BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                     SB 533


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          Date of Hearing:  July 1, 2015


                       ASSEMBLY COMMITTEE ON LOCAL GOVERNMENT


                              Brian Maienschein, Chair


          SB  
          533 (Pan) - As Amended June 10, 2015


          SENATE VOTE:  25-11


          SUBJECT:  Cities and counties: sales and use tax agreements.


          SUMMARY:  Revises and recasts existing law which prohibits a  
          local agency from entering into an agreement with a retailer  
          that would result in the payment of Bradley-Burns local tax  
          proceeds to a retailer if the agreement results in a reduction  
          of revenue that is received by another local agency.   
          Specifically, this bill:  


          1)Revises and recasts existing law which prohibits a local  
            agency from entering into any form of agreement with a  
            retailer that would involve the payment, transfer, or rebate  
            of any amount of Bradley-Burns local tax proceeds if the  
            agreement results in a reduction in the amount of revenue that  
            is received by another local agency from the same retailer if  
            it is located within that other local agency, and continues to  
            maintain a physical presence and location there.  


          2)Requires a local agency entering into an agreement that  
            results in a reduction of Bradley-Burns revenue that would be  








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            received by another local agency in the absence of the  
            agreement to do the following:


             a)   Post the proposed agreement on its Internet Web site for  
               at least 30 days prior to ratification or approval of the  
               agreement by its governing body; and,


             b)   Notify the other local agency by certified mail  
               addressed to the attention of the chief executive officer  
               of that other local agency at least 60 days prior to  
               ratification or approval of the agreement by its governing  
               body.  


          3)Requires a local agency to post any agreement it has entered  
            into on its Internet Web site that results in a reduction of  
            Bradley-Burns revenue to another local agency, in the absence  
            of the agreement, including any agreements entered into prior  
            to January 1, 2016,  that are still in effect.  


          4)Removes the following agreements exempted under existing law,  
            which therefore prohibits the following agreements:


             a)   A reduction in the use tax proceeds that are distributed  
               to a local agency through one or more countywide pools;  


             b)   A retailer that expands its operations into another  
               jurisdiction with the result that the retailer is  
               conducting a comparable operation in both local agencies;  
               and, 


             c)   Bradley-Burns local tax proceeds provided by a local  
               agency to a retailer if those proceeds are used to  








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               reimburse the retailer for the construction of public works  
               improvements that serve all or a portion of the territorial  
               jurisdiction of the local agency; and,  


             d)   Any agreement to pay or rebate any tax revenue resulting  
               from the imposition of a sales and use tax relating to a  
               buying company.  


          5)Maintains the exemption in current law for any agreement to  
            pay or rebate Bradley-Burns local use tax revenue relating to  
            a use tax direct payment permit.  


          6)Provides an additional exemption and specifies that this bill  
            does not apply to a local agency that has a mutual tax revenue  
            sharing agreement with each local agency that would be  
            affected by the form of the agreement prohibited under 1),  
            above.  


          7)Defines local agency to mean a chartered or general law city,  
            a chartered or general law county, or a city and county, of  
            this state.  


          8)Defines "person" pursuant to existing law to mean "any  
            individual, firm, partnership, joint venture, limited  
            liability company, association, social club, fraternal  
            organization, corporations, estate, trust, business trust,  
            receiver, assignee for the benefit of creditors, trustee,  
            trustee in bankruptcy, syndicate, the United States, this  
            state, any county, city and county, municipality, district, or  
            other political subdivision of the state, or any other group  
            or combination acting as a unit."


          9)Provides that, if the Commission on State Mandates determines  








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            that this bill contains costs mandated by the state,  
            reimbursement to local agencies and school districts for those  
            costs shall be made, pursuant to current law governing state  
            mandated local costs.  

          FISCAL EFFECT:  According to the Senate Appropriations  
          Committee, pursuant to Senate Rule 28.8, negligible state costs.  
           


          COMMENTS:  


          1)Bradley-Burns Local Sales and Use Tax Law.  The Bradley-Burns  
            Local Sales and Use Tax Law authorizes counties to impose a 1%  
            tax on the sales price of tangible personal property sold at  
            retail in the county, or purchased outside the county for use  
            in the county.  


          A city may impose a 0.75% sales and use tax which is credited  
            against the county's tax.  The remainder of the county rate  
            (0.25%) is designated under current law for county  
            transportation purposes.  
            Bradley-Burns sales taxes are allocated on a "situs-based"  
            system meaning that the revenue is allocated to the city or  
            county that served as the place of sale in a transaction.   
            Generally, the place of sale is the retailer's sales location,  
            the place where the transaction occurred.  The Bradley-Burns  
            tax revenues from sales within a city's limits are allocated  
            to that city and revenues from transactions occurring in a  
            county's unincorporated area are allocated to the county.  


          2)Fiscalization of Land Use.  The distribution of Bradley-Burns  
            revenue based on the retailer's sales location gives local  
            governments the fiscal incentive to make land use decisions  
            that favor revenue-generating uses for land, as opposed to  
            land uses that may require extensive public services.  Given  








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            the greater importance of sales tax revenue as opposed to  
            other priorities, like affordable housing or open space and  
            agricultural lands, the fiscalization of land use has led  
            cities and counties to provide tax rebates in some cases in  
            order to attract new retail development.  Evaluating Options  
            for Sales Tax Reform by Michael Coleman, author of the online  
            California Local Government Finance Almanac  
            (CaliforniaCityFinance.com), states "Current sales tax  
            incentive agreements in California rebate amounts ranging from  
            50% to 85% of sales tax revenues back to the corporations.   
            Today, experts familiar with the industry believe that between  
            15% to 20% of local Bradley-Burns sales taxes paid by  
            California consumers is diverted from local general funds back  
            to corporations; over $1 billion per year."  


          3)Prior Legislation.  There have been several attempts in the  
            Legislature to address the issue of rebating sales tax and to  
            address retailers taking advantage of the ficalization of land  
            use.  AB 178 (Torlakson), Chapter 462, Statutes of 1999,  
            required a community that uses financial incentives to lure a  
            big-box retailer or auto dealer from a neighboring community  
            to offer the other community a contract apportioning the sales  
            taxes generated by the business between the two jurisdictions.  
             The provisions of AB 178 were replaced by tougher  
            restrictions, with the enactment of SB 114 (Torlakson),  
            Chapter 781, Statutes of 2003.  SB 114 prohibited a community  
            from providing any form of financial assistance to a vehicle  
            dealer or big-box retailer relocating from a neighboring  
            community within the same county.


          4)Existing Law and Bill Summary.  SB 27 (Hancock), Chapter 4,  
            Statues of 2009, sought to prohibit cities or counties from  
            using Bradley-Burns sales tax rebates as an incentive to draw  
            sales tax-generating activities away from other communities.   
            SB 27 prohibits a local agency from entering into any form of  
            agreement or taking any actions that would result in the  
            payment, transfer, diversion, or rebate of any amount of  








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            Bradley-Burns local tax proceeds to any person or for any  
            purpose if the agreement results in a substantial reduction in  
            the amount of tax proceeds received by another local agency  
            from a retailer within that other local agency and when the  
            retailer continues to maintain a physical presence and  
            location within that other agency.  This bill revises and  
            recasts the prohibition on a local agency from entering into  
            those agreements, beginning on January 1, 2016; however, it  
            also removes several exemptions put in place by SB 27.  


            This bill removes the exemptions for the following agreements  
            in current law:  a) A reduction in the use tax proceeds that  
            are distributed to a local agency through one or more county  
            pools; b) 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; c) Bradley-Burns local tax proceeds provided by a  
            local agency to a retailer if the 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 the local agency; and, 


            d) An agreement to pay or rebate any tax revenue relating to a  
            buying company.   
            This bill maintains an exemption for any agreement by a local  
            agency to pay or rebate any use tax revenue relating to a use  
            tax direct payment permit.  Additionally, this bill does not  
            apply to a local agency that has a mutual tax revenue sharing  
            agreement with each local agency that would be affected by the  
            form of agreement prohibited by this bill.  


            Under this bill, a local agency must post online any  
            agreements it has entered into that results in a reduction of  
            the amount of revenue under Bradley-Burns that, in the absence  
            of the agreement, would be received by another local agency,  
            including any agreements entered into prior to January 1,  








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            2016.  Additionally, with any new agreement the local agency  
            must comply with posting requirements and notification  
            requirements.  


            This bill is sponsored by the City of West Sacramento.  


          5)Author's Statement.  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 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 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."  


          6)Policy Consideration.  The Committee may wish to consider the  
            following:









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             a)   Mutual Tax Revenue Sharing Agreement.  A retail  
               establishment may straddle a border with sales being made  
               in more than one jurisdiction in which case the neighboring  
               jurisdictions may agree to divide the sales tax proceeds by  
               entering into a mutual agreement.  This bill provides an  
               exemption for a local agency that has a mutual tax revenue  
               sharing agreement with each local agency that would be  
               affected by the form of the agreement prohibited by this  
               bill.  The Committee may wish to consider, given the  
               practical need for a tax revenue sharing agreement, if this  
               exemption needs to be clarified to specify that this mutual  
               tax sharing agreement does not include a retailer.  This  
               clarification would ensure that this exemption will not  
               provide another loophole and allow the types of practices  
               the author and proponents are trying to prevent.  


             b)   Systemic Issue.  The Committee may wish to consider that  
               this bill maintains the situs-based sales tax allocation  
               system for local governments, and therefore, does not  
               adequately address the underlying problems with the  
               fiscalization of land use.  


          7)Arguments in Support.  The City of West Sacramento argues that  
            current law "attempts to limit abusive sales tax agreements.   
            However, fiscally predatory jurisdictions and a growing  
            cottage industry of consultants dedicated to helping them  
            still seek loopholes.  SB 533 would remove the current  
            exclusion for businesses that have 'expanded their operations  
            into another jurisdiction with the result that the retailer is  
            conducting a comparable operation within the jurisdiction of  
            both agencies' an essentially meaningless qualifier that  
            mostly serves to facilitate the very types of agreements the  
            law is intended to preclude." 


          8)Arguments in Opposition.  San Bernardino County argues, "If SB  








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            533 were to pass, business owners who are prohibited from  
            receiving economic incentives to expand operations outside of  
            the original jurisdiction to other areas of the state, may  
            choose to completely close down operations and move their  
            business to a new location which may or may not exist within  
            the boundaries of California.  The bill prohibits normal  
            incentives, designed to encourage local businesses to expand  
            and upgrade, so they can generate additional tax revenue and  
            jobs for the local community.  The bill has the potential to  
            bring lawsuits against cities and counties, from other  
            jurisdictions claiming revenue losses.  SB 533 would cause  
            tremendous complications and uncertainty for legitimate  
            economic development."


          9)Double-Referral.  This bill is double-referred to the Revenue  
            and Taxation Committee.  


          REGISTERED SUPPORT / OPPOSITION:




          Support


          City of West Sacramento [SPONSOR]


          City of Cerritos


          City of San Diego


          League of California Cities










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          Opposition


          San Bernardino County




          Analysis Prepared by:Misa Lennox / L. GOV. / (916)  
          319-3958