BILL ANALYSIS Ó AB 2692 Page 1 Date of Hearing: May 11, 2016 ASSEMBLY COMMITTEE ON APPROPRIATIONS Lorena Gonzalez, Chair AB 2692 (Brough) - As Amended April 26, 2016 ----------------------------------------------------------------- |Policy |Revenue and Taxation |Vote:|9 - 0 | |Committee: | | | | | | | | | | | | | | |-------------+-------------------------------+-----+-------------| | | | | | | | | | | | | | | | |-------------+-------------------------------+-----+-------------| | | | | | | | | | | | | | | | ----------------------------------------------------------------- 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 AB 2692 Page 2 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. AB 2692 Page 3 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: AB 2692 Page 4 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. AB 2692 Page 5 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