BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                     SB 598


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          Date of Hearing:   June 22, 2015





                     ASSEMBLY COMMITTEE ON REVENUE AND TAXATION


                                 Philip Ting, Chair





          SB  
          598 (Hill) - As Amended April 15, 2015





          Majority vote.  Tax levy.  Fiscal committee.  


          SENATE VOTE:  35-0


          SUBJECT:  Sales and use taxes:  consumer designation:  all  
          volunteer fire department


          SUMMARY:  Designates an all-volunteer fire department (AVFD) as  
          a consumer, and not a retailer, of all tangible personal  
          property (TPP) it sells if the profits are used solely and  
          exclusively in furtherance of the AVFD's purposes.   
          Specifically, this bill:  










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          1)Designates, for purposes of the Sales and Use Tax (SUT) Law,  
            an AVFD as a consumer of all TPP it sells, including hot  
            prepared food products and clothing, if the profits are used  
            solely and exclusively in furtherance of the purposes of the  
            AVFD.  


          2)Defines an "AVFD" as an organization that meets all the  
            following requirements:


             a)   All members shall not be paid a regular salary, but may  
               be compensated on an hourly or per incident basis;


             b)   The organization's purpose is to protect the lives,  
               property, and environment within a designated geographical  
               area from fires, disasters, and emergency incidents through  
               education, prevention, training, and emergency response; 


             c)   The organization is regularly organized for volunteer  
               fire department purposes that qualifies [sic] as an exempt  
               organization, either under Revenue and Taxation Code (R&TC)  
               Section 23701d or 23701f or under Internal Revenue Code  
               (IRC) Section 501(c)(3) or 501(c)(4);


             d)   The organization enjoys official recognition and full or  
               partial support of the government of the county, city, or  
               district in which the volunteer fire department is located;  
               and, 


             e)   The organization's functions have an exclusive  
               connection with the prevention and extinguishing of fires  
               within the area of the county, city, or district extending  
               official recognition for the benefit of the public  
               generally and to lessen the burdens of the entity of  








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               government that would otherwise be obligated to furnish  
               that fire protection.  


          3)Provides that this preferential tax status shall not apply if  
            an AVFD, in each of the two preceding calendar years, has  
            receipts from the sale of TPP of $100,000 or more.  


          4)Provides that this section shall remain in effect until  
            January 1, 2026, and is repealed as of that date.  


          5)Provides that, notwithstanding existing law, the state shall  
            not reimburse any local agency for any SUT revenues lost as a  
            result of this bill. 


          6)Takes immediate effect as a tax levy, but only becomes  
            operative on the first day of the first calendar quarter  
            commencing more than 90 days after the bill's effective date.   



          EXISTING LAW:   


          1)Imposes a sales tax on retailers for the privilege of selling  
            TPP, absent a specific exemption.  The tax is based upon the  
            retailer's gross receipts from TPP sales in California.

          2)Imposes a complimentary use tax on the storage, use, or other  
            consumption of TPP purchased out-of-state and brought into  
            California.  The use tax is imposed on the purchaser; and  
            unless the purchaser pays the use tax to an out-of-state  
            retailer registered to collect California's use tax, the  
            purchaser remains liable for the tax.  The use tax is set at  
            the same rate as the state's sales tax and must generally be  
            remitted to the State Board of Equalization (BOE).








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          3)Designates the following entities as consumers, and not  
            retailers, of specified TPP they use or furnish in the  
            performance of their professional services:

             a)   Licensed optometrists, physicians, pharmacists, and  
               registered dispensing opticians (R&TC Section 6018);

             b)   Licensed veterinarians (R&TC Section 6018.1);

             c)   Licensed chiropractors (R&TC Section 6018.4);

             d)   Specified garment cleaning establishments that received  
               no more than 20% of their total gross receipts from the  
               alteration of garments during the preceding calendar year  
               (R&TC Section 6018.6);

             e)   Licensed hearing aid dispensers (R&TC Section 6018.7);  
               and,

             f)   Producers of X-ray films or photographs used to diagnose  
               human medical or dental conditions (R&TC Section 6020). 

          4)Provides a property tax exemption for the property of a  
            volunteer fire department that is used exclusively for  
            volunteer fire department purposes, provided the department  
            qualifies for exemption under R&TC Section 23701d or 23701f or  
            under  IRC Section 501(c)(3) or 501(c)(4).  (R&TC Section  
            213.7).  

          FISCAL EFFECT:  The BOE estimates that this bill would reduce  
          state and local revenues by $42,000 annually.  


          COMMENTS:  


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








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               SB 598 is the winner of my annual "Ought to Be a Law  
               Contest" winner.  All-volunteer fire departments across the  
               state solely rely on fundraisers to buy lifesaving  
               equipment.  The La Honda Fire Brigade in my district is no  
               different.  Their livelihood relies exclusively on  
               volunteers, from the 14 individuals who serve as  
               firefighters, to the board members who organize fundraising  
               efforts like the annual pancake breakfast and crab cioppino  
               dinner.  Unfortunately any fundraisers dealing with selling  
               hot/prepared food or tangible goods are subject to  
               California sales tax.  SB 598 would simply exempt  
               All-volunteer fire departments from having to pay sales tax  
               on their fundraising efforts.  All of the money raised  
               would be able to stay with them.  If they are able to raise  
               $1000 at a pancake breakfast - they will keep the full  
               $1000 and not have to send $92.50 (San Mateo County has a  
               sales tax rate of 9.25%) to the State.  Everyday these  
               volunteers put their lives on the line and provide an  
               important resource to the communities they serve.  We  
               should help them any way we can and allowing them to keep  
               all of their fundraising dollars is an important first  
               step.


          2)This bill is supported by the California State Firefighters'  
            Association, which notes:


               Currently, California's All-Volunteer Fire Departments  
               (AVFDs) have to pay sales tax for fundraising activities  
               like pancake breakfasts, BBQ's and T-shirt sales.  Sales  
               tax on fundraising activities siphons critical dollars from  
               the Departments' primary mission to protect Californian  
               lives and property. 


               An [AVFD] is an organization whose purpose is to protect  








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               the lives and property within a geographical area from  
               fires, disasters, and emergency incidents through  
               education, prevention, training, and emergency response.   
               We estimate that [29%] of California's 835 fire departments  
               are [AVFDs].  Approximately 25,000 volunteer firefighters  
               currently serve California.  Volunteers are not paid a  
               regular wage but may be compensated on an hourly or per  
               incident basis.  


               California's volunteer fire departments truly are the  
               safety-net for our state.  Volunteers are an important part  
               of our emergency services often supporting other areas  
               throughout the state when called upon during major  
               incidents.  


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


              a)   Effect of the bill :  "[AVFDs] that make sales of taxable  
               food, clothing, or other [TPP] will not be required to  
               report sales tax on those sales, hold a BOE-issued seller's  
               permit, or file sales tax returns.  Instead, they will only  
               be required to pay tax reimbursement on the cost of the  
               taxable items they intend to sell for fund-raising  
               purposes."


              b)   This bill does not materially impact the BOE's tax audit  
               or administrative functions  :  "According to the author's  
               office, about 250 [AVFDs] exist in California.  However,  
               generally, the BOE seldom audits [AVFDs] due to their low  
               sales volume and lack of complexity."  


          4)Committee Staff Comments









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              a)   What is a "tax expenditure"  ?  Existing law provides  
               various credits, deductions, exclusions, and exemptions for  
               particular taxpayer groups.  In the late 1960s, U.S.  
               Treasury officials began arguing that these features of the  
               tax law should be referred to as "expenditures" since they  
               are generally enacted to accomplish some governmental  
               purpose and there is a determinable cost associated with  
               each (in the form of foregone revenues). 

              b)   How is a tax expenditure different from a direct  
               expenditure  ?  As the Department of Finance notes in its  
               annual Tax Expenditure Report, there are several key  
               differences between tax expenditures and direct  
               expenditures.  First, tax expenditures are reviewed less  
               frequently than direct expenditures once they are put in  
               place.  While this affords taxpayers greater financial  
               predictability, it can also result in tax expenditures  
               remaining a part of the tax code without demonstrating any  
               public benefit.  Second, there is generally no control over  
               the amount of revenue losses associated with any given tax  
               expenditure.  Finally, it should also be noted that, once  
               enacted, it takes a two-thirds vote to rescind an existing  
               tax expenditure absent a sunset date.  This effectively  
               results in a "one-way ratchet" whereby tax expenditures can  
               be conferred by majority vote, but cannot be rescinded,  
               irrespective of their efficacy or cost, without a  
               supermajority vote.


              c)   An overview of the SUT Law  :  California's SUT Law  
               imposes a sales tax on retailers for the privilege of  
               selling TPP, absent a specific exemption.  The tax is based  
               upon a retailer's gross receipts from TPP sales in  
               California.  The SUT Law also imposes a mirror "use tax" on  
               the storage, use, or other consumption of TPP purchased  
               out-of-state and brought into California.  The use tax is  
               imposed on the purchaser; and unless the purchaser pays the  
               use tax to an out-of-state retailer registered to collect  








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               California's use tax, the purchaser remains liable for the  
               tax.  The use tax is set at the same rate as the state's  
               sales tax and must generally be remitted to the BOE.  


               The SUT represents the state's second largest source of  
               General Fund (GF) revenues.  Nevertheless, the past 60  
               years have seen a dramatic reduction in the state's  
               reliance on the SUT and a corresponding increase in its  
               reliance on personal income tax revenues.  In fiscal year  
               (FY) 2014-15, SUT revenues are estimated to comprise 23% of  
               the state's GF revenues, down from nearly 60% in FY  
               1950-51.


              d)   What accounts for the state's reduced reliance on SUT  
               revenues  ?  The SUT Law was enacted in a very different era.  
                In the 1930s, California's economy was largely dominated  
               by manufacturing, and residents mostly bought and sold  
               tangible goods.  Thus, in establishing the base for a new  
               consumption tax, it made sense to impose the tax on sales  
               of TPP, defined as personal property that may be "seen,  
               weighed, measured, felt, or touched."  Over the past 80  
               years, however, California's economy has seen dramatic  
               growth in the service and information sectors, resulting in  
               a significant erosion of the SUT base.  For example, the  
               Commission on the 21st Century Economy noted that spending  
               on taxable goods represented 34.6% of personal income in  
               2008, down from 55.4% in 1980.  As a result, tax experts  
               and economists from across the political spectrum argue  
               that California should expand its SUT base.  


               It could be argued that, while well-intentioned, additional  
               SUT preferences further erode an already shrinking SUT  
               base.  This, in turn, increases fiscal pressures to  
               maintain or even increase California's relatively high SUT  
               rate.  High rates arguably promote non-compliance and  
               encourage out-of-state purchases, placing California  








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               retailers at a competitive disadvantage.  High rates also  
               risk impacting consumer decision-making, which runs counter  
               to widely accepted principles of sound tax policy.


              e)   How does the SUT Law generally apply to nonprofit  
               organizations  ?  The law does not generally exempt from the  
               SUT sales by nonprofit organizations, persons engaged in  
               charitable work, or those who enjoy certain income or  
               property tax benefits.  Therefore, nonprofit organizations'  
               TPP sales are generally subject to tax to the same extent  
               as any other retailer's sales.  Generally, persons engaged  
               in the business of selling TPP must obtain a seller's  
               permit and report SUT on a BOE-prescribed return.  


                California law does, however, designate certain charitable  
               organizations as consumers, rather than retailers, under  
               the SUT Law.  Statutorily, this is done on a case-by-case  
               basis.  For example, R&TC Section 6359.3 confers consumer  
               status on nonprofit veterans' organizations with respect to  
               United States flags sold, provided the profits are used  
               exclusively in furtherance of the organization's purposes.   
               R&TC Section 6360, in turn, confers consumer status on  
               specified charities with respect to bracelets distributed  
               to commemorate American prisoners of war.  Once again, any  
               profits must be used solely and exclusively in furtherance  
               of the organization's purposes.  As one last example, R&TC  
               Section 6361.1 confers consumer status on qualified  
               organizations that sell handcrafted items made by  
               individuals with developmental disabilities or children  
               with severe emotional disturbances.  The price of each item  
               sold must not exceed $20.


              f)   AVFDs  :  There are numerous AVFDs throughout California.   
               These entities, which primarily serve rural areas, protect  
               lives and property by fighting fires and responding to  
               other emergency incidents.  These organizations often  








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               operate on limited budgets, with funds obtained through  
               public financial support, fundraising activities, and  
               grants.  For example, the La Honda Fire Brigade notes that  
               its cash expense budget for the year is $44,500, and that  
               SUTs paid in 2013 and 2014 were $1,946 and $1,985.  The La  
               Honda Fire Brigade further notes that if it were relieved  
               of this SUT liability, it would use those funds for capital  
               asset acquisition, station maintenance, and operational  
               expenses.  


              g)   What would this bill do  ?  This bill would designate an  
               AVFD as a consumer, rather than a retailer, of TPP it sells  
               if the profits are used solely and exclusively in  
               furtherance of the AVFD's purposes.  Therefore, an AVFD  
               would not be liable for sales tax on its retail sales of  
               food products, clothing, or other items.  Rather, an AVFD  
               would be regarded as a consumer of the TPP it sells.  Thus,  
               AVFDs would be required to pay tax reimbursement on the  
               purchase price of any taxable items acquired for resale in  
               their fundraising activities.  As the BOE notes, statutory  
               "consumer status" is generally conferred to minimize  
               reporting burdens for specified organizations, while  
               minimizing the revenue losses associated with a complete  
               SUT exemption.  The BOE notes that, "Other statutory  
               consumers classified in law include [Parent Teacher  
               Associations], nonprofit veterans' organizations, nonprofit  
               youth organizations, various charitable organizations,  
               [and] schools and school districts . . . ."  


               This bill seeks to enable AVFDs to maximize scarce  
               resources by exempting their own fundraising sales from the  
               SUT.  AVFDs rely primarily on membership drives and  
               fundraising activities to support their operational  
               budgets.  


               The Committee may wish to consider whether providing  








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               preferential tax treatment to AVFDs may inadvertently set a  
               precedent for future organizations seeking consumer status  
               due to the beneficial nature of their work or the  
               administrative burdens inherent in complying with the law.


              h)   Providing greater statutory clarity  :  Some of the  
               language contained in this bill could benefit from greater  
               clarity.  For example, this bill provides that to qualify  
               as an AVFD "[a]ll members shall not be paid a regular  
               salary, but may be compensated on an hourly or per incident  
               basis."  Does this mean that no member of the AVFD may be  
               paid a regular salary?  If an AVFD contained five members,  
               with only one receiving a regular salary, clearly all  
               members would not be paid a regular salary.  Would this  
               AVFD potentially qualify for consumer status?  The author  
               may wish to consider amendments providing greater  
               definitional clarity. 


              i)   Sunset dates  :  Absent a sunset date, tax expenditure  
               programs like the one this bill proposes cannot be revoked  
               without a supermajority vote.  Thus, this Committee has a  
               longstanding practice of including sunset dates in tax  
               expenditure bills to allow the Legislature periodically to  
               review the cost and efficacy of such expenditures.  This  
               bill currently contains a 10-year sunset.  In keeping with  
               Committee practice, the author may wish to consider  
               shortening the sunset date to five years.  


              j)   Recommended technical amendments  :  Committee staff  
               suggests the following technical amendments to this bill:


               i)     On page 2, strike lines 12 and 13, and insert "(1)  
                 No member shall be paid a regular salary, but a member  
                 may be compensated on an hourly or per incident basis.";









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               ii)    On page 2, in line 19, strike "that" and insert  
                 "and"; 


               iii)   On page 3, in line 2, strike "which" and insert  
                 "that"; 


               iv)    On page 3, in line 6, strike "receipts" and insert  
                 "gross receipts"; and,   


               v)     On page 3, in line 8, strike "January," and insert  
                 "January".  


          REGISTERED SUPPORT / OPPOSITION:




          Support


          California State Firefighters' Association


          County of San Mateo


          La Honda Fire Brigade




          Opposition










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          None on file




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