BILL ANALYSIS                                                                                                                                                                                                    Ó






                                                                     AB 867


                                                                     Page A


          Date of Hearing:  April 27, 2015





                     ASSEMBLY COMMITTEE ON REVENUE AND TAXATION


                                 Philip Ting, Chair





          AB 867  
          (Wagner) - As Introduced February 26, 2015


          


          Majority vote.  Fiscal committee.


          SUBJECT:  Tax administration:  refunds:  property tax:  state  
          assessment:  actions


          SUMMARY:  Extends the statute of limitations for filing a claim  
          for refund indefinitely in the case where a court has determined  
          that a tax, fee, assessment, surcharge, or other amounts have  
          been illegally levied or collected by the Franchise Tax Board  
          (FTB) or the State Board of Equalization (BOE), as specified.   
          Specifically, this bill:  


          1)Allows a person who has paid a tax, fee, assessment,  
            surcharge, or other amount to a tax agency (collectively  











                                                                     AB 867


                                                                     Page B


            referred to as "the amounts") to file a refund claim, even if  
            the statute of limitations for filing has expired, when a  
            court of competent jurisdiction, in its final and  
            nonappealable decision, has decided that those amounts have  
            been illegally levied or collected by the tax agency. 

          2)Specifies that a claim for refund must be filed within one  
            year after the date when the court's decision regarding the  
            legality of the amounts paid becomes final and nonappealable. 

          3)Does not require a person to file a claim for refund in order  
            to recover the illegally levied or collected amounts if the  
            tax agency has sufficient records to identify the person that  
            paid the amounts, as provided.  

          4)Requires a tax agency to refund the amounts paid, plus  
            interest, when:

             a)   A person has filed a claim for refund, either within one  
               year of the court's decision or prior to the effective date  
               of this bill, if the tax agency has not yet refunded those  
               amounts; or, 

             b)   Information in the tax agency's records is sufficient to  
               identify the persons that have paid the amounts and the  
               person's current address, the date of payment, and the  
               amount paid.  

          5)Provides that, for purposes of bringing an action against the  
            tax agency for recovery of the amounts claimed as an  
            overpayment, the statute of limitations does not start running  
            until after the extended one-year period for filing a claim  
            for refund for those amounts has expired. 

          6)Applies to a property tax levied on state-assessed property  
            where the court of competent jurisdiction issues a final and  
            nonappealable decision that the property tax was illegally  
            assessed or allocated. 












                                                                     AB 867


                                                                     Page C


          7)Does not apply to transactions and use taxes imposed by local  
            governments in accordance with Part 1.6 (commencing with  
            Section 7251) of Division 2 of the Revenue and Taxation Code  
            (R&TC). 

          8)States that, upon appropriation by the Legislature, the  
            amounts necessary to make refunds shall be allocated to the  
            applicable tax agency. 

          9)Defines a "tax agency" as either the FTB or the BOE. 

           EXISTING FEDERAL LAW  :


          1)Requires taxpayers to file a claim for refund or credit with  
            the Internal Revenue Service (IRS), prior to filing a suit in  
            federal court for the recovery of any tax that is alleged to  
            have been erroneously or illegally assessed or collected, any  
            penalty claimed to be collected, or any sum alleged to be  
            excessive or wrongfully collected. 

          2)Prescribes that a taxpayer must file a suit for refund within  
            two years of the date that the IRS notice disallowing the  
            underlying claim, in whole or in part, was mailed.

          3)Provides that, if the IRS fails to take action on a claim for  
            refund or credit within six months of the date of filing, a  
            taxpayer may file a suite for refund in federal court. 

           EXISTING STATE LAW  :


          1)Limits the time period within which a person may file a valid  
            claim for refund with the FTB or BOE for taxes, fees,  
            assessments, surcharges or other amounts, including applicable  
            interest or penalty. 

          2)Allows a taxpayer, in the case of an income or franchise tax,  
            to file a claim for refund within four years from the date  











                                                                     AB 867


                                                                     Page D


            when the tax return was timely filed, four years from the due  
            date of the tax return, or one year from the date of any  
            overpayment.  (R&TC Section 19306.)

          3)Requires a claim for refund to be in writing and state  
            specific grounds for refund. 

          4)Provides that, in the case the FTB fails to mail a notice of  
            action on any refund claim within six months after the  
            taxpayers has filed the claim, the taxpayer may consider the  
            claim disallowed and may either file an appeal with the BOE or  
            a suit in court to recover the refund amount claimed. 

          5)Specifies that interest on a refund claim is calculated from  
            the date of overpayment to 30 days preceding the date of the  
            refund warrant. 

          6)Allows a person, in the case of an overpayment of tax, fee,  
            assessment, surcharge or other amounts administered by the  
            BOE, to file a claim for refund no later than three years from  
            the return due date for the period for which the person made  
            the overpayment, six months from the overpayment date, or, for  
            a payment made pursuant to a determination, six months from  
            the date the determination became final.  (R&TC Section 6902.)  


          7)Prescribes a different time period for persons who claim a  
            refund for an overpayment to the BOE if collected by means of  
            a levy, lien, or other enforcement procedure.  For this type  
            of overpayment, the person may file a valid refund claim  
            within three years from the date the BOE collected the  
            overpayment.  (R&TC Section 6902.3.)

          8)States that a person's failure to file a refund claim within  
            any of these time periods invalidates the claim and prevents  
            the FTB or the BOE from making or allowing a refund or credit,  
            regardless of the merits of the claim. 

          9)Requires the BOE to assess market values for public utilities  











                                                                     AB 867


                                                                     Page E


            and railroads, as provided by the California Constitution, and  
            requires payment of taxes prior to commencing an action to  
            recover state-assessed property taxes arising from a disputed  
            assessment.  Provides that this action must commence within  
            four years after the date the BOE mailed either its decision  
            or its written findings and conclusions, whichever is later. 

           FISCAL EFFECT  :  Unknown, but the FTB notes that the potential  
          revenue loss to the General Fund may be in the billions. 


           COMMENTS  :   


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

            "Existing law limits the time period that an individual may  
            file a valid refund claim with the Board of Equalization (BOE)  
            or the Franchise Tax Board (FTB) for a tax, fee, assessment,  
            surcharge, or interest, or penalty overpayment.  Failure to  
            file a claim for refund within the specified time period  
            prevents an individual from being able to file for a refund at  
            a later date. 



            "Even if a tax, fee, assessment, surcharge, or other amount is  
            later declared unconstitutional or illegal, taxpayers are only  
            eligible to receive refunds if they have exhausted all their  
            administrative appeals remedies."



           2)Arguments in Support  .  The proponents of this bill state that  
            under existing law, "[T]axpayers are precluded from recovering  
            taxes collected illegally unless they have exhausted their  
            administrative remedies and jumped through other procedural  
            hoops."  The proponents argue that the "current process for  











                                                                     AB 867


                                                                     Page F


            obtaining a refund places taxpayers in an unfair predicament,  
            as many taxpayers are not even aware of the potential that an  
            assessed tax is illegal and that they need to challenge it in  
            order to obtain a refund."  The proponents note that current  
            law places "the financial burden on the taxpayers as he/she is  
            forced to not only pay the tax, but also the legal costs  
            associated with challenging the tax through the administrative  
            process - and ultimately the court - in order to obtain a  
            refund."  The proponents assert that this bill "would resolve  
            this unfair predicament for a taxpayer."  Finally, they argue  
            that neither the state nor any local government "should be  
            able to retain the revenue from an illegally assessed tax  
            solely because a taxpayer did not pursue an administrative  
            appeal or petition to contest the tax before a court deemed  
            the tax unlawful." 
            
           3)Background: What is the Problem  ?  The California Constitution  
            provides "[n]o legal or equitable process shall issue in any  
            proceeding in any court against this State or any officer  
            thereof to prevent or enjoin the collection of any tax.  After  
            payment of a tax claimed to be illegal, an action may be  
            maintained to recover the tax paid, with interest, in such  
            manner as may be provided by the Legislature."  (Cal. Const.,  
            art. XIII, Section 32.)  This language has been broadly  
            construed to bar not only injunctions, but also a variety of  
            prepayment judicial declarations or findings which would  
            impede the prompt collection of a tax.  (See, e.g., State Bd.  
            of Equalization v. Superior Court (1985) 39 Cal. 3d 633, 217.)  
             Thus, the California Constitution forbids a court from  
            adjudicating the validity of a tax before the tax has been  
            paid in full.  In order to challenge a tax, the taxpayer must  
            first pay it, and then follow specified statutory procedures  
            for recovery.  A taxpayer may not go into court and obtain  
            adjudication of the validity of a tax which is due but not yet  
            paid.  (State Bd. of Equalization v. Superior Court (1985) 39  
            Cal. 3d 633.)  The constitutional power "to control tax refund  
            suits requires strict adherence to the administrative  
            procedures set forth by the Legislature before a court action  
            can be filed."  (Shiseido Cosmetics (America) Ltd. v.  











                                                                     AB 867


                                                                     Page G


            Franchise Tax Board (1991) 235 Cal.App.3d 478, 488.)  

          Existing statutory law provides that a tax refund action is the  
            exclusive means of obtaining judicial review of state tax  
            proceedings and that exhaustion of administrative remedies is  
            required prior to commencing an action in a Superior Court.<1>  
             Furthermore, existing law, both state and federal, limits the  
            time period during which an individual or corporate taxpayer  
            may file a valid claim for refund to recover an overpayment of  
            the tax.  Under state tax laws, a claim for income or  
            franchise tax refund must be filed with the FTB within:  (a)  
            four years from the date the tax return was timely filed, (a)  
            four years from the due date of the tax return, or (c) one  
            year from the date of any overpayment.  (R&TC Section 19306;  
            Section 19384.)   For an overpayment of the sales or use tax,  
            fee, assessment, surcharge or other amounts, a person may file  
            a valid refund claim with the BOE no later than:  (a) three  
            years from the return due date for the period for which the  
            person made the overpayment, (b) six months from the  
            overpayment date, or (c) for a payment made pursuant to a  
            determination, six months from the date the determination  
            became final.  (R&TC 6902.)  In the case of an overpayment  
            that the BOE collected by means of a levy, lien or other  
          ---------------------------
            <1> For example, R&TC Section 19382 states that "Except as  
            provided in Section 19385, after payment of the tax and denial  
            by the Franchise Tax Board of a claim for refund, any taxpayer  
            claiming that the tax computed and assessed is void in whole  
            or in part may bring an action, upon the grounds set forth in  
            that claim for refund, against the Franchise Tax Board for the  
            recovery of the whole or any part of the amount paid."  R&TC  
            Section 19382 provides a constitutionally adequate  
            post-deprivation remedy in the form of a judicial refund  
            action in which taxpayers may contest the validity of the tax  
            penalty under R&TC 19138.  (California Taxpayers Assn. v.  
            Franchise Tax Bd. (2010, 3d Dist) 190 Cal App 4th 1139, reh'g  
            denied.)


              










                                                                     AB 867


                                                                     Page H


            enforcement procedure, the person may file a valid refund  
            claim within three years from the collection date.  Finally,  
            for an overpayment of property tax levied on public utilities  
            and railroads, a refund action must commence four years after  
            the BOE mailed its decision or its written findings and  
            conclusions, whichever is later, as provided.  A person's  
            failure to file a refund claim within these time periods  
            prevents the tax agency from allowing a refund or credit,  
            regardless of the merits of the claim.  

          Thus, if a tax is declared unconstitutional or illegal by the  
            court, taxpayers are eligible to recover the tax paid only if  
            they have filed valid claims for refund and have exhausted all  
            of their administrative remedies.  In other words, if a person  
            failed to file a timely claim for refund, no refund may be  
            allowed, despite a court's determination regarding the  
            legality of the tax.  The author asserts that this bill is  
            needed to "fix this problem by allowing [taxpayers] to recoup  
            their money as quickly and painlessly as possible." 

           4)The Proposed Solution  .  First, this bill would modify  
            procedures for filing a claim for refund if a tax, fee,  
            assessment, surcharge or other amount has been determined by a  
            court to have been illegally levied or collected.  As noted  
            above, existing law generally requires taxpayers or feepayers  
            to claim a refund within three or four years from the return  
            due date or one year or less from the date of overpayment.  In  
            contrast, this bill would authorize a taxpayer or a feepayer  
            to recover the illegally collected amounts, plus interest,  
            within one year from the date when the court's decision  
            becomes final and nonappealable.  Furthermore, this bill would  
            relieve taxpayers from the obligation to file this claim for  
            refund altogether in some circumstances, such as when the tax  
            agency is able to identify, from its records, the person that  
            paid the tax, his/her address, the date of the payment and the  
            amount paid.  In other words, this bill would repeal the  
            existing filing requirement imposed on taxpayers and, instead,  
            would require a tax agency to initiate the payment of refunds  
            if information in its records is sufficient to identify the  











                                                                     AB 867


                                                                     Page I


            persons that have paid the amounts. In addition, a person who  
            has filed a claim for refund prior to the effective date of  
            this bill would not be required to file another refund claim  
            to recover the amount claimed as an overpayment if the tax  
            agency has not yet refunded the overpayment.  Finally, this  
            bill appears to toll the statute of limitations for purposes  
            of bringing an action against the tax agency for recovery of  
            the amounts claimed as an overpayment by stating that the  
            statute of limitations does not start running until after the  
            extended one-year period for filing a claim for refund for  
            those amounts has expired.  

          5)Indefinite Extension of the Statute of Limitations (SOL) for  
            Filing Refund Claims:  A Balancing Act  .  This bill highlights  
            the innate tension between the societal desire to remedy the  
            wrong and the practical, yet maybe harsh, realities of a tax  
            system administration.  A regular statute of limitations  
            resolves this tension, but in a very imperfect way.  As  
            pointed out by the supporters of this bill, many taxpayers are  
            not even aware of the potential that an assessed tax that they  
            paid may be illegal and, thus, the existing process for  
            obtaining a refund seems unfair if the tax is invalidated by  
            the court, after the expiration of the SOL for filing a refund  
            claim.  However, an indefinite SOL, or rather a lack thereof  
            as proposed by this bill, presents a challenge as well.  This  
            bill would require both taxpayers and tax agencies to maintain  
            taxpayers' records in perpetuity, imposing a huge burden on  
            both, and would eliminate any possibility for final  
            resolutions of disputes between those parties.  As explained  
            by the United States Supreme Court, with regard to the federal  
            SOL, "[i]t probably would be all but intolerable, at least  
            Congress has regarded it as ill-advised, to have an income tax  
            system under which there never would come a day of final  
            settlement and which required both the taxpayer and the  
            Government to stand ready forever and a day to produce  
            vouchers, prove events, establish values and recall details of  
            all that goes into an income tax contest.  Hence, a statute of  
            limitation is an almost indispensable element of fairness as  
            well as of practical administration of an income tax policy."   











                                                                     AB 867


                                                                     Page J


            (Rothensies, Collector of Internal Revenue v. Electric Storage  
            Battery Co. (1946) 329 U.S. 296, 301 (emphasis added).)    
            Federal courts have stated that fixed deadlines - statute of  
            limitations - may appear harsh because they can be missed, but  
            the resulting occasional harshness is redeemed by the clarity  
            imparted.  (Prussner v. United States (7th Cir. 1990) 896 F.2d  
            218, 222-223 [quoting United States v. Locke (1985) 471 U.S.  
            84; United States v. Boyle (1985) 469 U.S. 241, 249].)  



            In addition, an open-ended SOL would pose a problem for the  
            State's revenue system.  Article XIII, Section 32 of the  
            California Constitution permits tax refunds only "in such  
            manner as may be provided by the Legislature."  The Supreme  
            Court of California explained that the policy "behind Section  
            32 is to allow revenue collection to continue during  
            litigation so that essential public services dependent on the  
            funds are not unnecessarily interrupted."  (Pacific Gas &  
            Electric Co. v. State Bd. of Equalization (1980) 27 Cal.3d  
            277, 283-284.)  To implement this policy, "[A] specific  
            statutory refund procedure has been provided for taxpayers?."   
            (Ibid.)  An open-ended SOL would undermine this policy by  
            potentially requiring the state to make payments on refund  
            claims, including interest, in connection with the tax or  
            other amounts that were originally collected years ago.  The  
            Committee may wish to consider whether the approach suggested  
            by this bill - to allow an unlimited SOL for certain refund  
            claims - is a balanced and fair solution to the problem. 
           6)Is a Refund Claim Necessary  ?  In California, the only  
            traditional way for a taxpayer to challenge the imposition of  
            taxes in court is by filing a claim for refund for taxes paid.  
             The general rule in California requires that a taxpayer  
            seeking "judicial relieve from an erroneous assessment  
            must?exhaust [ ] his remedies before the administrative body  
            empowered initially to correct the error."  (Security-First  
            Nat. Bk. v. County of L.A. (1950) 35 Cal.2d 319, 320.)  The  
            claim-of-refund statutes have been viewed by courts as having  
            a rational basis since a refund claim, filed in advanced of  











                                                                     AB 867


                                                                     Page K


            litigation, "provides the state with official notice that a  
            taxpayer will make a claim for moneys paid to the treasury."   
            (Shiseido Cosmetics Ltd. v. Franchise Tax Board (1991) 235  
            Cal. App. 3d 478, 489.)  Furthermore, because "the refund  
            claim must state the specific grounds upon which it is founded  
            [R&TC Section 26074], the claim of refund allows the state to  
            evaluate the merits of the taxpayer's claim and to plan fiscal  
            policy accordingly."  (Ibid.)  Finally, the court in Shiseido  
            concluded that the "[a]pplicable statutes requiring filing of  
            a claim for refund are clear and straightforward" and that the  
            "filing of a claim for refund is a simple and unburdensome  
            act."  (Ibid.)  This constitutional requirement that actions  
            for refund of allegedly illegal taxes be brought only in the  
            manner prescribed by the Legislature rests on the premise that  
            strict legislative control over the manner in which tax  
            refunds may be sought is necessary so that governmental  
            entities may engage in fiscal planning based on expected tax  
            revenues.  (Cod Gas & Oil Co. v. State Bd. of Equalization  
            (1997) 59 Cal App 4th 756; McCabe v. Snyder (1999) 75 Cal App  
            4th 337.)  

          This bill proposes a novel approach whereby taxpayers will be  
            relieved from the obligation to file a claim for refund when  
            the tax agency is able to identify, from its records, the  
            person that paid the tax, his/her address, the date of the  
            payment and the amount paid.  Accordingly, this bill places  
            the burden of maintaining the records and computing the  
            amounts to be refunded on the tax agencies.  As such, this  
            bill would require tax agencies to search the taxpayer's  
            entire tax history in trying to identify the eligible persons  
            and then calculate the refund amounts.  The Committee may wish  
            to consider whether it is advisable to relieve taxpayers from  
            the requirement to file a claim for refund, especially in  
            light of the fact that it would place an enormous  
            administrative burden on tax agencies. 

           7)The Scope of the Bill  .  This bill refers to a tax, fee,  
            assessment, surcharge, or other amount that have been  
            determined to "have been illegally levied or collected."   











                                                                     AB 867


                                                                     Page L


            Since that phrase is undefined, that phrase is open to various  
            interpretations.  Does that phrase mean the legality of the  
            actual tax imposed, such as for example, the Smog Impact Fee  
            that was determined to be unconstitutional?  Or does that  
            phrase include a method of computing the tax or fee?  For  
            example, would the Court of Appeal decision regarding the  
            constitutionality of a method of income apportionment qualify  
            as eligible under the bill, thus triggering the extension of  
            SOL?  The author may wish to define this phrase to minimize  
            disputes between taxpayers and the tax agencies. 

           8)An Individual vs. "Broad Brush" Approach  .  The Legislature has  
            no lack of experience in fashioning a remedy in cases where a  
            tax, fee or method of computing the tax or the fee was held by  
            courts to be illegal or unconstitutional.  The Legislature  
            dealt with those issues on a case-by-case basis and enacted  
            appropriate legislation to remedy the problems.  For example,  
            when the Smog Impact Fee was determined to be  
            unconstitutional, the Legislature enacted R&TC Section 6909 to  
            allow persons who paid the fee to receive a refund even when  
            the claim for refund would have been outside the statute of  
            limitations.  Just recently, after the court's decision in  
            Cutler v. FTB, (2012) 208 Cal.App.4th 1247, the Legislature  
            enacted a statute in 2013 to address the issues relating to  
            gain deferrals and exclusions of qualified small business  
            stock.   Each case presents its own challenges and  
            opportunities and allows the Legislature to determine the  
            appropriate remedy, taken into account the fiscal conditions  
            of the state's General Fund.  The Committee may wish to  
            consider whether an individual approach is a more appropriate  
            way of dealing with the problem of refunding illegal taxes,  
            fees, and assessments to taxpayers. 

           9)Current Litigation  .  As pointed out by the BOE staff, the  
            Howard Jarvis Taxpayer Association filed a class action  
            lawsuit on October 3, 2012, seeking to overturn the California  
            Fire Prevention Fee, claiming that the fee was illegally  
            assessed.  Litigation can take years before the matter is  
            finally resolved.  If the court decides that the fire fee is  











                                                                     AB 867


                                                                     Page M


            illegal, taxpayers, in general, are allowed to recover the  
            fire fee for the four years preceding the court's final  
            decision; this is based on the four-year statute of  
            limitation.  Taxpayers who were parties to the original suit  
            filed by the Howard Jarvis Association, however, can recover  
            fees going back to the original date of enactment.  

            In order to protect a taxpayer's claim without being subject  
            to the four-year statute of limitation, a taxpayer can also  
            file a protective claim for refund.  A taxpayer can file a  
            claim with the FTB to withhold any action on the claim while  
            litigation is still pending.  To file a claim for refund, a  
            taxpayer must submit a letter to the FTB containing the amount  
            of amnesty penalty and the statement requesting the  
            correspondence to be held pending the outcome of pending  
            litigation.  Without filing a claim for refund, a taxpayer who  
            is not a party to the original claim would be limited to the  
            general four year statute of limitation.


           10)What is Res Judicata  ?  Res judicata is a common law doctrine  
            barring re-litigation of causes of action or issues.  Res  
            judicata promotes judicial economy, ensures repose for the  
            parties, and strengthens the court system in general.  The  
            term "res judicata" is used to include both claim preclusion  
            and issue preclusion.  Claim preclusion prevents re-litigation  
            of the same cause of action in a second suit between the same  
            parties or parties in privity.  Issue preclusion precludes  
            re-litigation of issues argued and decided in prior  
            proceedings.  Several provisions of the R&TC limit the  
            applicability of res judicata to specific reporting quarters  
            or tax years, which requires a party to re-litigate the same  
            issue for a different reporting period.  (See generally R&TC  
            Sections 7176, 38805, 19802.)  This bill applies the normal  
            common law rules of res judicata to refund claims as specified  
            by this bill, which could potentially allow a taxpayer who was  
            not a party to the original case to bring a claim for refund  
            by citing the court's original decision.












                                                                     AB 867


                                                                     Page N


           11)Actions against a Tax Agency .  Under the provisions of this  
            bill, a taxpayer can file a claim for refund for illegally  
            levied taxes within a year of the final court decision.   
            However, subdivision (f) of this bill further allows a party  
            to bring an "action" against the taxing agency for recovery of  
            the amount claimed as an overpayment of the illegal tax after  
            the one-year refund claim period.  The purpose of this  
            provision is unclear to the Committee staff.  Is this  
            provision intended to simply toll the SOL for filing an action  
            in court?  Does this provision allow a taxpayer to file a  
            claim for refund in superior court without exhausting all  
            administrative remedies?  The doctrine of "exhaustion of  
            administrative remedies was evolved by the courts "to promote  
            comity between coequal branches of government and to relieve  
            overburdened courts from the need to deal with cases where  
            effective administrative remedies are available."  (Bozaich v.  
            State of California (1973) 32 Cal.App. 3d 688, 698.) The  
            requirement of exhausting administrative remedies applies even  
            when the taxpayer challenges the legality of a tax under  
            statutory or constitutional grounds.  (Steinhart v. County of  
            Los Angeles (2010) 47 Cal.4th 1298.)  Without a compelling  
            reason from the author as to why this provision is needed, the  
            Committee may wish to consider deleting it from this bill.  
           
           12)Implementation Concerns of Tax Agencies  :  Both the FTB and  
            the BOE staff in their analyses of this bill highlighted  
            several implementation concerns.  For example, the FTB staff  
            states that the enactment of this bill would require both  
            taxpayers and the FTB "to maintain tax records in perpetuity  
            in order to demonstrate entitlement to a refund should a court  
            deem an amount paid was illegally levied or collected at some  
            future date, thereby eliminating the finality of the tax  
            system and creating a burdensome record retention  
            requirement."  The BOE staff discloses that the administrative  
            impact of this bill is unknown, but will include an increased  
            number of refunds, BOE policy and guideline modifications, and  
            outreach activities.  However, no refunds will be paid out  
            until the Legislature appropriates sufficient funds to the BOE  
            and FTB for this purpose.  Finally, the FTB staff points out  











                                                                     AB 867


                                                                     Page O


            that this bill refers to a "final and non-appealable decision  
            of a court of competent jurisdiction."  Under the California  
            Constitution, Article III, Section 3.5, a state agency is  
            required to enforce a statute, unless and until a court of  
            appeal declares the statute unconstitutional (invalid or  
            unenforceable).  The BOE staff suggests an amendment to this  
            bill to substitute the phrase "an appellate court of competent  
            jurisdiction" for the phrase "a court of competent  
            jurisdiction" in order to conform the provisions of this bill  
            to the California Constitution. 
          


          REGISTERED SUPPORT / OPPOSITION:




          Support


          California Bankers Association


          California Chamber of Commerce


          California Manufacturers and Technology Association


          California Taxpayers' Association


          Howard Jarvis Taxpayers Association




          Opposition











                                                                     AB 867


                                                                     Page P






          None on file




          Analysis Prepared by:Oksana Jaffe / REV. & TAX. / (916) 319-2098