BILL ANALYSIS Ó ----------------------------------------------------------------- |SENATE RULES COMMITTEE | SB 533| |Office of Senate Floor Analyses | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ----------------------------------------------------------------- THIRD READING Bill No: SB 533 Author: Pan (D) Introduced:2/26/15 Vote: 21 SENATE GOVERNANCE & FIN. COMMITTEE: 6-1, 4/22/15 AYES: Hertzberg, Beall, Hernandez, Lara, Moorlach, Pavley NOES: Nguyen SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8 SUBJECT: Cities and counties: sales and use tax agreements SOURCE: Author DIGEST: This bill prohibits a local agency from entering into an agreement that would result in the payment of Bradley-Burns tax proceeds to a retailer if the agreement results in a reduction in revenue that is received by another local agency. ANALYSIS: Existing law: 1)Authorizes counties, under the Bradley-Burns law, to impose a local sales and use tax of up to 1 percent on tangible personal property sold at retail in the county, or purchased outside the county for use in the county. SB 533 Page 2 2)Specifies the "place of sale" for purposes of the local sales tax. In general, all retail sales in California are consummated at the place of business of the retailer. If a retailer has only one place of business in California, the local sales tax derived from sales consummated at that place of business is transmitted to the city, county, or city and county in which the retailer's place of business is located. If a retailer has more than one place of business in the State, the Board of Equalization regulation specifies that the sale occurs at the place of business where the principal negotiations are carried on. 3)Specifies that out of state retailers that negotiate sales outside of California, allocate the local tax in one of two ways. If the out of state retailer is engaged in business in this state, the local tax is allocated to the location of the retailer's in-state location. If the out of state retailer is not engaged in business in this state, the local tax is allocated to the location of the headquarters of the California based business the retailer has contracted with. 4)Prohibits a local agency from entering into an agreement that results in the payment, transfer, diversion, or rebate of any Bradley-Burns local tax proceeds, when the agreement results in a reduction of Bradley-Burns tax proceeds received by another local agency from a retailer, and that retailer continues to maintain a physical presence within the jurisdiction of the originating local agency. The prohibition does not apply to certain agreements related to: A retailer that expands its operations into another jurisdiction with the result that the retailer is conducting a comparable operation within the jurisdiction of both local agencies. A reduction in the use tax proceeds that are distributed to the originating local agency through one or more countywide pools. SB 533 Page 3 Any agreement to pay or rebate Bradley-Burns local tax revenue related to a buying company, which is defined as a legal entity that is separate from another legal entity that owns, controls, or is otherwise related to, the buying company and which has been created for the purpose of performing administrative functions, including acquiring goods and services for the other entity, as defined in specified Revenue and Taxation Code (RTC) statutes and regulations. Any agreement to pay or rebate any local use tax revenue related to a use tax direct payment permit issued under RTC 7051.3. Bradley-Burns tax proceeds provided by a local agency to a retailer if those proceeds are used to reimburse the retailer for the construction of public works improvements that serve all or a portion of the territorial jurisdiction of that local agency. This bill: 1)Prohibits a local agency, on or after the bill's effective date, from entering into any form of agreement or taking any action that would result, directly or indirectly, in the payment, transfer, diversion or rebate of any amount of Bradley-Burns local tax proceeds to any person, for any purpose, when: The agreement results in a substantial reduction in the amount of Bradley-Burns tax proceeds received by another local agency from a retailer within that other local agency; and, The retailer continues to maintain a physical presence and location within that other local agency. 1)Does not apply to taxpayers with a "use tax direct payment SB 533 Page 4 permit" and to local agencies entering into agreements with other local agencies. 2)Requires local governments to post online any agreements it has entered into that results in a reduction of the amount of revenue under the Bradley-Burns Uniform Local Sales and Use Tax Law that, in the absence of the agreement, would be received by another local agency, including any agreements entered into prior to the effective date of this section that are still in effect: A local government entering into a new agreement must post the agreement online as well as notify the other local agency by certified mail addressed to the attention of the chief executive of that other local agency at least 60 days prior to ratification or approval of that agreement by its governing body. Background Allocating Bradley-Burns sales taxes at the place of sale leads to competition among cities and counties to attract land uses that generate local revenues. This "fiscalization of land use" distorts local land use decisions by emphasizing tax revenues, but discounts traffic, air quality, open space, and affordable housing. Some large retailers take advantage of the fiscalization of land use to play one community against others. They ask local officials to give them subsidies so they can relocate, moving their sales tax revenues from a "sending" community to a "receiving" community. The receiving community gets new revenue, but spends some of it on the retailer; the subsidy to the retailer lowers its costs; and the sending community suffers the revenue loss. SB 27 (Hancock, Chapter 4, Statutes of 2009) sought to remedy the fiscalization of land use by prohibiting a local agency from entering into an agreement that results in the payment, transfer, diversion, or rebate of any Bradley-Burns local tax proceeds, when the agreement results in a reduction of Bradley-Burns tax proceeds received by another local agency from a retailer, and that retailer continues to maintain a physical presence within the jurisdiction of the originating local agency. However, exceptions to the above prohibition have SB 533 Page 5 allowed the practice to continue. Despite the passage of SB 27 in 2009, local officials continue to engage in competition involving sales taxes. For example, a county or city can offer a sales tax rebate to a business that consolidates all of its California sales into that county or city by opening a buying company in that jurisdiction. Cities like West Sacramento no longer receive tax dollars they had once relied upon. Much like the problem a sales office created that lead to SB 27 (Hancock, 2009), buying companies are consolidating statewide sales all in one location. The City of West Sacramento wants the Legislature to prohibit counties or cities from entering into similar Bradley-Burns sales tax rebate agreements that draw sales tax revenues away from other communities. FISCAL EFFECT: Appropriation: No Fiscal Com.:YesLocal: Yes SUPPORT: (Verified5/5/15) City of West Sacramento OPPOSITION: (Verified5/5/15) None received ARGUMENTS IN SUPPORT: According to the author, "It is becoming increasingly common practice for companies to pressure local agencies to provide a sales tax revenue rebate on the promise to book all sales from multiple sites with that local agency. There is a growing cottage industry of consultants who appear to specialize in helping companies pursue this strategy. This practice is fundamentally unfair. When the sales tax revenue from commercial activity in one jurisdiction is booked in another, the local agency that is losing the sales tax revenue must continue to provide police and fire protection services to the company since it maintains a physical presence SB 533 Page 6 within the territory of the local agency, and the local agency streets and other services are used and must be maintained. Making this practice even more nefarious, this is often done without the knowledge of the citizens, businesses and employees within the jurisdiction of the local agency agreeing to the 'deal' and without any notice to the local agency that is losing sales tax revenue as a result of the agreement. It is significant to note that many of these sales tax rebate deals result in sales tax revenue leaving the State of California and going to corporations in other states. Yet, California local agencies are still responsible for providing the police and fire protections services and maintaining the roads and other infrastructure needs for these companies." Prepared by:Myriam Bouaziz / GOV. & F. / (916) 651-4119 5/6/15 16:16:25 **** END ****