BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                    AB 1275


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          Date of Hearing:  May 18, 2015





                     ASSEMBLY COMMITTEE ON REVENUE AND TAXATION


                                 Philip Ting, Chair





          AB 1275  
          (Gray) - As Introduced February 27, 2015





          Majority vote.  Tax levy.  Fiscal committee.  


          SUBJECT:  Personal income taxes:  exclusion:  military  
          retirement pay


          SUMMARY:  Excludes from gross income, for taxable years  
          beginning on or after January 1, 2015, retirement pay received  
          by a taxpayer from the federal government for military service  
          performed in the Armed Forces of the United States (Armed  
          Forces), the reserve component of the Armed Forces, or the  
          National Guard.  Specifically, this bill:  


          1)Excludes from gross income, for taxable years beginning on or  
            after January 1, 2015, survivor benefits received by a  








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            taxpayer from the federal government pursuant to Chapter 73 of  
            Title 10 of the United States Code.  


          2)Takes immediate effect as a tax levy.  


          EXISTING FEDERAL LAW:


          1)Defines "gross income" as all income from whatever source  
            derived, except as otherwise provided.  (Internal Revenue Code  
            (IRC) Section 61.)  Gross income specifically includes  
            compensation for services, business income, gains from  
            property, interest, rents, royalties, dividends, and pensions.


          2)Excludes from gross income compensation received for active  
            service as a member below the grade of commissioned officer in  
            the Armed Forces for any month during any part of which such  
            member:


             a)   Served in a combat zone, as defined; or, 


             b)   Was hospitalized as a result of wounds, disease, or  
               injury incurred while serving in a combat zone, as  
               specified.  (IRC Section 112(a).)  


            The term "compensation" specifically excludes pensions and  
            retirement pay.  (IRC Section 112(c).)  


          3)Excludes from gross income amounts received as a pension,  
            annuity, or similar allowance for personal injuries or  
            sickness resulting from active service in the armed forces of  
            any country, as specified.  (IRC Section 104(a)(4).)








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          4)Excludes from gross income any "qualified military benefit".   
            (IRC Section 134(a).)  A "qualified military benefit" is  
            defined as any allowance or in-kind benefit that:


             a)   Is received by any member or former member of the  
               uniformed services of the United States or any dependent of  
               such member by reason of the member's status or service;  
               and, 


             b)   Was excludable from gross income on September 9, 1986,  
               under any provision of law, regulation, or administrative  
               practice in effect on such date, as provided.  (IRC Section  
               134(b).)  


          EXISTING STATE LAW:  


          1)Provides that IRC Section 61, relating to the definition of  
            gross income, shall apply, except as specified.  (Revenue and  
            Taxation Code (R&TC) Section 17071.) 


          2)Provides various exclusions from gross income in determining  
            tax liability under the Personal Income Tax Law.  (R&TC  
            Section 17131 et seq.) 


          3)Excludes from gross income specified death benefits received  
            by the surviving spouse or designated beneficiary of any  
            member of the California National Guard, State Military  
            Reserve, or Naval Militia who dies or is killed in the  
            performance of  duty, as specified.  (R&TC Section 17132.4.)  










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          4)Defines the term "Armed Forces of the United States" to  
            include all regular and reserve components of the uniformed  
            services which are subject to the jurisdiction of the  
            Secretary of Defense, the Secretary of the Army, the Secretary  
            of the Navy, or the Secretary of the Air Force, and the Coast  
            Guard.  The members of such forces include commissioned  
            officers and personnel below the grade of commissioned  
            officers in such forces.  (R&TC Section 17022.)   


          FISCAL EFFECT:  The Franchise Tax Board (FTB) estimates that  
          this bill would reduce General Fund revenues by $330 million in  
          fiscal year (FY) 2015-16, by $210 million in FY 2016-17, and by  
          $210 million in FY 2017-18.  


          COMMENTS:  


          1)The author has provided the following statement in support of  
            this bill:


               As California grows, it will need experienced employees and  
               business owners who understand how to lead and manage  
               California's most valuable resource - its people.  Who  
               better to lead than a retired NCO or officer?  Making  
               military retirement pay tax-free makes California a more  
               enticing employment opportunity for retiring military  
               personnel, offsetting some of the costs that drive retirees  
               elsewhere.  


               After 20 years in the service, retirees are entitled to a  
               pension worth half their base pay, but that rarely provides  
               enough compensation for most to stop working.  Many leave  
               the service between the ages of 38 to 45, with every  
               intention of staring a second career.  With the anticipated  
               decline in US Military participation in Iraq and  








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               Afghanistan, significant numbers of new military retirees  
               will begin their search for a place to call home.  They  
               will bring their leadership, expertise, and capital with  
               them.  


               For California to remain an attractive and competitive  
               place to live, we must keep up with the 30 other states  
               [that] have already acknowledged the mutual benefit of this  
               policy:  higher property and sales tax revenues for the  
               state and more money in the pockets of our retired  
               Veterans.  


          2)Proponents of this bill note the following:


               We support your effort to eliminate California income tax  
               on veterans [sic] military retirement pay.  A majority of  
               states offer some sort of tax relief, whether partial  
               relief or complete exemption from state income tax.  Many  
               veterans from California relocate to those states because  
               of the tax friendly environment.  This bill will make  
               California a veteran friendly state.  


          3)Opponents of this bill note the following:


               We have no problem with providing tax relief to those who  
               were disabled in combat, or for survivor benefits for those  
               who were killed in combat, but this bill is far too broad  
               and exempts substantial amounts of income for those who  
               receive generous and deserved retirement benefits from  
               military service.  Many of those who receive retirement  
               benefits - teachers, first responders and others - serve  
               their country as well, but income should be counted as  
               income except in the exceptional cases of service mentioned  
               above.   








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          4)Committee Staff Comments


              a)   What is a "tax expenditure"  ?  Existing law provides  
               various credits, deductions, exclusions, and exemptions for  
               particular taxpayer groups.  In the late 1960s, U.S.  
               Treasury officials began arguing that these features of the  
               tax law should be referred to as "expenditures" since they  
               are generally enacted to accomplish some governmental  
               purpose and there is a determinable cost associated with  
               each (in the form of foregone revenues). 

              b)   How is a tax expenditure different from a direct  
               expenditure  ?  As the Department of Finance notes in its  
               annual Tax Expenditure Report, there are several key  
               differences between tax expenditures and direct  
               expenditures.  First, tax expenditures are reviewed less  
               frequently than direct expenditures once they are put in  
               place.  While this affords taxpayers greater financial  
               predictability, it can also result in tax expenditures  
               remaining a part of the tax code without demonstrating any  
               public benefit.  Second, there is generally no control over  
               the amount of revenue losses associated with any given tax  
               expenditure.  Finally, it should also be noted that, once  
               enacted, it takes a two-thirds vote to rescind an existing  
               tax expenditure absent a sunset date, effectively resulting  
               in a "one-way ratchet" whereby tax expenditures can be  
               conferred by majority vote, but cannot be rescinded,  
               irrespective of their efficacy or cost, without a  
               supermajority vote.


              c)   General background  :  The FTB notes that, for taxable  
               years beginning December 22, 1972, through January 1, 1986,  
               California law provided taxpayers an annual $1,000 income  
               exclusion for compensation received during active duty in  
               the Armed Forces or State Military Reserve.  State law also  








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               provided taxpayers an exclusion of up to $500 per month for  
               any compensation received during active duty in the  
               National Guard in connection with an emergency.   
               Additionally, an income exclusion applied to pensions or  
               retirement pay received by an individual for his or her  
               service in the Armed Forces, the State Military Reserve, or  
               the National Guard.  (See former R&TC Section 17146.)  


               For taxable years beginning on or after January 1, 1987,  
               and before January 1, 1992, a member of the Armed Forces  
               was allowed a credit, rather than an exclusion from gross  
               income, in an amount equal to 4% of the eligible income  
               received by an individual whose adjusted gross income was  
               less than $27,000.  Eligible income included salary, wages,  
               bonuses, allowances, pensions, retirement pay, and other  
               compensation received by an individual for his or her  
               services on extended active duty as a member of the Armed  
               Forces, including the California National Guard, or the  
               State Military Reserve.  This law remained in effect until  
               January 1, 1992 and was repealed by its own terms as of  
               that date.  (See former R&TC Section 17053.13.)  


              d)   Lack of conformity  :  This bill would allow an exclusion  
               from gross income for military retirement pay and survivor  
               benefits for which federal law has no counterpart, thus  
               bringing state law out of conformity.  State conformity  
               with federal law promotes greater simplicity and eases the  
               administration of complex tax laws.


              e)   A potential precedent  :  While cognizant of the personal  
               and professional sacrifices made by members of the  
               military, Committee staff notes that this bill would favor  
               one group of taxpayers over another, thereby establishing a  
               precedent for excluding the retirement benefits received by  
               other taxpayers the state wishes to recognize (e.g.,  
               police, firefighters, teachers).   








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              f)   Absence of a sunset date  :  In its current form, this  
               bill's proposed tax expenditure lacks an  automatic sunset  
               provision.  This Committee has a longstanding policy  
               favoring the inclusion of sunset dates to allow the  
               Legislature periodically to review the efficacy and cost of  
               such programs.  The author may wish to consider the  
               addition of appropriate sunset provisions. 


              g)   Related legislation  :  AB 505 (Melendez) excludes from  
               gross income concurrent retirement and disability pay  
               payments received by an "eligible individual", defined as  
               an active, reserve, or retired member of the United States  
               military who served in active duty.  AB 505 is scheduled to  
               be heard by this Committee on May 18, 2015. 


              h)   Prior legislation  :


               i)     AB 2329 (Melendez), of the 2013-14 Legislative  
                 Session, would have excluded from gross income Concurrent  
                 Retirement and Disability Pay payments received by an  
                 eligible individual, defined as an active, reserve, or  
                 retired member of the United States military who served  
                 in active duty.  AB 2329 was held on the Assembly  
                 Appropriations Committee's Suspense File.  


               ii)    AB 1077 (Anderson), of the 2009-10 Legislative  
                 Session, would have excluded from gross income retired  
                 pay and survivor annuities received by an individual as a  
                 result of the active service of a member of the Armed  
                 Forces.  AB 1077 was held on this Committee's Suspense  
                 File.  










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          REGISTERED SUPPORT / OPPOSITION:




          Support


          American Legion-Ceres Post 491


          American Legion-Department of California


          AMVETS-Department of California


          California Association of County Veterans Service Officers


          California Senior Legislature


          California State Commanders Veterans Council


          Military Officers Association of America, California Council of  
          Chapters


          National Association for Uniformed Services


          VFW-Department of California


          Vietnam Veterans of America-California State Council










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          9 private individuals 




          Opposition


          California Tax Reform Association




          Analysis Prepared by:M. David  Ruff / REV. & TAX. / (916)  
          319-2098