BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                    AB 2692


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          Date of Hearing:  May 11, 2016


                        ASSEMBLY COMMITTEE ON APPROPRIATIONS


                               Lorena Gonzalez, Chair


          AB  
          2692 (Brough) - As Amended April 26, 2016


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          Urgency:  No  State Mandated Local Program:  YesReimbursable:   
          No


          SUMMARY:


          This bill expands voluntary disclosure programs (VDP)  
          administered by the Board of Equalization (BOE) and the  
          Franchise Tax Board (FTB) to include qualified small businesses  








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          in California. Specifically, this bill: 


          1)Expands the type of retailer eligible for the BOE VDP include  
            retailers located in California that have gross receipts of  
            less than $1 million in the previous four quarters. These  
            retailers must be determined by the board to have not reported  
            or paid an amount because of reasonable cause and not because  
            of fraud or negligence. 


          2)Expands the types of taxpayers eligible for the FTB VDP  as  
            follows: 


             a)   Includes "qualified small business," which is defined as  
               any entity with a total income of less than $1 million for  
               the previous tax year that is located in or outside of  
               California, as a taxpayer that may participate in the FTB  
               VDP. 


             b)   Allows "eligible trusts" to have beneficiaries located  
               in California instead of just nonresident beneficiaries. 


             c)   Includes limited partnership as the definition of an  
               "eligible entity" that previously included corporations and  
               limited liability companies. 


          FISCAL EFFECT:


          1)One-time administrative costs to BOE and FTB of approximately  
            $600,000 to update systems, develop procedures, and hire staff  
            to respond to penalty abatement requests. 










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          2)An unknown but significant impact on state revenues and  
            penalty fee collections. 


          COMMENTS:


          1)Purpose. According to the author, this bill would give  
            taxpayers an opportunity to receive a temporary waiver  
            relating to their delinquent taxes, fees, and penalties.  
            Historically, California has collected over a billion dollars  
            in revenue as a result of multiple tax amnesty programs. This  
            bill is more limited in scope than amnesty programs and  
            instead focuses on waiving penalties for small businesses that  
            meet certain conditions. 


          2)Background on BOE's Voluntary Disclosure Program (BOE VDP).  
            Under the BOE VDP, the BOE encourages businesses to  
            voluntarily register and pay tax obligations. It provides  
            incentives for unregistered out-of-state companies to satisfy  
            their use tax obligations. 


          3)Background on FTB's Voluntary Disclosure Program (FTB VDP).  
            The VDP is a statutory program that allows qualified entities,  
            qualified shareholders, or beneficiaries of a trust that may  
            have incurred an unpaid California tax liability or an  
            unfulfilled filing requirement to disclose their liability  
            voluntarily. The FTB may waive penalties associated with the  
            return filings if the taxpayer meets specified requirements.


            In its current form, the VDP is not available to small  
            retailers or small businesses located in California.  
            Currently, a qualified entity must meet the following  
            conditions: 










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             a)   Is a corporation, limited liability company (not  
               classified as a corporation), or trust;


             b)   Never filed a return with FTB;


             c)   The trust has never performed its administration duties  
               in California;


             d)   The trust has had no resident beneficiaries (other than  
               a beneficiary whose interest in that trust is contingent);


             e)   Never been the subject of an inquiry by the FTB with  
               respect to liability for any taxes, and;


             f)   Voluntarily come forward, prior to any unilateral  
               contact with FTB, and makes both an application for a  
               voluntary disclosure agreement and a full and accurate  
               statement of its activities in California for six months  
               immediately preceding taxable or income years.


          1)Tax amnesty programs. Tax amnesty programs allow taxpayers to  
            voluntarily remit unpaid or underpaid taxes without incurring  
            the full liability of penalties that they would otherwise have  
            to pay.  Under ordinary collection processes, these taxpayers  
            not only owe the original tax, but also interest on the unpaid  
            amount and various penalties and fees, and may be subject to  
            criminal prosecution.  The BOE generally charges a 10% penalty  
            and the FTB generally charges a 5% penalty for failure to file  
            a return or pay the tax by its due date, in addition to  
            mandated interest rates and other penalties for negligence,  
            fraud or other circumstances.










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            Early tax amnesty programs were often implemented with other  
            enforcement strategies and compliance initiatives, with the  
            goal of improving overall tax administration.  In 1984-1985,  
            California offered a three-month tax amnesty program to  
            individual taxpayers, with legislative intent expressly  
            stating that it would be a one-time opportunity.  The amnesty  
            program was also coupled with enactment of enhanced  
            enforcement tools intended to increase the FTB's ability to  
            collect unreported or underreported tax.


          2)Previous legislation.  AB 1777 (Quirk-Silva), 2014, would have  
            created a tax abatement program for small businesses. The bill  
            was held in Assembly Appropriations. 


          Analysis Prepared by:Luke Reidenbach / APPR. / (916)  
          319-2081