BILL ANALYSIS Ó ----------------------------------------------------------------- |SENATE RULES COMMITTEE | AB 567| |Office of Senate Floor Analyses | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ----------------------------------------------------------------- THIRD READING Bill No: AB 567 Author: Gipson (D) Amended: 8/19/16 in Senate Vote: 21 PRIOR VOTES NOT RELEVANT SENATE BUS., PROF. & ECON. DEV. COMMITTEE: 8-1, 6/13/16 AYES: Hill, Block, Gaines, Galgiani, Hernandez, Jackson, Mendoza, Wieckowski NOES: Bates SENATE GOVERNANCE & FIN. COMMITTEE: 5-1, 6/22/16 AYES: Hertzberg, Beall, Hernandez, Moorlach, Pavley NOES: Nguyen NO VOTE RECORDED: Lara SENATE APPROPRIATIONS COMMITTEE: 5-2, 8/11/16 AYES: Lara, Beall, Hill, McGuire, Mendoza NOES: Bates, Nielsen SUBJECT: Medical cannabis: regulation and taxation amnesty SOURCE: Author DIGEST: This bill requires the Board of Equalization (BOE) to establish a tax amnesty program (Program) for medical cannabis-related businesses and requires state licensing authorities to suspend 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 AB 567 Page 2 participate in the Program does not pay owed taxes and interest. Senate Floor Amendments of 8/19/16 remove conflict with AB 26 (Jones-Sawyer) by adding chaptering out language. ANALYSIS: 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 assessing, including uniform procedures for the consideration and adoption of written findings of fact by local boards of equalization, as specified. b) 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. AB 567 Page 3 c) 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. 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. 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. 2) 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). 3) Requires a licensing authority to suspend or refuse to issue, reinstate, or renew a state license pursuant to the tax penalty amnesty program's parameters. 4) Requires the BOE to develop and administer a tax penalty amnesty program for qualified taxpayers. 5) Requires a licensing authority to revoke or refuse to issue, reinstate, or renew a state license under the MMRSA if a AB 567 Page 4 qualified taxpayer that is eligible to participate in the Program does not participate, as specified. 6) Requires the Program to be conducted for a six-month period beginning July 1, 2017, through December 31, 2017, and apply to tax liabilities due and payable for tax reporting periods beginning before January 1, 2015. 7) 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. 8) 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. 9) 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. AB 567 Page 5 10)Authorizes the BOE to impose penalties at a rate that is double the rate of penalties described in law and bring criminal actions with respect to the difference between the amount 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, or upon any other nonreporting or underreporting of tax liability by any person who could have otherwise been eligible for amnesty. States that this will not invalidate any waivers, as specified. 11)Requires the DCA to suspend 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) Does both of the following: i) Reports a gross understatement of tax. ii) Fails to pay in full the taxes and interest due for each period for which amnesty is requested or fails to fully comply with the terms of an installment payment agreement. 12)Requires DCA to suspend or refuse to issue, reinstate, or renew a state license of a qualified taxpayer if the BOE issues a deficiency determination upon a specified return and the qualified taxpayer does both of the following: a) Reports a gross understatement of tax. AB 567 Page 6 b) Fails to pay in full the taxes and interest due for each period for which amnesty is requested or fails to fully comply with the terms of an installment payment agreement entered into by the board pursuant to Section 7077.3. 13)Authorizes the BOE to refuse to issue a permit to any person, pursuant to the provisions applicable to the refusal to issue a permit as specified, or may 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. 14)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. 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 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 AB 567 Page 7 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. This bill aims to bring medical cannabis dispensaries into compliance with sales tax laws. BOE estimates a noncompliance rate of 66% of all dispensaries selling medical marijuana. This bill provides an incentive for those dispensaries who have failed to remit sales tax in the past to do so prospectively. This bill could be effective in increasing prospective sales tax compliance to the extent a tax incentive induces medical marijuana dispensaries to comply with sales tax law. FISCAL EFFECT: Appropriation: No Fiscal Com.:YesLocal: No According to the Senate Appropriations Committee, BOE would incur administrative costs in the low millions of dollars annually, resulting from taxpayer notification, amnesty application processing, return processing, computer programming, and public inquiry responses. The analysis notes that BOE estimates that the bill would lead to increased one-time state and local revenue in the range of $53 million to $106 million, depending on the participation rate of cannabis-related businesses. The analysis also notes that DCA would incur first-year costs of $102,000 and $94,000 thereafter (special funds) to process applications and verify with BOE that distributors are in compliance with this bill's requirements. SUPPORT: (Verified8/22/16) Board of Equalization AB 567 Page 8 OPPOSITION: (Verified8/22/16) None received ARGUMENTS IN SUPPORT: The Board of Equalization writes, "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." Prepared by:Myriam Bouaziz / GOV. & F. / (916) 651-4119 8/22/16 22:45:58 **** END ****