Proposed CA Bill Would Cause Massive Tax Increase and Potential International Trade War

TaxesDespite multiple tax increases being adopted by voters just last November, SB 567 (Lara) was introduced that, if enacted, will result in another multi-billion dollar tax increase on businesses and individuals. And, the bill could once again raise the ire of major international trading partners, including Great Britain and Japan.

With the newly acquired super-majority status of Democrats in both the state Assembly and state Senate, the business community has been concerned about potential tax increases brewing in the Legislature. SB 567 represents the biggest threat so far.

SB 567 would make four major changes to California tax law. According to the bill’s author, this measure “will close four popular loopholes that benefit millionaires and ensure high income earners making above one-million-dollars annually, pay their fair share in taxes.” Senator Lara also claims, “Millionaires have mastered our tax code to take advantage of popular loopholes. As a result, the super-rich and the largest corporations in California do not pay their fair share in taxes.”

The approach of seeking new sources of revenue, such as that contained in SB 567, seems counter-intuitive after the electorate adopted multi-billion tax increases just a few months ago by passing Prop. 55 (12-year extension of the Prop. 30 personal income tax increases), Prop. 56 (a $2 tax imposed on each pack of cigarettes), and Prop. 64 (which includes several tax increases on marijuana and marijuana products).

What is different for the 2017 session is that Democrats have achieved the necessary 2/3 majorities in the state Senate and Assembly to pass tax increases without any Republican involvement under the requirements of Prop. 26 (amending Article XIIIA, Section 3(a) of the California Constitution), assuming signature by the governor – or enough votes to override a gubernatorial veto. California is one of just a handful of states that requires a 2/3 majority for increasing taxes by a vote of the Legislature.

What does SB 567 propose? As introduced, the bill contains four significant tax increase provisions. First, for tax years beginning January 1, 2018, SB 567 would require charitable remainder trusts (CRTs) to be at least 40 percent of the initial fair market value of all of the property placed in trust. Existing state law exempts from state tax any charitable remainder trust including that the value of the trust must be at least 10% of the initial fair market value of all the property placed in trust.

A CRT is an irrevocable trust that generates an income stream for the donor to the CRT with the remainder of the donated assets going to charity. Unfortunately, proponents claim CRTs benefit charities but allow taxpayers to avoid paying taxes. The bill would raise the amount going to the charity by 300 percent. It would make a CRT less attractive and adversely impact charitable giving. It would also take California out of conformity with federal law, which creates administrative burdens for both taxpayers and the Franchise Tax Board in administering the law.

Second, for persons who died on or after January 1, 2018, SB 567 would revise the law so that no adjustment is allowed where the person who acquires the property has an adjusted gross income or net income over a specified amount. Existing state law, for the purpose of calculating the gain or loss upon the disposition of property, generally the basis of property acquired from a decedent is the fair market value at the date of death.

California conforms to federal tax law on the “step-up in basis” for appreciated property that has been inherited. SB 567 would eliminate this provision of federal law for those with income above $1 million, once again targeting those upon whom the State of California is ever dependent upon financially. As a result, the bill would create different rules for California taxpayers complying with federal law and force those individuals to pay capital gains on inherited property that has appreciated in value.

Third, SB 567 would retroactively to January 1, 2017 eliminate the deduction for compensation paid to CEOs for pay based on commission or on meeting certain performance goals. Retroactive tax law changes are fundamentally unfair to taxpayers as they change the rules midstream. This creates undue hardship and confusion for residents.

Existing state law, in conformity with federal tax law, provides that a publicly held corporation may not deduct remuneration paid to the CEO to the extent the amount of compensation exceeds $1 million, except where the amount is based on commission or on meeting certain performance goals. As such, a deduction for that compensation is permitted on that basis even if it exceeds $1 million. This change in law would take California out of conformity with federal income tax law by disallowing the deduction for publicly-traded corporations.

Fourth, SB 567 would retroactively to January 1, 2017 remove the water’s-edge election and specify that all existing electors would be unable to file using the water’s-edge method for tax years beginning on or after January 1, 2023, thereby forcing all corporations to file on a worldwide unitary basis. Existing state law allows corporations to elect whether their income is determined on a water’s-edge or worldwide unitary basis.

While the U.S. Supreme Court upheld California’s use of “worldwide combined reporting,” the state allowed a “water’s-edge election” beginning in 1987 due to pressure from foreign governments and multinational corporations, as well as sound tax policy. SB 567 would re-open this debate and cause countries like England and Japan to again propose retaliatory measures against U.S. corporations.

The claim by proponents of this tax law change is that corporations stash money in tax haven countries and worldwide combined reporting is the only way to tax those revenues. SB 567 would repeal the water’s-edge election and force all corporations to pay much more in corporate taxes to California. Under this approach, California companies would end up paying taxes on foreign income earned outside the U.S. which would be inappropriately apportioned to California. The bill would represent a massive tax increase disguised as “fairness” in taxation.

Moreover, SB 567 would grant California the ability to tax income earned outside of the water’s-edge of the United States, a practice which is not followed by any other state in the nation. The practical effect would be to allow the state to tax income that has already been subject to taxation by a foreign jurisdiction. And California-based companies would be subject to retaliatory tax measures by other countries in which they are conducting business.

As the Legislative Counsel has correctly determined, SB 567 makes multiple changes in state statutes that would result in a taxpayer paying a higher tax within the meaning of Article XIIIA, Section 3 of the California Constitution and thus requires a 2/3 majority vote of both houses of the Legislature in order to reach the governor’s desk. Hopefully, the Legislature will reject this measure.

Chris Micheli is a lobbyist with the Sacramento governmental relations firm of Aprea & Micheli, Inc. He can be reached at cmicheli@apreamicheli.com.

This piece was originally published by Fox and Hounds Daily.

Pot tax goes down in flames in California Legislature

As reported by the Los Angeles Times:

A bill to put an excise tax on medical marijuana in California was killed Thursday by a Senate panel after advocates for cannabis users said it would put a financial burden on patients.

The Senate Appropriations Committee shelved AB 2243 with knowledge that California voters will consider a 15% pot tax on Nov. 8 when they take up Proposition 64, which would also legalize recreational use of cannabis.

The legislation by Assemblyman Jim Wood (D-Healdsburg) would have charged up to $9.25 per ounce of marijuana flowers, $2.75 per ounce of pot leaves and $1.25 per ounce of immature pot plants.

Wood said the funding is needed to help cover enforcement and environmental costs under a new system approved last year that will license the growing, transport and sale of medical marijuana. …

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CARB Threatens Greenhouse Gas Law Extention

carbon-tax-1The California Air Resources Board set a match to controversy this week suggesting that the board could push the cap-and-trade deadline for funding greenhouse gas reduction programs past its 2020 end date by executive fiat.

That’s not the way the law works, many Republicans cried, and they are backed up by an opinion from the Legislative Counsel’s Office.

According to the opinion, “The act does not authorize the governor or the ARB to establish a greenhouse gas emissions that is below 1990 level and that would be applicable after 2020.”

Republican Senate Minority Leader Jean Fuller called the ARB proposal “illegal” and admonished the executive branch, “Californians deserve better than a government that acts as if they are above the law.”

Many in the business community feel fixes are needed to the current program before any extension is contemplated. Dorothy Rothrock, president of the California Manufacturers and Technology Association said in a release following the ARB announcement, “Manufacturing investments and jobs have lagged other states in the US over the past six years by a large margin. Future climate policies must recognize this reality and be designed to protect California’s manufacturing jobs and economy.”

The cap-and-trade policy ARB wants to extend is subject to court action already, as business interests, including the California Chamber of Commerce, brought suit claiming the cap-and-trade formula is actually a tax requiring a two-thirds vote of the legislature. The law establishing cap-and-trade, AB 32 of 2006, was established by majority vote. While a lower court brushed aside the business complaint an appellate court is now considering the matter. Observers watching court action say there is a chance the lower court decision could be reversed.

There is another way for the legislature and the governor to extend the cap-and-trade end date and lower the greenhouse gases goal below 1990 levels. Pass legislation.

That is exactly what some in the legislature are trying to do with SB 32, that would extend the law lowering the acceptable greenhouse gas level 40% below 1990 levels by 2030.

The court case, however, raises doubt about whether the SB 32 needs a simple majority vote or a two-thirds vote.

In a Flash Report column yesterday, state Senator Andy Vidak said attempts are being made by Democratic leaders in the legislature to secure enough Republican votes to allow SB 32 to pass by two-thirds. If true, that is a strong indication that the Democrats are concerned the court will side with the CalChamber over the tax issue and brand cap-and-trade an illegal tax.

Yet, the politics over changing the greenhouse gases law do not stop there. Another consideration is one posed by L.A. Times columnist George Skelton who suggested California voters in November, reacting negatively to a Trump candidacy, might defeat Republican officeholders thus securing a two-thirds vote in both houses of the legislature for the Democrats.

In that case, the strategy for the Democrats just might be to bide their time. Then again, you might conclude that the politics don’t stop at that point, even with a two-thirds Democratic majority, because the politics of energy and its cost have split the Democratic caucus in the past and could do so again.

ditor of Fox & Hounds and President of the Small Business Action Committee.

This piece was originally published by Fox and Hounds Daily

Bid to Raise California Tobacco Tax Nears November Ballot

As reported by ABC News:

A well-financed campaign backed by billionaire environmentalist Tom Steyer, medical groups and organized labor has collected enough signatures for a ballot measure to raise California’s cigarette tax by $2 a pack, officials said.

The Save Lives California coalition scheduled a news conference Monday at the San Diego County Registrar of Voters office to submit the first signatures in its effort to triple California’s cigarette tax to $2.87 a pack.

If enough signatures are verified, the measure would appear on an increasingly crowded Nov. 8 ballot alongside proposals to repeal a ban on single-use plastic bags at grocery stores and require actors to use condoms in adult films.

The announcement about the tobacco tax measure came less than a month after Democratic Gov. Jerry Brown signed legislation to make California the second state in …

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CA “Tax Freedom Day” Later Than Most States, But Hope on the Horizon

taxesAccording to the newly released report from the Tax Foundation, California’s Tax Freedom Day is April 28—the day taxpayers of the state have collectively earned enough money to pay their federal, state and local taxes for the year. While that date places the Golden State 46th on the list of state taxpayers claiming tax freedom, there is a chance that California could move up dramatically. It all depends on November’s election.

California is grouped in the back of the pack with other high tax-high income states. Only Massachusetts, New York, New Jersey and Connecticut residents pay off all their taxes after California. The national average of all states is April 24.

The good news for the Golden State is that Tax Freedom Day occurs three days earlier than last year.

Tax Freedom Day is calculated by dividing income into taxes paid in each state. Because California has seen stronger economic growth than the nation as a whole, taxes are paid off more quickly.

Taxes still take a large chunk of people’s income. The Tax Foundation report noted that Americans would spend more on taxes in 2016 than on food, clothing and housing combined.

Tax Freedom Day is always in flux depending on actions in a state. 2016 being an election year with potential state and local taxes facing voters, California taxpayers could see their taxpaying obligation rise or fall depending on election results.

One of the big items, of course, is the effort to extend Proposition 30’s income taxes. California has the top U.S. marginal income tax rate in the country. If voters reject the Prop. 30 tax extension what would that do to California’s Tax Freedom Day standing?

Joseph Henchman, Vice President of Legal & State Projects for the Tax Foundation gave me what he called a “back of the envelope” projection of Tax Freedom Day arriving “about a week” earlier if the Prop. 30 taxes expire on schedule.

If all else remains the same that means California taxpayers would jump from nearly last at 46th place in paying off taxes up to around 37th position among all the states.

This article was originally published by Fox and Hounds Daily

Government Hypocrisy: “Save More”

Photo courtesy of kenteegardin, flickr

Photo courtesy of kenteegardin, flickr

American government is so ubiquitous it even offers advice about New Year’s resolutions. However, its guidance to citizens mainly illustrates ideas government violates. Consider one example from the About USA.gov site: “Save more.”

That is not a very controversial resolution for an uncertain world. But the massive and still growing government debt and its far larger unfunded liabilities makes it the largest violator of its own resolution. Talk about “do as I say, not as I do.” Further, the main reason people save too little is that government does so much that discourages saving and investment, making the Hippocratic oath –“First, do no harm” — a better means to increase savings.

One huge illustration is Social Security. People have been led to substitute its “contributions” and retirement benefits for funds they would have saved to finance their “golden years.” Its promises also dramatically exceed what funds will be available, making people anticipate richer retirements than they will actually have, reducing savings more. Those who save enough to provide well for retirement also face income taxes on most of their Social Security benefits as well.

Social Security exacerbates the adverse effects of budget deficits, which divert funds that would have added investment into government spending.

Taxes on capital reduce the after-tax return on saving and investment, also reducing saving. These include property taxes that, while relatively small percentages of the capital value, represent sizable fractions of annual income generated. Then state and federal (and sometimes local) corporate taxes take further bites from after-tax returns. The implicit “tax” imposed by regulatory burdens must also be borne before earnings can reach investors.

Personal income taxes at up to three levels of government reduce saving further. Investment income left after other taxes is taxed again if paid out as dividends.  Earnings from saving and investment can also trigger additional tax burdens by triggering phase-outs of income tax deductions and exemptions.

If investment earnings are retained and reinvested, increasing asset values, they are taxed as capital gains. And even increases in asset values from inflation are taxed as real increases in wealth.

Medicare, whose unfunded liabilities are far greater than Social Security’s, reduces incentives to save for future medical costs. Current earners, forced to cover three quarters of the cost, are left with less to save. Medicaid coverage of nursing home costs only after other assets are virtually exhausted undermines another savings motive.

Unemployment benefits, along with food stamps and other poverty programs, also reduce the need for a nest egg, “just in case.” And as illustrated by so many disasters and crises, government steps in to assist those who “need” it, reducing the incentives for financial self-responsibility.

Estate taxes also reduce successful savers’ ability to pass on assets as bequests, eroding another savings motive. And monetary policy that has long kept interest rates near zero have undermined incentives to save as well.

Together, these government policies punish savings heavily, resulting in large numbers without appreciable savings. But fixing that saving problem doesn’t require government to tell us to resolve to save more. It doesn’t require ever more government intervention to “solve” a problem its existing interventions have created. It only requires a government resolution to stop aggressively undermining incentives to save as it does now.

Gary M. Galles is a research fellow with the Independent Institute in Oakland, and a professor of economics at Pepperdine University. His books include Lines of Liberty (2015), Faulty Premises, Faulty Policies (2014), and Apostle of Peace (2013).

CA Doesn’t Need Additional Tax Revenue

TaxesThere is an old expression, “carrying coals to Newcastle,” to describe a useless activity or fool’s errand. Sort of like shipping pineapples to Hawaii or, bringing it closer to home, sending more tax dollars to Sacramento.

The truth is, Sacramento is awash in cash. The Legislature’s budget analyst estimates that this fiscal year will end with $3 billion more than anticipated and, by 2017, state reserves may even top $11 billion.

For the political ruling class, this is an embarrassment. Last summer, the governor called a special session of the Legislature in an attempt to secure legislative approval of a new health care tax on managed care organizations (MCOs) because the current tax is about to expire. He also called another special session to deal with transportation funding. In both cases, Republicans in the Legislature are making trouble for those backing new taxes by pointing to the obvious: The state already has plenty of money.

This embarrassment of riches is also bad for the morale of special interests looking to increase taxes via ballot measures. Public sector unions are pushing for an extension in the “temporary” tax increase approved by voters in 2012.

But they have yet to show a united front and are fighting over who will get the money. Whether the proceeds go to education, as favored by the state’s most powerful special interest, the California Teachers Association, or to the health care industry, as is supported by other union and hospital interests, has yet to be decided.

Health care interests may also pursue a new tobacco tax of $2 a pack. Since smokers and tobacco companies are only slightly more popular than ISIS, pundits believe – perhaps naively – that this initiative will pass. (They’ve been wrong before as tobacco taxes are highly regressive.) Or perhaps the “evil” oil companies will be the target in a state where motorists already pay 75 cents a gallon more than the national average. Good luck with that.

Campaigns for initiatives to impose new or higher taxes tend to use happy talk to focus on the benefits to the needy or the general population and ignore the actual goal. For example, Proposition 30, the sales and income tax increase, was sold as a boon to education when, in reality, much of the revenue is needed to keep the teachers’ pension system solvent.

For any tax increases being pushed by special interests, voters should keep in mind that actual beneficiaries tend to be the providers of services – think pay and benefits — not the recipients.

This brings us to another potential initiative with the sympathetic sounding title of “Lifting Children and Families Out of Poverty Act.” The measure would place a property tax surcharge on higher value homes and property.

If this proposal actually reaches the ballot, it will, no doubt be marketed as a tax on the well-off so they can pay their “fair share” to help needy children. Backers of this tax will not mention that, as usual, those receiving the majority of benefits are likely to be the providers of services, not those in poverty. And don’t expect voters to be told about California’s already generous entitlement programs or, even with record spending, the hefty state surplus. The fact that this measure would be the first step in destroying Proposition 13 protections for all property owners, including those of modest means, will be glossed over as initiative promoters use the less fortunate as human shields to justify themselves.

Jon Coupal is president of the Howard Jarvis Taxpayers Association — California’s largest grass-roots taxpayer organization dedicated to the protection of Proposition 13 and the advancement of taxpayers’ rights.

Poll: Will Voters Support Tax Proposals on 2016 Ballot?

taxesIn the shadow of my commentary yesterday on the possible tax measures on the 2016 ballot comes the Public Policy Institute of California poll that takes the standing of many of the potential tax initiatives. This snapshot in time indicates supporters of the tax increases have a lot of work to do to convince the public to vote for them.

But the way the questions were asked must be considered when weighing the results.

The idea of extending Proposition 30 is becoming more practical than theoretical with the submission of two separate ballot measures to achieve that goal. One measure, filed chiefly by the California Teachers Association, would extend Prop. 30 for 12 years. The second measure filed by the California Hospitals Association, a health care union and a children’s advocacy group, would make the Prop. 30 taxes permanent.

The voters appear divided on extending Prop. 30 with 49% in favor of extension and 46% opposed. However, those favoring the extension drop to 32% if the taxes are made permanent.

One odd result from the poll was the great support for the Prop. 30 extension in the San Francisco Bay Area (63%) and much less support in the Central Valley (50%); odd, because this tax is centered on the wealthy, those with incomes of $250,000 and more. There are many more high-end taxpayers in the Bay Area than the Central Valley.

However, the way the question was asked may have something to do with this disparity. The question described the Proposition 30 tax that exists today. Poll respondents were asked if the taxes on incomes over $250,000 and the quarter cent sales tax should be extended. But, the quarter cent sales tax portion of the Prop. 30 tax measure is not included in either of the extension plans that were filed.

Could Central Valley voters have focused on the sales tax piece and would their answers be different if they knew the extension only affected high-end income taxpayers?

Once again, PPIC asked about splitting the property tax roll under Proposition 13 treating commercial property differently than residential property by taxing commercial property according to current market value. Likely voters approved of the idea by 55% with 39% opposed.

But as stated here many times before, this basic question doesn’t inform potential voters of consequences related to this issue. There was no effort to deal with either the potential positives or negatives of changing the property tax system. Those issues will certainly be aired during an expensive campaign over a split roll and undoubtedly would lead to different results than the poll currently reflects.

Two other taxes that are being discussed received quite different results. An oil extraction tax found 49% support with likely voters; a cigarette tax was supported by 66% of likely voters.

There could be a lot of money spent in a campaign opposed to these taxes and a fair amount of change in support. However, looking at all the tax measures at this moment in time, if the old rule were applied that an initiative needs to have at least 60% support in early polls to have a fighting chance at passing, then only the cigarette tax looks possible at this time.

Of course, if the ballot is full of tax proposals the old rules may not apply.

Originally published by Fox and Hounds Daily

Special Tax Sessions Announced by Gov. Brown

taxesIn announcing the budget deal with the Legislature, Governor Jerry Brown announced two special sessions to deal with transportation and Medi-Cal funding. Call them the Special Tax Sessions.

In the press release announcing the sessions, the governor stated that the sessions were to “find more adequate funding for our roads and health care programs.”

The governor asked for “permanent and sustainable funding to maintain and repair the state’s transportation and critical infrastructure.” He also wants “permanent and sustainable funding to provide at least $1.1 billion annually to stabilize the state’s General Fund costs for Medi-Cal,” some of which would be used to meet the demands of programs Democratic legislators sought funds for in the current budget such as In-Home Supportive Services.

At the governor’s press conference announcing the budget deal, reporters asked Brown about his first term (third term?) campaign pledge to only seek tax increases with approval of voters. Brown brushed aside the old pledge indicating the pledge only applied to his first term.

Add it all up and there will be a push for tax or fee increases to support the governor’s call for “permanent and sustainable funding.” Discussions will revolve around gas taxes and a higher car tax or maybe a mileage fee for transportation; perhaps an increased cigarette tax and other healthcare taxes for Medi-Cal.

Brown might hope for support from the business community for the transportation and infrastructure fix. Those issues have been of on-going concern to business.

Still, the large influx of dollars in the current budget and the talk of tax proposals that may end up on next year’s ballot will only increase the anxiety of businesses and taxpayers alike and could result in stalemated special sessions.

Originally published by Fox and Hounds Daily

CA Tax & Spend Issues Reflect National Debate

Yesterday, two articles appeared that took note of circumstances surrounding California’s taxing and spending. As the most populated state in the union that is not too surprising. However, is the national attention a reflection of how the press sees some of the coming debates in next year’s presidential contest?

On the surface, the news report in the Washington Times and the editorial in the Wall Street Journal seem centered on local California matters. But each has strains that echo in the national debate.

The Washington Times focused on the effort to change Proposition 13 by creating a “split roll” to tax business property differently than residential property. The article talked about the difficulty in amending Prop 13 in the past but suggested a change in Californians’ voting habits might make the property tax reform more vulnerable.

Others don’t see it that way. Claremont McKenna College professor John Pitney was quoted in the article. “A lot of Democrats would like to see it pass, but their messaging tends to work against it. Gov. Brown and other top Democrats have been touting robust revenues in recent months. But if government coffers are so flush, why raise taxes?”

The issue of those robust revenues was the subject of the Wall Street Journal editorial. The message from the Journal editors was to remember when past California legislatures splurged with surplus dollars only to face a day of reckoning when the economy hit a downturn.

The Journal complained that while much of the new spending is aimed at the poor, the spending programs instituted for the poor seemed to do little to relieve the problem of poverty with California maintaining the nation’s highest poverty rate. The Journal suggested the tax system was to blame for chasing middle class manufacturing jobs away.

The financial equality issue will certainly be a focus of the presidential debates. California’s experiments in searching for a solution to aid the poor through expanded spending programs will be fodder for that debate.

Meanwhile, the campaign to undo a portion of Proposition 13 is another “tax-the-rich” effort. The Washington Times observed the campaign to change the measure is focused on “giant corporations” and “America’s wealthiest commercial property owners.” This approach falls neatly into the anti-Wall Street rhetoric on the national level.

Of course, the split roll is not the same thing as attacking Wall Street. A split roll would affect all of California businesses.

The national media is interested in the themes presented by the California taxing and spending discussion. Will they sway potential voters? After all, Proposition 13 itself was the catalyst for changing the conversation about taxes in the 1980s. Those who desire to change that conversation would start with changing Prop 13.

California has often been called the bellwether for what will happen next in American political circles. How the California campaigns on taxes and spending progress (or do not progress) may once again serve that bellwether role.

Originally published by Fox and Hounds Daily