BILL ANALYSIS                                                                                                                                                                                                    Ó



          SENATE COMMITTEE ON
          BUSINESS, PROFESSIONS AND ECONOMIC DEVELOPMENT
                              Senator Jerry Hill, Chair
                                2015 - 2016  Regular 

          Bill No:            AB 567          Hearing Date:    June 13,  
          2016
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          |Author:   |Gipson                                                |
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          |Version:  |May 24, 2016                                          |
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          |Urgency:  |No                     |Fiscal:    |Yes              |
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          |Consultant|Sarah Huchel                                          |
          |:         |                                                      |
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            Subject:  Medical cannabis:  regulation and taxation amnesty


          SUMMARY:  Requires the Board of Equalization (BOE) and Employment  
          Development Department (EDD) to establish a tax amnesty program  
          (Program) for medical cannabis-related businesses and requires  
          state licensing authorities to revoke or refuse to issue,  
          reinstate, or renew a state license under the Medical Marijuana  
          Regulation and Safety Act (MMRSA) if a qualified taxpayer that  
          is eligible to participate in the Program does not come forward  
          and pay owed taxes and interest.

          Existing law:
          
          1)Establishes the Bureau of Medical Marijuana Regulation within  
            the Department of Consumer Affairs (DCA) to administer and  
            enforce the MMRSA.  (Business and Professions Code (BPC)  
            19302)

          2)Defines "licensing authority" as the state agency responsible  
            for the issuance, renewal, or reinstatement of the license, or  
            the state agency authorized to take disciplinary action  
            against the licensee.  
          (BPC §19300.5 (w))

          3)Establishes the BOE to:  (Government Code § 15606)  

             a)   Prescribe rules and regulations to govern local boards  
               of equalization when equalizing, and assessors when  







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               assessing, including uniform procedures for the  
               consideration and adoption of written findings of fact by  
               local boards of equalization, as specified.

             b)   Prescribe and enforce the use of all forms for the  
               assessment of property for taxation, including forms to be  
               used for the application for reduction in assessment.

             c)   Prepare and issue instructions to assessors designed to  
               promote uniformity throughout the state and its local  
               taxing jurisdictions in the assessment of property for the  
               purposes of taxation. It may adapt the instructions to  
               varying local circumstances and to differences in the  
               character and conditions of property subject to taxation as  
               in its judgment is necessary to attain this uniformity. 

             d)   Prescribe rules and regulations to govern local boards  
               of equalization when equalizing, and assessors when  
               assessing, with respect to the assessment and equalization  
               of possessory interests.

             e)   Bring an action in a court of competent jurisdiction to  
               compel an assessor or any city or county tax official to  
               comply with any provision of law, or any rule or regulation  
               of the BOE, as specified, governing the assessment or  
               taxation of property. The Attorney General shall represent  
               the BOE in the action. 

          4)Establishes the EDD in the Labor and Workforce Development  
            Agency responsible, for the following functions:   
            (Unemployment Insurance Code § 301)

             a)   Job creation activities.

             b)   Making manual computations and making or denying  
               recomputations of the amount and duration of benefits.

             c)   Determination of contribution rates and the  
               administration and collection of contributions, penalties  
               and interest, including but not limited to filing and  
               releasing liens.

             d)   Establishment, administration, and transfer of reserve  
               accounts.








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             e)   Making assessments and the administration of credits and  
               refunds.

             f)   Approving elections for coverage or for financing  
               unemployment and disability insurance coverage. 
              
          This bill:

          1)Makes Legislative findings that, although California enacted  
            and expanded the Compassionate Use Act of 1996, the sale of  
            any cannabis still remains illegal under federal law.  As a  
            result of uncertainty created by state and federal  
            differences, many medical cannabis-related businesses have  
            been noncompliant with tax laws since their inception, and  
            would owe massive penalties and interest if they were to come  
            into compliance.

          2)Makes Legislative findings that the portions of this bill  
            establishing medical cannabis-related business tax penalty  
            programs serve a general public purpose by incentivizing a  
            specific type of business to become current with its tax  
            obligations and therefore do not constitute gifts of public  
            funds within the meaning of Section 6 of Article XVI of the  
            California Constitution.

          3)Declares Legislative intent to further the public purposes of  
            preventing undue hardship on medical cannabis-related  
            businesses and providing a strong incentive for those  
            businesses to come forward and pay owed taxes and interest by  
            enacting the Medical Cannabis Tax Amnesty Act (Act).

          4)Requires the BOE and EDD to develop and administer a tax  
            penalty amnesty program (Program) for qualified taxpayers.

          5)Defines the following terms:

             a)   "Amnesty period" is the period July 1, 2017, through  
               September 31, 2017, during which the tax penalty amnesty  
               program is conducted.

             b)   "Medical cannabis-related business" is a person that  
               engages in the sale of cannabis for medical purposes to  
               qualified patients or the primary caregivers of qualified  








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               patients pursuant to the Compassionate Use Act of 1996 or  
               the Medical Marijuana Program.

             c)   "Qualified taxpayer" is a seller that is a medical  
               cannabis-related business.

             d)   "Gross understatement of tax" is a deficiency that is in  
               excess of 25 percent of the amount of tax reported on a  
               qualified taxpayer's return filed, as specified.

             e)   "State license" includes a license issued for any  
               activity of a medical cannabis-related business.

             f)   "Employment taxes" or "taxes" is the unemployment  
               insurance tax and employment training tax, as specified;  
               state disability insurance tax, as specified; and personal  
               income tax witholding, as specified.

             g)   "Qualified employer" is an employer or employing unit  
               that is a medical cannabis-related business, as specified.

          6)Requires a licensing authority to revoke or refuse to issue,  
            reinstate, or renew a state license under the MMRSA if a  
            qualified taxpayer that is eligible to participate in the  
            Program does not participate, as specified.

          7)Requires the Program to be conducted for a three-month period  
            beginning July 1, 2017, through September 30, 2017, and apply  
            to tax liabilities due and payable for tax reporting periods  
            beginning before January 1, 2015.

          8)Requires the following to apply to any qualified taxpayer who  
            files an application for tax penalty amnesty and pays the  
            taxes and interest, as specified in Item # 11):

             a)   The BOE and EDD shall waive all penalties, as specified,  
               for the tax reporting periods for which tax penalty amnesty  
               is requested that are owed as a result of the nonreporting  
               or underreporting of tax liabilities or the nonpayment or  
               underpayment of employment tax liabilities.  

             b)   Prohibits a criminal action from being brought against  
               the qualified taxpayer for the tax reporting periods for  
               which tax penalty amnesty is requested based on the  








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               nonreporting or underreporting of tax liabilities.

             c)   States that (a) and (b) do not apply to the nonpayment  
               of any taxes, excluding employment taxes, for which a  
               notice of determination has previously been issued.

          9)Prohibits the waiving of penalties and the prohibition against  
            the bringing of a criminal action for violations if the either  
            of the following applies as of the first day of the amnesty  
            period:

             a)   The qualified taxpayer is on notice of a criminal  
               investigation.

             b)   A court proceeding has already been initiated.

          10)Prohibits a refund or credit from being granted of any  
            penalty paid prior to the time the qualified taxpayer makes a  
            request for tax penalty amnesty, as specified.

          11) States that the Program shall apply to any qualified  
            taxpayer who, during the amnesty period, files an application  
            for tax penalty amnesty and, within 60 days after the  
            conclusion of the amnesty period, does all of the following:

             a)   Files completed tax returns reporting the nonreported or  
               underreported tax liabilities for all tax reporting periods  
               for which amnesty is being applied; and,

             b)   Pays in full the taxes and interest due for each period  
               for which amnesty is requested, or applies for an  
               installment agreement, as specified. 

          12)Authorizes the BOE to enter into an installment payment  
            agreement that shall include interest on the outstanding  
            amount due at the rate prescribed by law. Failure by the  
            qualified taxpayer to fully comply with the terms of the  
            agreement renders the waiver of penalties null and void,  
            unless the board determines that the failure was due to  
            reasonable causes, and the total amount of tax, interest, and  
            all penalties shall be immediately due and payable.

          13)Authorizes the BOE to impose penalties and bring criminal  
            actions with respect to the difference between the amount  








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            shown on the return and the correct amount of tax if the BOE  
            issues a notice of determination after the amnesty period upon  
            a return filed, as specified.  States that this will not  
            invalidate any waivers, as specified.

          14)Requires the application for the Program to be in the form  
            and manner specified by the BOE, but in no case shall a mere  
            payment of any taxes and interest due, in whole or in part,  
            for any period otherwise eligible for amnesty under this part,  
            be deemed to constitute an acceptable amnesty application.   
            For purposes of the preceding sentence, the application of a  
            refund from one period to offset a tax liability for another  
            period otherwise eligible for amnesty shall not be allowed  
            without the filing of a Program application. 

          15)Requires the DCA to revoke or refuse to issue, reinstate, or  
            renew a state license of a qualified taxpayer that is eligible  
            to participate in the Program but does not participate in the  
            Program, and that does any of the following:

             a)   Fails to register with the BOE.

             b)   Has a seller's permit revoked, as specified.

             c)   Reports a gross understatement of tax.

          16)States that the Director's revocation or refusal to issue,  
            reinstate, or renew a state license shall not be effective  
            unless the DCA, at least 60 days before the date of revocation  
            or refusal, mails a notice to the qualified taxpayer that  
            indicates that the license will be refused or revoked by that  
            date.

          17)Requires the BOE to refuse to issue a permit to any person or  
            shall revoke a seller's permit issued for any person that is  
            both of the following:

             a)   Eligible to participate in the Program but does not  
               participate; and,

             b)   Engaged in retail sales of medical cannabis in this  
               state that would have been eligible to participate in the  
               Program as a medical cannabis-related business.









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          18)Requires the BOE and EDD to issue forms and instructions and  
            take other actions needed to implement this bill.

          19)Requires the BOE to adequately publicize the Program for  
            medical cannabis-related businesses so as to maximize public  
            awareness of, and participation in, the Program.  Requires the  
            BOE to coordinate to the highest degree possible its publicity  
            efforts and other actions taken in implementing this article  
            with similar programs administered by the EDD. 

          20)States that the Program shall apply to any qualified employer  
            that during the amnesty period files an application the  
            Program and, within 60 days after the conclusion of the  
            amnesty period, does all of the following:

             a)   Files quarterly contribution returns and reports  
               reporting the nonreported or underreported wages and taxes  
               for the calendar quarter that ended December 31, 2013, and  
               prior calendar quarters, for which amnesty is being  
               applied.

             b)   Pays in full all amounts due for all periods for which  
               amnesty is requested, or applies for an installment  
               agreement.

          21)Authorizes the EDD to enter into an installment payment  
            agreement which shall include interest on the outstanding  
            amount due at the rate prescribed by law.  Failure by the  
            qualified employer to fully comply with the terms of the  
            agreement renders the waiver of penalties null and void,  
            unless the EDD determines that the failure was due to  
            reasonable causes, and the total amount of tax, interest, and  
            all penalties shall be immediately due and payable.

          22)States that if, subsequent to the amnesty period, the EDD  
            issues a deficiency assessment upon a return filed, as  
            specified, the EDD may impose penalties and criminal action  
            may be brought only with respect to the difference between the  
            amount shown on that return and the correct amount of tax.   
            This action shall not invalidate any waivers granted as  
            specified.

          23)States that if the EDD issues a deficiency assessment , the  
            EDD may issue that deficiency assessment within 10 years from  








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            the last day of the calendar month following the quarterly  
            period for which the amount is proposed to be assessed.

          24)Requires an application for the Program to be in the form and  
            manner specified by the EDD, but in no case shall a mere  
            payment of any taxes and interest due, in whole or in part,  
            for any period otherwise eligible for amnesty be deemed to  
            constitute an acceptable amnesty application.  For purposes of  
            the preceding sentence, the application of a refund from one  
            period to offset a tax liability for another period otherwise  
            eligible for amnesty shall not be allowed without the filing  
            of an amnesty application. 

          25)Requires the DCA to revoke or refuse to issue, reinstate, or  
            renew a state license of a qualified taxpayer that is eligible  
            to participate in the Program but does not participate in the  
            Program, and that does any of the following:

             a)   Fails to register with the EDD.

             b)   Reports a gross understatement of tax.

          
          FISCAL  
          EFFECT:  This bill is keyed "fiscal" by the Legislative Counsel.  
           The Assembly Appropriations Committee did not analyze this bill  
          because it was not in this form. 

          
          COMMENTS:
          
          1. Purpose.  This bill is Author sponsored.  According to the  
             Author's office, this bill is necessary because many cannabis  
             businesses have failed to comply with California's business  
             tax requirements due to misunderstanding or fear of becoming  
             a target for investigation.  

          2. Background.  California began regulating medical marijuana  
             with the passage of the Compassionate Use Act in 1996, which  
             exempted patients and their primary caregivers from criminal  
             liability under state law for the possession and cultivation  
             of marijuana.  In 2003, the Legislature authorized the  
             formation of medical marijuana cooperatives-nonprofit  
             organizations that cultivate and distribute marijuana for  








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             medical uses to their members through dispensaries.  Most  
             recently, the (MMRSA) passed in 2015, which consisted of  
             three separate bills enacted together to license and regulate  
             medical marijuana (  AB 243  (Wood, Chapter 688, Statues of  
             2015);  AB 266  , (Bonta, Chapter 689, Statutes of 2015); and  SB  
             643  (McGuire, Chapter 719, Statutes of 2015).  These bills  
             created a comprehensive state licensing system for the  
             commercial cultivation, manufacture, retail sale, transport,  
             distribution, delivery, and testing of medical cannabis.   
             Medical marijuana cooperatives will be phased out under the  
             MMRSA and replaced by state-licensed businesses.

             The MMRSA went into effect on January 1, 2016, and licensure  
             requirements will follow when the regulatory entities  
             responsible for implementation pass necessary regulations.  

             The MMRSA distributes state responsibilities among six  
             agencies:

                       DCA (Bureau of Medical Marijuana Regulation):   
                  responsible for licensing and regulating dispensaries,  
                  transporters, and distributors.  

                       Department of Fish and Wildlife (DFW):  monitor  
                  and reduce environmental impacts of marijuana  
                  cultivation. 

                       State Water Resources Control Board (SWRCB):   
                  regulate the environmental impacts of marijuana  
                  cultivation on water quality and instream flows.

                       California Department of Food and Agriculture  
                  (CDFA):  regulate medical marijuana cultivation and  
                  issue licenses to growers.

                       Department of Public Health (DPH):  develop and  
                  enforce regulations and standards for medical marijuana  
                  product manufacturers and testing laboratories. 

                       Department of Pesticide Regulation (DPR):  develop  
                  pesticide use guidelines for the cultivation of medical  
                  marijuana.

             This bill will require these state licensing authorities to  








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             revoke or refuse to issue, reinstate, or renew a state  
             license under the MMRSA if a qualified taxpayer that is  
             eligible to participate in the tax amnesty program  
             established by the BOE and EDD does not participate in the  
             program.  

             This bill is also referred to the Senate Governance and  
             Finance Committee, which will analyze the tax implications of  
             this bill and other issues related to tax amnesty programs.  

          1. Related Legislation.  AB 26  (Jones-Sawyer) of 2015 requires a  
             licensee under the Act to institute and maintain a training  
             program to educate, inform, and train the licensee's agents  
             and employees regarding compliance with the Act, and requires  
             the Bureau to approve and regulate the training programs.   
             (  Status  : This bill is pending in the Senate Committee on  
             Business, Professions and Economic Development.) 

              AB 2385  (Jones-Sawyer) of 2015 prohibits licensing  
             authorities from requiring a local license, permit, or other  
             authorization, and would require the issuance of state  
             license if the authorities determine that the applicant meets  
             all the requirements of the Act and specified criteria  
             relating to Measure D, which was approved by the voters of  
             the City of Los Angeles.  (  Status  :  This bill is pending in  
             the Senate Committee on Business, Professions and Economic  
             Development.)   

          2. Previous Legislation.   AB 266  (Bonta, Cooley, Jones-Sawyer,  
             Lackey, and Wood, Chapter 689, Statutes of 2015) enacted the  
             Act for the licensure and regulation of medical marijuana,  
             established the Bureau within the DCA, required the CDFA to  
             administer the provisions of the act related to cultivation,  
             required the CDPH to administer the provisions of the Act  
             related to manufacturing and testing of medical cannabis and   
             required the Board of Equalization to adopt a system for  
             reporting the movement of commercial cannabis and cannabis  
             products.  

              AB 243  (Wood, Chapter 688, Statutes of 2015) required the  
             CDFA, the DPR, the CDPH, the DFW, and the SWRCB to promulgate  
             regulations relating to medical marijuana and its  
             cultivation, as specified, required various state agencies to  
             take specified actions to mitigate the impact that marijuana  








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             cultivation has on the environment, and established the Act  
             Fund.    

              SB 643  (McGuire, Chapter 719, Statutes of 2015) established  
             standards for the prescription of medical cannabis, required  
             the Medical Board of California to prioritize its  
             investigative and prosecutorial resources to identify and  
             discipline physicians and surgeons that have repeatedly  
             recommended excessive cannabis to patients for medical  
             purposes or repeatedly recommended cannabis to patients for  
             medical purposes without a good faith examination, as  
             specified; authorized counties to impose a tax upon specified  
             cannabis-related activity; and set forth standards for the  
             licensed cultivation of medical cannabis.

          3. Arguments in Support. The BOE writes in support, "Many  
             medical cannabis-related businesses want to be regulated,  
             taxed, and treated like other businesses.  However, these  
             businesses have been operating in the shadows for years for  
             fear of federal prosecution.  Last year, the Legislature  
             enacted the MMRSA, a package of legislation that establishes  
             a comprehensive licensing and regulatory framework for  
             medical marijuana including cultivation, manufacturing,  
                                                                                 transportation, distribution, and sale.  The MMRSA comports  
             with the enforcement priorities outlined in the U.S.  
             Department of Justice guidance to federal prosecutors  
             regarding cannabis enforcement under the Controlled  
             Substances Act (referred to as the  Cole Memo  ) and likely will  
             serve to shield the state's industry from federal action.  As  
             a result, medical cannabis-related businesses that previously  
             operated underground may be more willing to come forward and  
             comply with state tax and regulatory laws." 

          4. Recommended Technical Amendments.  The following are  
             technical amendments addressing drafting errors:

             Page 10, line 2, replace "six" with "three"

             On page 10, line 4, replace "31" with "30"

             Page 17, line 24, replace "six" with "three"

             On page 18, line 19, replace "2013" with "2014"









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           NOTE  :  Double-referral to Governance and Finance Committee
          



          SUPPORT AND OPPOSITION:
          
           Support:  

          Board of Equalization

           Opposition:  

          None on file as of June 7, 2016. 

                                      -- END --