BILL ANALYSIS Ó SENATE COMMITTEE ON APPROPRIATIONS Senator Ricardo Lara, Chair 2015 - 2016 Regular Session SB 640 (Beall) - Sales and use taxes: claim for refund: customer refunds ----------------------------------------------------------------- | | | | | | ----------------------------------------------------------------- |--------------------------------+--------------------------------| | | | |Version: April 21, 2015 |Policy Vote: GOV. & F. 7 - 0 | | | | |--------------------------------+--------------------------------| | | | |Urgency: No |Mandate: No | | | | |--------------------------------+--------------------------------| | | | |Hearing Date: May 4, 2015 |Consultant: Robert Ingenito | | | | ----------------------------------------------------------------- SUSPENSE FILE. AS AMENDED. Bill Summary: SB 640 would authorize a retailer to make an irrevocable election to assign the right to file a claim for refund of excess sales tax reimbursement in the amount of $50,000 or greater to a single customer so that the Board of Equalization (BOE) may directly refund the amount to the customer. Fiscal Impact (as approved on May 28, 2015): BOE would likely incur costs in the hundreds of thousands of dollars annually to implement the provisions of the bill. As noted above, under the bill, customers would be able to file a claim for refund; consequently, the number of claims filed could increase, resulting in loss of revenue to the State and localities. However, the resulting decrease in revenue represents funds initially overcollected relative to current sales and use tax (SUT) SB 640 (Beall) Page 1 of ? law. Background: Under current law, BOE may refund excess use tax directly to a purchaser; however, the same is not true with respect to sales tax. Instead, current law allows BOE to issue a refund for excess sales tax reimbursement only to the retailer that collected and reported the tax. Thus, when a customer overpays sales tax to a retailer, the customer must obtain a refund directly from the retailer. The customer cannot obtain a refund directly from BOE. Proposed Law: This bill would authorize BOE to refund excess sales tax reimbursement to the customer who was overcharged upon the retailer's irrevocable assignment of the right to file a claim for refund and to receive the refund. BOE's direct refund to a customer would only be allowed for refunds of $50,000 or more to a single customer. The retailer and the customer would both need to sign the irrevocable assignment and submit it to the BOE with the customer's claim for refund. In addition, the bill would (1) require that the retailer retain records to verify the refund available for inspection by BOE, and (2) specify that no refund will be payable until BOE verifies by audit or other means that the amounts are properly due for refund. Related Legislation: In 2013, this Committee considered AB 1412 (Bocanegra and Gatto, as amended July 10th). The version of that bill before this Committee would have (1) authorized a retailer to make an irrevocable election to assign the right to receive a refund payment of excess tax reimbursement in the amount of $50,000 or more to a single customer, but (2) prohibited contingency fees that are charged or paid in connection with the election, assignment, or claim for refund relating to an irrevocable election to assign the right to receive a specified refund. That version of the bill was ascertained by BOE program staff to have minor costs; consequently, the bill was moved directly to the Senate Floor pursuant to Senate Rule 28.8. Before it came to a full Senate vote, however, the bill's authors gutted and amended it with provisions related to the personal income tax. In 2014, this Committee considered AB 43 (Bocanegra). This bill SB 640 (Beall) Page 2 of ? was originally identical to AB 1412 minus the language prohibiting contingency fees. However, while the bill was in this Committee, it was amended on August 5, 2014, to permit a retailer to assign the right to file a claim for excess tax reimbursement in the amount of $50,000 or more to the customer, and not simply the right to receive refund payment. This amendment would have increased BOE's workload and related administrative costs considerably (as detailed below) and the bill was placed on the Committee's suspense file and ultimately held under submission. Staff Comments: SB 640 is similar to both AB 1412 and AB 43. It does not include the contingency prohibition language, but does once more permit the customer to file the claim for refund. To implement the current version of the bill, BOE's processes and related workload would be as follows: BOE audit staff would develop an assignment form, as part of BOE's Claim for Refund Form BT-101. The retailer would complete and sign the assignment form, but the customer would file the claim for refund (including the assignment form) with BOE. A BOE auditor would request the necessary documentation from the customer to determine that it paid sales tax. But in order to verify that the tax was paid to BOE, and that the items sold were non-taxable, staff would still contact the retailer to obtain the necessary documentation (sales journal pages, sales tax working papers, returns, and possibly sales invoice information). The auditor would also review the retailer's records to ensure that a credit for the excess tax reimbursement was not provided by the retailer to the customer on a subsequent transaction. Large volumes of records may require a BOE auditor to conduct the examination at the retailer's place of business. This could result in delays to obtain documentation and/or schedule an appointment to visit the retailer's place of business. Audit staff would verify that neither the retailer nor the customer have an outstanding liability to the BOE against which to credit the excess amount prior to issuing a refund. Staff would examine the books and records of the retailer, to avoid issuing a refund while the retailer has SB 640 (Beall) Page 3 of ? outstanding liabilities. BOE's analysis for SB 640 notes costs between $500,000 and $600,000 resulting from the bill, and included (1) the creation of a database to track refund activity and avoid duplicity, (2) programming costs related to its main computer system, and (3) four positions to handle the various increased workload activity. Subsequent to the release of the staff analysis, the Board Members discussed taking a formal position on this bill (and several others) at its meeting on April 29th, 2015. At that meeting, Board Members appeared to direct agency staff not to request additional resources from the Legislature to cover the additional costs resulting from implementing SB 640 (though no formal action was taken to this effect). The Board Members' decision for doing so centered on a BOE-related bill from 15 years ago, AB 599 (Lowenthal, Chapter 600, Statutes of 2000). SB 599 impacted a different SUT program within BOE, but the BOE staff analysis for that bill noted increased costs; the Board in place at the time instead instructed agency staff to not request resources to administer the new workload resulting from SB 599. This workload turned out to be much larger than originally envisioned, and required redirection of existing resources from other activities. Staff notes the Legislature adopts the Budget Act every year based on workload assumptions and legislative priorities for spending. The Appropriations Committee cannot assume that additional workload (especially of the magnitude associated with this bill) can be undertaken within existing resources without displacing other activities the Legislature has explicitly or implicitly recognized in adopting the annual Budget Act. In addition, as most departments have experienced budget reductions and staff furloughs in recent years, it has become more difficult for state agencies to undertake additional responsibilities within existing resources. A court case that the Commission on State Mandates used in a determination of a school district case cited the Department of Finance State Administrative Manual definition of "cost." "Costs are all additional expenses for which either supplemental financing or the redirection of existing staff and/or resources SB 640 (Beall) Page 4 of ? (with or without the need for supplemental funding) is required." If the provisions of SB 640 were to be performed by BOE agency staff without requesting a budget augmentation, it is unclear what current workload would not be performed instead. Some of this foregone workload could have been revenue generating. Thus, while it is not entirely clear to the Committee that four new positions would be required to implement the provisions of the bill, the requirements of SB 640 would nevertheless result in costs in the hundreds of thousands of dollars annually. Committee amendments reduce the bill's threshold from $50,000 to $1,000.