BILL ANALYSIS                                                                                                                                                                                                    Ó






                                                                     SB 533


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          Date of Hearing:  July 13, 2015





                     ASSEMBLY COMMITTEE ON REVENUE AND TAXATION


                                 Philip Ting, Chair





          SB  
          533 (Pan) - As Amended July 6, 2015





          Majority vote.  Fiscal committee.  


          SENATE VOTE:  25-11


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


          SUMMARY:  Modifies the general prohibition on a city or county  
          entering into an agreement that would result in the payment,  
          transfer, diversion, or rebate of sales and use tax (SUT)  
          revenues under the Bradley-Burns Uniform Local SUT Law  
          (Bradley-Burns) to any person for any purpose.  Specifically,  
          this bill:  













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          1)Repeals the existing statutory prohibition and instead  
            prohibits a local agency, defined as any city or county, from  
            entering into any agreement that would result in the payment,  
            transfer, diversion, or rebate of any Bradley-Burns revenues  
            to any person when both of the following conditions apply:


             a)   The agreement reduces the Bradley-Burns revenues that  
               another local agency would receive absent the agreement;  
               and,


             b)   The retailer continues to maintain a physical presence  
               within that other local agency.


          2)Specifies that this prohibition does not apply to any mutual  
            tax revenue sharing agreement between local agencies to pay,  
            transfer, or divert Bradley-Burns revenues to another local  
            agency, and where the agreement would not result in the  
            payment of those revenues to a retailer.  


          3)Retains two existing exceptions to the statutory prohibition.   
            Specifically, the prohibition shall continue not to apply to  
            any local agency agreement:


             a)   To pay or rebate any Bradley-Burns use tax revenue  
               relating to a use tax direct payment permit issued under  
               Revenue and Taxation Code (R&TC) Section 7051.3; and,


             b)   Entered into under R&TC Section 7056(b).  


          4)Requires any local agency entering into an agreement that  
            would reduce the Bradley-Burns revenues received by another  
            local agency to:











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


             b)   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 the  
               agreement's ratification or approval.


          5)Requires a local agency to post on its Internet Web site any  
            agreement it has entered that reduces Bradley-Burns revenues  
            that, absent the agreement, would be received by another local  
            agency, including any agreements entered into before January  
            1, 2016, that are still in effect.     


          6)Provides that if the Commission on State Mandates determines  
            that this bill contains costs mandated by the state,  
            reimbursement to local agencies and school districts for those  
            costs shall be made pursuant to existing law.  


          EXISTING LAW: 


          1)Prohibits, under certain circumstances, a "local agency" from  
            entering into any agreement that would result in the payment,  
            transfer, diversion, or rebate of any tax revenue resulting  
            from the imposition of a SUT under Bradley-Burns to any person  
            for any purpose.  (Government Code (GC) Section 53084.5(a).)   
            Specifically, this prohibition applies when both of the  
            following conditions arise:


             a)   The agreement reduces Bradley-Burns revenues received by  











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               another "local agency" from a "retailer" located within  
               that other "local agency".  The prohibition, however, does  
               not apply to a reduction in use tax proceeds distributed to  
               that other "local agency" through one or more countywide  
               pools; and, 


             b)   The "retailer" continues to maintain a "physical  
               presence" within the other "local agency".  The  
               prohibition, however, does not apply if the "retailer" has  
               expanded its operations into another jurisdiction with the  
               result that the "retailer" is conducting a comparable  
               operation within both local agencies.  


          2)Defines a "local agency" as a chartered or general law city, a  
            chartered or general law county, or a city and county.  


          3)Defines a "retailer" by reference to R&TC Section 6015.  


          4)Defines "physical presence" as the lease or ownership of any  
            real property for the purpose of carrying on business  
            operations.  


          5)Specifies that this prohibition does not apply to any of the  
            following:


             a)   Local tax proceeds a local agency provides to a retailer  
               to reimburse the retailer for the construction of public  
               works improvements serving all or a portion of the local  
               agency;


             b)   An agreement to pay or rebate Bradley-Burns revenues  
               relating to a "buying company".  A buying company, in turn,  











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               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 to  
               perform administrative functions, including acquiring goods  
               and services for the other entity, as defined by the State  
               Board of Equalization (BOE), and meets the requirements of  
               a buying company under R&TC Section 6066 et seq., and the  
               regulations adopted pursuant thereto; and, 


             c)   Any agreement by a local agency to pay or rebate any  
               Bradley-Burns use tax revenue relating to a use tax direct  
               payment permit issued under R&TC Section 7051.3.  


          6)Specifies that this general prohibition shall not be  
            interpreted to limit a local agency's ability to enter into an  
            agreement under R&TC Section 7056(b).  


          FISCAL EFFECT:  The BOE estimates that this bill would not  
          impact state revenues.  


          COMMENTS:  


          1)The author has provided the following statement in support of  
            this bill:


               SB 533 will prohibit a sales tax rebate when (1) the  
               agreement results in a loss of sales tax revenue in another  
               local agency and (2) the retailer maintains a physical  
               presence within the territory of the other local agency and  
               eliminates the exception for a retailer that "has expanded  
               its operations into another jurisdiction with the result  
               that the retailer is conducting a comparable operation  
               within the jurisdiction of both local agencies."  This bill  











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               requires the local agency entering into such an agreement  
               to provide sixty (60) days prior notice to the local agency  
               that is going to lose sales tax revenue due to the  
               agreement and thirty (30) days prior notice to the public  
               prior to Council ratification of the agreement.  These  
               changes make it more difficult to take the sales tax  
               revenue that helps finance local agency services from the  
               commercial activities that create demands upon them,  
               resulting in a fairer and more transparent sales tax  
               structure.  


          2)This bill is sponsored by the City of West Sacramento, which  
            notes the following:


               As you know, local sales and property taxes are the primary  
               means through which local jurisdictions generate the  
               revenues they need to provide crucial services to the  
               residents and businesses that reside within their  
               boundaries.  The geographic relationship between revenues  
               collected and services delivered is the basis of local  
               government accountability.  


               Unfortunately, some jurisdictions have sought to unravel  
               this fundamental relationship by laying claim to the sales  
               tax revenues generated by businesses operating in cities  
               hundreds of miles away.  Frequently aided by consultants,  
               these jurisdictions have entered into deals whereby the  
               "new" city agrees to rebate a portion of a business' sales  
               tax if the business agrees to book its sales tax there,  
               even as the business continues to operate in the existing  
               location.  


               These deals can have devastating fiscal impacts on local  
               jurisdictions.  For example, the City of West Sacramento  
               recently saw its sales tax revenue from a local business  











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               drop by over $1 million annually as a result of a deal  
               between that business and a distant jurisdiction, even  
               though the business continues to operate in West  
               Sacramento.  That is fundamentally unfair. 


               Government Code Section 53084.5 attempts to limit such  
               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 local agencies," an essentially meaningless  
               qualifier that mostly serves to facilitate the very types  
               of agreements the law is intended to preclude.   


          3)This bill is supported by the City of Cerritos, which notes  
            the following:


               This legislation is needed to protect cities from the  
               potential loss of an important revenue source, particularly  
               one that is needed to provide public safety services and  
               infrastructure needs that are required to support retail  
               developments within their jurisdictions. 


               SB 533 will remove a number of exemptions and require more  
               public transparency for future agreements that result in  
               the loss of sales tax to local agencies who have supported  
               a healthy retail climate in their community.  


          4)The BOE notes the following in its staff analysis of this  
            bill:












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              a)   Effect of the bill  :  "This bill eliminates certain  
               exemptions from the prohibition in GC Section 53084.5.   
               Those exemptions are:


                           "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.


                           "Local tax proceeds provided by a local agency  
                    to a retailer 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.


                           "An agreement involving reductions in local  
                    use tax distributed through the countywide pool  
                    process.


                           "An agreement to pay or rebate local tax  
                    revenue relating to a buying company.  


               "The bill requires local agencies entering into agreements  
               involving reductions in local tax revenues that otherwise  
               would be received by another local agency to notify that  
               other local agency by certified mail at least 60 days prior  
               to ratification or approval of these proposed agreements.   
               The local agency must post these proposed agreements on its  
               Internet Web site for at least 30 days prior to their  
               ratification or approval.  Additionally, the bill requires  
               local agencies to post on their Internet Web site any of  
               these agreements entered into prior to the effective date  
               of SB 533 that are still in effect."











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              a)   The bill does not impact the BOE's administration of the  
               local tax  :  "Once the BOE disburses funds to cities and  
               counties based on the Bradley-Burns laws and regulations,  
               the cities and counties then control how the money is spent  
               or allocated." 


          1)Committee Staff Comments


              a)   An overview of existing law  :  The BOE administers  
               Bradley-Burns, which authorizes counties to impose a local  
               SUT.  The tax rate is fixed at 1% of the sales price of  
               tangible personal property sold at retail in the county, or  
               purchased outside the county for use within the county.   
               Current law authorizes cities to impose a local SUT rate of  
               up to 0.75%.  The city SUT rate is "credited" against the  
               county rate so that the combined rate does not exceed 1%.  


               Of the 1%, cities and counties use 0.75% to support general  
               operations.  The remaining 0.25% is designated by statute  
               for county transportation purposes and restricted to road  
               maintenance or the operation of transit systems.  Counties  
               receive the 0.25% tax for transportation purposes  
               regardless of whether the sale occurs in a city or in the  
               unincorporated area of a county.  In California, all cities  
               and counties impose Bradley-Burns local taxes at a total  
               uniform rate of 1%. 


              b)   Place of sale - allocation of Bradley-Burns revenues  :   
               R&TC Section 7205 specifies the "place of sale" for  
               purposes of the local sales tax as the place of business of  
               the retailer.  If the retailer has only one place of  
               business in California, all California retail sales in  
               which that place of business participates occur at that  











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               place of business.  The BOE allocates the local sales tax  
               to the city, county, or city and county in which that place  
               of business is located, even if title to the property  
               passes to the purchaser outside the jurisdiction in which  
               the retailer's business is located, or if the property is  
               never within the jurisdiction in which the retailer's  
               business is located. 


               If a retailer has more than one place of business in  
               California, the place of sale is determined in accordance  
               with BOE regulations.  Specifically, SUT Regulation 1802  
               governs the "place of sale" for purposes of allocating  
               local tax revenues to local jurisdictions.  Under  
               Regulation 1802, if a retailer has more than one place of  
               business in this state participating in the sale, then the  
               place of sale is where principal negotiations are  
               conducted.<1>  


              c)   The existing statutory prohibition on certain  
               agreements  :  GC Section 53084.5 currently prohibits a local  
               agency from entering into an agreement resulting in the  
               payment, transfer, diversion, or rebate of any  
               Bradley-Burns proceeds, when both of the following  
               conditions apply:


               i)     The agreement results in reduced Bradley-Burns  
                 proceeds received by another local agency from a retailer  
                 that is located within that other local agency; and, 


               ii)    The retailer continues to maintain a physical  
               -------------------------


          <1>


           Different rules apply for purposes of determining the place of  
          sale for jet fuel.  








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                 presence within that other local agency.  


               Current law specifies that this prohibition does not apply  
               to certain agreements involving the following:


               i)     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;


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


               iii)   Any agreement to pay or rebate Bradley-Burns  
                 revenues related to a buying company, as specified; 


               iv)    Any agreement to pay or rebate any local use tax  
                 revenue related to a use tax direct payment permit issued  
                 under R&TC Section 7051.3; and, 


               v)     Bradley-Burns revenues provided by a local agency to  
                 a retailer if those proceeds are used to reimburse the  
                 retailer for the construction of public works  
                 improvements serving all or a portion of that local  
                 agency.  


              d)   What would this bill do  ?  This bill would repeal the  
               existing statutory prohibition on certain local agency  
               agreements contained in GC Section 53084.5, and add a new  
               GC Section 53084.5 applicable on and after January 1, 2016.  
                The new statutory provisions would prohibit a local agency  











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               from entering into an agreement that results in the  
               payment, transfer, diversion, or rebate of Bradley-Burns  
               revenues to any person when both of the following  
               conditions apply:


               i)     The agreement results in a reduction in  
                 Bradley-Burns tax proceeds that, in the absence of the  
                 agreement, would be received by another local agency;  
                 and, 


               ii)    The retailer continues to maintain a physical  
                 presence within that other local agency.  


               The bill effectively eliminates nearly all of the  
               exceptions contained in the current version of GC Section  
               53084.5.


               Moreover, this bill adds new public notification  
               requirements to increase governmental transparency and  
               accountability.  Specifically, any local agency entering  
               into a permitted agreement reducing the amount of  
               Bradley-Burns revenues that would be received by another  
               local agency must do the following:  


               i)     Post the proposed agreement on its Internet Web site  
                 for at least 30 days prior to the agreement's  
                 ratification or approval; and,  


               ii)    Notify the other local agency by certified mail at  
                 least 60 days prior to ratification or approval of that  
                 agreement.  













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              e)   What's the back story  ?  Recently, the Sacramento Bee  
               reported that in November 2014 the City of West Sacramento  
               found itself nearly $600,000 short in sales tax revenue it  
               had anticipated from HD Supply, a company that sells  
               hardware fixtures and home improvement products.  The City  
               of West Sacramento responded by inquiring whether the  
               company had closed its distributing operations there; it  
               had not.  Instead, the Florida-based company had  
               consolidated its point-of-sale operations in the City of  
               Santee so that all of its local sales taxes would be  
               assigned to that jurisdiction.  In exchange, the City of  
               Santee reportedly agreed to provide HD Supply a 50% rebate  
               of the tax once revenue exceeds $500,000 annually.  Thus,  
               the City of West Sacramento is sponsoring this bill to  
               prevent similar actions in the future and to prevent a  
               "race to the bottom" among municipalities competing for  
               revenues.   


              f)   Double-referral  :  This bill was double referred to the  
               Assembly Committee on Local Government, which approved this  
               bill by a vote of 9 to 0 on July 1, 2015.  For additional  
               discussion of this bill, please refer to that committee's  
               analysis.   


           REGISTERED SUPPORT / OPPOSITION:




          Support


          City of West Sacramento


          City of Cerritos












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          League of California Cities




          Opposition


          None on file




          Analysis Prepared by:M. David Ruff / REV. & TAX. / (916)  
          319-2098