BILL ANALYSIS Ó AB 567 Page A ASSEMBLY THIRD READING AB 567 (Gipson) As Introduced February 24, 2015 Majority vote ------------------------------------------------------------------- |Committee |Votes|Ayes |Noes | | | | | | | | | | | | | | | | |----------------+-----+-----------------------+--------------------| |Revenue & |5-3 |Ting, Gipson, Roger |Brough, Patterson, | |Taxation | |Hernández, Mullin, |Wagner | | | |Quirk | | | | | | | | | | | | ------------------------------------------------------------------- SUMMARY: Allows the State Board of Equalization (BOE), as well as county assessors, to disclose that a person or legal entity has filed a legal entity change in ownership statement with the BOE or that the BOE has issued a determination to the assessor relating to that statement. Specifically, this bill: 1)Contains legislative findings and declarations relating to the transparency of the property tax system, the right to privacy, and the balance between the taxing authority's responsibility to safeguard confidential taxpayer information and the public's right to timely information. AB 567 Page B 2)Creates an exception to the confidentiality requirement for information reported in a change in ownership (CIO) statement by providing that: a) The BOE and the assessor are not required to hold information requested or furnished in a CIO statement for a change in control or a change in ownership, as defined, secret; and, b) The disclosure by the BOE or assessor that a CIO statement has been filed shall not be deemed to violate the confidentiality of taxpayer return information in the case where the filing of the statement was prompted by information collected by the Franchise Tax Board (FTB) from the property tax query on the taxpayer's state income tax return, as specified. EXISTING LAW: 1)Provides that all property is taxable, unless otherwise provided by the California Constitution or federal laws [California Constitution Article XIII, Section 1(a)]. Limits ad valorem taxes on real property to 1% of the full cash value of that property [California Constitution Article XIII A, Section 1(a) (Proposition 13 of 1978)]. Requires real property to be reassessed to its current fair market value whenever a "change in ownership" occurs. (California Constitution, Article XIII A, Section 2; Revenue and Taxation Code (R&TC) Sections 60 to 69.5) 2)Requires new owners of real property and certain legal entities to submit a CIO or a change-in-control statement, either with AB 567 Page C the county recorder or assessor, at the time of recording or, if the transfer is not recorded, within 90 days of the date of the CIO, except as provided. 3)Requires certain CIO statements to be filed directly with the BOE. 4)Imposes a penalty for failure to file any of the following statements within the prescribed time period: a) A CIO statement required to be filed by a new property owner for real property transfers that must be reported to the local county assessor; b) A Legal Entity Ownership Program (LEOP) CIO or a change-in-control statement required to be mailed by a legal entity to the State Board of Equalization (BOE); or c) A response to a BOE written request for a legal entity to file a LEOP CIO statement or change-in-control statement. 5)Requires the BOE and the assessor to hold secret all information furnished in the CIO statement. (R&TC Section 481). These statements are not considered public documents and are not open to inspection except to explicitly authorized persons for certain purposes. (R&TC Sections 408, 481, and 408.2) 6)Allows public access to certain information, including the assessment roll and a quarterly updated list of all property transfers occurring in the prior two years in each county. (R&TC Section 601, 602, and 408.1) FISCAL EFFECT: According to the BOE staff, this bill would have AB 567 Page D no direct impact on General Fund revenues. COMMENTS: 1)Author's Statement. The author has provided the following statement in support of this bill, "Transparency in assessed value information is critical to the integrity of the property tax system. The public should have sufficient information to provide assurance the property tax laws are equitably applied and that the property tax burden is fairly distributed. AB 567 will help add the kind of oversight the public has been looking for regarding these types of transactions." 2)Background: Proposition 13 and "Change in Ownership". The property tax applies to all classes of property and is one of the major general revenue sources for local governments in California. A property tax is imposed on the property owners and is based on the value of the property. Much of the law pertaining to taxation of property is prescribed by the California Constitution Article XIII and Article XIII A (commonly known as "Proposition 13"). Proposition 13 was added to the California Constitution in June 1978 and was most recently amended by Proposition 26 in 2010. Proposition 13 was designed to provide real property tax relief by imposing a set of interlocking limitations upon the assessment and taxing AB 567 Page E powers of state and local governments.<1> California Constitution Article XIII A, Section 1 states that, as a general rule, the maximum amount of any ad valorem tax on real property may not exceed 1% of the property's full cash value, as adjusted for the lesser of inflation or 2% per year. The term "full cash value" means the "county assessor's valuation of real property as shown on the 1975-1976 tax bill" or, thereafter, "the appraised value of real property when purchased, newly constructed, or a change in ownership has occurred after the 1975 assessment" (emphasis added) [California Constitution Article XIII A, Sections 1 and 2]. In other words, the California Constitution requires that real property be reassessed to its current fair market value whenever a "change in ownership" occurs. The definition of a "change in ownership" was not included in Proposition 13, but was left to implementing legislation. 3)Legal Entities: Change in Ownership: Transfers of Real Property. Generally, county assessors discover a CIO via grant deeds or other documents that are recorded with the county recorder. In addition, the county recorder must provide the assessor with a copy of the transfer of ownership document as soon as possible. However, ordinarily the transfer of ownership interests in a legal entity does not involve a recorded deed even if a property reassessment is called for under existing law. The Legislature has attempted to reduce the volume of unreported business property ownership transfer transactions. The most --------------------------- <1> Since any tax savings resulting from the real property tax limitations provided in California Constitution Article XIII A, Sections 1 and 2 could be effectively eliminated through the imposition of additional state and local taxes, Sections 3 and 4 place additional restrictions upon the imposition of any such taxes. See Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization, (1978) 22 Cal.3d 208. AB 567 Page F significant accomplishment was the creation of the LEOP. Under this program, the BOE gathers, and subsequently disseminates, to county assessors information regarding changes in control and ownership of legal entities that own or lease an interest in real property located in California. That information is obtained through monitoring publications, such as the Wall Street Journal and Mergers and Acquisitions, and receiving referrals from assessors. Existing law also requires the FTB to include a question on returns for partnerships, banks, and corporations asking if the entity owns real property in California and whether more than 50% of its voting stock (or other interest) has been transferred to another legal entity.<2> This information is shared by the FTB with the BOE. In turn, the BOE is authorized to make a written request to the legal entity to file a LEOP CIO statement to determine if there has been a change in control or ownership of the legal entity. The purpose of the LEOP is to assist county assessors in discovering changes in control or changes in ownership that have not been captured by a county's own discovery systems. Similarly to the filing requirements applicable to buyers of real property, a person or legal entity that acquires control of another legal entity is responsible for filing a LEOP change-in-ownership statement within 90 days of the event that triggers a change-in-control or CIO of a legal entity, where the entity or any subsidiary owned or held California real property at the time of the change. If the entity fails to self-report, the BOE may send a written request to complete the LEOP CIO statement, in which case the statement must be filed within 90 days of the BOE's written request.<3> If a legal entity fails to either self- report or answer the BOE's written request and the failure is discovered later on, then an escape assessment will be made for every tax year that the entity failed to file the CIO statement. There is no statute of limitations --------------------------- <2> R&TC Section 64(e). <3> As explained by the BOE staff, the BOE searches for unreported changes in control and ownership of legal entities under Section 64(c) and (d), in addition to receiving information from the FTB. AB 567 Page G applicable to these escape assessments. The penalty for failure to file is 10% of the taxes applicable to the new base-year value of the real property (e.g., land, improvements, and fixtures) if a change in control or CIO has occurred or 10% of the current year's taxes on the real property if a change in control or CIO has not occurred. However, the penalty is limited to $5,000 in the case of the property eligible for the homeowners' exemption and to $20,000 in the case of other types of property, provided that the failure to file was not willful. 6)Disclosure of Tax Information. The State of California, as well as other states, readily publishes information on unpaid taxes and delinquent taxpayers with respect to property taxes. An unpaid property tax becomes a lien against the real property and dissemination of information on such liabilities is important for protecting potential buyers, lenders, etc. Any recorded real property transfers are made available to the public. A county assessor may also share specified information, otherwise confidential, with various local and state government entities. In the area of income tax liabilities, however, state law generally prohibits disclosure or inspection of any income tax return information, except as specified in law. In fact, the FTB is required to notify taxpayers if criminal charges have been filed for willful unauthorized inspection or disclosure of their tax data. However, FTB may release tax return information to certain other agencies, including the BOE, legislative committees, the Attorney General, the California Parent Locator Service, the Commissioner of the IRS, and others for certain statutorily enumerated purposes. BOE is similarly restricted from divulging taxpayer information unless specifically authorized by statute. For example, since 2007, both FTB and BOE are required to make as a matter of public record a list of the largest 500 tax delinquencies over $100,000. 7)The Limited Scope of this Bill. As noted by the BOE staff, in recent years, media reports of the disparate consequences of reassessing property owned by legal entities and property owned AB 567 Page H by individuals have resulted in an increasing number of inquiries from the public whether specific sales, mergers, acquisitions, and buyouts reported by media trigger the reassessment of a legal entity's real estate holdings. Existing law, however, prohibits BOE staff from providing basic factual information to public, even though this information could eventually become public, when, for example, the assessor reassesses (or does not reassess) the property owned by the legal entity. Under this bill, the BOE and county assessors are authorized to disclose the fact that a CIO statement has been filed with the BOE or that the BOE has issued a determination to the assessor relating to a CIO statement filed with the BOE. In addition, this bill would exempt from the confidentiality requirement the fact that the filing of a CIO statement was prompted by information collected by the FTB from the taxpayer's state income tax return. The scope of the disclosure proposed by this bill is very limited - it does not require a disclosure of any factual information reported on the taxpayer's state income tax return, such as the amount of gross receipts or sales, gross profit, the amount of credit carryovers, income subject to apportionment, or the amount of each individual credit claimed on the tax return. Furthermore, no actual information reported on a CIO statement, other than the fact that the statement has been filed, may be disclosed to the public. Detailed financial information reported in the state income tax return or CIO statement will remain confidential. Legal entity change in ownership discovery relies heavily on self-reporting, which does not always result in 100% compliance. State agencies assist local assessors because real property owned by legal entities often undergoes a change in ownership without the public recordation of documents. As stated by the BOE staff in its analysis, the "delayed transparency undermines the public trust in the current property tax system as it applies to legal entity changes in ownerships and fuels the perception that laws are inequitable and should be changed." Transfers of real property are recorded and are already public AB 567 Page I information. Thus, it is unclear why a disclosure of the mere fact of filing a CIO statement by a legal entity, or the fact that the filing was prompted by the information collected by the FTB, would undermine public trust or should remain confidential. Analysis Prepared by: Oksana Jaffee / REV. & TAX. / (916) 319-2098 FN: 0000457