BILL ANALYSIS                                                                                                                                                                                                    Ó



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

                              
          
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          |Bill No:  |SB 152                           |Hearing    |4/29/15  |
          |          |                                 |Date:      |         |
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          |Author:   |Vidak                            |Tax Levy:  |Yes      |
          |----------+---------------------------------+-----------+---------|
          |Version:  |4/14/15                          |Fiscal:    |Yes      |
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          |Consultant|Bouaziz                                               |
          |:         |                                                      |
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                       PERSONAL INCOME TAX: EARNED INCOME CREDIT



          Allows a refundable Earned Income Tax Credit (EITC), upon  
          appropriation of the Legislature, equal to 15% of the federal  
          EITC.


           Background and Existing Law

           Federal law allows eligible individuals a refundable EITC, which  
          allows the taxpayer to obtain a refund for the excess of the  
          credit over the taxpayer's liability.  As the name implies, the  
          credit is based on a percentage of the taxpayer's earned income,  
          and phases out as income increases.  The percentage varies  
          depending on whether the taxpayer has qualifying children.   
          Married individuals are eligible for only one credit on their  
          combined earned income and must file a joint return to claim the  
          credit.  

          Federal law specifies that if the federal EITC is denied, and  
          the Internal Revenue Service (IRS) determined that the  
          taxpayer's error was due to reckless or intentional disregard of  
          EITC rules, the EITC would be denied for the next two years.  If  
          the error was due to fraud, the denial period would be ten  
          years.

          State law provides various tax credits designed to provide tax  
          relief for tax-payers who incur certain expenses or to influence  







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          behavior, including business practices.

          State law allows individuals with income below a certain  
          threshold to not file a return, when the standard deduction and  
          personal exemption credit eliminate any tax liability.  For  
          2014, these thresholds are $16,047 in gross income or $12,838 in  
          adjusted gross income (AGI) for single taxpayers and $33,097 in  
          gross income or $25,678 in AGI for married individuals filing  
          jointly.  These thresholds are increased based on the number of  
          dependents claimed, and are increased annually for inflation.   
          State law does not provide an EITC.


           Proposed Law

           Senate Bill 152 allows a refundable tax credit, upon  
          appropriation of the Legislature, equal to 15% of the federal  
          EITC.  In a year when an appropriation is not made by the  
          Legislature, the credit becomes nonrefundable, but can be  
          carried over to succeeding taxable years until exhausted.

          SB 152 defines "federal earned income credit amount" to mean the  
          amount determined under Section 32 of the IRC as amended by  
          several public laws, except as provided.

          This bill defines a "qualified taxpayer" to mean an individual  
          who: 

                 is eligible for a credit, for federal income tax  
               purposes; 

                 is legally working in the state;  and 

                 possesses a valid SSN, legal work authorization, or  
               taxpayer's identification number (TIN).

          The credit allowed may be claimed only on a qualified taxpayer's  
          timely filed original return, and any amounts refunded would not  
          be included in income.  FTB's determination with respect to the  
          date a return was received could not be reviewed in any  
          administrative or judicial proceeding.  Any simple error would  
          be treated as a mathematical error appearing on the return.

          This bill requires FTB, from the 2017 taxable year to taxable  








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          year 2022, to adjust the phase-out percentages and the maximum  
          investment income amount for inflation.  The inflation  
          adjustment would be based on the percentage change in the  
          California Consumer Price Index (CCPI) for all items, on a  
          calendar year June-to June basis, as provided to the FTB by the  
          Department of Industrial Relations.   

          SB 152 requires the FTB to do all of the following:

                 Administer enforcement activities to address improper  
               payments;

                 Collaborate with the Employment Development Department  
               (EDD) to develop criteria for, and a process to verify,  
               taxpayer income information using wage and withholding  
               data; 

                 Establish criteria for, and a process to identify,  
               high-risk returns that may be subject to increased  
               verification procedures and suspension of payments until  
               the information is verified; and 

                 Submit a yearly report to the Legislature that includes  
               information on the eligibility for the credit, use of the  
               credit, and information regarding improper payments.  

          SB 152 takes effect immediately as a tax levy and applies to  
          taxable years beginning on or after January 1, 2016 and before  
          January 1, 2023.

           State Revenue Impact

           FTB estimates that this bill would reduce General Fund revenues  
          by $24 million in fiscal year 2015-16, $120 million in 2016-17,  
          and $120 million in 2017-18 if there is no appropriation made by  
          the Legislature.  

          If there is a yearly appropriation made by the Legislature, FTB  
          estimates that this bill would reduce General Fund revenues by  
          $240 million in 2015-16, $1.2 billion in 2016-17, and $1.2  
          billion in 2017-18.


           Comments








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           1.  Purpose of the bill.   According to the author, "The federal  
          EITC is a refundable tax credit for low and middle class working  
          households that helps reduce poverty and reward work.  
          Researchers cite the federal EITC as among the most effective  
          tool for reducing poverty since it promotes work and provides  
          resources that lift families out of poverty.  Nationwide 28  
          million American tax returns received the federal EITC in tax  
          year 2013.  In fact over 3.1 million Californian tax returns  
          received the EITC.  These 3.1 million returns resulted in $7.3  
          billion in refundable tax credits for California families with  
          the average tax credit being $2,373.  The Legislative Analyst  
          Office (LAO) estimates that the federal EITC alone helps to keep  
          750,000 Californians out of poverty every year.  Twenty five  
          states and the District of Columbia have already established  
          their own EITC to magnify the impact of the federal EITC, but  
          California has yet to do so.  These state EITC's range from 40%  
          of the federal EITC in the District of Columbia to 3.5% in  
          Louisiana.  Some states have credits which fluctuate between  
          34-37% of EITC in Minnesota and 0-34% in Wisconsin.  Studies  
          based on other states EITCs have estimated that each additional  
          dollar received back by a tax filer generates a further  
          $1.50-2.00 in local economic activity. The impact of this  
          increased purchasing power in communities benefited by federal  
          and state EITC dollars can help to support local jobs and small  
          businesses.  Senate Bill 152 creates a refundable California  
          Earned Income Tax Credit (CEITC) that would be equal to 15% of  
          the federal EITC.  Eligible individuals must meet the federal  
          EITC requirements for the current tax year as well as have  
          either a Social Security Number, legal work authorization, or a  
          taxpayer identification number.  This EITC would sunset in 2023.  
           Additionally, the legislation creates a framework for the  
          Franchise Tax Board (FTB) to use to ensure that eligible  
          families are receiving the California EITC."   

           2.  What is an EITC?   The EITC is a federal tax credit for  
          low-to-moderate income individuals and families.  Congress  
          originally approved the tax credit legislation in 1975, in part  
          to offset the burden of social security taxes and to provide an  
          incentive to work.  When EITC exceeds the amount of taxes owed,  
          it results in a tax refund to those who claim and qualify for  
          the credit.  

          In order for a taxpayer to qualify for the credit, an  








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          individual's AGI in the 2014 taxable year must be less than:

                 $46,997 ($52,427 filing jointly) with three or more  
               qualifying children. 

                 $43,756 ($49,186 filing jointly) with two qualifying  
               children.

                 $38,511 ($43,941 filing jointly) with one qualifying  
               child.

                 $14,590 ($20,020 filing jointly) without a qualifying  
               child.  

          The 2014 maximum credit for taxpayers is as follows:

                 $6,143 with three or more qualifying children.

                 $5,460 with two qualifying children.

                 $3,305 with one qualifying child.

                 $496 with no qualifying children.

          Taxpayers cannot claim the federal EITC if their 2014 investment  
          income (from interests and dividends) is more than $3,350.  The  
          amount of the federal EITC is reduced by the alternative minimum  
          tax (AMT), if any.

          In 2009, 800,000 eligible Californians failed to claim over $1.2  
          billion worth of federal EITC dollars.  According to the New  
          America Foundation study Left on the Table, if these refunds  
          were claimed, they would spur over $1.2 billion in business  
          sales, pay $311 million in wages, and add nearly 7,500 jobs to  
          the California economy, which would result in $88 million in  
          taxes coming back to the state.  According to the Internal  
          Revenue Service (IRS), currently, 25 states and the District of  
          Columbia offer state-level EITC for their residents.

          3.  A Note on Fraud.   Although the federal EITC lifts families  
          and individuals out of poverty, the refundable credit is highly  
          susceptible to fraud.  The Treasury Inspector General for Tax  
          Administration estimates that improper EITC claims total over  
          $10 billion a year.  The payments paid out improperly for 2012  








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          were at least 21-25% of all payments, according to the latest  
          report from the IRS inspector general.

          4.  Another way?   As stated in SB 152's legislative findings, the  
          federal EITC is a proven antipoverty measure, but there are  
          other programs we can invest in to help working families.  The  
          state can invest in increasing TANF grants, restore CalWORKs  
          childcare subsidies that were cut during the recession, and  
          increase funding for food stamps, to name a few.     

          5.  Let's get clear.   SB 152 lays out the framework for a  
          California EITC, but leaves out many critical details needed to  
          implement the credit.  For example, the credit is refundable  
          upon appropriation of the legislature, thus if there is no  
          appropriation in the first two years, but an appropriation in  
          the third, can individuals who would have received a refund  
          amend their last two returns?  Would individuals who are  
          amending returns be entitled to payment first or would FTB  
          prioritize individuals filing original returns?  The simple  
          solution would be to amend the bill to include a continuous  
          appropriation; however this would likely result in the bill  
          requiring a 2/3 vote for passage.  The Committee may wish to  
          consider amending the bill to clarify the mechanics of who is  
          eligible for a refund when an appropriation is made by the  
          Legislature. 

          6.  Related legislation.   SB 38 (Liu) creates a refundable EITC  
          equal to 15 or 100 percent of the federal EITC. SB 38 is set to  
          be heard on April 22, 2015 in this Committee.  AB 43 (Stone)  
          creates a refundable EITC equal to 15 to 60 percent of the  
          federal EITC. AB 43 is set to be heard in the Assembly Revenue  
          and Taxation Committee.

          7.  FTB's Implementation Concerns.   FTB notes the following  
          implementation concerns in its analysis of this bill:

                 Many taxpayers eligible for the federal EITC have no  
               California income tax return filing requirement.  These  
               non-filers would be required to file a California income  
               tax return to claim the proposed state EITC, which could  
               impact the department's programs and costs.

                 Typically, refund returns are filed early in the filing  
               season.  If taxpayers claiming the California EITC file  








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               late in the filing season, after they receive their federal  
               EITC, that behavior could have a major impact on the  
               processing of returns and possibly cause delays in the  
               issuance of refunds.  The taxpayer error rate on the  
               federal EITC and the fraud concerns cause the IRS to adjust  
               many returns.  Consequently, the correct federal EITC  
               amount may be unknown until after the taxpayer has filed  
               the state return, claimed the proposed California credit,  
               and received a refund.  FTB could be required to issue an  
               assessment to retrieve incorrect refunds and incur costs to  
               do so.

                 Relying on the EITC under federal law may present  
               implementation problems for Registered Domestic Partners  
               (RDPs).  RDPs are required to file California income tax  
               returns using the rules applicable to married individuals.   
               If the author's intent is to allow EITCs for RDPs, a rule  
               should be included in the bill to address the difference  
               between federal and state law.

                 Historically, the department has had significant  
               problems with refundable credits and fraud.  These problems  
               are aggravated because if a refund is made that is later  
               determined to be fraudulent, the refund commonly cannot be  
               recovered.  Striking the refund provision from this credit  
               would substantially reduce the department's concerns  
               regarding fraud.

          8.  Let's get technical.   FTB has proposed the following  
          clarifying amendments:  

                 On page 3, line 10 delete the incorrect cross-reference

                 On page 3, line 36, remove "taxpayer's" and replace it  
               with "taxpayer"

                 On page 3, line 40, insert "the" after "exceeds"


           Support and  
          Opposition   (4/16/15)


           Support  :  Fresno Chamber of Commerce; Western Center on Law and  








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          Poverty.

           Opposition  :  California Taxpayers Association (CalTax).



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