BILL ANALYSIS                                                                                                                                                                                                    Ó



          SENATE COMMITTEE ON GOVERNANCE AND FINANCE
                         Senator Robert M. Hertzberg, Chair
                                2015 - 2016  Regular 

                              
          
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          |Bill No:  |SB 1437                          |Hearing    |5/11/16  |
          |          |                                 |Date:      |         |
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          |Author:   |Moorlach                         |Tax Levy:  |Yes      |
          |----------+---------------------------------+-----------+---------|
          |Version:  |2/19/16                          |Fiscal:    |Yes      |
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          |Consultant|Bouaziz                                               |
          |:         |                                                      |
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               Personal income taxes:  deductions:  education expenses:   
                             education savings accounts



          Allows an "above-the-line" deduction for contributions to  
          Coverdell Education Savings Accounts and a deduction for  
          qualified education related expenses.


           Background 

           Coverdell Education Savings Account. Established by federal law,  
          a Coverdell Education Savings Account (ESA) is a trust or  
          custodial account created exclusively for the purpose of paying  
          qualified education expenses of a named beneficiary.  Annual  
          contributions to a Coverdell account may not exceed $2,000 per  
          designated beneficiary and generally may not be made after the  
          designated beneficiary reaches age 18.  The contribution limit  
          is phased out for taxpayers with a modified AGI between $95,000  
          and $110,000 ($190,000 and $220,000 for married taxpayers filing  
          a joint return); the AGI of the contributor, and not that of the  
          designated beneficiary, controls whether a contribution is  
          permitted by the taxpayer.

          Distributions from an ESA are excluded from the gross income of  
          the student to the extent that the distribution does not exceed  
          the qualified education expenses incurred by the beneficiary the  
          year the distribution is made.  The earnings portion of an ESA  
          distribution not used to pay qualified education expenses is  







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          includible in the gross income of the student and generally  
          subject to an additional 10% tax.  Tax-free transfers or  
          rollovers of account balances from one ESA to another ESA are  
          permitted, provided that the new beneficiary is a member of the  
          family of the prior beneficiary and is under age 30 (except in  
          the case of a special needs beneficiary).

          In general, any balance remaining in an ESA is deemed to be  
          distributed within 30 days after the date that the beneficiary  
          reaches age 30 (or, if the beneficiary dies before attaining age  
          30, within 30 days of the date that the beneficiary dies).

          Qualified education expenses include "qualified higher education  
          expenses" and "qualified elementary and secondary education  
          expenses," and are defined as follows:

                 "Qualified higher education expenses" means expenses for  
               undergraduate or graduate-level courses, and includes  
               expenses for tuition, fees, books, supplies, and equipment  
               required for the enrollment or attendance of the designated  
               beneficiary at an eligible educational institution,  
               regardless of whether the beneficiary is enrolled at an  
               eligible educational institution on a full-time, half-time,  
               or less than half-time basis, certain room and board  
               expenses for any period during which the beneficiary is at  
               least a half-time student, and amounts paid or incurred to  
               purchase tuition credits, or to make contributions to an  
               account, under a qualified tuition program for the benefit  
               of the beneficiary of an ESA.

                 "Qualified elementary and secondary education expenses"  
               means expenses for enrollment or attendance of the  
               beneficiary at a public, private, or religious school  
               providing elementary or secondary education (kindergarten  
               through grade 12), and include tuition, fees, academic  
               tutoring, special needs services, books, supplies, room and  
               board, uniforms, transportation, and supplementary items or  
               services (including extended day programs) required or  
               provided by such a school in connection with such  
               enrollment or attendance of the designated beneficiary, and  
               the purchase of any computer technology or equipment or  
               Internet access and related services, if such technology,  
               equipment, or services are to be used by the beneficiary  
               and the beneficiary's family during any of the years the  








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               beneficiary is in elementary or secondary school.  Computer  
               software primarily involving sports, games, or hobbies is  
               not considered a qualified elementary and secondary  
               education expense unless the software is predominantly  
               educational in nature.

          California law generally conforms to federal law for ESAs,  
          modified to provide that the federal additional 10% tax on  
          excess distributions is instead an additional tax of 2.5% for  
          state purposes.

          Deduction for certain education-related expenses.  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. Currently, tax expenditures exceed $57  
          billion dollars. Federal law lacks an education deduction for  
          K-12 education expenses.


           Proposed Law

           Senate Bill 1437 provides an above-the-line deduction for  
          contributions to an ESA, not to exceed $750 per taxable year.  

          SB 1437 also provides an above-the-line deduction for qualified  
          education related expenses incurred for the benefit of a  
          dependent child paid by a qualified taxpayer. The bill defines  
          the following terms:

                 "Dependent child" means one or more children who are  
               dependents for federal tax purposes, attend grades K-12  
               full-time, and are under the age of 21.

                 "Qualified amount" would mean the amount paid or  
               incurred for qualified education related expenses.

                 "Qualified education-related expenses" would mean the  
               kindergarten or any of grades 1 to 12, inclusive, costs of  








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               any of the following:

                  o         The rental or purchase of educational  
                    equipment required for classes during the regular  
                    school day; computers, computer hardware, and  
                    educational computer software used to learn academic  
                    subjects.

                  o         Fees for college courses at public  
                    institutions or independent nonprofit colleges, or for  
                    summer school courses that satisfy high school  
                    graduation requirements.

                  o         Psychoeducational diagnostic evaluations to  
                    assess the cognitive and academic abilities of  
                    dependent children; special education and related  
                    services for dependent children who have an  
                    individualized education program or its equivalent.

                  o         Out-of-school enrichment programs, tutoring,  
                    and summer programs that are academic in nature.

                  o         Public transportation or third-party  
                    transportation expenses for traveling directly to and  
                    from school.

                  o         Excludes any expenses for items as provided in  
                    this provision that also are used in a trade or  
                    business.

                 "Qualified taxpayer" would mean a parent or legal  
               guardian of one or more dependent children who meets all of  
               the following requirements:

                  o         Both the dependent children and the parent or  
                    guardians reside in California when the qualified  
                    education-related expenses are paid or incurred.

                  o         Household adjusted gross income does not  
                    exceed 250% of the federal Income Eligibility  
                    Guidelines published by the Food and Nutrition Service  
                    of the United States Department of Agriculture for use  
                    in determining eligibility for reduced price meals.









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          The deduction is limited to $2,500 per year. SB 1437 applies to  
          taxable years beginning on or after January 1, 2016 and before  
          January 1, 2021.


           State Revenue Impact

           According to the Franchise Tax Board (FTB), SB 1437 results in  
          revenue losses of $20.4 million in fiscal year (FY) 2016-17,  
          $20.45 million in FY 2017-18, and $21.45 million in FY 2018-19.   



           Comments

           1.  Purpose of the bill.   According to the author, "SB 1437 would  
          combine a state tax incentive, along with a new measure of tax  
          relief, to support families in personally saving and caring for  
          their children's learning needs from kindergarten through  
          college.  As a tax incentive this bill will encourage, through a  
          $750 state tax deduction, contributions made to a federal  
          Coverdell Education Savings Account (ESA) to save for qualified  
          educational expenses at public and private schools, colleges,  
          and universities.  As tax relief this bill would allow working  
          and middle-class families, with incomes at or below 250 percent  
          of federal reduced lunch guidelines, a $2,500 deduction, for  
          K-12 education-related expenses incurred on behalf of their  
          dependent children attending California schools.  SB 1437 will  
          encourage families to put away more money for college to ease  
          future student debt burdens, while also saving for college  
          preparedness should K-12 educational needs arise.  SB 1437 will  
          additionally aid families in providing resources and services  
          that are paramount to K-12 learning to help close learning gaps,  
          promote prevention and recovery, and lessen the number of high  
          school graduates who enter college needing remedial assistance."

          2.   Tax expenditures.   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).   
          This bill would increase an existing tax expenditure.  The  








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          tradeoff for increasing the 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.  SB1437 contains a 5 year  
          sunset.

          4.  529 versus ESA.   Although similar, there are key differences  
          between utilizing an ESA versus a 529 account (also known as a  
          as a ScholarShare College Savings Plan) tool for saving for  
          education.   An ESA has both a yearly contribution limit and  
          income limits, a 529 has no yearly contribution limit or an  
          income limit, but there is a maximum account balance limit of  
          $475,000.  Balances in an ESA must be disbursed on qualified  
          education expenses by the time the beneficiary is 30 years old  
          or given to another family member below the age of 30 in order  
          to avoid taxes and penalties; there is no age limit for 529  
          plans.  An ESAs allows withdrawing the money tax free for  
          qualified elementary and secondary school expenses, whereas a  
          529 plan does not.

          Earnings from both types of accounts are not subject to federal  
          and state tax when used for the qualified education expenses of  
          the designated beneficiary, such as tuition, fees, books, as  
          well as room and board. Contributions to both accounts are not  
          deductible.

          5.   Favoring Higher Income Earners.   According to a report by  
          the Government Accountability Office (GAO), less than 3% of  
          families have 529 or ESA plans and those who do tend to be  
          wealthier.  (Higher Education: A Small Percentage of Families  
          Save in 529 Plans, GAO, Dec. 2012.)  Specifically, families with  
          529 and ESA plans had a median income of $142,000 per year and a  








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          median financial asset value of about $413,500.  It was also  
          said that families with 529 and ESA plans tend to have higher  
          levels of education, which may increase the likelihood that  
          their children will attend college.  The report outlined several  
          reasons why low-income families participate far less in 529 and  
          ESA plans, such as a lack of awareness, confusion as to how the  
          plan works, and differences among the various plans.  However,  
          68% of those surveyed stated a lack of money as the major reason  
          for not participating.  In the end, it is difficult to encourage  
          families to save for college when they have little or no  
          disposable income.  

          6.   Private School Subsidy.   Unlike a 529 College Savings plan,  
          an ESA allow taxpayers to withdraw and make payments for K-12  
          educational expenses.  K-12 educational expenses, however, are  
          not limited to public schools.  Funds can be used to pay for  
          private school tuition.  The Committee may wish consider whether  
          subsidizing private education is an appropriate use of public  
          funds.

          7.   Above and below the line deductions.   An above-the-line  
          deduction is a deduction that allows a taxpayer to subtract  
          amounts from gross income when calculating their AGI.  If the  
          deduction is taken above the line, it is used to determine the  
          taxpayer's AGI.  An above-the-line deduction can be taken by any  
          taxpayer regardless of whether the taxpayer itemizes.  Moreover,  
          an above-the-line deduction reduces AGI, and having a smaller  
          AGI can lower many subsequent calculations which will further  
          reduce taxes.  As a result, above-the-line deductions are more  
          advantageous than those taken below the line.  Once AGI is  
          determined, a taxpayer can either itemize deductions or take the  
          standard deduction, whichever is greater.  Once itemized  
          deductions exceed the standard deduction, other smaller  
          below-the-line deductions, such as miscellaneous expenses, can  
          be applied to increase tax savings.  However, in order to take  
          advantage of a miscellaneous below-the-line deduction, total  
          expenses must exceed 2% of AGI and all deductions in total must  
          exceed the standard deduction.  Currently, less than one-half of  
          California individuals itemize their deductions.

          8.   Reverse nonconformity.   California law does not  
          automatically conform to changes to federal tax law, except  
          under specified circumstances.  Instead, the Legislature must  
          affirmatively conform to federal changes.  Generally, when the  








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          federal government changes its tax laws, California catches up  
          by enacting its own legislation the following year to reduce  
          differences between the two codes, thereby easing the tax  
          preparation burden on taxpayers, tax preparers, and the  
          Franchise Tax Board.  Currently, under federal tax law there is  
          no above-the-line deduction for contributions to an ESA, or for  
          K-12 education expenses.  Thus, if SB 1437 is enacted taxpayers  
          would be entitled to a deduction for state tax purposes, but not  
          for federal tax purposes.  

          9.   Let's get clear.   Several terms in the bill may need to be  
          clarified.  For example, it is unclear if "household income," as  
          defined in this provision, would include the AGI of each member  
          of the household or only the AGI of the qualified taxpayer.  The  
          Committee may wish to consider amending the bill to reduce  
          potential disagreements between taxpayers and FTB.


           Support and  
          Opposition   (5/5/16)


           Support  :  California Association of Private School  
          Organizations; California Catholic Conference.

           Opposition  :  California Federation of Teachers; California Tax  
          Reform Association; California Teachers Association.



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