BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                     AB 515


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          Date of Hearing:  April 27, 2015





                     ASSEMBLY COMMITTEE ON REVENUE AND TAXATION


                                 Philip Ting, Chair





          AB 515  
          Eggman - As Amended April 20, 2015





          Majority vote.  Fiscal committee. 


          SUBJECT:  Income taxes:  credits:  food bank donations


          SUMMARY:  Expands the existing tax credit program under the  
          Personal Income Tax (PIT) Law and Corporation Tax (CT) Law for  
          contributions of qualified donation items to a food bank and  
          extends the program until January 1, 2021.  Specifically, this  
          bill:  


          1)Revises the definition of a "qualified taxpayer" (QT) to  
            include persons responsible for growing or raising a qualified  
            donation item, or harvesting, packing, or processing a  
            qualified donation item. 








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          2)Revises the definition of "qualified donation item" (QDI) to  
            include, in addition to fresh fruits and vegetables, the  
            following raw agricultural products or processed foods, as  
            specified:


             a)   "Fruit, nuts or vegetables" as defined in Food and  
               Agricultural Code (F&AC) Section 42510;


             b)   "Meat food product" as defined in F&AC Section 18665;


             c)   "Poultry" as defined in F&AC Section 18675;


             d)   "Eggs" as defined in F&AC Section 75027;


             e)   "Fish" as defined in F&AC Section 58609; and,


             f)   Any cheese, milk, yogurt, butter, and dehydrated milk  
               meeting the requirements in F&AC Division 15.


             g)   All of the following food items as defined in Health and  
               Safety Code Section 109935: 


               i)     "Rice"; 


               ii)    "Beans"; 


               iii)   "Fruit, nuts, and vegetables in canned, frozen,  








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                 dried, dehydrated, and 100 percent juice forms";


               iv)    "Vegetable oil and olive oil"; 


               v)     "Soup, pasta sauce, and salsa";


               vi)    "Infant formula";


               vii)   "Bread and pasta"; and,


               viii)  "Canned meats and canned seafood." 


          3)Increases the allowed credit from 10% to 20%. 


          4)Provides that the allowed credit would be calculated, not  
            according to inventory costs, but rather as 20% of the  
            qualified value (QV) of the QDI. 


          5)Defines QV as, either:


             a)   The QV shall be calculated by using the weighted average  
               wholesale sale price based on the QT's total wholesale  
               sales of the donated item sold within the calendar month of  
               the QTs donation; or


             b)   If no wholesale sales of the donated item have occurred  
               in the calendar month of the QT's donation, the QV shall be  
               equal to the nearest regional wholesale market price for  
               the calendar month of the donation based upon the same  








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               grade products as published by the United States Department  
               of Agriculture's Agricultural Marketing Service, or its  
               successor.  


          6)Provides that the credit amount may not be less than what  
            would otherwise be available as per existing legislation  
            (Chapter 503, of the statutes of 2011). 


          7)Requires the donor to provide the food bank the QV and  
            information regarding where the donation items were grown  
            and/or processed.  Upon receipt and acceptance of the  
            donations, the food bank will provide to the donor a  
            certificate with information, as specified. 


          8)Requires the FTB to include in its annual report the estimated  
            value of the QDIs, the origin of the QDIs, and the month the  
            donations were made.  The report must be submitted in  
            compliance, as specified. 


          9)Repeals the tax credit program on December 1, 2021.


          10)     Renames, on or after January 1, 2016, the State  
            Emergency Food Assistance Program (SEFAP) as the CalFood  
            Program (CFP).


          11)     Requires the CFP to provide food and funding for the  
            provision of emergency food to food banks established pursuant  
            to the federal Emergency Food Assistance Program. 


          12)     Specifies that all monies received by the CFA, upon  
            appropriation by the Legislature, must be allocated to the  
            State Department of Social Services (SDSS) for allocation to  








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            the CFP.  


          EXISTING LAW:


          1)Allows a tax credit, under PIT law and the CT law, to  
            qualified taxpayers (defined as the person(s) responsible for  
            planting a crop, managing the crop, and harvesting the crop  
            from the land) in an amount equal to 10% of the cost that  
            would otherwise be included in, or required to be included in,  
            inventory costs, as specified under federal law, with respect  
            to the donation of fresh fruits or fresh vegetables to food  
            banks located in California.  (Chapter 503, of the statutes of  
            2011). 

          2)Requires the State Department of Social Services to establish  
            and administer the SEFAP to provide food and funding to food  
            banks.  

          3)Allows corporations that are members of the same unitary  
            combined reporting group to assign "eligible" credits to other  
            members of the group.  An "eligible" credit is any credit  
            earned by the taxpayers in a taxable year beginning on or  
            after July 1, 2008, or any credit earned in any taxable year  
            beginning before July 1, 2008, that was eligible to be carried  
            forward to the first taxable year beginning on or after July  
            1, 2008.  The credit assignment is made by an irrevocable  
            election.  The assignor and assignee taxpayers must be members  
            of the same combined reporting for the taxable year in which  
            the credit is earned and the taxable year the credit is  
            assigned. 

          4)Applies performance measurement standards to any new tax  
            credit under either the PIT or CT Law if enacted by a bill  
            introduced on or after January 1, 2015.  Specifically,  
            existing law requires the all of the following:

             a)   Specific goals, purposes, and objectives that the tax  








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               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, including a requirement to specify both of the  
               following:

               i)     The baseline data, to be collected and remitted in  
                 each year the credit is effective, for the Legislature to  
                 measure the change in performance indicators; and,

               ii)    The taxpayers, state agencies, or other entities  
                 required to collect and remit data

          FISCAL EFFECT:  The Franchise Tax Board (FTB) estimates that  
          this bill will reduce General Fund revenue by $.6 million in  
          fiscal year (FY) 2015-16, $1.5 million in FY 2016-17, and $2  
          million in 2017-18.


          COMMENTS:  


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


               California is the leader agricultural producer in the U.S.,  
               yet many Californians still suffer from hunger and poor  
               nutrition.  AB 515 will broaden the existing state tax  
               credit offered to agricultural producers for donations to  
               qualified California non-profits, such as food banks.  It  
               expands the list of eligible products to include other  
               fresh items and a limited set of core shelf-stable items.   








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               It also moves the tax credit to 20% of the donation items  
               wholesale value, and extends the sunset of this program to  
               2021.


           2)Committee Staff Comments  . 

              a)   Existing Tax Credit  .  Under PIT and the CT laws, a  
               qualified taxpayer is allowed a tax credit, in an amount  
               equal to 10% of the inventory costs of the fresh fruits  
               or fresh vegetables donated to food banks located in  
               California.  (Chapter 503, statutes of 2011.)  

              b)   Food Banks  .  According to the CAFB's Web site,  
               California is ranked 19th for food insecurity in the  
               nation with a food insecurity rate of 16.2%, translating  
               into 6.1 million Californians with, on average, 1 out of  
               6 people in California not knowing where their next meal  
               will come from.  All the more troubling is that the child  
               food insecurity rate is 26.3%, meaning 2.4 million, or  
               more than 1 in 4 children, in California may go to bed  
               hungry each night.  CAFB represents 42 food banks  
               throughout California that provide food to soup kitchens  
               and food pantries in schools, churches, and community and  
               senior centers.  CAFB partners with over 100 California  
               growers and packers and distributed 140 million pounds of  
               food to people in need.



              c)   Tax Credits  .  Tax credits are generally used to  
               encourage socially beneficial behavior, to provide relief  
               to taxpayers who incur specified expenses, or to  
               influence behavior (including business practices).  In  
               contrast to the value of a deduction to a taxpayer, the  
               value of a tax credit is the same, regardless of the tax  
               rate.  Thus, a tax credit is generally more appealing to  
               taxpayers.  Furthermore, charitable deductions allowed to  
               corporate taxpayers are limited to 10% of the taxpayer's  








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               net income and thus a tax credit for the same donations  
               will be more valuable to a corporate taxpayer. 



             The author states that qualifying for the tax credit is  
               cumbersome because of the difficulties associated with  
               valuation of the products and categorical limitation.  
               This bill addresses those issues by broadening the scope  
               of what would be considered as a QDI and the product  
               valuation issue by redefining how the product is to be  
               valued.  This bill also proposes a very generous 20% tax  
               credit.  However, increasing the allowable credit may not  
               be necessary; at the very least, it may be premature.   
               This bill expands the applicable QDIs and definition of a  
               QT, which would theoretically already increase donations  
               simply by widening the available pool of both  
               participants and products.  

             Moreover, in some cases a qualified taxpayer may be more  
               inclined to contribute a QDI simply because he/she is not  
               able to turn a profit by selling his/her products.  In  
               those instances, receiving the current 10% credit would  
               be enough of an incentive.  Receiving a larger credit may  
               go beyond what is needed to encourage the desired result.  
                Finally, increasing the "incentive" available for food  
               donations does little to help a QT who is unable to  
               navigate the cumbersome regulatory fields to become  
               eligible in the first place.  Alternatively, funding  
               could potentially be more efficiently utilized by  
               incentivizing other related programs, such as gleaning.   
               Gleaning entails collecting leftover crops from farmer's  
               fields after they have been commercially harvested or  
               where it is not economically profitable to harvest.  For  
               these reasons, the Committee may wish to reduce the 20%  
               tax credit provided for in this bill.











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              d)   Tax Expenditure  .  Existing law provides various  
               credits, deductions, exclusions, and exemptions for  
               particular taxpayer groups.  In the late 1960s, United  
               States 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).  

              e)   Tax Expenditure vs. 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,  
               absent a sunset date, a two-thirds vote is required to  
               rescind an existing tax expenditure once enacted. 



              f)   Section 41  .  On September 29, 2014, Governor Brown  
               signed 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 that is introduced on or after January  
               1, 2015 and allows a new PIT 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.











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               While this bill does not create a new tax credit program  
               per se, it does substantially expand the existing one.   
               Thus, the author may wish to amend this bill to  
               articulate the specific goal, purpose or objective of the  
               bill. Performance indicators are critical in measuring  
               the effectiveness of the tax credit, especially in light  
               of doubling the amount of the credit.  



              g)   Qualified Taxpayers Outside California  .  This bill  
               provides that a credit equal to 20% of the QV will be  
               given to QTs that donate QDIs to food banks in  
               California.  However, whereas the donee must be in  
               California, qualified taxpayers outside of California  
               would be able to claim the credit as long as they meet  
               the requirements of a QT and donate QDIs.  Therefore, it  
               is possible that General Fund money may be used to  
               subsidize QTs outside of California.  The Committee may  
               wish to consider whether the benefits of potentially  
               increasing the amount of donated food outweighs the costs  
               of subsidizing producers located, and economic activities  
               performed, outside of California.  

              h)   Qualified Taxpayer  .  Under the existing tax credit  
               program, a qualified taxpayer is defined as a person  
               responsible for planting a crop, managing the crop, and  
               harvesting the crop from the land.  The FTB noted the  
               following implementation consideration when analyzing the  
               previous bill [AB 152 (Fuentes), Chapter 503, Statutes of  
               2011] that implemented the existing program:



                 The definition of a qualified taxpayer as the person  
                 that is responsible for planting a crop, managing the  
                 crop, and harvesting the crop from land is silent on  








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                 requiring the person to be engaged in the business of  
                 farming and specifying that the crop is the source of  
                 the donated fresh fruits or fresh vegetables.  As a  
                 result, "qualified taxpayer" could be more broadly  
                 interpreted than the author intends. 





               This bill's provision mirrors the definition of a QT used  
               in AB 152 that created the program with additional  
               language expanding the definition to persons "harvesting,  
               packing, or processing a qualified donation item."  The  
               Committee may wish to consider whether the existing  
               definition of "qualified taxpayer" may have unintended  
               consequences (especially, considering the bill's  
               considerable expansion of the existing credit). 





           3)Prior Legislation  :



             a)   AB 152 (Fuentes), Chapter 503, Statues of 2011,  
               required the State Department of Social Services to  
               establish and administer a State Emergency Food  
               Assistance Program, as specified.

             b)   AB 727 (Correa), of the 2001-02 Legislative Session,  
               would have established a tax credit equal to 10% of the  
               normal inventory costs for the donation of agricultural  
               products to a food bank in Fresno, Orange, or Santa Cruz  
               Counties.  AB 727 failed passage in the Senate Committee  
               on Revenue and Taxation. 









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             c)   AB 287 (Strickland), of the 1999-2000 Legislative  
               Session, would have established a credit equal to 10% of  
               the wholesale value of agricultural products donated by a  
               taxpayer to a nonprofit charitable organization or food  
               bank.  AB 287 was held on the Assembly Committee on  
               Appropriations' Suspense File. 



             d)   AB 196 (Thomson), of the 1997-98 Legislative Session,  
               would have established a tax credit equal to 20% of the  
               cost of agricultural products donated to a nonprofit  
               charitable organization.  AB 196 was held on the Senate  
               Committee on Appropriations' Suspense File. 



             e)   AB 364 (Cannella), of the 1995-96 Legislative Session,  
               would have, among other things, established a tax credit  
               equal to 10% of the cost of food donated to nonprofit  
               charitable organizations.  AB 364 was held on the Senate  
               Committee on Appropriations' Suspense File. 



             f)   AB 2346 (Kelley), Chapter 1248, Statues of 1989,  
               established a very similar tax credit for the donation of  
               agricultural products to certain nonprofit charitable  
               organizations.  This credit was repealed by its own terms  
               on December 1, 1992. 





          REGISTERED SUPPORT / OPPOSITION:









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          Support


          None on file




          Opposition


          None on file 




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