BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                    AB 2518


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          Date of Hearing:  May 9, 2016


                     ASSEMBLY COMMITTEE ON REVENUE AND TAXATION


                           Sebastian Ridley-Thomas, Chair





          AB 2518  
          (Gomez) - As Amended April 28, 2016


          Majority vote.  Tax levy.  Fiscal committee.  


          SUBJECT:  Sales and use taxes:  exemption:  nonprofit  
          corporation:  building and construction supplies


          SUMMARY:  Establishes a partial sales and use tax (SUT)  
          exemption for building and construction supplies purchased for  
          use by specified nonprofit corporations.  Specifically, this  
          bill:  


          1)Establishes a partial SUT exemption for building and  
            construction supplies, materials, equipment, and machinery,  
            and the parts thereof (collectively, "construction supplies"),  
            that are purchased for use by a nonprofit corporation that is  
            exempt from federal income taxation under Internal Revenue  
            Code Section 501(c)(3) and that has received a welfare  
            exemption under Revenue and Taxation Code (R&TC) Section  
            214.15 for construction and rehabilitation of properties in  
            California sold to "persons and families of low income".  









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          2)Defines "persons and families of low income" by reference to  
            Health and Safety Code Section 50093.


          3)Provides that, notwithstanding any provision of the  
            Bradley-Burns Uniform Local SUT Law or the Transactions and  
            Use Tax Law, the exemption shall not apply with respect to any  
            tax levied by a county, city, or district pursuant to either  
            of those laws.  


          4)Provides that the exemption shall not apply with respect to  
            any tax levied pursuant to:


             a)   R&TC Section 6051.2 or 6201.2;


             b)   Section 35 and Section 36(f) of Article XIII of the  
               California Constitution; or, 


             c)   R&TC Section 6051 or 6201 that is deposited in the State  
               Treasury to the credit of the Local Revenue Fund 2011.  


          5)Contains a standard recapture provision.  Specifically, if a  
            purchaser certifies in writing to the seller that the  
            construction supplies purchased without tax will be used in a  
            manner entitling the seller to regard the gross receipts from  
            the sale as exempt, and within one year from the date of  
            purchase:  (1) removes the construction supplies outside  
            California, (2) converts the construction supplies for use not  
            qualifying for the exemption, or (3) uses the construction  
            supplies in a manner not qualifying for the exemption, the  
            purchaser shall be liable for payment of the sales tax with  
            applicable interest, as specified.  









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          6)Takes immediate effect as a tax levy, but only becomes  
            operative on the first day of the first calendar quarter  
            commencing more than 180 days after this bill's effective  
            date.


          7)Automatically sunsets the exemption five years after its  
            operative date.    


          EXISTING 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 State Board of Equalization (BOE).

          3)Provides that property is within the property tax exemption  
            provided by Sections 4 and 5 of Article XIII of the California  
            Constitution if that property is owned and operated by a  
            nonprofit corporation, otherwise qualifying for the exemption  
            under R&TC Section 214, that is organized and operated for the  
            specific and primary purpose of building and rehabilitating  
            single or multifamily residences for sale at cost to  
            low-income families, with financing in the form of a zero  
            interest rate loan and without regard to religion, race,  
            national origin, or the sex of the head of household.  









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          FISCAL EFFECT:  The BOE estimates annual General Fund (GF)  
          revenue losses of $175,000.  


          COMMENTS:  


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


               As you already know, California is one of the most  
               expensive places to live.





               Approximately 95 million American families suffer from  
               housing problems including high cost burdens, overcrowding,  
               and homelessness.  One in three households spends more than  
               30 percent of their income on housing, and one in seven  
               spends more than 50 percent.  Local governments deal with  
               overcrowding and congestion.





               Employers struggle to attract and retain the labor force  
               that is so vital to their bottom line.  Low- to  
               moderate-income working families work longer hours, endure  
               long commutes or cut back on basic necessities in order to  
               pay for housing.













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               Affordable homeownership helps families, builds wealth, and  
               strengthens communities by providing substantial economic  
               benefits to the homeowner family, their neighborhood, and  
               the economy.


                      


               Several studies show potential benefits of homeownership to  
               be:  (1) Better education outcomes for children; (2) Lower  
               community crime rates; (3) Less welfare dependency among  
               households; (4) More household participation in civic  
               affairs; (5) Better household health.





               It is the Assemblymember's goal to increase construction of  
               affordable housing in California - AB 2518 is a modest step  
               toward this goal.


          2)The BOE notes the following in its staff analysis of this  
            bill:


              a)   Non-qualifying uses of items  :  "The proposed exemption  
               will not apply if, within one year from the date of  
               purchase, the nonprofit corporation uses the building  
               supplies, equipment, and machinery in a manner not  
               qualifying for the exemption, converts the building  
               supplies, equipment, and machinery from an exempt use to a  
               non-qualifying use, or removes the qualifying building  
               supplies, equipment, and machinery from California. Similar  
               sales and use tax exemptions specify that the qualifying  
               items must be used primarily in the qualifying activity.   
               These exemptions define 'primarily' as 50 percent or more  








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               of the time.  To administer this exemption consistent with  
               similar sales and use tax exemptions, BOE staff recommends  
               that the term 'primarily' be added to the bill.  BOE staff  
               will work with the author's office to address this  
               concern."


              b)   Partial exemptions complicate administration  :   
               "Currently, most sales and use tax exemptions are applied  
               to the total applicable sales and use tax.  However,  
               several partial exemptions exist in which only the state  
               tax portion (5.25%) of the sales and use tax rate is  
               exempted, such as the farm equipment and teleproduction  
               equipment exemptions. These partial exemptions are  
               difficult for both retailers and the BOE, and complicate  
               return preparation and processing.  Moreover, errors  
               attributable to these partial exemptions occur frequently.   
               This results in additional return processing workload for  
               the BOE."


          3)This bill is supported by Habitat for Humanity, which notes  
            the following:


               AB 2518 would exempt Habitat for Humanity from the state  
               portion of sales and use tax when purchasing building and  
               construction supplies, materials, equipment, machinery, and  
               related parts for construction of low-income housing.  


               Habitat for Humanity (Habitat) brings homeownership  
               opportunities to low income and very low income families  
               who are unable to obtain conventional home financing and  
               desire a permanent residence compared to a rental unit.  In  
               most cases, prospective Habitat homeowner families make a  
               $500 down payment and they contribute 500 hours of "sweat  
               equity" on the construction of their home.  Because Habitat  
               houses are built using donations of land, material, labor  








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               and government funding subsidies, like rental units, they  
               are kept affordable.  


          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.  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.  This effectively  
               results 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)   An overview of the SUT Law  :  California's SUT Law  
               imposes a sales tax on retailers for the privilege of  
               selling TPP, absent a specific exemption.  The tax is based  
               upon a retailer's gross receipts from TPP sales in  
               California.  The SUT Law also imposes a mirror "use tax" on  
               the storage, use, or other consumption of TPP purchased  








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               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.  


               The SUT represents the state's second largest source of GF  
               revenues.  Nevertheless, the past 60 years have seen a  
               dramatic reduction in the state's reliance on the SUT and a  
               corresponding increase in its reliance on personal income  
               tax revenues.  In fiscal year (FY) 2014-15, SUT revenues  
               were estimated to comprise 23% of the state's GF revenues,  
               down from nearly 60% in FY 1950-51.


              d)   What accounts for the state's reduced reliance on SUT  
               revenues  ?  The SUT Law was enacted in a very different era.  
                In the 1930s, California's economy was largely dominated  
               by manufacturing, and residents mostly bought and sold  
               tangible goods.  Thus, in establishing the base for a new  
               consumption tax, it made sense to impose the tax on sales  
               of TPP, defined as personal property that may be "seen,  
               weighed, measured, felt, or touched."  Over the past 80  
               years, however, California's economy has seen dramatic  
               growth in the service and information sectors, resulting in  
               a significant erosion of the SUT base.  For example, the  
               Commission on the 21st Century Economy noted that spending  
               on taxable goods represented 34.6% of personal income in  
               2008, down from 55.4% in 1980.  As a result, tax experts  
               and economists from across the political spectrum argue  
               that California should expand its SUT base.  


               It could be argued that, while well-intentioned, additional  
               SUT exemptions further erode an already shrinking SUT base.  
                This, in turn, increases fiscal pressures to maintain or  
               even increase California's relatively high SUT rate.  High  








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               rates arguably promote non-compliance and encourage  
               out-of-state purchases, placing California retailers at a  
               competitive disadvantage.  High rates also risk impacting  
               consumer decision-making, which runs counter to widely  
               accepted principles of sound tax policy.


              e)   What would this bill do  ?   This bill would provide a  
               partial SUT exemption for construction supplies purchased  
               for use by specified nonprofit corporations exempt from  
               federal income taxation under IRC Section 501(c)(3).   
               Specifically, to receive the benefit of the exemption, the  
               nonprofit would need to have received a property tax  
               welfare exemption under R&TC Section 214.15.  In addition,  
               the supplies would need to be used for constructing and  
               rehabilitating properties in California sold to low-income  
               families.  The BOE notes that the exemption would apply  
               both to items consumed or used by the nonprofit to  
               construct the low-income housing and to items that are  
               physically incorporated into the housing.  


              f)   To whom would this bill apply  ?  The BOE notes that,  
               according to the California Department of Housing and  
               Community Development and the California Housing Finance  
               Agency, there are only a few nonprofit organizations that  
               construct housing for sale to low-income families with  
               zero-percent financing.  For example, the Habitat for  
               Humanity program constructs and rehabilitates homes for  
               sale to such families, and provides long-term, zero-percent  
               financing.  


              g)   Defining the scope of eligible property  :  This bill's  
               current list of TPP potentially eligible for the SUT  
               exemption is remarkably broad.  Specifically, the exemption  
               applies to "building and construction supplies, materials,  
               equipment, and machinery" along with the parts thereof.   
               Such items could include items actually incorporated into  








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               the housing, such as lumber, flooring, paint, tile, and  
               lighting fixtures.  In addition, the terms could be read  
               expansively to include other TPP used to construct the  
               housing, but not actually incorporated into the housing,  
               such as electric generators, bulldozers, backhoe loaders,  
               cranes, and even pick-up trucks.  If the author's intent is  
               to limit the exemption to materials actually incorporated  
               into low-income housing, appropriate amendments should be  
               taken to make this intent clear.  In addition, the author  
               may wish to clarify whether computers and office supplies  
               used in administrative and management activities would also  
               qualify for the proposed exemption. 


          REGISTERED SUPPORT / OPPOSITION:




          Support


          Habitat for Humanity 




          Opposition


          None on file




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










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