BILL ANALYSIS Ó SB 873 Page 1 Date of Hearing: June 15, 2016 ASSEMBLY COMMITTEE ON HOUSING AND COMMUNITY DEVELOPMENT David Chiu, Chair SB 873 (Beall) - As Amended April 5, 2016 SENATE VOTE: 39-0 SUBJECT: Income taxes: insurance taxes: credits: low-income housing: sale of credit SUMMARY: Allows a taxpayer who receives an allocation of state low- income housing tax credits (LIHTC) from the California Tax Credit Allocation Committee (TCAC) to sell all or any portion of the credit to one or more unrelated parties for each taxable year in which the credit is allowed for not less than 80% of the amount of the credit. Specifically, this bill: 1)Allows a taxpayer to make an irrevocable election to sell all or any portion of the state LIHTC to an unrelated party, as defined, provided that the consideration received by the taxpayer from the sale of the LIHTC equals at least 80% of the credit amount. 2)Defines an "unrelated party" as a taxpayer allowed either the state or federal LIHTC in connection with a low-income housing project in California. SB 873 Page 2 3)Requires the taxpayer to report to TCAC, within 10 days of the sale of the credit, certain specified information regarding the purchase and sale of the credit, as provided by TCAC. 4)Requires TCAC to provide an annual listing to the Franchise Tax Board (FTB), in a form and manner agreed upon by TCAC and FTB, of the taxpayers that have sold or purchased a LIHTC. 5)Applies to projects that receive a preliminary reservation beginning on or after January 1, 2017, and before January 1, 2027. 6)Allows a one-time resale of the LIHTC by an original purchaser to an unrelated party, provided that all of the applicable requirements and definitions are satisfied. 7)Specifies that a taxpayer that originally received the LIHTC will remain solely liable for all obligations and liabilities imposed on the taxpayer by law with respect to the credit, none of which shall apply to any party to whom the credit has been sold or subsequently transferred. 8)Prohibits a sale of a LIHTC if the taxpayer was allowed the credit on any of his/her tax returns. 9)Allows the taxpayer who has made an election to sell a LIHTC, with the approval of the Executive Director of TCAC, to rescind this election if the consideration for the credit falls below 80% of the amount of the credit after TCAC reservation. SB 873 Page 3 10)Authorizes TCAC to prescribe rules, guidelines, or procedures, as specified. 11)Requires TCAC to report to the Legislature, on or before January 1, 2022, the total amount of credits allowed to, and sold by, taxpayers, as specified, including a separate accounting of credits sold to original purchasers by the original investors and credits resold by the original purchasers to secondary purchasers. 12)Reinstates provisions that sunset last year that allow a partnership to allocate state LIHTC to investors, within the partnership, in a manner that differs from the proportional allocation of the federal LIHTC, by disconnecting the federal tax rules that apply to partnerships, to which California otherwise conforms. 13)Takes effect immediately as a tax levy. EXISTING LAW: 1)Allows a state tax credit for costs related to construction, rehabilitation, or acquisition of low-income housing. This credit, which mirrors a federal LIHTC, may be used by taxpayers to offset the tax under the Personal Income Tax (PIT), the Corporation Tax (CT), and the Insurance Tax (IT) laws. (Revenue and Taxation Code Sections 12206, 17058, and 23610.5) 2)Requires the TCAC to allocate the California LIHTC each year based upon qualification of the applicant and proposed SB 873 Page 4 project. The California LIHTC is available only to projects that received an allocation of the federal LIHTC. (Revenue and Taxation Code Sections 12206, 17058, and 23610.5) 3)Limits the annual aggregate amount of the state LIHTC to $70 million, as adjusted for an increase in the California consumer price index from 2002, plus any unused LIHTC for the preceding calendar year and any LIHTC returned in the calendar year. The California LIHTC awarded may be claimed as a credit against tax over a four-year period. (Revenue and Taxation Code Sections 12206, 17058, and 23610.5) 4)Requires TCAC to certify the amount of tax credit amount allocated. In the case of a partnership or an S Corporation, a copy of the certificate is provided to each taxpayer. The taxpayer is required, upon request, to provide a copy of the certificate to the Franchise Tax Board (FTB). (Revenue and Taxation Code Sections 12206, 17058, and 23610.5) 5)Allows any unused credit to be carried forward until the credit is exhausted. (Revenue and Taxation Code Sections 12206, 17058, and 23610.5) FISCAL EFFECT: According to the Senate Appropriations Committee, FTB estimates that the bill would lead to a General Fund revenue gain of $300,000 in 2016-17. The bill would result in General Fund revenue losses of $100,000 in 2017-18 and $700,000 in 2018-19. Losses would increase to $2 million by 2021. SB 873 Page 5 FTB would likely incur increased annual administrative costs in the low hundreds of thousands of dollars (General Fund). To the extent that the TCAC requires additional resources as a result of the bill, fee revenue would likely be used. COMMENTS: Background : In 1986, the federal government authorized the LIHTC program to enable affordable housing developers to raise private capital through the sale of tax credits to investors. Two types of federal tax credits are available and are generally referred to as nine percent (9%) and four percent (4%) credits. In 1987, the legislature authorized a state LIHTC program to augment the federal tax credit program. State tax credits can only be awarded to projects that also receive federal LIHTCs, except for farmworker housing projects, which can receive state credits without federal credits. Investors can claim the state credit over four years. TCAC has authority for approximately $70 million in state tax credits each year. Projects that receive either state or federal tax credits are required to maintain the housing at affordable levels for 55 years. TCAC administers the programs and awards credits to qualified developers who do not have sufficient tax liability to use the credits themselves so they sell those credits to private investors who use the credits to reduce their federal or state tax liability. The developer in turn invests the capital into the affordable housing project. Under current law, the SB 873 Page 6 investors must become owners of the property to claim the credits. SB 873 would allow a developer who receives an award of state LIHTCs to sell the credits to an investor without requiring the investor to be part of the ownership entity for the project, typically a limited liability partnership. A developer could sell the tax credit to one or more unrelated parties if they received at least 80% of the value of the credit. The legislature has permitted taxpayers to sell tax credits in some limited cases. Taxpayers with motion picture production credits from independent films can sell the credit to unrelated investors, which can be a key financing tool for filmmakers to raise capital to produce a motion picture. In addition, corporate taxpayers can share credits within their unitary group. SB 585 (Lowenthal) Statutes of 2008, Chapter 382 allowed LIHTC partnership agreements to allocate state tax credits to investors in a manner that differs from the proportional division of the federal credit. This authorization sunset on January 1, 2016. SB 873 would reinstate that authorization and allow it to continue indefinitely. TCAC reports that this ability has been used several times and allows much more flexibility for insurance companies and banks to invest in low-income housing drawing additional investors and capital into the state. Affordable Housing Shortage : The Public Policy Institute of California has identified that more than 36% of mortgaged homeowners and 47% of all renters are spending more than 35% of their household incomes on housing. In California we have about 134,000 homeless people living in our streets, parks, alleys, and freeway off-ramps. At the same time vacancy rates are low and rents are increasing. Out of 5.1 million renters in California, 60% are in lower-income households, while one in SB 873 Page 7 four renter households are in the extremely low-income. One in two renters in California pay in excess of 30% of their income towards housing and one in four renters pay half of their income towards housing. The funding sources to support construction of affordable housing have drastically diminished over the last five years. The dissolution of redevelopment agencies eliminated up to $1 billion in funding that was available for affordable housing construction. The last statewide housing bond was approved in 2008 and the proceeds of those bonds have been exhausted. State and federal LIHTC represent one of the few remaining sources of funding for affordable housing construction in the state. Currently, investors receive approximately .65 cents on the dollar for state low-income housing tax credits. Purpose of the bill : According to the author, "SB 873 seeks to increase the impact of the state's existing LIHTC with no fiscal impact to the state by structuring the credits in a way that is not subject to federal taxation. LIHTCs are awarded to developers of qualified projects and are the primary source of capital to construct and rehabilitate thousands of affordable housing units each year. Non-profit affordable housing developers, who do not have the required tax liability on their own, must seek out private equity investments for their developments. Under current law, investors must become owners of the property to claim the credits against their state tax liabilities. Due to the fact that state taxes are deductible from federal taxes, a reduction in the state tax liability increases the federal tax liability for the investor. With the federal corporate tax rate at 35%, investors will generally invest no more than 65 cents for each dollar of state credit. SB 873 addresses this issue by allowing a developer who is awarded state credits to sell the credits to an investor without admitting the investor to the ownership partnership and thereby increasing the value of the credit, closer to one dollar for each dollar of credit, to the investor. SB 873 Page 8 SB 873 will significantly increase the value of state LIHTCs and therefore the public benefit because it will largely eliminate the federal tax impacts associated with investors claiming state credits. It will also greatly increase the efficiency of the program and allow many more affordable housing units to be built for the same level of state tax expenditure. In other words, this bill gives the state a bigger bang for its buck." Previous legislation: SB 377 (Beall) which was identical to this bill was vetoed by the Governor last year. The veto message follows: I am returning the following nine bills without my signature: Assembly Bill 35 Assembly Bill 88 Assembly Bill 99 Assembly Bill 428 Assembly Bill 437 Assembly Bill 515 Assembly Bill 931 Senate Bill 251 Senate Bill 377 Each of these bills creates a new tax credit or expands an existing tax credit. Despite strong revenue performance over the past few years, the state's budget has remained precariously balanced due to unexpected costs and the provision of new services. Now, without the extension of the managed care organization tax SB 873 Page 9 that I called for in special session, next year's budget faces the prospect of over $1 billion in cuts. Given these financial uncertainties, I cannot support providing additional tax credits that will make balancing the state's budget even more difficult. Tax credits, like new spending on programs, need to be considered comprehensively as part of the budget deliberations. Related legislation: AB 35 (Chiu) (2015): Would modify the existing LIHTC program and increases the aggregate credit amount that may be annually allocated to low-income housing projects by $300 million for the 2016 calendar year and each calendar year thereafter. This bill was vetoed by the Governor. AB 2817 (Chiu (2016) Would modify the existing LIHTC program and increases the aggregate credit amount that may be annually allocated to low-income housing projects by $300 million for the 2017 calendar year and each calendar year thereafter. This bill has been referred to the Senate Committee on Governance and Finance and the Senate Committee on Transportation and Housing. Double-referred: SB 873 was also referred to the Committee on Revenue and Taxation, where it will be heard should it pass out of this committee. REGISTERED SUPPORT / OPPOSITION: Support SB 873 Page 10 California State Treasurer John Chiang (Co-Sponsor) California Housing Partnership Association (Co-Sponsor) Association of Regional Center Agencies California Apartment Association California Coalition for Rural Housing California Council for Affordable Housing California Economic Summit California Housing Consortium Cities Association of Santa Clara County City of Dublin City of Glendale City of Livermore City of Los Angeles SB 873 Page 11 City of San Jose City of Santa Monica League of California Cities North Los Angeles County Regional Center People's Self-Help Housing Santa Clara County Board of Supervisors SV@Home The Arc United Cerebral Palsy California Collaboration Opposition None on file Analysis Prepared by:Lisa Engel / H. & C.D. / (961) 319-2085 SB 873 Page 12