BILL ANALYSIS                                                                                                                                                                                                    Ó



                             SENATE JUDICIARY COMMITTEE
                         Senator Hannah-Beth Jackson, Chair
                             2015-2016  Regular  Session


          SB 1329 (Hertzberg)
          Version: April 14, 2016
          Hearing Date:  April 19, 2016
          Fiscal: Yes
          Urgency: No
          TMW


                                        SUBJECT
                                           
                      Property taxation:  certificated aircraft

                                      DESCRIPTION  

          This bill, in suits for the refund of locally assessed property  
          taxes relating to certificated aircraft, would require a trial  
          court to consider all evidence relating to the valuation of the  
          property under the rules of evidence and require the court to  
          base its decision upon the preponderance of the evidence before  
          it.  This bill would also extend the 2016-17 fiscal year  
          termination date to fiscal year 2021-22 and the December 31,  
          2016, inoperative or repeal date to December 31, 2021, for  
          provisions relating to the determination of the fair market  
          value and taxation of certificated aircraft.

                                      BACKGROUND  

          Under current case, law county boards of equalization are  
          quasi-judicial agencies, and their decisions regarding the  
          valuation of property are equivalent to the determination of a  
          trial court, which may be reviewed only for arbitrariness, abuse  
          of discretion, or failure to follow the standards prescribed by  
          law.  Generally, however, current law provides that the scope of  
          review of quasi-judicial administrative agencies is limited to  
          whether the agency acted within its jurisdiction, and, whether,  
          if it is alleged that the agency abused its discretion, the  
          findings of the agency are not supported by substantial evidence  
          based on the administrative record.

          In 1988, SB 2601 (Garamendi, Chapter 1372, Statutes of 1988)  
          would have expressly set forth the scope of superior court  
          jurisdiction in reviewing any action for a refund of property  
          taxes assessed by local counties or the State Board of  
          Equalization (BOE).  The court would not be limited to a  







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          substantial review of the administrative record on which to base  
          its decision, but would be required to hear all evidence, which  
          could include expert testimony excluded by the local county  
          board or BOE, requiring independent judicial review relating to  
          the valuation of property admissible under the rules of  
          evidence.  SB 2601 also required the court to base its decision  
          on the preponderance of the evidence before it.  The stated  
          purpose of that measure was to enable taxpayers to have evidence  
          of property valuation that has been conclusively determined by a  
          county board re-weighed by the Superior Court in a trial de novo  
          (new trial).  Prior to its passage, SB 2601 was subsequently  
          scaled back to only authorize independent judicial review in  
          actions for a refund of state-assessed property taxes.  Unlike  
          local county property assessments where the local county  
          assessor establishes the property tax and an appeal of that  
          assessment is reviewed by a separate local county board of  
          equalization, the BOE is both the state assessing agency and the  
          administrative reviewer.

          SB 657 (Maddy, Chapter 498, Statutes of 1995) initially extended  
          to all local county tax refund actions the trial de novo  
          established for BOE refund actions established in SB 2601.  This  
          provision was subsequently amended out of that bill.  This bill  
          contains the same provision but would only apply to actions  
          relating to certificated aircraft, which are aircraft authorized  
          under federal law to engage in air transportation.

          SB 1903 (Maddy, 1996), among other things, also contained a  
          provision similar to this bill and authorized suits for the  
          refund of locally assessed property taxes to require trial  
          courts to independently review all evidence.  While SB 1903 was  
          in this Committee, the bill failed passage with that provision.   
          The bill was amended in this Committee to strike that provision  
          and instead provide independent judicial review of specified  
          evidence submitted by a taxpayer to rebut the presumption that  
          the county board's findings are correct, after the trial judge  
          determines that a preponderance of the evidence in the record  
          supports a different factual finding.  SB 1903 passed out of the  
          Committee but was subsequently held in the Senate Appropriations  
          Committee.

          SB 1293 (Schiff, 1999) also initially contained a provision  
          similar to this bill but was amended in this Committee to  
          instead, in a suit for refund of locally assessed property  








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          taxes, require the trial court to exercise its independent  
          judgment on the evidence, as specified.  SB 1293 was ultimately  
          gutted and amended for a new author and restricted the labeling  
          of wine originated in Napa County.  (SB 1293 (Chesbro, Ch. 831,  
          Stats. 2000).)

          AB 934 (Hertzberg, 2001) initially contained an independent  
          judicial review provision substantially similar to this bill but  
          was amended in the Senate Local Government Committee to instead  
          require the trial court to exercise independent judgment on the  
          evidence, as specified, in a suit for refund of locally assessed  
          property taxes or a judicial action filed by the assessor  
          challenging the findings of the county board.  If the county  
          prevailed in the suit for refund of locally assessed property  
          taxes, AB 934 also required the taxpayer to reimburse the county  
          for the full amount of both its attorney's fees, and the  
          assessor staff time necessary for litigation support incurred in  
          litigating the factual issues in the action.  After passing out  
          of the Senate Local Government Committee, AB 934 was held in the  
          Senate Rules Committee.

          This bill, until January 2, 2022, would expand independent  
          judicial review to local county property tax refund actions for  
          certificated aircraft.
          This bill was heard by the Senate Committee on Governance and  
          Finance on April 13, 2016, and passed out on a vote of 5-0.   
          This bill was double-referred to the Senate Committee on  
          Governance and Finance because it contains provisions relating  
          to the determination of the fair market value and taxation of  
          certificated aircraft.  

                                CHANGES TO EXISTING LAW
           
           Existing law  , the California Constitution, requires all property  
          taxed by local government to be assessed in the county, city,  
          and district in which it is situated.  (Cal. Const., art. XIII,  
          sec. 14.)

           Existing law  specifies that the county board of supervisors, or  
          one or more assessment appeals boards created by the county  
          board of supervisors, shall constitute the county board of  
          equalization for a county, and two or more county boards of  
          supervisors may jointly create one or more assessment appeals  
          boards which shall constitute the county board of equalization  








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          for each of the participating counties.  (Cal. Const., art.  
          XIII, sec. 16.)

           Existing law provides that after payment of a tax claimed to be  
          illegal, an action may be maintained to recover the tax paid,  
          with interest, in such manner as may be provided by the  
          Legislature.  (Cal. Const., art. XIII, sec. 32.)

           Existing law  requires all taxable property, except State  
          assessed property, to be assessed by the assessing agency of the  
          taxing agency where the property is situated.  (Rev. & Tax Code  
          Sec. 404.)

           Existing law  , for the 2005-06 fiscal year to the 2016-17 fiscal  
          year, inclusive, provides a method for determining the  
          preallocated fair market value of certificated aircraft.  (Rev.  
          & Tax Sec. 401.17.)

           Existing law  defines "certificated aircraft" to mean aircraft  
          operated by an air carrier or foreign air carrier engaged in air  
          transportation, as defined under federal law, while there is in  
          force a certificate or permit issued by the Federal Aviation  
          Administration, or its successor, authorizing such air carrier  
          to engage in such transportation.  (Rev. & Tax Code Sec. 1150.)

           Existing law  , until December 31, 2016, requires a commercial air  
          carrier whose certificated aircraft is subject to tax  
          assessment, as specified, to file with the lead county  
          assessor's office, as specified, one signed property statement  
          for its personal property at all airport locations and fixtures  
          at all airport locations.  (Rev. & Tax Code Sec. 441.)  Existing  
          law, until December 31, 2016, allows each commercial air carrier  
          to file one schedule for all of its certificated aircraft that  
          have acquired situs in California, allows flight data required  
          to compute certificated aircraft allocation to be segregated by  
          airport location, and authorizes a commercial air carrier to  
          file the property statement electronically through the  
          California Assessor's Standard Data Record (SDR) network.  (Id.)

           Existing law  , for purposes of determining the assessing agency  
          of taxable property, deems certificated aircraft to be situated  
          only in those taxing agencies in which the aircraft normally  
          make physical contact with sufficient regularity to entitle such  
          agencies to tax the aircraft under the laws and Constitution of  








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          the United States.  (Rev. & Tax Code Sec. 1155.)  Flight time  
          within the state is allocated as follows:
           if the aircraft takes off in one taxing agency which is  
            entitled to tax (within the meaning of the preceding sentence)  
            and lands in another agency which is entitled to tax, the  
            flight time between such taxing agencies shall be allocated  
            one-half to each such agency; and
           if the aircraft arrives from out of state or leaves the state,  
            the flight time from or to the state boundary shall be  
            allocated to the taxing agency entitled to tax in which the  
            aircraft first lands or last takes off, as the case may be.   
            (Id.)
           
          Existing law  requires taxpayers to file a claim for refund  
          before a civil action can be commenced.  (Rev. & Tax Code Sec.  
          5142.)

           Existing law  requires all courts where actions are brought  
          regarding tax corrections, cancellations, and refunds (with the  
          exclusion of actions regarding state annual assessments of  
          pipelines, flumes, canals, ditches, and aqueducts lying within  
          two or more counties and property, except franchises, owned or  
          used by regulated railway, telegraph, telephone companies, or  
          car companies) to give those actions precedence over all other  
          civil actions, except actions to which special precedence is  
          given by law, in the matter of setting the same for hearing or  
          trial, and in hearing the same, to the end that all those  
          actions shall be quickly heard and determined.  (Rev. & Tax Code  
          Sec. 5149.)

           Existing law  , in suits for the refund of state-assessed property  
          taxes, provides that the trial court shall not be restricted to  
          the administrative record, but shall consider all evidence  
          relating to the valuation of the property admissible under the  
          rules of evidence, and requires the court to base its decision  
          upon the preponderance of the evidence before it.  (Rev. & Tax  
          Code Sec. 5170.)

           This bill  would extend the method for determining the  
          preallocated fair market value of certificated aircraft from  
          fiscal year 2005-06 to fiscal year 2021-22.

           This bill  would extend from December 31, 2016, to December 31,  
          2021, the commercial air carrier property statement provisions.








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           This bill  , until January 1, 2022, would extend to taxpayer  
          refund civil actions regarding certificated aircraft the  
          requirement that a trial court consider all evidence relating to  
          the valuation of the property admissible under the rules of  
          evidence and require the court to base its decision upon the  
          preponderance of evidence before it.

                                        COMMENT
           
          1.  Stated need for the bill  
          
          The author writes:
            
            Section One of Article XIII of the California Constitution  
            provides that all property is taxable and shall be assessed at  
            the same percentage of fair market value, unless explicitly  
            exempted by the Constitution or federal law.  While the  
            Constitution limits the maximum amount of any ad valorem tax  
            on real property at 1 [percent] of full cash value, and  
            precludes reassessment unless the property is newly  
            constructed or changes ownership, assessors value personal  
            property like certificated aircraft each year.  The  
            Constitution requires that property be assessed ? in the  
            county, city, or district, in which it is situated.  While the  
            Legislature first directed county assessors to tax property in  
            1849, assessors in different counties often applied different  
            tax rates and methods of assessment.  To remedy the lack of  
            uniformity, the California Constitution of 1879 created the  
            Board of Equalization (BOE) to equalize rates and assessment  
            practices among counties.  In 1910, voters amended the  
            Constitution to direct BOE to value property owned by  
            railways, companies selling gas and electricity, or telephone  
            companies, as these companies own property that crosses county  
            lines.  The Constitution additionally allows the Legislature  
            to authorize BOE assessment of property owned or used as  
            "public utilities."

            I.  Valuing Certificated Aircraft.  The lead assessor  
            methodology will sunset for the 2017-18 fiscal year unless the  
            Legislature extends it, in which case assessors will again  
            value certificated aircraft based on its fair market value  
            without specific guidance from state law.









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            II.  Trial De Novo.  The locally-assessed property tax is the  
            only one in California where the assessor as prosecutor can be  
            the same as the assessment appeals board sitting in judgment.   
            This process is fundamentally unfair to taxpayers, which is  
            why it is so rare both in California and in other states.  Tax  
            experts have often recommended trial de novo for local  
            property taxes in various forms, arguing that a judicial  
            process will determine more accurate values than assessment  
            appeals boards.  These experts argue that assessment appeals  
            boards or county boards of supervisors sitting as the county  
            board of equalization can have an interest in the revenue  
            consequences of appeals, can be too deferential to assessors,  
            or lack the experience and expertise necessary to set  
            appropriate value, especially for more complex property like  
            certificated aircraft.  While setting a precedent by applying  
            de novo review to only one form of locally-assessed personal  
            property, certificated aircraft is already unique, as it is  
            currently the only form of personal property with its own,  
            distinct valuation methodology set in state law.  Aircraft is  
            also distinct from other locally-assessed property because it  
            travels between jurisdictions, and can have its economic value  
            change due to forces beyond the control of its owners, like  
            economic recessions and terrorist attacks.  

            Senate Bill 1329 extends the lead-assessor model of valuing  
            certificated aircraft to [fiscal year 2021-22] . . ., and  
            directs that court[s] must consider suits for the refund of  
            locally assessed property taxes on certificated aircraft de  
            novo by adding these valuations into the statute that  
            currently applies only to state assessments conducted by [the  
            State Board of Equalization (BOE)].  Where a taxpayer  
            challenges a lead assessor's valuation of certificated  
            aircraft, the court shall not be restricted to the  
            administrative record, but must consider all evidence relating  
            to the valuation under the rules of evidence, and base its  
            decision upon the preponderance of the evidence.  The bill's  
            trial de novo authorization sunsets . . ., at which time the  
            law reverts to its current state.

          2.  Standard of review and trial de novo
           
          Article XIII of the California Constitution provides the  
          framework for the assessment of property taxes by local  
          governments.  Section 16 of that Article provides that the  








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          county board of supervisors, or one or more appeals boards  
          created by the county board of supervisors, shall constitute the  
          county board of equalization for the county.  The county board  
          of equalization is solely responsible for equalizing the values  
          of all property on the local assessment role by adjusting  
          individual assessments.  (Cal. Const., art. XIII, sec. 16.)   
          Most counties with any sizable population exercise their right  
          under this constitutional provision to appoint an assessment  
          appeals board, or boards, to act as the county board of  
          equalization.

          No judicial action challenging a property tax assessment or  
          requesting a refund may be brought unless a claim has first been  
          brought and refused by the county board of equalization, and no  
          recovery shall be allowed in judicial action for refund upon any  
          ground not specified in the original refund claim.  (Rev. & Tax  
          Code Sec. 5142.)  A county board is not bound by technical rules  
          of evidence.  (Norby Lumber Co. v. County of Madera (1988) 202  
          Cal.App.3d 1352, 1362.)  The duty of conclusively determining  
          the value of the property and the fairness of the assessment is  
          conferred upon the local county board of equalization, which  
          bases its determination upon the merits of the controversy.   
          (Ibid.)  As such, the taxpayer has no right to a trial de novo  
          in the superior court to resolve conflicting issues of fact as  
          to the taxable value of the property.  (Ibid.)  The decision of  
          a county board of equalization is equivalent to the  
          determination of a trial court and may be reviewed only for  
          arbitrariness, abuse of discretion, or failure to follow the  
          standards prescribed by law.  (Bret Harte Inn, Inc. v. City &  
          County of San Francisco (1976) 16 Cal.3d 14.)

          Accordingly, the court must uphold the county board's decision  
          on an issue of fact if it is supported by "substantial  
          evidence," which means merely that the decision must be  
          supported by "credible" evidence in the administrative record.   
          The court has no power to exercise its independent judgment on  
          the evidence, and the "trial" is confined to the record  
          presented by the board, with no new evidence introduced.  The  
          standard of review is to be distinguished from a "weight of the  
          evidence" test, which would require a finding, based on  
          independent evaluation of the evidence, that the board's  
          decision was supported by a preponderance of the evidence.  This  
          restricted standard of review applies only to issues of fact,  
          which generally means the issue of whether the assessment method  








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          used was applied correctly.  A challenge to the validity of the  
          method itself would be an issue of law.

          Code of Civil Procedure Section 1094.5 provides for both an  
          independent judgment and a substantial evidence review of  
          administrative decisions.  Where it is claimed that the findings  
          are not supported by the evidence, in cases in which the court  
          is authorized by law to exercise its independent judgment on the  
          evidence, abuse of discretion is established if the court  
          determines that the findings are not supported by the weight of  
          the evidence, and in all other cases, abuse of discretion is  
          established if the court determines that the findings are not  
          supported by substantial evidence in the light of the whole  
          record.  (Code Civ. Proc. Sec. 1094.5(c).)

          If the administrative decision does not involve, or  
          substantially affect, any fundamental vested right, the trial  
          court must still review the entire administrative record to  
          determine whether the findings are supported by substantial  
          evidence and whether the agency committed any errors of law, but  
          the trial court need not look beyond that whole record of the  
          administrative proceedings.  (Bixby v. Pierno (1971) 4 Cal. 3d  
          130, 144.)  Courts can carefully scrutinize administrative  
          decisions which substantially affect vested, fundamental rights,  
          particularly the right to protect one's trade or profession.   
          (Id., p. 143.)  If the decision of an administrative agency will  
          substantially affect such a right, the trial court not only  
          examines the administrative record for errors of law but also  
          exercises its independent judgment upon the evidence disclosed  
          in a limited trial de novo.  (Ibid.)

          Notably, this Committee's analysis of the legislation that  
          enacted SB 2601 (Garamendi, Chapter 1372, Statutes of 1988) and  
          authorized independent judicial review of BOE determinations  
          noted that the arguments in favor of that bill emphasized "the  
          need for the hearing of appropriate evidence by the superior  
          courts is especially great in the case of state assesses,  
          because the SBE (State Board of Equalization) is both the  
          assessing agency and the administrative reviewer.  The sponsor,  
          therefore, is concerned about the fact that the SBE reviews its  
          own assessments.  It suggests that a more favorable arrangement  
          is found in the case of locally assessed property where the  
          assessor and the assessment appeals board which review the  
          assessor's assessment are at least separate."  (Sen.  Com. on  








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          Judiciary, Analysis of Sen. Bill No. 2601 (1987-1988 Reg. Sess.)  
          as amended Apr. 4, 1988; emphasis added.)  However, this bill  
          now seeks to expand independent judicial review and a trial de  
          novo to apply to locally assessed property, requiring full  
          review of the administrative case, as well as potential expert  
          valuation testimony or other evidence that may have been  
          excluded by the appeals board or not provided by the taxpayer,  
          but only for commercial airlines with certificated aircraft.

          According to the California Taxpayers Association (CTA), in  
          support:

            In 1910, the California Constitution was amended to transfer  
            industries with significant impacts on critical statewide  
            functions that owned property across county lines from local  
            assessment to central state assessment under the State Board  
            of Equalization.  These industries include utilities,  
            railroads and telecommunications, and as state assessees they  
            are granted trial de novo.  The first commercial passenger  
            airline did not exist until 1914 -- 4 years after the  
            constitutional amendment.  Had the airlines existed in 1910,  
            they would have been covered by the constitutional amendment,  
            and therefore afforded trial de novo as state assessees.
                                                          
          Airlines for America (A4A), sponsor, contends that certificated  
          aircraft should be treated like public utilities for purposes of  
          local county tax assessments because aircraft are transported to  
          multiple jurisdictions.  Indeed, public utilities cross multiple  
          county lines but are assessed by the BOE, not local counties,  
          and, thus, receive independent judicial review by trial courts.   
          A4A asserts that certificated aircraft should not be assessed at  
          the local level, but, instead, have a centralized assessment at  
          the state level, like public utilities.  According to A4A, an  
          effort last year attempted to move local assessment of  
          certificated aircraft to the state level, but that effort was  
          unsuccessful.  Since commercial airlines were unable to get  
          centralized state assessments, they are now attempting to obtain  
          independent judicial review of local county assessments of  
          certificated aircraft.

          3.  Providing fairness to commercial airlines in tax disputes  

          The author asserts that the locally-assessed property tax is the  
          only one in California where the assessor as prosecutor can be  








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          the same as the assessment appeals board sitting in judgment.   
          The author argues that this process is fundamentally unfair to  
          taxpayers, which is why it is so rare both in California and in  
          other states.  The author contends that "tax experts have often  
          recommended trial de novo for local property taxes in various  
          forms, arguing that a judicial process will determine more  
          accurate values than assessment appeals boards.  These experts  
          argue that assessment appeals boards or county boards of  
          supervisors sitting as the county board of equalization can have  
          an interest in the revenue consequences of appeals, can be too  
          deferential to assessors, or lack the experience and expertise  
          necessary to set appropriate value, especially for more complex  
          property like certificated aircraft."

          The author points to a recent audit performed by the Santa Clara  
          Management Audit Division, which determined that conflicts of  
          interest existed in the local county appeals board process.   
          That audit found that although Santa Clara County's Local Rules  
          require the Clerk to schedule assessment appeals, "[i]n  
          practice, however, the Office of the Assessor and individual  
          appraisers have significant influence over when an appeal will  
          be heard, and by which board, through the development of  
          proposed hearing agendas that are generally accepted by the  
          Clerk's office."  (Management Audit Division of Santa Clara  
          County, Management Audit of the County of Santa Clara Assessment  
          Appeals Process (July 15, 2015)  
           [as of Apr. 14, 2016] p. ii.)  The audit stated  
          that because the specific dates on which each of the three  
          boards are scheduled to hear cases are known in advance,  
          preparing these proposed agendas allows the Office of the  
          Assessor influence over which appeals board will hear a  
          particular case.  (Id., p. 43.)  Further, this problem had an  
          adverse effect and "[t]he lack of adequate controls on the  
          agenda-setting process, including any formal tracking of the  
          distribution of appeals, raises concerns about the appearance of  
          potential conflicts of interest."  (Id., p. 42.)

          Additionally, the audit concluded that "[c]urrent County  
          practice does not appear to follow California constitutional  
          requirements which mandate 'uniformity in the processing and  
          decision of assessment appeals applications,' . . . ."  (Supra,  
          p. 51.)  That audit recommended amending the current  








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          administrative procedures to require the Clerk of the Board to  
          establish assessment appeals board agendas based on receiving a  
          "notice of readiness" from the Office of the Assessor for each  
          appeal to place the Clerk of the Board in full compliance with  
          the California Constitution and the County's Local Rules  
          governing the appeals process.  (Id., p. 42.)

          The author argues that while setting a precedent by applying de  
          novo review to only one form of locally-assessed personal  
          property, certificated aircraft is already unique, as it is  
          currently the only form of personal property with its own,  
          distinct valuation methodology set in state law.  The author  
          notes that aircraft is also distinct from other locally-assessed  
          property because it travels between jurisdictions, and can have  
          its economic value change due to forces beyond the control of  
          its owners, like economic recessions and terrorist attacks.

          Opponents of the bill argue that the shifting of duties and  
          responsibilities of the county board of equalization to the  
          trial courts for air carrier assessment appeals is troubling  
          because judges lack expertise on property valuation methods,  
          whereas an assessment appeals board member is appointed to his  
          or her position based on career experience in relevant fields.   
          Opponents point out that each board member is required by law to  
          successfully pass State BOE training on valuation methods,  
          procedures, and property conduct, which is not required of trial  
          court judges.

          4.  Constitutionality concerns
           
          The opposition notes that the California Constitution confers  
          quasi-judicial powers and duties upon local county boards of  
          equalization in connection with their assessments and review of  
          contested assessments of locally assessed property.  As such,  
          legislation providing for a departure from the "substantial  
          evidence" standard of review, whereby the trial court would not  
          be restricted to the administrative record but instead would be  
          required to independently consider all admissible evidence  
          regarding contested local assessments, would, if enacted, be  
          unconstitutional.  The assessment of property for the purpose of  
          taxation is a function of the executive branch of the government  
          and the judiciary has no power or jurisdiction to inquire as to  
          the actual value of property to determine whether or not it has  
          been properly assessed.  (Domenghini v. County of San Luis  








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          Obispo (1974) 40 Cal.App.3d 689, 696.)

          In response, the author states that "[c]ounties and assessors  
          argue that the Legislature can't Constitutionally delegate  
          authority to courts to review local assessments, citing a  
          Legislative Counsel Enrolled Bill Report from 1988 on SB 2601,  
          and Legislative Counsel Opinion #14821 from 2001, which argue  
          that case law precludes the Legislature from enacting a statute  
          that usurps the constitutionally-based fact finding authority of  
          an administrative body.  Counsel states that this same reasoning  
          applies to any bill that would allow a trial court to consider  
          evidence outside the county board of equalization's  
          administrative record.  However, SB 1329 adopts a more positive  
          view of legislative power, instead arguing that the Legislature  
          can enact statutes directing courts to consider new facts  
          because the Constitution contains no specific language  
          prohibiting it from doing so, and the Constitution explicitly  
          allows the Legislature to provide a manner for taxpayers to  
          maintain an action to recover taxes paid illegally.  A trial  
          court affirmed SB 2601 in 1989, for which the Third District  
          Court of Appeals rejected a writ of mandate the year after,  
          despite the Legislative Counsel guidance."

          5.  Effect on administrative hearings

           Opponents assume that the intent of the bill is to permit the  
          trial court to re-try the determinations made by county boards  
          as to factual and valuation questions.  Opponents assert that if  
          a complete trial de novo is granted as provided by this bill,  
          the importance of the administrative review function of the  
          county boards would be lessened.  Commercial airlines would  
          still be required to exhaust administrative remedies before  
          going to court, but the exhaustion principle would be  
          undermined.  The administrative hearing would become more of a  
          formality than an effective means of resolving disputes.  Both  
          parties by the nature of the system would tend to save their  
          best evidence for the courts.  

          Furthermore, the opposition notes that while this bill is  
          targeted just to benefit commercial airlines, other industries  
          may demand a similar special property reduction if this bill  
          becomes law.  Opponents note that during the last two decades,  
          the California Legislature has rejected this assault on a fair  
          and equitable property tax system four times.  Opponents note  








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          that each time trial de novo has been rejected on the merits, as  
          it is fundamentally inconsistent with previous initiatives to  
          reform government by improving efficiency, productivity and  
          performance.  Opponents contend that this bill does just the  
          opposite by adding another layer of bureaucracy to benefit a  
          single industry.

          6.  Priority of taxpayer refund cases  

          Existing law provides that taxpayer refund actions enjoy  
          priority over all other civil actions.  (Rev. & Tax Code Sec.  
          5149.)  Excluded from this special priority are actions  
          regarding annual state assessments of property made pursuant to  
          Section 19 of Article XIII of the California Constitution, which  
          requires the BOE to annually assess water conduits and property,  
          except franchises, owned or used by regulated railway,  
          telegraph, or telephone companies, car companies operating on  
          railways in the State, and companies transmitting or selling gas  
          or electricity.  (Rev. & Tax Code Secs. 5148, 721; Cal. Const.,  
          art. XIII, Sec. 19.)  This property is subject to taxation to  
          the same extent and in the same manner as other property.  (Cal.  
          Const., art. XIII, sec. 19.)
          As discussed in Comment 2, public utilities are  
          multijurisdictional and cross county lines.  The BOE assesses  
          the value of the assets of a utility using a unitary value of  
          the property, which is then transmitted to each county through a  
          "roll," and each county taxes the utility according to the  
          Board-adopted value of the property that is in that county.   
          (Verizon California Inc. v. Board of Equalization (2014) 230  
          Cal.App.4th 666, 672.)  The BOE makes a formulary allocation  
          that has little or no relationship to the actual fair market  
          value of the particular assets situated within the jurisdiction.  
           (Ibid.)  This formulary allocation system sets up a complex  
          case for courts to analyze under an independent judicial review,  
          especially when both sides to the action submit conflicting  
          expert testimony.

          As noted by A4A, certificated aircraft are currently assessed  
          using a "lead county" system, where a single county recommends a  
          value for an air carrier's fleet of planes to the assessors of  
          all of the counties in which that carrier operates.  A4A asserts  
          that "SB 1329 represents a 'middle ground' alternative, in which  
          for a 5-year period, industry agrees to abandon its call for  
          centralized assessment at the state level, and agree to continue  








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          the current lead county system and valuation methodology.   
          However, SB 1329 would modify the worst element of that existing  
          system by treating commercial aircraft fleets the same as other  
          types of property held by multi-jurisdictional quasi-public  
          utilities with regard to judicial review of lead county  
          assessments."  

          A4A contends that certificated aircraft should be treated like  
          public utilities for purposes of local county tax assessments  
          because, like public utilities, certificated aircraft traverse  
          multiple jurisdictions.  Public utilities are assessed by the  
          BOE and receive independent judicial review by trial courts.  On  
          the other hand, certificated aircraft are assessed at the local  
          level, so those refund actions challenging the assessments  
          receive only substantial review of the administrative record.

          Existing law provides trial court priority for commercial  
          airline tax refund cases; however, public utilities are  
          expressly exempt from trial court priority, presumably due to  
          the complexity of valuation of those types of actions.   
          Certificated aircraft refund actions regarding local county  
          assessments only require the court to review the administrative  
          record to make a determination, so the current priority given to  
          these actions is not especially problematic.  However, this bill  
          would significantly extend the court's time spent hearing these  
          actions because the court would have to consider more evidence,  
          such as expert witnesses testimony presented by the parties.  As  
          such, maintaining the priority for these refund actions, with  
          independent judicial review, would result in courts taking even  
          longer to resolve other civil actions that were set aside in  
          favor of these taxpayer refund actions.

          On the other hand, A4A argues that this bill, "by opening the  
          possibility of real court review of assessments of commercial  
          aircraft, will have the effect of requiring assessors to more  
          carefully consider all evidence of value prior to making the  
          assessment, and require assessment appeals boards to more  
          carefully consider appraisals and expert testimony bearing on  
          value in appeals hearings.  The result will be more thorough,  
          well thought out and better assessment practices, ultimately  
          resulting in less litigation."

          The Committee may wish to consider whether the bill should be  
          amended to exclude locally-assessed certificated aircraft tax  








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          refund cases from receiving priority status in trial courts.

          7.  Burden on the courts
           
          Existing law requires independent judicial review for taxpayer  
          refund actions involving state-assessed property.  (Rev. & Tax  
          Code Sec. 5170.)  This bill, until January 1, 2022, would extend  
          that requirement to locally-assessed certificated aircraft tax  
          refund actions.  Although this bill would affect a significantly  
          smaller number of taxpayer cases than prior bills to expand  
          trial de novo review to only those involving certificated  
          aircraft, this bill would require the court to hear and review  
          more evidence than provided in the administrative record.

          Opponents contend that this bill would increase the case load,  
          cost and complexity of civil cases, and impair the courts'  
          ability to conduct civil trials in a timely manner, a  
          significant change in California's established property tax  
          system.  Opponents also assert that the Legislature should be  
          working to reduce the caseloads in California courts, not  
          increasing their workloads as the trial de novo provision would  
          unquestionably do.

          These cases are complex by nature and require significant  
          amounts of time to resolve.  A Statement of Decision received by  
          the Committee in AT&T Communications of California, et al. v.  
          State Board of Equalization, et al., Superior Court of  
          California, County of Sacramento, No. 50082 and 50083  
          (Consolidated), February 1, 1991, at pp. 3-5, demonstrates the  
          burden on the courts in requiring independent review for this  
          type of multijurisdictional property.  In that Decision, the  
          court noted:

            By enacting Revenue & Taxation Code section 5170, effective  
            January 1, 1989, the Legislature imposed on already  
            overburdened trial courts the complex subject of valuation of  
            public utilities.  Before the enactment of Section 5170, the  
            function of the Court was to review the administrative record  
            to determine whether or not the market value of property, as  
            determined by the [BOE], was supported by substantial  
            evidence.  After the enactment of Section 5170, the function  
            of the court is to make an independent determination of market  
            value based on a preponderance of the evidence.  The Court, by  
            the terms of Section 5170, is not restricted by the  








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            administrative record, but is to consider all evidence  
            relating to valuation which is admissible under the Rules of  
            Evidence.  The burden of proof is upon the plaintiff property  
            owner.  As is to be expected, the trial of such actions takes  
            substantially longer than the administrative hearing, as each  
            side not only presents those portions of the administrative  
            record which are favorable to its position but presents  
            testimony from experts and others to fortify its position.

            The inevitable result of a trial of such actions is that the  
            Court, by its decision, imposes on the Board the judgment of  
            the trial judge as to how market value is to be determined.   
            If the trial judge determines that the [BOE's] methods of  
            valuation are incorrect, then it sends a message to the [BOE]  
            to change those methods of valuation to those the judge  
            believes to be appropriate, regardless of how difficult,  
            time-consuming, or expensive it may be to implement those  
            methods.  In the usual situation, the Court must choose which  
            method of valuation is the one most likely to lead to the  
            correct value, unless it elects to pick and choose from the  
            expert testimony to arrive at a market value which the Court  
            determines is fair and reasonable under the evidence in the  
            case.
            . . .
            By virtue of hearing a case on valuation, a trial judge  
            ostensibly becomes an expert on valuation, whose opinion is to  
            be accepted over experts who have devoted their lives to the  
            subject. . . .  If this Court has learned anything in this  
            trial, it is that determining the fair market value of a  
            public utility is a most difficult task.  It is an issue over  
            which reasonable minds - both judges and experts on valuation  
            - may differ markedly.

          Notably, this preliminary comment by the court was made 25 years  
          ago and long before the recent Recession and resulting budget  
          crises of the courts from which courts are still digging out.

          The author states that "[c]ounties argue that assessment appeals  
          board[s], and not courts have more expertise at valuing  
          property, and allowing trial de novo would only increase  
          assessors' costs and workloads without any commensurate benefit  
          of more accurate assessments.  However, allowing a court to  
          review new evidence only ensures additional review that  
          assessments are fair and correct, and would only be brought in  








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          truly justified circumstances given the cost of litigation.  The  
          bill merely allow[s] appeals of aircraft assessment to be  
          treated in the same way as state-assessed utilities, whose  
          property is more like airlines' than land, improvements, and  
          buildings that make up most of an assessor's workload.  With a  
          universe of fewer than 60 taxpayers being assessed under current  
          law's system for certificated aircraft, any impact on county or  
          court workload would likely be small."

          8.  Effect on pending litigation
           
          A recent poll of several county civil courts revealed 43 open  
          commercial airlines cases in Alameda, 31 open cases in Kern  
          County, 73 open appeals in San Diego with another 13 lawsuits  
          consolidated with similar complex cases being heard in Orange  
          County, 19 open cases in San Mateo County.  San Mateo County  
          also noted that from 2009-2014, there were 172 commercial  
          airline cases filed.  Although the author asserts that the  
          universe of commercial airlines who would file a civil action  
          for a refund is under 60 taxpayers, those taxpayers can file  
          multiple actions, for multiple assessed years, in multiple  
          counties across the state.


          Further, last year, A4A was quoted as saying in a Los Angeles  
          Times news article that there were at least "45 pending lawsuits  
          relating to county assessors misapplying the applicable property  
          tax statute.  (M. Hiltzik, Los Angeles Times, Airlines are  
          Looking for a Big Tax Break in California (May 1, 2015)  
           [as of Apr. 2, 2016].)  That  
          article also noted that "the lawsuits appear to be largely  
          identical, filed in 12 counties by the same Los Angeles law firm  
          on behalf of seven airlines.  The cases all concern tax year  
          2009, and typically claim the same 70 [percent] reduction  
          American and United sought from the L.A. assessor.  Some of  
          these claims already have been heard twice - first by the  
          assessors' office and then by county assessment appeals boards -  
          and rejected twice."

          The author contends that the bill's de novo review would only  
          apply to claims for refunds for taxes paid in fiscal years on or  
          after the effective date of the bill.  However, the author notes  
          that "some of the same unresolved issues raised in this previous  








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          litigation could be part of a suit reviewed de novo should the  
          measure be enacted."

          The Committee may wish to consider amending the bill to clarify  
          that the trial de novo provisions in the bill would only apply  
          to civil actions filed on or after the effective date of the  
          bill.

          9.  Remaining details under the jurisdiction of the Senate  
            Committee on Governance and Finance
             
          The remaining sections of this bill relate to extending the  
          unique methodology for assessing certificated aircraft and are  
          within the jurisdiction of the Senate Committee on Governance  
          and Finance.  That committee passed this bill on April 13, 2016.


           Support  :  Alaska Airlines; American Airlines; California Chamber  
          of Commerce; California Taxpayers Association; Southwest  
          Airlines; United Airlines

           Opposition  :  California Assessors' Association; California  
          Association of Clerks and Election Officials; California State  
          Association of Counties; Office of the Assessor, County of Los  
          Angeles; Office of the Assessor, County of Santa Clara

                                        HISTORY
           
           Source  :  Airlines for America

           Related Pending Legislation  :

          AB 2622 (Nazarian, 2016), among other things, would extend the  
          2016-17 fiscal year termination date to the 2019-20 fiscal year  
          and extend the December 31, 2016, inoperative or repeal date to  
          December 31, 2019, for provisions relating to the determination  
          of the fair market value and taxation of certificated aircraft.
          SB 661 (Hill, 2015), among other things, would have transferred  
          assessment of personal property owned by commercial air carriers  
          to the Board of Equalization, including certificated aircraft,  
          commencing in 2017-18 fiscal year and would have extended the  
          lead assessor model one year to 2016-17.  SB 661 was  
          subsequently gutted and amended to modify the "call before you  
          dig" laws governing excavations near subsurface installations  
                                                







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          and is in the Assembly pending referral.

           Prior Legislation  :

          AB 1157 (Nazarian, Chapter 440, Statutes of 2015) extended the  
          2015-16 fiscal year termination date to the 2016-17 fiscal year  
          and the December 31, 2015, inoperative or repeal date to  
          December 31, 2016, for provisions relating to the determination  
          of the fair market value and taxation of certificated aircraft.

          AB 384 (Ma, Chapter 228, Statutes of 2010) extended the 2010-11  
          fiscal year methodology for property tax assessment of  
          certificated aircraft to the 2015-16 fiscal year.

          AB 964 (Horton, Chapter 699, Statutes of 2005) established the  
          unique methodology for fiscal years 2005-06 through 2010-11 that  
          would be extended indefinitely in this bill for the property tax  
          assessment of certificated aircraft in order to address the  
          special circumstances that befell this type of property and the  
          airline industry following the September 11, 2001, attacks.

          AB 934 (Hertzberg, 2001) See Background.

          SB 1293 (Chesbro, Chapter 831, Statutes of 2000) See Background.

          SB 1293 (Schiff, 1999) See Background.

          SB 1903 (Maddy, 1996) See Background.

          SB 657 (Maddy, Chapter 498, Statutes of 1995) See Background.

          SB 2601 (Garamendi, Chapter 1372, Statutes of 1988) See  
          Background.

           Prior Vote  :  Senate Committee on Governance and Finance (Ayes 5,  
          Noes 0)

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