of allowing  
            guardians, parents, and other family members to gift funds to a  
            disabled individual.  However, because ABLE accounts contain a  
            payback provision to the state for medical expenses incurred by  
            the beneficiary, existing trusts may still be necessary  
            depending on individual circumstances.


          6)Earnings and Distributions Excluded from Income:  The ABLE Act  
            is, in part, modeled after 529 educational savings accounts.   








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            The two primary benefits of 529 educational savings accounts is  
            that funds placed in the account grow tax-free and  
            distributions, when made for qualifying educational expenses,  
            are federal and state income tax-free.  The exclusion for  
            earnings and distributions from taxes is the primary incentive  
            for saving in a 529 educational account.  ABLE accounts,  
            although providing similar preferential tax treatment, do not  
            provide similar results.  As noted above, qualifying expenses  
            under the ABLE Act include expenses related to housing, health,  
            transportation, education, and personal support services.  These  
            types of expenses are immediate and ongoing.  Unlike a 529  
            educational account which can allow contributions to grow until  
            the beneficiary is ready to enter college, funds in an ABLE  
            account are needed immediately and are unlikely to remain in the  
            account long enough to generate the same level of growth.  


          7)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.  Second, there is generally no control over  
            the amount of revenue losses associated with any given tax  
            expenditure.  Finally, once enacted, it takes a two-thirds vote  
            to rescind an existing tax expenditure absent a sunset date.   
            The two-thirds vote requirement can be especially problematic if  
            the Federal Government makes future modifications to the ABLE  
            Act that result in a tax increase.  The two-thirds vote  
            requirement may make future conformity much more difficult.  For  
            this reason, the author may wish to include a five-year sunset  
            date for the exclusions to provide the opportunity for future  
            legislative review.


          8)Ten percent Tax for Distributions Included in Income:  As noted  
            in the FTB analysis, "[t]his bill would provide that the portion  
            of any distribution that is includible in state income would be  
            subject to an additional 10-percent tax for state purposes (in  








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            addition to the 10-percent additional tax imposed for federal  
            purposes), unless the distribution is made after the death of  
            the beneficiary."  California generally imposes a lower tax rate  
            than that of the Federal Government; for example, California  
            generally modifies the 10% tax on nonqualified pension  
            distributions to be a 2.5% additional tax for state purposes.   
            In order to be consistent with other provisions of existing law,  
            the Committee may wish to reduce the tax imposed in this bill  
            for distributions that are included in income to 2.5%.

          9)Related Legislation:  SB 324 (Pavley) of the current legislative  
            session, is substantially similar to this bill, except that it  
            does not exclude money in an ABLE account from being counted for  
            state or local means-tested programs.  SB 324 is pending hearing  
            by the Senate Governance and Finance Committee.



          Analysis Prepared by:                                               
                          Carlos Anguiano / REV. & TAX. / (916) 319-2098   
          FN: 0000663