BILL ANALYSIS                                                                                                                                                                                                    Ó




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          |SENATE RULES COMMITTEE            |                        SB 500|
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                                   THIRD READING 


          Bill No:  SB 500
          Author:   Hertzberg (D)
          Introduced:2/26/15  
          Vote:     21  

           SENATE GOVERNANCE & FIN. COMMITTEE:  7-0, 4/15/15
           AYES:  Hertzberg, Nguyen, Bates, Beall, Hernandez, Lara, Pavley

           SENATE APPROPRIATIONS COMMITTEE:  7-0, 5/28/15
           AYES:  Lara, Bates, Beall, Hill, Leyva, Mendoza, Nielsen

           SUBJECT:   Personal income taxes:  nonresident de minimis  
                     income


          SOURCE:    Author


          DIGEST:  This bill excludes "De minimis income" of a nonresident  
          taxpayer.


          ANALYSIS:   


          Existing law:


          1)Taxes residents on all income regardless of source, including  
            income from residents performing services outside California.   



          2)Taxes part-year residents on all income generated while they  
            are a resident, again including sources outside the state.  








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          3)Taxes nonresidents based on all income from California  
            sources.  


          4)Applies various sourcing rules to certain items of nonresident  
            income for specified individuals, such as retirees,  
            nonresident salespeople's commissions, performances by  
            athletes and entertainers, professional services like  
            attorneys and physicians, officers of corporations, and  
            operators of trucks, trains, and ships.  


          5)Provides that these rules do not apply to nonresident  
            employees who are continuously employed in the state for a  
            definite portion of the taxable year.  These employees must  
            compare the total amount of days employed in California to  
            their total days worked, and multiply that fraction by their  
            total compensation for professional services if paid on a  
            daily, weekly, or monthly basis.  The employee must file a  
            return, and pay tax according to the appropriate marginal rate  
            if the amount exceeds the filing threshold, currently $16,000  
            for filing individually with no dependents in 2014.  


          6)Requires employers who pay employees California-source income  
            to withhold expected taxes.  Businesses with one or more  
            employees in the current or preceding taxable year, and who  
            pays wages in excess of $100 per quarter must register with  
            the Employment Development Department (EDD).  


          7)Provides that whenever wages are paid to a nonresident  
            employee performing services in California, the employer must  
            withhold expected taxes, and deposit them quarterly with EDD.   



          8)Applies a penalty for failing to withhold of the greater of  
            $500, or 10% of the amount withheld, which may be abated upon  
            showing reasonable cause.








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          This bill:


          1)Excludes "De minimis income" from a nonresident taxpayer from  
            sources within California, beginning in the 2016 taxable year,  
            if the taxpayer:                                       


             a)   Has no other income from sources within the state, 


             b)   Is present in the state to perform employment duties for  
               less than 20 days per taxable year, including any part of  
               any day unless it's solely for transit purposes, and 


             c)   Resides in a state that provides a similar exclusion, or  
               doesn't impose an income tax.


          2)Provides that its provisions do not apply to:


             a)   Professional athletes or members of professional  
               athletic teams,


             b)   Professional entertainers who perform services in the  
               performing arts,


             c)   An individual of prominence who performs services for  
               compensation on a per-event basis, and


             d)   An individual defined as a "key employee" by the  
               Internal Revenue Code.


          3)Absolves employers of withholding requirements for its  








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            employees whose income is excluded by this bill.


          4)Provides that employers who erroneously apply this provision  
            may be subject to a penalty, unless the employer relied on a  
            regularly maintained time and attendance system that:

             a)   Requires the employee to record each day his or her  
               location when present in a state that isn't his or her  
               state of residence on a contemporaneous basis, and


             b)   Is used by the employer to allocate the employee's wages  
               between all taxing jurisdictions.


          5)Provides that the penalty doesn't apply to employers who don't  
            maintain a time and attendance system, and instead rely on  
            employee travel records or travel expense reimbursement  
            records that the employer requires must be maintained or  
            submitted on a contemporaneous or regular basis.


          6)Makes a conforming change to ensure that nonresident taxpayers  
            whose only income is excluded by this bill need not file a  
            return; however, the Franchise Tax Board may require this set  
            of nonresident taxpayers to file informational returns.


          7)Makes technical, clarifying, and conforming changes, and  
            defines many of its terms.


          Comments


          For many years, businesses have argued that withholding is an  
          excessive burden when simply sending an employee into a state  
          for only a few days, especially when withholding requirements  
          can often differ from state to state.  Additionally, employees  
          don't want to comply with California's income tax filing and  
          payment requirements when spending only a few days of the year  








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          working in California.  Congress has considered bills like the  
          Federal Mobile Workforce State Income Tax Simplification Act of  
          2015 (S. 386), which preempts state tax authority by limiting  
          withholding requirements to only the employee's state of  
          residence and those states where the employee works more than 30  
          days.  The Act would similarly bar states from collecting taxes  
          from employees working in states less than 30 days per year.  In  
          response, the Multistate Tax Commission (MTC) drafted a model  
          statute for states to adopt that attempts to address issues  
          raised by federal legislation without preempting state tax  
          authority.  SB 500 enacts the MTC model statute in California. 


          As noted above, Congress has considered legislation in recent  
          years to limit a state's authority to apply income taxes to the  
          same mobile employees and employers affected by SB 500; however,  
          federal legislation has usually been different in two key  
          respects:  first, SB 500 excludes income from employees spending  
          less than 20 days in a state, while Congress has generally  
          applied a 30-day standard.  Secondly, federal legislation would  
          apply to all states, while SB 500 only excludes income from  
          nonresidents from states that either don't have an income tax,  
          or enact a similar exclusion, known as "reciprocity."  Several  
          states, such as Indiana, Kentucky, Michigan, Ohio, Pennsylvania,  
          and West Virginia, have enacted agreements similar to SB 500.   
          If enough states enact measures like SB 500 to implement MTC's  
          model statute, the less likely that Congress will supersede  
          California's tax law.


          FISCAL EFFECT:   Appropriation:    No          Fiscal  
          Com.:YesLocal:   No

          According to the Senate Appropriations Committee, SB 500 results  
          in annual revenue losses of $200,000.


          SUPPORT:   (Verified5/28/15)


          California Taxpayers' Association
          TechAmerica








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          OPPOSITION:   (Verified5/28/15)


          None received


          ARGUMENTS IN SUPPORT:     According to the author, SB 500 will  
          reduce the burden the state places on traveling nonresident  
          employees and their employers, thereby eliminating a key barrier  
          for out-of-state companies to send employees to California for  
          work.  This bill simplifies nonresident employee and employer  
          requirements to report and withhold state income taxes, which  
          causes a tangle of paperwork when a firm has to send an employee  
          to service its customers in multiple states.  Additionally, this  
          bill sends a message to Congress that California wants to work  
          with other states to solve this problem from the ground up,  
          instead of having a solution imposed from above by Congress.  SB  
          500 strikes the correct balance between the business needs of  
          today's mobile workforce and California's authority to determine  
          its own tax law.
           

          Prepared by:Colin Grinnell / GOV. & F. / (916) 651-4119
          5/29/15 9:02:07


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