BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                    AB 2149


                                                                    Page  1





          ASSEMBLY THIRD READING


          AB  
          2149 (Bonilla)


          As Amended  May 4, 2016


          Majority vote


           ------------------------------------------------------------------ 
          |Committee       |Votes|Ayes                  |Noes                |
          |                |     |                      |                    |
          |                |     |                      |                    |
          |                |     |                      |                    |
          |----------------+-----+----------------------+--------------------|
          |Revenue &       |9-0  |Ridley-Thomas,        |                    |
          |Taxation        |     |Brough, Dababneh,     |                    |
          |                |     |Gipson, Mullin,       |                    |
          |                |     |O'Donnell, Patterson, |                    |
          |                |     |Quirk, Wagner         |                    |
          |                |     |                      |                    |
          |----------------+-----+----------------------+--------------------|
          |Appropriations  |14-4 |Gonzalez, Bloom,      |Bigelow, Gallagher, |
          |                |     |Bonilla, Bonta,       |Jones, Wagner       |
          |                |     |Calderon, Daly,       |                    |
          |                |     |Eggman, Eduardo       |                    |
          |                |     |Garcia, Roger         |                    |
          |                |     |Hernández, Holden,    |                    |
          |                |     |Quirk, Santiago,      |                    |
          |                |     |Weber, Wood           |                    |
          |                |     |                      |                    |
          |                |     |                      |                    |
           ------------------------------------------------------------------ 










                                                                    AB 2149


                                                                    Page  2





          SUMMARY:  Authorizes the State Board of Equalization (BOE) to  
          collect cash payments from medical marijuana-related businesses  
          for other state agencies, as specified.  Specifically, this  
          bill:  


          1)Enacts the Medical Marijuana State Payment Collection Law  
            ("Collection Law"). 


          2)Authorizes the BOE to enter into an agreement with a "state  
            agency" to collect cash payments for any fee, fine, penalty,  
            or other charge payable to the "state agency" by a person that  
            is a medical marijuana-related business, as specified. 


          3)Requires the BOE to collect fees, fines, penalties, and other  
            charges if the BOE enters into an agreement with a "state  
            agency" to make those collections.  Such an agreement shall  
            include the following:


             a)   A provision that the BOE be reimbursed for the  
               administrative costs of the collection from the fund for  
               which cash payments are collected, upon appropriation by  
               the Legislature;


             b)   A provision that the BOE transmit the collected moneys  
               to the Treasurer to be deposited in the State Treasury to  
               the credit of the fund for which collection was authorized;


             c)   A provision describing the administrative costs the BOE  
               will incur in carrying out the collection and  
               administration, which costs shall not exceed 10% of the  
               moneys collected;










                                                                    AB 2149


                                                                    Page  3





             d)   A savings clause that provides the BOE authority to  
               collect and to make refunds after the sunset date if a  
               sunset date exists; and, 


             e)   A provision that sets forth the due date for payment of  
               the fee, fine, penalty, or other charge and return by the  
               feepayer [sic]. 


          4)Provides that the term "state agency" includes, but is not  
            limited to, the following:


             a)   The Department of Consumer Affairs;


             b)   The Department of Food and Agriculture;


             c)   The Department of Public Health;


             d)   The Employment Development Department; 


             e)   The Water Resources Control Board; and, 


             f)   The Franchise Tax Board.  


          5)Directs the BOE to administer and collect the authorized  
            payments pursuant to the Fee Collection Procedures Law, except  
            as provided.  


          6)Provides that, for purposes of the Collection Law, the  
            references in the Fee Collection Procedures Law to "fee" shall  








                                                                    AB 2149


                                                                    Page  4





            include any fee, fine, penalty, or other charge required to be  
            paid by a person that is a medical marijuana-related business,  
            and all references to "feepayer" shall include a person  
            required to pay those fees. 


          7)Provides that no reimbursement is required pursuant to  
            California Constitution Article XIII B, Section 6, for  
            specified reasons.  


          EXISTING FEDERAL LAW prohibits the manufacture, possession,  
          sale, or distribution of marijuana.  [21 United States Code  
          Section 841 et seq.]      


          EXISTING STATE LAW:  


          1)Imposes a sales tax on retailers for the privilege of selling  
            tangible personal property (TPP), absent a specific exemption.  
             The tax is based upon the retailer's gross receipts from TPP  
            sales in this state.
          2)Imposes a complimentary use tax on the storage, use, or other  
            consumption of TPP purchased out-of-state and brought into  
            California.  The use tax is imposed on the purchaser, and  
            unless the purchaser pays the use tax to an out-of-state  
            retailer registered to collect California's use tax, the  
            purchaser remains liable for the tax.  The use tax is set at  
            the same rate as the state's sales tax and must generally be  
            remitted to the BOE.


          3)Applies the sales and use tax to retail sales of marijuana,  
            including medical marijuana, to the same extent as any other  
            retail sale of TPP.


          4)Allows, under the Compassionate Use Act of 1996 (Proposition  








                                                                    AB 2149


                                                                    Page  5





            215), for the use of marijuana for medical purposes.  


          5)Allows, under the Medical Marijuana Regulation and Safety Act,  
            for the licensure and regulation of commercial medical  
            marijuana activity by various state entities, as specified.  


          FISCAL EFFECT:  According to the Assembly Appropriations  
          Committee:


          1)Costs of approximately $1.2 million for BOE to expand cash  
            collection infrastructure and operations across district  
            offices if BOE enters into an agreement with a state agency.   
            This bill allows BOE to be reimbursed for up to 10% of the  
            moneys collected. Since most cannabis-related fees have not  
            yet been established, it is unknown whether this cap is  
            sufficient to cover BOE costs.


          2)Potential unknown, ongoing administrative cost savings to  
            state agencies that otherwise would collect fee payments  
            themselves. BOE, by being the primary point of cash  
            collection, can specialize and develop procedures that apply  
            universally to collecting cash for different agencies. In  
            contrast, each individual agency that imposes a fee on medical  
            marijuana-related businesses would incur substantial costs to  
            develop the infrastructure and security needed to collect cash  
            payments. 


          COMMENTS:  


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










                                                                    AB 2149


                                                                    Page  6





               AB 2149 helps medical marijuana related businesses to pay  
               their state fees and taxes by allowing the Board of  
               Equalization (BOE) to collect cash payments on behalf of  
               other state entities.  Medical marijuana is estimated to  
               be a $2.7 billion dollar industry in California.   
               Unfortunately, because marijuana is still a Schedule 1  
               controlled substance under the federal Controlled  
               Substance Act, the same schedule as ecstasy and heroin,  
               it is very difficult for medical marijuana related  
               businesses to gain access to our traditional banking  
               system.  These businesses are obligated to pay sales  
               taxes, payroll taxes, water discharge permits, and soon  
               to be developed licensing fees for medical marijuana  
               related entities, among others.  Because of the  
               difficulty in obtaining bank accounts, marijuana related  
               businesses pay large sums of money in cash to meet tax  
               and fee obligations.  This poses great difficulty to the  
               state entities which are responsible for collecting state  
               obligations from these entities.  Not only must they  
               count the cash, but contend with greater security,  
               surveillance, and transportation issues.  AB 2149  
               addresses this problem by authorizing the BOE to collect  
               fees and taxes from medical marijuana related businesses  
               on behalf of other state entities.  The BOE has field  
               offices up and down the state and has already begun to  
               establish protocols for how to deal with large cash  
               payments. AB 2149 will allow the state to centralize its  
               cash collecting infrastructure, streamline the locations  
               which have an increased security need, and ensure that  
               California businesses can meet their state financial  
               obligations.


          2)Revenue and Taxation Committee comments:


             a)   Caught in the middle:  Due to the evident conflict  
               between federal and state drug laws noted above, many  
               medical marijuana-related businesses in California find it  








                                                                    AB 2149


                                                                    Page  7





               difficult to obtain banking services.  The author notes  
               that this difficulty is faced by many different types of  
               businesses, including cultivators, transporters,  
               dispensaries, and manufacturers of marijuana edibles.   
               Moreover, the author's office notes:


                 Most banks refuse to accept medical marijuana  
                 businesses as customers because they fear enforcement  
                 action by the federal Department of Justice in regards  
                 to the Racketeer Influence and Corrupt Organizations  
                 Act (RICO Act).  Violation of this act could risk the  
                 forfeiture of a bank's assets or collateral used to  
                 secure loans.  


               At the same time, however, marijuana-related businesses in  
               California must still find a way to remit sales taxes,  
               income taxes, applicable government fines, and  
               soon-to-be-determined licensing fees.  This bill would  
               attempt to solve this problem, at least partially, by  
               authorizing the BOE to accept cash payments from  
               marijuana-related businesses on behalf of other state  
               entities that may not have the built-in infrastructure to  
               handle large quantities of cash.  


             b)   Is there a statewide standard in place?  The BOE has 22  
               field offices located up and down the state.  The author's  
               office notes that, in Fiscal Year 2014-15, 15 of those  
               offices accepted cash payments of some type.  The author's  
               office also notes that all of the BOE's districts, with the  
               exception of District 4, "allowed for hardship exemptions  
               where the fee to pay in cash can be waived."  It is not  
               clear to Committee staff why tax agency policy would depend  
               on the location of the taxpayer in California.  The  
               Legislature may wish to assess, in the context of this  
               bill, whether policies governing the payment of tax  
               liabilities in cash should be uniform throughout the state.  








                                                                    AB 2149


                                                                    Page  8





                  




          Analysis Prepared by:                                             
                          M. David  Ruff / REV. & TAX. / (916) 319-2098     
                                                                  FN:  
          0003100