BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                    AB 1901


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          CONCURRENCE IN SENATE AMENDMENTS


          AB  
          1901 (Quirk)


          As Amended  August 1, 2016


          Majority vote


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          |ASSEMBLY:  |79-0  |(May 5, 2016)  |SENATE: |36-0  |(August 18,      |
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          Original Committee Reference:  G.O.


          SUMMARY:  Extends the penalties for possessing, selling, or  
          buying false or fraudulent cigarette tax stamps to "unaffixed  
          stamps".  Specifically, this bill: 


          1)Imposes a fine of up to $5,000, or imprisonment not to exceed  
            one year in county jail, or both, for possessing, selling, or  
            buying unaffixed stamps in a quantity less than 2,000.


          2)Imposes a fine of up to $50,000, or imprisonment not to exceed  
            one year in county jail, or both, for possessing, selling, or  
            buying unaffixed stamps in a quantity of 2,000 or greater.


          3)Defines "unaffixed stamps" as stamps for which the tax has  
            previously been paid by a licensed distributor and previously  
            affixed to a package.








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          4)Clarifies that "unnafixed stamps" do not include any unused  
            and unapplied rolls of stamps or loose stamps acquired from  
            the board or its authorized agent and in the possession of a  
            licensed distributor.


          5)Requires the Board of Equalization (BOE) to destroy any stamps  
            seized under this section.


          6)Makes legislative findings and declarations regarding  
            "unaffixed stamps."


          The Senate amendments make various technical legislative  
          findings and declarations regarding the use and enforcement of  
          "unaffixed stamps".  


          EXISTING LAW: 


           1) The California Cigarette and Tobacco Products Licensing Act  
            (Act) of 2003 provides for the licensure, by BOE, of  
            manufacturers, distributors, wholesalers, importers, and  
            retailers of cigarette or tobacco products that are engaged in  
            business in California and prohibits retailers, manufacturers,  
            distributors, and wholesalers from distributing or selling  
            those cigarette and tobacco products unless they are in  
            compliance with those licensure requirements.


           2) The Cigarette and Tobacco Products Tax Law (Law) imposes a  
            tax on the distribution of tobacco products and on the  
            distribution of cigarettes, which are paid through the use of  
            stamps or meter impressions that are required to be affixed to  
            each package of cigarettes sold.  The Law requires that  
            certain cigarette and tobacco products be forfeited to the  
            state under specified circumstances, upon seizure by BOE.









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           3) Defines "Stamps and meter impressions" as indicia of payment  
            of tax, and include, but are not limited to, stamps, meter  
            impressions, or any other indicia developed using current  
            technology.


           4) Requires the BOE to prescribe and approve the types of  
            stamps and meter impressions, and the methods of applying  
            stamps and meter impressions to packages of cigarettes.


           5) Imposes a fine of up to $5,000, or imprisonment not to  
            exceed one year in county jail, or both, for possessing,  
            selling, or buying false or fraudulent cigarette tax stamps or  
            meter impressions in a quantity less than 2,000.


           6) Imposes a fine of up to $50,000, or imprisonment not to  
            exceed one year in county jail, or both, for possessing,  
            selling, or buying false or fraudulent cigarette tax stamps or  
            meter impressions in a quantity of 2,000 or greater. 


           7) Requires the destruction by the State Board of Equalization  
            of any stamps seized.


           8) Requires any fines assessed to be deposited in the Cigarette  
            and Tobacco Products Compliance Fund, amounts in which are  
            available for specified expenditure upon appropriation by the  
            Legislature.


          FISCAL EFFECT:  According to Assembly Appropriations Committee,  
          this bill will have:


          1)Minor and absorbable costs related to inspections and  
            enforcements.  This bill would not lead to any additional  
            inspections on top of which are already being done. 









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          2)Likely minor cost savings because of deterred tax evasion. 


          COMMENTS:  


          Purpose of the Bill:  According to the author, under existing  
          law, cigarette distributors are required to pay an $0.87 excise  
          tax on each pack of cigarettes by purchasing a tax stamp which  
          is affixed on each pack of cigarettes prior to distribution.   
          The BOE's inspection teams have recently identified cigarette  
          tax evasion schemes where used tax stamps were re-used and  
          affixed to another cigarette pack to evade the $0.87 per  
          cigarette pack excise tax.  BOE inspectors have also found large  
          collections of used stamps that are intended for reuse.  Current  
          law is ambiguous whether BOE inspection teams have the authority  
          to seize and destroy the collection of used stamps, even though  
          it is clear that the used stamps have been collected for the  
          purpose of re-using the stamp to evade the stamp tax.    


          This bill clarifies that it is a misdemeanor for anyone to  
          possess, buy, sell, or offer to buy or sell any used cigarette  
          tax stamps.  It also authorizes the BOE to seize and destroy  
          used cigarette tax stamps aggregated for reuse purposes.  Unlike  
          postage stamps or trading cards that are collectibles with  
          value, cigarette tax stamp collections have value solely related  
          to tax evasion.  During one enforcement operation alone, BOE  
          staff found a storage unit containing nearly 206,000 unaffixed,  
          used stamps with a tax value of about $179,000 placed on  
          transfer sheets and prepared for affixation to cigarette packs.


          The author states that this bill serves to combat this tax  
          evasion scheme, minimize tax evasion opportunities, and assist  
          in making the marketplace fair and equitable for those that are  
          legitimately paying the excise tax.  


           Background:  Cigarettes are subject to both the cigarette tax  
          and the cigarette and tobacco products surtax, collectively  








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          referred to as taxes.  The taxes are assessed on each cigarette  
          distributed in California.  The current tax rate is $0.0435  
          cents per cigarette, which is $0.87 per pack of 20 cigarettes.   
          Distributors pay the taxes by purchasing cigarette tax stamps  
          from the BOE.  Distributors are required to affix the tax stamp  
          to each package of cigarettes before distribution.  Distributors  
          pass the excise taxes on to their customer, and the taxes become  
          part of the retail selling price of the cigarettes.  The cost of  
          the cigarette tax stamp includes both taxes. 


          Other forms of tobacco products are taxed at the same rate, but  
          in a different manner.  Under current law, "tobacco products"  
          include, but are not limited to, all forms of cigars (except  
          "little cigars"), smoking tobacco, chewing tobacco and snuff,  
          and any other articles or products made of or containing at  
          least 50% tobacco.  The tax, which is a component of the  
          cigarette and tobacco products surtax, is paid by tobacco  
          products distributors.  The tobacco products tax is imposed upon  
          the first distribution of tobacco products at a rate determined  
          annually by the BOE.  The tobacco products tax rate is  
          equivalent to the combined rate of the taxes applied to  
          cigarettes.  The rate is applied to the wholesale cost of the  
          tobacco products. 


          BOE Licensing Act:  In 2003, AB 71 (Jerome Horton), Chapter 890,  
          enacted the Cigarette and Tobacco Products Licensing Act  
          (Licensing Act), which established a statewide licensure program  
          administered by BOE to help stem the tide of untaxed  
          distributions and illegal sales of cigarettes and tobacco  
          products.  Prior to the bill, BOE's Investigations Division had  
          been encountering a large number of cigarettes and tobacco  
          product distributors who were unlicensed.  The purpose for being  
          unlicensed is to conceal the nature of their business and to  
          evade the tax.  These unlicensed distributors normally maintain  
          minimal assets and are typically transient, which hinders BOE's  
          ability to collect the taxes due and payable.


          The Act requires every retailer, distributor, wholesaler,  
          manufacturer and importer to obtain and maintain a license to  








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          engage in the sale of cigarettes or tobacco products.   
          Currently, BOE has approximately 38,000 retailers and 1,000  
          distributors and wholesalers licensed to engage in the sale of  
          cigarettes and tobacco products in California.  A distributor  
          and wholesaler license is valid for a calendar year upon payment  
          of a fee of $1,000 per location, unless surrendered, suspended,  
          or revoked prior to the end of the calendar year, and may be  
          renewed each year upon payment of such fee.  


          Violations of the Act include, in part, the following:  1)  
          Possession, storing, owning, or has made sales of an unstamped  
          package of cigarettes bearing a counterfeit California tax stamp  
          or tobacco products on which tax is due but has not been paid;  
          2) Sales of cigarettes or tobacco products to any distributor,  
          wholesaler, importer, retailer, or any other person who is not  
          licensed or whose license has been suspended or revoked; 3)  
          Retailer and wholesaler purchases of cigarette or tobacco  
          products from any person who is not licensed or whose license  
          has been suspended or revoked; 4) Distributor purchases of  
          cigarettes or tobacco products from any person who is required  
          to be licensed pursuant to the Act but who is not licensed or  
          whose license has been suspended or revoked; 5) Failure to  
          maintain records or make such records available to BOE and law  
          enforcement agency, as specified; 6) A person or entity that  
          engages in the business of selling cigarettes or tobacco  
          products in this state without a license or after a license has  
          been suspended or revoked; and 7) Failure to allow an  
          inspection.


          Tax Evasion Schemes:  The BOE's Investigation Division actively  
          investigates and makes seizures of unstamped or counterfeit  
          stamped cigarettes and imports of domestic labeled cigarettes or  
          export type cigarettes stamped in violation of the law.   
          According to a BOE report in 2014, they estimate that cigarette  
          and tobacco products excise tax revenue evasion was about $214  
          million in fiscal year 2012-13.  This estimate is comprised of  
          $198 million by retailers who purchase and sell untaxed  
          cigarettes and tobacco products and $16 million in casual  
          evasion by consumers.  These estimates include all forms of tax  
          evasion schemes, including the use of unnafixed stamps. 








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          Cigarette and tobacco product tax evasion schemes can be  
          perpetrated in several ways.  The most commonly known scheme is  
          what is punishable under current law-affixing fraudulent stamps  
          or meter impressions on non-multi-source agreement (MSA)  
          compliant and/or out-of-state diverted cigarettes and reselling  
          them on the black market.  As stated above, the BOE's inspection  
          teams have recently identified cigarette tax evasion schemes  
          where used tax stamps were re-used (aka "unnafixed" stamps) and  
          affixed to a different cigarette pack.  Rather than using  
          fraudulent stamps, perpetrators-often actual retailers-collect  
          the removed cellophane wrapper on a legal pack of cigarettes  
          containing a legitimate stamp, and give them to people known as  
          "aggregators." The aggregators then remove the stamps from the  
          wrapper and affix them to non-MSA compliant or out-of-state  
          diverted cigarettes, thus evading the $0.87 California tax.   
          Current law does not account for and, thus, does not punish the  
          use, collection or sell of re-used stamps.  The picture below is  
          from an undisclosed retailer who was collecting stamps for an  
          "unnafixed stamp" tax evasion scheme.





          Cigarette and Tobacco Products Taxes Revenues:  The revenues  
          from excise taxes on cigarettes and tobacco products are  
          deposited into four funds, which are all affected by tax evasion  
          schemes.  The allocation of funds is as follows: of the total  
          $0.87 tax per package of 20 cigarettes, $0.10 is deposited into  
          the Cigarette Tax Fund, and $0.02 goes into the Breast Cancer  
          Fund.  Twenty-five cents  is deposited into the Cigarette and  
          Tobacco Products Surtax Fund and may only be used for the  
          following purposes:


          1)Tobacco-related health education programs and disease  
            research.
          2)Medical and hospital care and treatment of patients who cannot  
            afford those services, and for whom payment will not be made  
            by any private coverage or federal program.








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          3)Programs for fire prevention; environmental conservation;  
            protection, restoration, enhancement, and maintenance of fish,  
            waterfowl, and wildlife habitat areas; and enhancement of  
            state and local parks and recreation.


          Fifty cents is deposited into the California Children and  
          Families Trust Fund and is used for programs that encourage  
          proper childhood development, including the development of  
          professional and parental education and training, informed  
          selection of childcare, development and education of childcare  
          providers, and research into the best practices and standards  
          for all programs and services relating to early childhood  
          development.


          Prior/Related legislation:  SB 5 X2 (Leno), Chapter 7, Statutes  
          of 2015-16 Second Extraordinary Session.  Expands the definition  
          of tobacco products to include e-cigarettes and extends current  
          restrictions and prohibitions against the use of tobacco  
          products to e-cigarettes.  The bill also establishes an annual  
          e-cigarette retailer licensing fee of $265 per location. 


          AB 11 X2 (Nazarian), Chapter 6, Statutes of 2015-16 Second  
          Extraordinary Session.  Revises the Cigarette and Tobacco  
          Products Licensing Act of 2003 to change the retailer license  
          fee from a $100 one-time fee to a $265 annual fee, and increase  
          the distributor and wholesaler license fee from $1,000 to  
          $1,200. 


          AB 2496 (Nava), Chapter 265, Statutes of 2010.  Amends the  
          California Cigarette and Tobacco Products Licensing Act of 2003  
          in governing the financial and other obligations of  
          non-participating tobacco manufacturers (NPMs) as part of its  
          diligence obligation.  


          AB 2733 (Ruskin), Chapter 607, Statutes of 2010.  Amends the  








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          Licensing Act to prohibit a licensee whose license has been  
          suspended or revoked from giving cigarette and tobacco products  
          away or displaying those products during the period of license  
          suspension or revocation, as specified. 


          SB 624 (Padilla), Chapter 653, Statutes of 2007.  Increases the  
          civil penalties under the Stop Tobacco Access to Kids  
          Enforcement (STAKE) Act and expands the role of agencies that  
          are permitted to carry out investigations of illegal tobacco  
          sales to minors under the STAKE Act from the Department of  
          Public Health to include the Attorney General and other state  
          and local agencies.  


          AB 71 (Jerome Horton), Chapter 890, Statutes of 2003.  Enacted  
          the Cigarette and Tobacco Products Licensing Act of 2003.  This  
          bill was a comprehensive attempt to reduce illegal sales of  
          cigarette and other tobacco products within California.  This  
          bill created a statewide licensing program for retailers,  
          enhancing the powers of BOE's tobacco compliance and enforcement  
          division, expanding DOJ's tobacco compliance and enforcement  
          responsibilities, and enacting and increasing criminal and civil  
          penalties for sales of counterfeit cigarettes and other tobacco  
          products.   


          Analysis Prepared by:                                             
          Kenton Stanhope / G.O. / (916) 319-2531  FN: 0003781