BILL ANALYSIS                                                                                                                                                                                                    Ó






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          |SENATE RULES COMMITTEE            |                        SB 533|
          |Office of Senate Floor Analyses   |                              |
          |(916) 651-1520    Fax: (916)      |                              |
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                                   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.  








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          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.








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                 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  







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            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  







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          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  







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          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


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