BILL ANALYSIS Ó SENATE COMMITTEE ON GOVERNANCE AND FINANCE Senator Robert M. Hertzberg, Chair 2015 - 2016 Regular ------------------------------------------------------------------ |Bill No: |SB 1338 |Hearing |4/27/16 | | | |Date: | | |----------+---------------------------------+-----------+---------| |Author: |Lara |Tax Levy: |Yes | |----------+---------------------------------+-----------+---------| |Version: |4/4/16 |Fiscal: |Yes | ------------------------------------------------------------------ ----------------------------------------------------------------- |Consultant|Bouaziz | |: | | ----------------------------------------------------------------- Sales and use taxes: exemption: zero-emission and near-zero-emission equipment Provides a partial sales and use tax exemption for zero and near zero-emission port equipment. Background California law allows various income tax credits, deductions, and sales and use tax exemptions to provide incentives to compensate taxpayers that incur certain expenses, such as child adoption, or to influence behavior, including business practices and decisions, such as research and development credits. The Legislature typically enacts such tax incentives to encourage taxpayers to do something that but for the tax credit, they would not do. The Department of Finance is required to annually publish a list of tax expenditures. State law imposes a sales and use tax (SUT) on the sale, storage, or use of tangible personal property unless exempted by state law. Cities and Counties may increase the SUT rate up to 2% as a transactions and use tax for either specific or general purposes with a vote of the people. The current state SUT is 7.5%, but beginning January 1, 2017, the state SUT rate on tangible personal property will be 7.25% and imposed as follows: SB 1338 (Lara) 4/4/`6 Page 2 of ? ------------------------------------------------------------- | | | | | Rate | Jurisdiction | Purpose/Authority | | | | | |-------+--------------------+--------------------------------| | | | | |3.9375%|State (General |State general purposes | | |Fund) | | | | | | |-------+--------------------+--------------------------------| | | | | |1.0625%|Local Revenue Fund |Realignment of local public | | |2011 |safety services | | | | | | | | | | | | | |-------+--------------------+--------------------------------| | | | | | 0.50% |State (Local |Local governments to fund | | |Revenue Fund) |health and welfare programs | | | | | |-------+--------------------+--------------------------------| | | | | | 0.50% |State (Local Public |Local governments to fund | | |Safety Fund) |public safety services | | | | | |-------+--------------------+--------------------------------| | | | | | 1.25% |Local (City/County) | | | | | | | | | | | |1.00% City and |City and county general | | |County |operations. | | | | | | |0.25% County | | | | |Dedicated to county | | | |transportation purposes | | | | | |-------+--------------------+--------------------------------| | | | | | 7.25% |Total Statewide | | | |Rate | | SB 1338 (Lara) 4/4/`6 Page 3 of ? | | | | ------------------------------------------------------------- State law fully exempts many items from SUT (prescription drugs, food, poultry litter), while other items are exempted from the state sales tax, but not the local share, such as farm equipment and machinery, diesel fuel used for farming and food processing, teleproduction and postproduction equipment, timber harvesting equipment and machinery, and racehorse breeding stock. Proposed Law Senate Bill 1338 provides a partial sales and use exemption for zero and near zero-emission port equipment. Specifically this bill: Provides a General Fund (3.9375%) sales and use tax exemption for "qualified tangible personal property" purchased by a "qualified person" to be used "primarily" in, at, or on a marine terminal of a California public port for carriage, handling, or movement of freight, cargo, and goods. Defines "qualified tangible personal property" as any of the following: o Zero-emission or near-zero-emission equipment used in conjunction with the movement of goods or freight, including computers, data-processing equipment, and computer software required to operate, control, regulate, or maintain the qualified equipment. o Parts used for the repair and replacement of qualified equipment with a useful life of one or more years. o Special purpose buildings and foundations used as an integral part of the utilization process of zero-emission or near-zero-emission equipment. o Leases of qualified tangible personal SB 1338 (Lara) 4/4/`6 Page 4 of ? property. Defines "primarily" as 50 percent or more of the time. Defines "qualified person" as a stevedore, marine terminal operator, operator of a port or freight yard, or any other person that is engaged in cargo and freight loading, delivery, movement, storage, and conveyance at or within a California public seaport. Defines "Zero-emission or near-zero-emission equipment" means equipment, vehicles, and related technologies used at a California public seaport that reduces or eliminates greenhouse gas emissions and improves air quality as identified by the State Air Resources Board in consultation with the State Energy Resources Conservation and Development Commission. Additionally, "zero-emission and near-zero-emission equipment" may include advanced or alternative fuel engines and hybrid or alternative fuel technologies for seaport equipment. The exemption will not apply if, within one year from the date of purchase, the qualified person (1) uses the qualified property in a manner not qualifying for the exemption, (2) converts the qualified property from an exempt use to a non-qualifying use, or (3) removes the qualified property from California. The bill contains reporting requirements and makes Legislative findings. SB 1338 applies to taxable years beginning January 1, 2017, and until January 1, 2030. SB 1338 (Lara) 4/4/`6 Page 5 of ? State Revenue Impact According to the Board of Equalization (BOE), SB 1338 results in yearly revenue losses of $4.6 million. Comments 1. Purpose of the bill. According to the author, "The California economy is largely dependent on international trade and commerce. The state is home to three of the largest ports in the nation, located in Los Angeles, Long Beach, and Oakland, and eight smaller public-owned ports situated from Humboldt Bay and south to San Diego. More than 40% of containerized cargo arriving in the United States enters through the state's 11 seaports. The Southern California region allows for the quickest, direct shipping routes to the Pacific Rim. 75% of total container volume coming through the Ports of Los Angeles and Long Beach come from East Asia alone. However, greenhouse gas emissions from the transportation sector continue to impact public health throughout the state. According the American Lung Association's State of the Air 2016 report, the Los Angeles region leaders the nation in harmful ozone pollution. Simply put, air quality degradation, congestion, and additional infrastructure impacts cripple not only the economic viability of a region, but also the health and quality of life for those living in communities situated in high volume transportation corridors. Capital expenses associated with the procurement of the latest zero-emission or near-zero emission cargo handling equipment is in the tens of billions of dollars. Replacing current equipment at the ports of Los Angeles, Long Beach, and Oakland is estimated to cost $23 billion. Smart investments to offset and eliminate negative environmental impacts from freight transport positions the state to work towards achieving clean energy and climate goals established by landmark legislation such as AB 32 (Nunez, Chaptered 2006) and SB 350 (De Leon, Chaptered 2015). To that end, the state has a critical role in assisting California ports transition from the more conventional to next generation infrastructure to improve the public health of communities in and around our goods movement sector." 2. A new tax expenditure. Existing law provides various SB 1338 (Lara) 4/4/`6 Page 6 of ? 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). This bill would create new tax expenditure, costing the general fund almost $4.6 million dollars in foregone revenue each year. The tradeoff for providing new tax expenditure, resulting in revenue losses, is higher taxes or reductions to other services or programs. 3. How is 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. This can offer taxpayers greater certainty, but 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, 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, without a supermajority vote. 4. Incentive? Generally, tax expenditures are enacted to encourage socially beneficial behavior that would not take place without a financial incentive. This bill instead provides a sales and use tax exemption for behavior that is outlined in Executive Order B-32-15. In July of 2015, Governor Brown issued the Executive Order B-32-15 directing the California State Transportation Agency, the California Environmental Protection Agency, and the Natural Resources Agency to lead other relevant state departments, including the California Air Resources Board, the California Department of Transportation, the California Energy Commission, and the Governor's Office of Business and Economic Development, to develop an integrated action plan by July 2016. The plan must establish clear targets to improve freight efficiency, transition to zero-emission technologies, and increase competitiveness of California's freight system, which includes California's seaports. Given that California is SB 1338 (Lara) 4/4/`6 Page 7 of ? moving towards requiring zero and near zero-emission vehicles and equipment, it is unclear whether the tax incentive ultimately encourages new behavior or rewards behavior that was going to occur anyway. 5. Moving in the right direction. The ports of Los Angeles and Long Beach are the busiest in the nation and generate more air pollution than any other facility in the Los Angeles Basin. In 2006, the ports of Long Beach and Los Angeles together adopted the landmark Clean Air Action Plan (CAAP). The CAAP focuses on strategies to reduce health risks to communities surrounding the ports by reducing air pollutants. Both the ports of Los Angeles and Long Beach have each reduced diesel particulates by over 80 percent, but more needs to be done. According to the Air Resources Board, despite substantial progress over the last decade, the remaining localized risks of cancer and other adverse effects near major freight hubs must be significantly reduced. Infants and children are 1.5 to three times more sensitive to the harmful effects of exposure to air toxics, like those emitted from freight equipment, than previously understood, which heightens the need for further risk reduction. 6. Administrative burden. Currently, most sales and use tax exemptions are applied to the total applicable sales and use tax. However, several partial exemptions exist in which only the state tax portion of the sales and use tax rate is exempted, such as the farm equipment and teleproduction equipment exemptions. These partial exemptions are difficult for both retailers and BOE, and complicate return preparation and processing. Moreover, errors attributable to these partial exemptions occur frequently, resulting in additional return processing workload for BOE. 7. Let's get clear. Several terms in the bill may need to be clarified. For example, a "qualified person" includes stevedores, marine terminal operators, operators of a port or freight yard, or any other person engaged in cargo and freight loading, delivery, movement, storage, and conveyance at a California public seaport. Since a freight yard may include a rail yard, is the proposed exemption intended to apply to any freight yards located in California that receive cargo from a California public seaport? Would the freight yard have to be contained within the boundaries of the California port or SB 1338 (Lara) 4/4/`6 Page 8 of ? operate as an intermodal rail yard? The Committee may wish to consider amending the bill to reduce potential disagreements between taxpayers and BOE. Support and Opposition (4/21/16) Support : Bay Area Air Quality Management District; Breathe California; California Electronic Transportation Coalition; California League of Conservation Voters; Coalition for Clean Air; Environment California; Environmental Defense Fund; Move LA; Natural Resources Defense Council; Pacific Merchant Shipping Association. Opposition : Unknown. -- END --