BILL ANALYSIS                                                                                                                                                                                                    



                                                                  AB 1332
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          Date of Hearing:  May 11, 2009

                     ASSEMBLY COMMITTEE ON REVENUE AND TAXATION
                             Charles M. Calderon, Chair

                 AB 1332 (Salas) - As Introduced:  February 27, 2009

          Majority vote.

           SUBJECT  :  Taxation:  military housing

           SUMMARY  :  Modifies the criteria that must be met for a private  
          contractor's long-term lease of military housing to be excluded  
          from classification as a possessory interest subject to property  
          tax.  Specifically,  this bill  :

             1)   Deletes the requirement that the housing be for  
               "military personnel and their dependents" and instead  
               specifies that the housing be for military personnel, their  
               dependents, or both, thereby allowing the exclusion to  
               apply to long-term leases of nonfamily housing. 

             2)   Modifies the current requirement that all property tax  
               savings resulting from the exclusion be used solely to  
               benefit the military housing residents through improvements  
               like the provision of a child care center.  Provides  
               instead that the savings shall be used solely to benefit  
               the residents through the private contractor's provision or  
               renovation of any of the following improvements: 


             a)   Community improvements, including child care centers and  
               recreation centers; and,


             b)   Housing improvements, including the construction of  
               additional housing units.  


             3)   Requires the private contractor, as a general rule, to  
               expend its estimated property tax savings for an assessment  
               year, for the purposes specified above, each year or within  
               the time period the county assessor may make an escape  
               assessment.  









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             4)   Provides that any expenditure of property tax savings  
               shall be in addition to any contractual obligation that the  
               private contractor assumed for the construction,  
               renovation, rehabilitation, replacement, management, or  
               maintenance of the military housing.


             5)   Permits the private contractor to use the reasonable  
               estimate of property tax savings that will be realized over  
               the term of the lease to construct, or to secure financing  
               for the construction of, community and housing improvements  
               as part of the initial construction of the project.


             6)   Provides that if, before the expiration of the time  
               period for the "initial construction of the project", the  
               private contractor and the county assessor agree in writing  
               to extend the time period, the initial construction time  
               period shall be extended to the time period agreed upon.   
               The time period may also be extended by subsequent written  
               agreements made before the expiration of the time period  
               previously agreed upon.  In such cases, the time period the  
               county assessor has to make an escape assessment shall be  
               extended by a time period equal to the extension of the  
               initial construction period agreed upon by the county  
               assessor and the private contractor.


             7)   Provides that the estimate of assessed value that will  
               determine the property tax savings to be realized over the  
               term of the lease shall be calculated by using an income  
               approach to value.


             8)   Defines the term "initial construction of the project"  
               as "construction completed within the first four years of  
               the term of the lease of the housing project".  


             9)   Requires the private contractor, at the county  
               assessor's request, to provide all of the following:


             a)   The request for proposals or equivalent document,  








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               including any subsequent modifications or amendments;


             b)   The response submitted by the private contractor and  
               accepted by the military for the housing project; and,


             c)   The lease and any other binding project documents that  
               identify the initial project scope.


             10)  Provides that, for housing projects where the lease was  
               entered into on or after January 1, 2008, and the private  
               contractor would like to expend the reasonable estimate of  
               property tax savings as authorized, the private  
               contractor's response that was accepted by the military and  
               the binding project documents, shall include all of the  
               following:


             a)   The contractor's reasonable estimate of property tax  
               savings over the term of the lease;


             b)   A detailed calculation of the private contractor's  
               estimate of property tax savings; 


             c)   The community and housing improvements to be constructed  
               with the property tax savings; and, 


             d)   The projected scope of the housing project if the  
               estimated property tax savings were not available to be  
               used to construct or secure financing for the community or  
               housing improvements. 


             11)  Applies, by its own terms, to any housing project where  
               the contract or lease was entered into on or after January  
               1, 2006. 


             12)  Contains uncodified language providing that:









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             a)   Revenue and Taxation Code (R&TC) Section 107.4(m), which  
               this bill recasts as Section 107.4(13) shall be interpreted  
               to prevent the possession of property from escaping  
               assessment.  Specifically, if the tax savings for a given  
               assessment year are not expended through constructed  
               improvements within the time period that the county  
               assessor may make an escape assessment for that assessment  
               year, the requirements for property tax exclusion are not  
               met.


             b)   In any hearing involving the appeal of an escape  
               assessment made by the county assessor for a failure to  
               satisfy this section's requirements for exclusion, the  
               county assessor may rebut the presumption affecting the  
               burden of proof in favor of the taxpayer by submitting a  
               statement that, to the best of his/her knowledge, the  
               requirements for exclusion have not been satisfied. 

           EXISTING LAW  :

             1)   Requires all property subject to tax to be assessed at  
               full value.  For purposes of property taxation, full value  
               equals the post-Proposition 13 acquisition price, adjusted  
               annually for inflation (not to exceed 2%).  Although public  
               land is exempt from property tax, private real property  
               interests held in connection with public land may be taxed  
               as "possessory interests".

             2)   Provides that, for a taxable possessory interest to be  
               found, the possession must generally be "independent",  
               "durable", and "exclusive" of rights held by others in the  
               property.  Possession is considered "independent" if the  
               holder has the ability to exert control over the property's  
               management, separate and apart from the public owner's  
               rules and policies.  In other words, a possession or use is  
               independent if sufficiently autonomous to constitute  
               something more than a mere agency.     


             3)   Provides that, if specified conditions are met, there is  
               no "independent" possession of land or improvements if the  
               possession is pursuant to a contract that includes a  
               long-term lease for the private construction, renovation,  








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               or maintenance of housing for active duty military  
               personnel and their dependents.  Among other things, the  
               military family housing so constructed and managed must be  
               situated on a military facility under military control.  In  
               addition, existing law provides that any reduction in  
               property taxes on the leased property shall insure solely  
               to the benefit of the military housing residents through  
               improvements, such as a child care center provided by the  
               private contractor. 

           FISCAL EFFECT  :  The Board of Equalization (BOE) notes that, in  
          2003, Congress authorized the Navy to undertake up to three  
          pilot privatization projects for nonfamily housing.  The first  
          pilot project, Pacific Beacon, privatized 258 units of  
          Navy-owned nonfamily housing units and provided for the  
          construction of 941 apartments at Naval Station San Diego.  The  
          project was completed in March of 2009, with a projected  
          assessment value of $100 million.  Thus, if the property were  
          subject to tax, it would yield roughly $1 million per year ($100  
          million x 1% = $1 million).  The project has not actually been  
          assessed however.  As a result, BOE notes that the actual  
          revenue impact has not been determined.  Nevertheless, BOE  
          states, "Depending on the success of the pilot unaccompanied  
          housing privatization projects, Congress may decide to authorize  
          the privatization of other unaccompanied housing quarters as  
          well.  The revenue impact of this bill would increase  
          significantly if all such housing quarters were privatized."  

           COMMENTS  :

             1)   The author states, "This bill is intended to facilitate  
               the development of military housing in a manner that  
               ensures that such development benefits military personnel."  
                

             2)   The County of San Diego (County) is sponsoring this  
               bill.  The County states, "As currently drafted, AB 1332  
               provides maximum flexibility to a developer of military  
               housing by allowing for the use of  both  family and bachelor  
               housing.  In addition, the bill enables property tax funds  
               to be used for additional housing as well as improvements  
               to existing housing units.  Also, the bill allows a  
               developer to accrue the property tax savings over a period  
               of several years, provided that the County is able to  
               ensure that the total amount of the property tax funds are  








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               ultimately spent in a manner that benefits military  
               personnel."  Finally, the County states, "Unfortunately,  
               another measure, AB 1344 (Fletcher) does not provide these  
               same safeguards.  Instead this bill could create a  
               situation where a developer wins and military personnel  
               lose.  Consequently, the County opposes AB 1344."


             3)   Critics of the approach taken by this measure state,  
               "Upon passage of SB 451 (Rev and Tax Code Section 107.4),  
               the question of whether these developments were considered  
               independent was answered in 57 of the 58 counties.  But the  
               County of San Diego continues to insist that they are  
               independent and has attempted to impose a legal  
               interpretation of one of the criteria that is at odds with  
               the rest of the State.  The criterion under contention  
               requires that the 'tax savings' insure to the benefit of  
               the residents through the construction of improvements, a  
               condition entirely consistent with the contracts between  
               the military and the private contractors.  While the  
               contractors could go to court to overturn the County's  
               position, the issue needs to be put to rest without the  
               need to resort to litigation if future contracts can  
               proceed unimpeded as the Legislature clearly desired when  
               it passed SB 451."  


             4)   BOE notes the following by way of background:


             a)   "In 2004, Senate Bill 451 (Ch. 853, Ducheny) added  
               Section 107.4 to the Revenue and Taxation Code to provide  
               that a possession or use of land or improvements is not  
               independent if that possession or use is pursuant to a  
               contract, including, but not limited to, a long-term lease,  
               for the private construction, renovation, rehabilitation,  
               replacement, management, or maintenance of housing for  
               active duty military personnel and their dependents, if  
               specific criteria are met.  An interest that is not  
               independent fails to meet one of the three necessary  
               elements for the interest to be subject to property tax.   
               Thus, a private contractor's interest in military housing  
               meeting the eligibility criteria of Section 107.4 would be  
               exempt from property tax."









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             b)   "This bill is sponsored by San Diego County.  Its  
               purpose is to ensure that the private contractor's interest  
               in bachelor housing is also eligible for exemption from  
               property tax under Section 107.4.  In addition, to  
               administer the provision of the exemption which requires  
               that the property tax savings conferred by the state of  
               California be passed through to the residents of the  
               military housing project, this bill expands and details the  
               administration of those provisions.  The county notes that  
               this bill is codifying written agreements the county has  
               made with some private contractors currently operating  
               military housing projects in San Diego that have been  
               granted the possessory interest exemption."


             5)   BOE provides the following comments in its staff  
               analysis of this bill:


              a)   California provides a property tax exemption - provided  
               the residents are the ultimate beneficiaries of the  
               exemption rather than the private contractor  .   "In 2004,  
               Senate Bill 451 (Ch. 853, Ducheny) . . .  provided a  
               property tax exemption to the developers and operators of  
               the housing projects, but only if the private contractor  
               passes through the property tax savings to the residents.   
               Private contractors who bid for projects are informed that  
               the projects could be subject to property taxes by the  
               various local governments where the properties are located.  
                According to the Department of Defense [DoD], the property  
               tax implications of these projects are not guaranteed.  The  
               website to potential bidders notes:  'Are property taxes  
               considered in these deals?  Although DoD will not negotiate  
               with the local jurisdiction on any tax abatements, the  
               developer is free to negotiate to achieve any tax  
               abatements.'"


              b)   Property tax savings are to inure to the benefit of the  
               military families and service personnel rather than to the  
               private contractor  .  "Current law requires that any  
               reduction in property taxes on leased property used for  
               military housing  . . .  will inure solely to the benefit  
               of the residents of the military housing through  








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               improvements, such as a child care center provided by the  
               contractor.  Other sections of law extending a property tax  
               exemption to an otherwise non-tax exempt entity similarly  
               require that property tax savings inure to the worthy  
               organization in question, via rent reductions.  (See [R&TC]  
               Section 202.2 related to property leased to a public  
               school, university or college or leased to a library or  
               museum that is free to the public . . . .).  In this case,  
               rather than reducing the rents charged to service  
               personnel, the contractor is to insure that the property  
               tax savings are used to provide additional improvements."


              c)   This bill expands upon the types of improvements upon  
               which the property tax savings can be used .  "The property  
               tax savings can be spent on either community improvements  
               (like a recreation center or a child care center) or  
               housing improvements including building more rental units  
               for military personnel (but must be more than the minimum  
               number required by the military).  The savings can also be  
               spent on renovating and refurbishing the community  
               improvements or the housing improvements.   The bill also  
               specifies that the property tax savings from any one year  
               [are] to be spent within 4 years.  In addition, the  
               property tax savings that will be realized over the term of  
               the lease (typically 50 years) can be used to construct (or  
               secure financing for) community or housing improvements as  
               part of the 'initial construction of the project.'   For  
               example, if the contract only required that 500 homes be  
               built, but because of the projected property tax savings  
               the contractor was able to build 550 homes, that could be  
               an allowable use of the property tax savings that benefits  
               the residents, since 50 more families can rent homes on the  
               military base."


             6)   Committee Staff Notes:


              a)   How did we get here?  :  In 1996, Congress established the  
               Military Housing Privatization Initiative (MHPI) to give  
               the military a tool to improve the quality of military  
               housing.  The MHPI was designed to attract private sector  
               financing and expertise to provide much-needed housing more  
               efficiently than traditional military construction  








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               practices would allow.  Under the MHPI, the military is  
               authorized to enter into agreements with private developers  
               selected in a competitive process to maintain and operate  
               family housing during a 50-year lease.  In this manner, the  
               MHPI was aimed at addressing the generally poor condition  
               of military-owned housing, and the shortage of quality,  
               affordable private housing. 


              b)   Military personnel and their dependents  :  

              
                i)     R&TC Section 107.4 provides specific rules for a  
                 private contractor's interest in military housing to be  
                 exempt from taxation as a possessory interest.   
                 Currently, one of these rules requires the housing to be  
                 for "military personnel and their dependents".  Under a  
                 technical reading of the statute, this means that single,  
                 nonfamily housing projects are not eligible for the  
                 beneficial property tax treatment Section 107.4 affords.   
                 This bill would amend Section 107.4 to cover housing for  
                 active duty military personnel or their dependents, or  
                 both.  As such, single, nonfamily housing would be  
                 eligible for the exclusion. 
                
                ii)    Given the fact that existing law provides an  
                 exemption for family housing, Committee staff sees no  
                 reason why the exemption should not also be extended to  
                 nonfamily housing projects.    



             c)   What happens to the property tax money saved?  : 
              
                i)     Current law requires that any reduction in property  
                 taxes resulting from the exclusion be used solely to  
                 benefit the military housing residents through  
                 improvements like the provision of a child care center.   
                 (If the reduction amount is unknown, the contractor's  
                 reasonable estimate of savings is used.)  BOE notes, "The  
                 purpose of this provision is to ensure that the property  
                 tax exemption extended to the private contractor of the  
                 military housing project is not merely a windfall savings  
                 to the private contractor, but rather that the property  
                 tax savings are ultimately passed through to benefit the  








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                 residents of the military housing project."  
                
                ii)    This bill would expand the list of eligible  
                 improvements to include "community improvements" (e.g.,  
                 child care centers and recreation centers) and "housing  
                 improvements" (i.e., the construction of additional  
                 housing units).  This bill would also permit the property  
                 tax savings to be used on renovation and refurbishment of  
                 community and housing improvements.  

                
             d)   How much time does the contractor have to provide these  
               improvements? :  Existing law does not contain an explicit  
               timeframe for contractors to make improvements.  As a  
               general rule, this bill would require contractors to expend  
               the estimated property tax savings for a given assessment  
               year each year, or within the time period the county  
               assessor may make an escape assessment.   

             e)   Related legislation  :  AB 1344 (Fletcher), introduced in  
               the current Legislative Session, also proposes amendments  
               to R&TC Section 107.4 sponsored by industry.  AB 1344 is  
               set to be heard by this Committee along with this bill.   

              
              f)   Technical amendment  :  Committee staff suggests deleting  
               the word "and" on page 4, line 4.

           REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           
          County of San Diego (sponsor)

           Opposition 
           
          None on file
           
          Analysis Prepared by  :  M. David Ruff / REV. & TAX. / (916)  
          319-2098