BILL ANALYSIS                                                                                                                                                                                                    Ó






                                                                       SB 2


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          Date of Hearing:  July 13, 2015





                     ASSEMBLY COMMITTEE ON REVENUE AND TAXATION


                                 Philip Ting, Chair





          SB  
          2 (Anderson) - As Amended April 6, 2015


          


          Majority vote.  Tax Levy.  Fiscal committee.


          SENATE VOTE:  40-0


          SUBJECT:  Property taxation:  exemptions:  veterans'  
          organizations.


          SUMMARY:   Extends the application of the "veterans'  
          organization" property tax exemption to real property owned by  
          certain veterans' organizations and used for fraternal, lodge,  
          or social club purposes, as specified, excluding the bar area.   
          Specifically, this bill:  













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          1)Provides that property, which is owned by a veteran's  
            organization chartered by the United States (U.S.) Congress  
            and otherwise eligible for the veterans' organization  
            exemption, may not be denied the exemption on the basis that  
            the property is used for fraternal, lodge, or social club  
            purposes. 

          2)Requires that an otherwise eligible veterans' organization be  
            exempt from federal income tax as an organization described in  
            Internal Revenue Code (IRC) Section 501(c)(19).



          3)Specifies that the veterans' organization exemption shall not  
            apply to any portion of the property that consists of a bar  
            where alcoholic beverages are served.  The portion of the  
            property ineligible for the exemption is the area used  
            primarily to prepare and serve alcoholic beverages.



          4)Codifies all of the following legislative findings and  
            declarations:



             a)   The exempt activities of a veterans' organization, as  
               specified, qualitatively differ from the exempt activities  
               of other nonprofit organizations that use property for  
               fraternal, lodge, or social club purposes in that the  
               exempt purpose of the veterans' organizations is to conduct  
               programs to perpetuate the memory of deceased veterans and  
               members of the Armed Forces and to comfort their survivors,  
               to conduct programs for religious, charitable, scientific,  
               literary, or educational purposes, to sponsor or  
               participate in activities of a patriotic nature, and to  
               provide social and recreational activities for their  
               members;











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             b)   In light of this distinction, the use of real property  
               by a veterans' organization, as specified, for fraternal,  
               lodge, or social club purposes is central to that  
               organization's exempt purposes and activities; and, 



             c)   The use of real property by a veterans' organization, as  
               specified, for fraternal, lodge, or social club purposes  
               constitutes the exclusive use of that property for a  
               charitable purpose within the meaning of Section 4(b) of  
               Article XIII of the California Constitution. 



          5)Contains additional legislative findings and declarations  
            relating to the history of congressionally chartered veterans'  
            organizations and the interpretation of Revenue and Taxation  
            Code (R&TC) Section 215.1 by the Chief Counsel of the State  
            Board of Equalization (BOE). 

          6)Provides that the state shall not reimburse any local agency  
            for any property tax revenues lost by it pursuant to this  
            bill. 



          7)Takes effect immediately as a tax levy. 





          EXISTING FEDERAL LAW:



          1)Defines an organization as tax-exempt under IRC Section  











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            501(c)(3) if the organization is organized and operated  
            exclusively for exempt purposes set forth in IRC Section  
            501(c)(3).  The organization must not be organized or operated  
            for the benefit of private interests, and no part of the  
            organization's net earnings may inure to the benefit of any  
            private shareholder or individual.  In addition, it may not be  
            an action organization, i.e., it may not attempt to influence  
            legislation as a substantial part of its activities and it may  
            not participate in any campaign activity for or against  
            political candidates.  Organizations described in IRC Section  
            501(c)(3) are commonly referred to as charitable  
            organizations.  Organizations described in IRC Section  
            501(c)(3), generally, are eligible to receive tax-deductible  
            contributions in accordance with IRC Section 170.

          2)Defines a post or an organization of past or present members  
            of the Armed Forces of the United States (U.S.) as tax-exempt  
            under IRC Section 501(c)(19) if the post or organization:



             a)    Is organized in the U.S. or any of its possessions;

             b)   At least 75% of the members of which are past or present  
               members of the Armed Forces of the U.S. and substantially  
               all of the other members of which are individuals who are  
               cadets or are spouses, widows, widowers, ancestors, or  
               lineal descendants of past or present members of the Armed  
               Forces of the U.S. or of cadets; and,



             c)   No part of the net earnings of which inures to the  
               benefit of any private shareholder or individual. 



          EXISTING STATE LAW:












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          1)Provides that all property is taxable, unless explicitly  
            exempted by the California Constitution or federal law and  
            limits the maximum amount of any ad valorem tax on real  
            property at 1% of full cash value.  





          2)Provides an exemption from taxation for property that is  
            irrevocably dedicated to religious, hospital, scientific, or  
            charitable purposes, if the property is used for the actual  
            operation of the exempt activity and is owned by a nonprofit  
            entity qualified as an exempt organization by the Internal  
            Revenue Service, the Franchise Tax Board, or both (the  
            so-called 'welfare exemption') [Article XIII, Section 4, of  
            the California Constitution; Revenue and Taxation Code (RT&C)  
            Section 214].  The entity that owns the property is prohibited  
            from having any earnings that contribute to the benefit of any  
            private shareholder or individual.  This welfare exemption has  
            been expanded over the years to add certain specific types of  
            property that do not otherwise qualify under the general  
            exemption.





          3)Provides a property tax exemption for all buildings and real  
            property exclusively used for charitable purposes by a  
            veterans' organization that is:  (a) chartered by the U.S.  
            Congress, and (b) organized and operated for charitable  
            purposes.  In order to obtain the exemption, the organization  
            must file a claim with the county assessor.












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          FISCAL EFFECT:  The State Board of Equalization (BOE) staff  
          estimates that this bill will result in an annual revenue loss  
          of $575,000.  


          COMMENTS:  


           1)The Author's Statement  .  The author has provided the following  
            statement in support of this bill:

          "To honor California's promise to our brave veterans, I have  
            introduced SB2 which will align state law with federal law  
            exempting Veterans Halls from property taxes. Veterans Halls  
            provide an invaluable sense of community for active duty,  
            veterans and military families to provide emotional support to  
            one another.'



            "The camaraderie found in Veterans Halls is tremendously  
            important, especially for making a healthy transition from  
            active duty back into civilian life.   Throughout our history,  
            Veterans Halls have also served important functions for our  
            communities by serving as public meetings places, memorials  
            and public educational centers.





            "Veteran's service organizations were originally chartered by  
            congress and were never intended to pay taxes. California is  
            currently the only state where not all Veterans Halls are  
            eligible for property tax exemption.  Because Veterans Halls  











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            are typically non-profit and run through charitable donations,  
            property taxes create a heavy financial burden on these  
            organizations.





            "Due to this financial hardship, many Veterans Halls in our  
            community are limited in resources and in the worst case must  
            shut down. Essentially, many Veterans Halls are closing due to  
            a technicality in the current tax code.





            "SB 2, which passed the Senate unanimously, would align  
            statute to reflect the unique nature of these veterans'  
            service organizations as Congressionally-chartered  
            organizations required to serve social purposes.  It would  
            provide clarity to counties to preserve the important property  
            tax exemptions guaranteed to these organizations, and ensure  
            they have the tools they need to continue serving those who  
            have given up so much for our freedom.





            "I am convinced that circumstances this year are such that the  
            cost of this clarification for the benefit it confers is not  
            only absorbable, but offers us the right time finally to do  
            the right thing for our veterans."


           2) Arguments in Support  .  The proponents of this bill state that  
            veterans' organizations should not be denied the property tax  
            exemption because of the occasional rental of their property  











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            for events in their communities.  The proponents also argue  
            that this bill addresses "an issue of great importance to many  
            veterans service organization's posts and chapters to ensure  
            that as non-profit organizations, existing property tax  
            exemptions for veteran halls are preserved." Finally, the  
            proponents note that this bill "would ease the administration  
            of the exemption." 


           3)The Welfare Exemption  .  The California Constitution provides  
            that all property is taxable, unless explicitly exempt by the  
            Constitution or federal law.  The Constitution limits the  
            maximum amount of any ad valorem tax on real property at 1% of  
            full cash value, plus any locally authorized bonded  
            indebtedness.  Assessors reappraise property whenever it is  
            purchased, newly constructed, or when the property's ownership  
            changes.  



          The California Constitution allows the Legislature to establish  
            a property tax exemption for property:  (a) exclusively used  
            for religious, hospital, or charitable purposes; (b) owned by  
            nonprofit entities organized and operated for charitable  
            purposes; and (c) which had no part of its net earnings inure  
            to the benefit of any private shareholder or individual.   
            [California Constitution, Article XIII, Section (4)(b).]  This  
            exemption, commonly known as the "welfare exemption," was  
            adopted by the voters as a constitutional amendment on
          November 7, 1944.  In 1945, the Legislature enacted the  
            exemption, providing that a qualifying nonprofit  
            organization's property may be exempt fully or partially from  
            property taxes, depending on how much of the property is used  
            for qualified purposes and activities. [R&TC Section 214.]  In  
            order to be eligible for the exemption, the property must be  
            used for the actual operation of the exempt activity and may  
            not exceed an amount of property reasonably necessary to  
            accomplish the exempt purpose.  The property may not be used  
            to benefit the owner or any other person and must be  











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            irrevocably dedicated to charitable purposes, except in  
            specified circumstances.  The property of a non-profit  
            organization used for fraternal, lodge, or social club  
            purposes does not qualify for the exemption, unless the use is  
            clearly incidental to the organization's charitable purpose. 
           4)The Veterans' Organization Exemption:  Background  .   Property  
            owned by a veterans' organization chartered by the U.S.  
            Congress is eligible for the welfare exemption, provided that  
            the organization complies with all applicable requirements, is  
            exempt from tax under federal and state law, and has a  
            "veterans' organization exemption" certificate of compliance  
            on file with the county assessor.  The majority of veterans'  
            organizations are ineligible for exemption because another  
            provision of the law - R&TC Section 214(a)(5) - disqualifies  
            property if it is used for fraternal, lodge, or social  
            purposes.  In practice, only small portions of property owned  
            by veterans' organizations actually receive the property tax  
            exemption.  Buildings owned by Veterans of Foreign Wars and  
            the American Legion often have many uses, some of which are  
            social in nature.  As a result, the application of the  
            veterans' organization exemption is inconsistent from county  
            to county.  Some counties assess the entire property; others  
            do not assess the property at all; and still others exempt  
            just the office and facilities that directly serve veterans,  
            such as counseling rooms used for readjustment services.  



          According to the BOE analysis of this bill, R&TC Section 215.1,  
            which provides for the veterans' organization exemption, was  
            added by AB 184 (Powers) in 1972 (Chapter 151, Statutes of  
            1972).  The BOE opposed AB 184 and, in a letter sent to  
            Governor Reagan, explained, "While AB 184 implies that the  
            activities of veterans' organizations are charitable, it does  
            no directly so state?.  This curious construction invites  
            litigation.  If a tax benefit is to be granted, it should be  
            clear as to what that benefit is."  The BOE noted several  
            potential interpretations of the language in AB 184.  First,  
            AB 184 may be viewed as the creation of a new exemption that  











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            would be invalid without the support of a constitution  
            amendment.  Alternatively, AB 184 may be viewed as merely  
            "permitting veterans' organizations to receive the welfare  
            exemption if they meet the traditional concepts of charity and  
            otherwise satisfy other welfare exemption requirement," in  
            which case AB 184 is "an exercise in futility since it is  
            highly doubtful that any organization could qualify."   
            Finally, AB 184 may be viewed as "a vague attempt to expand  
            the concept of charity so as to permit veterans' organizations  
            to receive the benefit of the welfare exemption."  This  
            interpretation is also of "doubtful constitution validity."   
            The Governor, however, signed AB 184 into law.  

          While many veterans' organizations applied for the new  
            exemption, the BOE denied all the claims.<1>  Representatives  
            of veterans' organizations subsequently protested the denials  
            before the BOE on January 4, 1974.  Ultimately, this exemption  
            "was extended to a limited portion of the entire veterans'  
            organization property, such as the counseling rooms used for  
            readjustment services, post-traumatic stress disorders, and  
            alcohol or drug assistance programs."

          The BOE staff notes the veterans' organization exemption has had  
            little practical effect since relatively few properties owned  
            by veterans' organizations currently receive the exemption,  
            and those that do are only receiving a partial exemption on a  
            small part of their property.  In fact, only about 50  
            organizations currently apply for the exemption and a number  
            of these receive a partial exemption, generally on the office  
            or counseling rooms used for readjustment services,  
            post-traumatic stress disorders, and alcohol or drug  
            assistance programs.  The majority of property consists of a  
            club room, auditorium, restaurant, and bar which are not  
            eligible for the property tax exemption, except where the use  
            is clearly incidental to a primary charitable purpose. 
          ---------------------------
          <1>


           http://www.boe.ca.gov/proptaxes/pdf/870_0001.pdf










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           5)Slippery Slope  ?  While this bill provides tax relief to  
            veterans' organizations, it sets a precedent for other groups  
            to seek similar property tax exemptions.  As stated in the BOE  
            analysis of this bill, lodges and clubs owned by the Elks,  
            Moose, Oddfellows, and Rotary, etc., are not exempt from  
            taxation.  The Committee may wish to consider whether the  
            activities of U.S. Congress-chartered veterans' organizations  
            significantly differ from community services performed by  
            similarly situated non-profit organizations and whether the  
            difference warrants a disparate tax treatment of properties  
            owned by those organizations.  


           6)Constitutional Concerns  .  The language of the Constitution is  
            clear that the qualifying property must be owned, operated and  
            used by a nonprofit entity for exempt purposes and activities,  
            and no part of the entity's net earnings may inure to the  
            benefit of any private shareholder or individual.  Property  
            must be used exclusively for religious, hospital, or  
            charitable purposes.  In 1973, the Attorney General opined  
            that R&TC Section 251.1 (which is proposed to be amended by  
            this bill) was constitutional because it contained an  
            additional eligibility requirement, namely, a requirement to  
            meet all of the provisions of R&TC Section 214(a)(1) - (7).    
            In this connection, subparagraph (5) of Section 214(a)   
            mandates that the property be not used for fraternal or lodge  
            purposes or for social club purposes, except where that use is  
            clearly incidental to a primary religious, hospital,  
            scientific or charitable purpose.  SB 2 proposes to delete  
            this requirement, which puts in question the constitutionality  
            of Section 251.1, as proposed to be amended.  



          Furthermore, this bill finds that in the case of veterans,  
            partly because of their service to this country, the social  
            gatherings and meetings serve a "charitable purpose."  And  
            lodge and social club activities support the central  
            charitable purpose of veterans' organizations.  However, the  











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            Legislature, by making this finding and authorizing the  
            veterans' organization exemption for those types of property,  
            may be exceeding its authority under Section 4 of Article XIII  
            of the California Constitution relating to property tax  
            exemptions.
           7)Related Legislation  .  


             a)   SB 1152 (Anderson), of the 2013-14 Legislative Session,  
               was substantially similar to this bill.  SB 1152 was held  
               on this Committee's Suspense File.


             b)    SB 1469 (Johannessen), of the 2001-02 Legislative  
               Session, would have provided that property is still  
               eligible for the veterans' organization exemption if the  
               only reason for disqualification is that the property is  
               occasionally made available for private rentals as a  
               service to the community.  SB 1469 was never heard by the  
               Senate Revenue and Taxation Committee. 



          REGISTERED SUPPORT / OPPOSITION:




          Support


          American Legion-Department of California


          AMVETS-Department of California,


          California Assessors' Association 












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          California Association of County Veterans Service Officers


          California Council of Chapters


          California State Commanders Veterans Council


          Military Officers Association of America


          San Diego Regional Chamber of Commerce


          Veterans of Foreign Wars (VFW), Department of California


          Vietnam Veterans of America-California State Council


          One private individual







          Opposition


          None on file




          Analysis Prepared by:Oksana Jaffe / REV. & TAX. / (916)  











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          319-2098