BILL ANALYSIS                                                                                                                                                                                                    Ó




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          |SENATE RULES COMMITTEE            |                       AB 1195|
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                                      CONSENT 


          Bill No:  AB 1195
          Author:   Ridley-Thomas (D)
          Introduced:2/27/15  
          Vote:     21  

           SENATE GOVERNANCE & FIN. COMMITTEE:  7-0, 6/17/15
           AYES:  Hertzberg, Nguyen, Beall, Hernandez, Lara, Moorlach,  
            Pavley

           SENATE EDUCATION COMMITTEE:  9-0, 7/15/15
           AYES:  Liu, Runner, Block, Hancock, Leyva, Mendoza, Monning,  
            Pan, Vidak

           ASSEMBLY FLOOR:  77-0, 5/7/15 - See last page for vote

           SUBJECT:   California Debt Limit Allocation Committee:   
                     American Recovery and Reinvestment Act of 2009


          SOURCE:    State Treasurer John Chiang


          DIGEST:  This bill allows the California Debt Limit Allocation  
          Commission (CDLAC) to allocate private activity bond ceiling to  
          applicants seeking to issue qualified public education facility  
          bonds.


          ANALYSIS:   


          Existing law:


          1)  Excludes interest income from municipal bonds for state tax  








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            purposes.


          2)  Establishes CDLAC as a three-member body comprised of the  
            State Treasurer as Chair, the Governor, and the State  
            Controller, housed in the Office of the State Treasurer.


          3)  Charges CDLAC with annually determining the total statewide  
            volume cap, or ceiling, for tax-exempt private activity bonds,  
            including any carry forward, and allocating amounts to  
            individual applicants, including state and local agencies,  
            joint powers agencies, special districts, nonprofit public  
            benefit corporations that only issues student loan bonds, and  
            any other public agency legally empowered to issue debt.


          4)  Prohibits public agencies from issuing tax-exempt private  
            activity bonds without CDLAC approval.


          This bill:


          1)Allows for the issuance of "qualified public education  
            facility bonds" (QPEFBs), by adding references to Internal  
            Revenue Code (IRC) sections authorizing them to CDLAC's  
            organizing statutes which guide approval of all other private  
            activity bonds, including:


             a)   The definition of "state ceiling" and "private activity  
               bond," to allow CDLAC to approve applications from school  
               districts seeking to issue QPEFBs.


             b)   The requirement that the CDLAC allocation for QPEFBs  
               becomes irrevocable upon issuance of the bonds.


             c)   The requirement on a state or local agency to notify  
               CDLAC in writing after any election to carry forward an  








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               allocation.


             d)   The prohibition against an applicant issuing QPEFBs  
               using a carry forward allocation without CDLAC approval.

             e)   The designation of the Treasurer as the state official  
               charged with ensuring that QPEFBs meet IRC requirements.  


          2)Makes technical and conforming changes.

          3)States legislative findings and declarations supporting its  
            provisions.

          Background
          
          Generally, when borrowers repay lenders, the loan principal is  
          neither taxable income to the borrower, nor deductible to the  
          lender; no one is better off because the loan must be repaid.   
          However, lenders must generally include any interest payments as  
          taxable income, while borrowers can usually deduct any interest  
          expense, but federal law has exempted interest payments from  
          income on municipal bonds issued by state and local agencies for  
          federal tax purposes since the inception of the federal income  
          tax.  
          State and local agencies generally use proceeds from municipal  
          bond sales for a wide variety of public purposes; however,  
          public agencies sometime loan bond proceeds to non-government  
          entities for many of the same uses, like airports, transit,  
          school facilities, and housing, among others.  In such a case,  
          federal law defines a bond as "public purpose," and therefore  
          tax-exempt, if either: 

           Less than 10% of the proceeds are used directly or indirectly  
            by a non-governmental agency, or 

           Less than 10% of the proceeds are secured directly or  
            indirectly by property used in a trade or business.  

          Bonds meeting either part of the test are considered government  
          bonds, so interest payments are excluded from income for tax  








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          purposes.  Bonds that don't are considered private activity  
          bonds.  However, federal law allows states to issue tax-exempt  
          qualified private activity bonds up to a certain amount, known  
          as the volume cap or ceiling, currently set at $75 per person,  
          or $250 million, whichever is more, indexed annually for  
          inflation.  While the interest paid on qualified private  
          activity bonds is generally excluded from income, the federal  
          Alternative Minimum Tax may apply. When a state or local agency  
          issues a tax-exempt private activity bond, but the Internal  
          Revenue Service subsequently finds that the project did not  
          comply with federal law's requirements, the bond changes from  
          tax-exempt to taxable, thereby making interest payments  
          includible in the bondholder's income for tax purposes.

          Federal law allows states to issue tax-exempt qualified private  
          activity bonds up to the cap for exempt facilities, mortgage  
          revenue, qualified 501(c)(3)s, qualified student loans,  
          qualified small-issues, and qualified redevelopment, as defined.  
           Federal law excludes from the ceiling bonds for certain  
          governmentally owned facilities and bonds issued to finance the  
          activities of certain charitable organizations.  If a state's  
          ceiling for a calendar year is more than the total amount of  
          tax-exempt private activity bonds issued during the year, the  
          difference is carried forward for up to the next three years,  
          but can only be used to issue bonds for exempt facilities,  
          qualified mortgages or mortgage credit certificates, qualified  
          student loans or qualified redevelopment.  

          In recent years, Congress has subsequently created new forms of  
          private activity bonds, and excluded them from the ceiling set  
          by the Tax Reform Act of 1986, instead enacting separate  
          ceilings for each specific bond.  The Economic Growth and Tax  
          Reconciliation Act of 2001 added QPEFBs to the list of exempt  
          facility bonds.  Qualified public education facilities include  
          elementary and secondary public school facilities which are  
          owned by private, for-profit corporations pursuant to  
          public-private partnership agreements with a state or local  
          educational agency.  Issuance of these bonds is subject to a  
          separate annual per-state ceiling equal to $10 per person (or $5  
          million, if greater) in lieu of the general state volume cap  
          ceiling.  No state or local agency has issued a QPEFB to date.









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          Comments
          
          A recent survey completed by the National Charter School  
          Resource agency indicates that in California, 8.7 percent of  
          charter schools own their buildings, 43.6 percent are housed in  
          district facilities, 41.5 percent are located in private  
          facilities, and 6.2 percent have other facilities arrangements.   
          While some charter schools can construct facilities from average  
          daily attendance revenues, others must rely on funding from  
          school districts, which is generally financed by a combination  
          of tax-exempt state and local general obligation bonds, and  
          developer fees imposed by school districts.  Schools can also  
          apply to the California School Finance Authority in the State  
          Treasurer's Office, which almost exclusively provides financial  
          assistance to charter schools by administering state bond funds,  
          federal and state grants, a revolving loan fund, a credit  
          enhancement grant program, and conduit bond financing.

          AB 1195 authorizes a new form of school facility finance, the  
          QPEFB, which relies on an unusual model of public private  
          partnership, initially proposed by the Heritage Foundation.   
          After the issuer sells the bond, the proceeds are loaned to a  
          private, for-profit developer, who then uses the proceeds to  
          construct the school.  The developer leases the school to the  
          school district on a long-term basis at a cost less than the  
          amount necessary to repay the bonds. The developer attempts to  
          make up the difference by leasing out the school building during  
          off-hours, and applying any depreciation deduction from the  
          school to reduce taxable income from other sources.  The  
          school's ownership is transferred from the developer to the  
          school district when the lease ends.  In a QPEFB, the repayment  
          obligation is on the developer, not the school district, so the  
          market will likely price the bond according to its assessment of  
          the developer's creditworthiness.

          FISCAL EFFECT:   Appropriation:    No          Fiscal  
          Com.:NoLocal:    No


          SUPPORT:   (Verified8/11/15)










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          State Treasurer John Chiang (source)


          OPPOSITION:   (Verified8/11/15)


          None received


          ARGUMENTS IN SUPPORT:  According to the author, "Public  
          elementary and secondary schools have limited financing options  
          for the construction or improvement of their facilities.  In  
          contrast, private developers have more flexibility in their  
          ability to finance transaction and access to resources.  In  
          acknowledgement of these differences, Section 142 (k) of the  
          federal IRC created a type of tax-exempt private activity bond  
          that can be used to finance school facilities called QPEFB.   
          These bonds are designed to provide tax-exempt conduit financing  
          for turnkey private development of public elementary and  
          secondary school facilities.  The tax-exempt private activity  
          bond proceeds can be used to fund the following project:  school  
          buildings, any functionally related and subordinate facility and  
          land with respect to a school building, including any stadium or  
          other facility primarily used for school events, and any  
          property subject to accelerated depreciation under Section 168  
          of the IRC for use in a school facility.  QPEFBs are apportioned  
          to the states but fall outside the current limits the federal  
          government places on private activity bond authority.  Federal  
          law requires that each state designate an entity to administer  
          QPEFBs in order to allocate the bonds."

          ASSEMBLY FLOOR:  77-0, 5/7/15
          AYES:  Achadjian, Alejo, Travis Allen, Baker, Bigelow, Bloom,  
            Bonilla, Bonta, Brough, Brown, Burke, Calderon, Chang, Chau,  
            Chávez, Chiu, Chu, Cooley, Cooper, Dababneh, Dahle, Daly,  
            Dodd, Eggman, Frazier, Beth Gaines, Gallagher, Cristina  
            Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez,  
            Gordon, Gray, Grove, Hadley, Harper, Holden, Irwin, Jones,  
            Jones-Sawyer, Kim, Lackey, Levine, Linder, Lopez, Low,  
            Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin,  
            Nazarian, Obernolte, O'Donnell, Olsen, Patterson, Perea,  
            Quirk, Rendon, Ridley-Thomas, Rodriguez, Salas, Santiago, Mark  








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            Stone, Thurmond, Ting, Wagner, Waldron, Weber, Wilk, Williams,  
            Wood, Atkins
          NO VOTE RECORDED:  Campos, Roger Hernández, Steinorth


          Prepared by:Colin Grinnell / GOV. & F. / (916) 651-4119
          8/20/15 17:02:06


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