BILL ANALYSIS                                                                                                                                                                                                    Ó



          SENATE COMMITTEE ON GOVERNANCE AND FINANCE
                         Senator Robert M. Hertzberg, Chair
                                2015 - 2016  Regular 

                              
          
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          |Bill No:  |AB 2201                          |Hearing    |6/8/16   |
          |          |                                 |Date:      |         |
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          |Author:   |Brough                           |Tax Levy:  |No       |
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          |Version:  |2/18/16                          |Fiscal:    |Yes      |
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          |Consultant|Grinnell                                              |
          |:         |                                                      |
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                State Board of Equalization:  administration:  interest



          Reenacts the Board of Equalization's authority to calculate  
          interest on a daily, not monthly, basis for tax and fee payments  
          made one business day late under specified circumstances.


           Background 

           The California Constitution of 1879 created the five-member  
          Board of Equalization (BOE), composed of four members elected by  
          district and the State Controller, to equalize rates and  
          assessment practices among counties.  In addition to its  
          property tax duties, BOE also administers the Sales and Use Tax,  
          locally-imposed transactions and use taxes, several excise  
          taxes, and more than 30 other fee programs.  

          When individuals who must pay taxes or fees to BOE do so after  
          the date they are due, state law imposes penalties, generally 10  
          percent of the tax,  and plus monthly, simple interest from the  
          date the tax was due to the date it was paid.  BOE determines  
          the interest rate on underpayments by adding three percent to  
          the rate charged by the Internal Revenue Service, which it  
          reevaluates every January and July the rates are evaluated,  
          currently six percent, or one-half of one percent monthly.  Any  
          interest rate change takes effect six months later and remains  
          in effect for at least six months. 








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          Historically, BOE generally calculates interest on a per-month  
          basis, so one month's interest is charged for each month or  
          fraction of a month that a payment is late.  For example, if a  
          payment is three days late, a full month's interest is due, or  
          two month's interest is due for a payment one month and three  
          days late.  Interest accumulates from the day after the date on  
          which the amount of tax first became due in most cases.  While  
          BOE can grant penalty relief when they find that the person's  
          failure to make a payment in a timely manner was due to  
          reasonable cause and circumstances beyond the person's control,  
          and occurred notwithstanding ordinary care and the absence of  
          willful neglect, they can only waive interest due to an error or  
          unreasonable delay caused by one of its employees.

          In 2010, the Legislature allowed BOE to instead charge interest  
          at the modified adjusted daily rate when (SB 1028, Correa):

                 BOE, meeting as a public body, taking into account all  
               facts and circumstances, determines that it is inequitable  
               to compute interest on a monthly basis,

                 The payment or prepayment was one business day late,

                 BOE granted relief from all penalties that applied to  
               that payment, and

                 The person files a request for an oral hearing before  
               BOE.

          SB 1028 applied to the Sales and Use Tax, Motor Vehicle Fuel  
          Tax, Use Fuel Tax, the Gross Premiums Tax, Cigarette and Tobacco  
          Products Tax, Alcoholic Beverages Tax, Energy Resources  
          Surcharge, Emergency Telephone Users Surcharge, Hazardous  
          Substances Tax, Prepaid Mobile Telephony Services Surcharge,  
          Integrated Waste Management Fee, Oil Spill Fee, Underground  
          Storage Tank Fee, Diesel Fuel Tax, as well as the statute used  
          to collect many other fees, the Fee Procedures Collections Law.   
          However, SB 1028 sunset on January 1, 2016, so today, BOE must  
          charge a full month's interest for payments and prepayments made  
          one day after the due date.  BOE wants to reenact this  
          authority.  


           Proposed Law








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           Assembly Bill 2201 reenacts the BOE's authority to compute  
          interest at the modified adjusted daily rate for payments made  
          one day after the due date under the Sales and Use Tax, Motor  
          Vehicle Fuel Tax, Use Fuel Tax, the Gross Premiums Tax,  
          Cigarette Tax, Alcoholic Beverages Tax, Energy Resources  
          Surcharge, Emergency Telephone Users Surcharge, Prepaid Mobile  
          Telephony Services Surcharge, Integrated Waste Management Fee,  
          Underground Storage Tank Fee, Fee Procedures Collections Law,  
          and Diesel Fuel Tax.  To do so, BOE must meet as a public body,  
          and taking into account all facts and circumstances, determine  
          that it is inequitable to compute interest on a monthly basis.   
          Additionally, BOE must have granted relief from all penalties  
          that applied to that payment, and the person must have filed a  
          request for an oral hearing before BOE for the measure's  
          provisions to apply.  The bill does not apply to payments made  
          pursuant to deficiency determinations, determination where no  
          return is filed, or a jeopardy determination.  AB 2201 also  
          defines several terms, and sets forth a method to calculate  
          daily interest.  


           State Revenue Impact

           BOE estimates state and local revenue losses of $78,000  
          annually.  


           Comments

           1.  Purpose of the bill  .  According to the author, "AB 2201  
          reinstates expired provisions to allow Members of the State  
          Board of Equalization to have flexibility to address the  
          inequity of applying an entire month's interest to an electronic  
          tax payment that is paid one day late, due to reasonable  
          circumstances.  It is unfair to charge a month's worth of  
          interest on tax liabilities that are just one day late often  
          because they posted after the financial system stops processing  
          them on the due date.  This bill allows the BOE to continue a  
          practice that provides reasonable relief for taxpayers."

          2.   Grace and forgiveness  . For many years, BOE administrative  
          policy allowed a one-day grace period when a payment was  
          postmarked one day late.  However, during a policy review, BOE  








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          counsel opined that no legal authority supported the grace  
          period, so BOE ended it, until the Legislature enacted AB 1638  
          (Assembly Committee on Revenue and Taxation, 1999).  That bill  
          allows BOE to establish a uniform policy to accept payments as  
          timely when the payment or document's envelope or delivery  
          document's stamped cancellation mark shows a date after the  
          statutory due date, which uniform BOE policy implements to allow  
          acceptance of payments postmarked one day after the due date.   
          However, because this authority applied only to payments made by  
          mail or commercial delivery service, late electronic payments  
          are not eligible for the one day grace period, which can create  
          hardships due to mandatory electronic payment requirements  
          imposed by state law on taxpayers with average monthly sale and  
          use tax liability of $10,000 or more (or special tax liability  
          of $20,000 or more). AB 2201 would reenact SB 1028's extension  
          of the grace period to electronic payments made to BOE, similar  
          to practices used by the Franchise Tax Board and Employment  
          Development Department.  

          3.   No sunset  .  While SB 1028 contained a five-year sunset, AB  
          2201 does not contain one.  BOE states that it granted 122  
          interest relief claims in the past three years, ranging from  
          $14.59 to $17,620.85.  The Committee may wish to consider  
          whether AB 2201 should contain a similar sunset, or whether this  
          authority is sufficiently successful to merit its exclusion.  


           Assembly Actions

           Assembly Revenue and Taxation        9-0

          Assembly Appropriations            16-0
          Assembly Floor                     76-0

           Support and  
          Opposition   (6/2/16)


           Support  :  BOE Member Fiona Ma, State Board of Equalization,  
          California Chamber of Commerce, California Taxpayers  
          Association.  


           Opposition  :  None received.








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