BILL ANALYSIS                                                                                                                                                                                                    Ó




                                                                  AB 760
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          Date of Hearing:  April 15, 2013

                     ASSEMBLY COMMITTEE ON REVENUE AND TAXATION
                                Raul Bocanegra, Chair

                   AB 760 (Dickinson) - As Amended:  March 19, 2013
           
           2/3 vote.  Tax levy.  Fiscal committee.

           SUBJECT  :  Taxes:  ammunition sales 

           SUMMARY  :  Imposes a tax on retailers for the privilege of  
          selling ammunition, as defined, at the rate of $0.05 per item of  
          ammunition sold in this state on or after January 1, 2014.   
          Specifically,  this bill  :  

          1)Contains the following legislative findings:

             a)   People with mental illness are no more likely to commit  
               violent acts than are others.  California law, however,  
               restricts the ownership of guns by individuals who have  
               been adjudicated as being a danger to themselves or others  
               because of mental illness.  

             b)   Recent tragic events involving mass shootings in  
               Connecticut, Colorado, Arizona, and elsewhere, are  
               revealing a pattern of young individuals who are suffering  
               from some form of mental illness that progressed from mild  
               or moderate to more serious conditions when those  
               individuals' mental illness was not identified and treated  
               at an early age.  

             c)   Research has found a clear relationship between early  
               adjustment problems and later adolescent problems, and many  
               of these adjustment problems are due to mild to moderate  
               mental disorders among school-age children.  In many cases,  
               signs of these problems can be detected in early school  
               grades. 

             d)   Treating mental illness in a timely manner before  
               conditions become more severe, in conjunction with  
               restricting gun ownership from individuals adjudicated as  
               being a danger to themselves or others, may be a productive  
               approach for reducing the extent to which some people  
               suffering from mental illness commit a violent act with the  









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               use of a deadly weapon.  

             e)   In 1991, California enacted the School-Based Early  
               Mental Health Intervention and Prevention Services Matching  
               Grant program (EMHI).  This program is intended to ensure  
               that students receive the benefits of school-based early  
               mental health intervention and prevention services.   

             f)   Scientific evaluation of EMHI has shown dramatic  
               improvements in adjustment behavior among children in  
               grades 1 to 3, and success in reducing the incidence of  
               early mild to moderate mental illness.

             g)   Due to state budget constraints, EMHI was defunded in  
               the 2012-13 Budget Act.  Therefore, providing a source of  
               stable revenue to continue the EMHI matching grants is in  
               California's best interest, both in economic and human  
               terms.  

             h)   A reduction in the incidence of mental illness is likely  
               to reduce acts of violence committed with a deadly weapon  
               in our state and, therefore, a tax on the sale of  
               ammunition is a means of refunding the EMHI program.  

          2)Imposes a tax on retailers at the rate of $0.05 per item of  
            "ammunition" sold at retail in this state on or after January  
            1, 2014. 

          3)Imposes a complimentary excise tax on the storage, use, or  
            other consumption in this state of "ammunition" purchased from  
            a retailer, as specified.  

          4)Defines "ammunition" to mean "projectiles with their fuse,  
            propelling charges, or primers fired from a weapon," or any of  
            the individual components thereof, including "shot, sharpel  
            [sic] bullets, or shells."  The term does not include BBs or  
            pellets commonly used in air rifles or air pistols.  

          5)Requires every retailer engaged in business in this state and  
            making sales of ammunition to collect the tax from the  
            purchaser and give to the purchaser a receipt therefor.  Any  
            person violating this requirement shall be guilty of a  
            misdemeanor.  

          6)Makes it a misdemeanor for any retailer to advertise to the  









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            public or to any customer that the tax or any part thereof  
            will be assumed by the retailer or that it will not be added  
            to the price of the ammunition.  

          7)Provides that the tax required to be collected by the retailer  
            shall be displayed separately on the sales check or receipt.   
            Any person violating this requirement shall be guilty of a  
            misdemeanor.      

          8)Exempts from taxation any item of ammunition purchased by a  
            peace officer who must carry a weapon requiring ammunition  
            while on duty, or by any governmental law enforcement agency  
            employing that peace officer, for use in the normal course of  
            employment.  

          9)Requires the State Board of Equalization (BOE) to administer  
            and collect the new taxes pursuant to the Fee Collection  
            Procedures Law.    

          10)Provides that the taxes are due and payable to the BOE  
            quarterly.  

          11)Requires that the revenues raised be allocated to EMHI.   
            Specifically, provides that all revenues "in this fund shall,  
            upon appropriation by the Legislature, only be allocated to  
            [EMHI]."  

          12)Takes immediate effect as a tax levy.  

           EXISTING FEDERAL LAW  imposes: 

          1)A 10% tax upon the sale of pistols and revolvers by the  
            manufacturer, producer, or importer.  
           
           2)An 11% tax upon the sale of firearms (other than pistols and  
            revolvers), shells, and cartridges by the manufacturer,  
            producer, or importer.   

          EXISTING STATE LAW  imposes a:

          1)Sales tax on retailers for the privilege of selling tangible  
            personal property (TPP), absent a specific exemption.  The tax  
            is based upon the retailer's gross receipts from TPP sales in  
            this state.










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          2)Complementary use tax on the storage, use, or other  
            consumption in this state of TPP purchased from any retailer.   
            The use tax is imposed on the purchaser, and unless the  
            purchaser pays the use tax to a retailer registered to collect  
            the California use tax, the purchaser remains liable for the  
            tax, unless the use is exempted.  The use tax is set at the  
            same rate as the state's sales tax and must generally be  
            remitted to the BOE. 

           FISCAL EFFECT  :  The BOE estimates that this bill would generate  
          annual revenues of $55 million.

           COMMENTS  :

          1)The author has provided the following statement in support of  
            this bill:

               AB 760 seeks to reduce the incidence of mental illness by  
               re-funding a small and successful state matching grant  
               program addressing mild to moderate forms of mental illness  
               in young children.  The program, known as the School-Based  
               Early Mental Health Intervention and Prevention Services  
               for Children program (EMHI), has been operating since its  
               enactment in 1991.  The program provides screening and  
               prevention services to K -3 grade students who exhibit  
               school adjustment difficulties.  Funding for the program  
               was blue-penciled in the 2012-13 Budget.  

               According to the [Department] of Health Care Services, the  
               systematic early detection and screening, combined with  
               prompt intervention, as offered by EMHI, has been effective  
               in reducing later adjustment difficulties in 79% of the  
               students served by the program.  Reducing student mental  
               health and adjustment problems at an earlier age may very  
               well reduce violent behavior by students later on in their  
               academic careers.

               AB 760 is not primarily intended to reduce the consumption  
               and use of ammunition, although imposing a tax on the sale  
               of ammunition may have that effect.  Rather, the bill is  
               intended to help fund a program which screens, identifies  
               and reduces the number of people who suffer from mild or  
               moderate forms of mental illness affecting their emotional  
               condition and behavior, and, which left untreated, may  
               increase their propensity to commit a violent act, possibly  









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               with a gun, resulting in tragic consequences.  In essence  
               then, the tax on ammunition is a means to reducing external  
               costs created by the use of ammunition in certain  
               circumstances by underwriting the costs of an effective  
               mental health intervention and prevention program.

          2)Proponents of this bill note:

               Mental health experts across the country are calling for  
               school-based prevention and early intervention services as  
               a means of reducing many issues, including potential  
               gun-related violence.  Extensive research indicates that we  
               can identify mental health concerns as early as  
               kindergarten, and that left unattended these concerns will  
               predictably develop into greater long-term issues,  
               including school failure, substance abuse, social  
               alienation, mental illness, and other antisocial behavior.   
               As these issues progress, they are less [amenable] to  
               prevention/intervention, and incur much greater social and  
               fiscal costs for individuals, schools, and communities.   
               The modest ammunition tax proposed in AB 760 is a small  
               price to pay for supports that have been demonstrated to  
               successfully address mental health issues before they  
               become severe.  

          3)Opponents of this bill note:

               Buyers of ammunition should not be taxed to pay for a  
               school based mental health program.  There is no  
               substantive connection between the two that would justify  
               it.  

               If the philosophy behind this proposed legislation is that  
               ammunition buyers should be responsible for the actions of  
               a small number of mentally disturbed persons, then all  
               other products that can be lethally used, such as gasoline  
               and knives, should similarly be taxed.  

               AB 760 would be excessive and abusive of those who enjoy  
               the outdoor sports.  

          4)BOE notes the following in its staff analysis of this bill:

                Record and reporting complications  :  "Ammunition retailers  
               already collect and remit sales and use tax on their retail  









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               ammunition sales in California.  These retailers most  
               likely sell other tangible personal property subject to  
               sales and use tax.  Collecting an additional tax from  
               ammunition purchasers will require retailers to keep track  
               of ammunition sales separately from other sales of tangible  
               personal property." 

               "Additionally, smaller ammunition retailers may find  
               collecting the additional tax burdensome.  Larger retailers  
               are able to enter the ammunition subject to the additional  
               tax into their computer system.  Therefore, the tax will be  
               automatically added to the purchase price once the product  
               code or UPC is entered at the register.  Cashiers at  
               smaller supply stores, which are typically not  
               computerized, must manually apply the additional tax, which  
               could likely lead to collection and reporting errors."

          5)Committee Staff Comments:  
           
              a)   What exactly are we taxing?  :  This bill proposes a new  
               tax of $0.05 per item of "ammunition" sold at retail in  
               this state.  Ammunition, in turn, is defined to mean 
             "projectiles with their fuse, propelling charges, or primers  
               fired from a weapon," or any of the individual components  
               thereof, including "shot, sharpel [sic] bullets, or  
               shells." This language is somewhat vague and potentially  
               susceptible to differing interpretations.  For example,  
               must a projectile first be fired from a weapon before being  
               properly considered an item of ammunition?  Moreover, what  
               does it mean to include within the definition of ammunition  
               "any of the individual components thereof"?  Are individual  
               projectile components sold separately on the open market  
               for subsequent assembly by consumers?  If they are, does it  
               make sense to tax these individual components at the same  
               rate as fully functioning projectiles?  Finally, would this  
               tax apply to retailers selling historical artifacts, like  
               bullets from the Civil War?  The author may wish to amend  
               the definition of "ammunition" to provide greater clarity  
               on these issues.   
              
              b)   How will the tax proceeds be used?  :  This bill requires  
               that all revenues raised, less refunds and costs of  
               collection, be allocated to EMHI.  Specifically, this bill  











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               provides that all revenues "in this fund<1> shall, upon  
               appropriation by the Legislature, only be allocated to  
               [EMHI]."  The Department of Health Care Services notes  
               that, for the past 20 years, EMHI grants have funded  
               prevention and early intervention programs for students  
               experiencing mild-to-moderate school adjustment  
               difficulties.  Over this period, EMHI demonstrated a  
               successful track record, and in fiscal year 2010-11 alone,  
               served over 15,823 students.  As the author notes, however,  
               EMHI was defunded in the 2012-13 Budget Act.  Therefore,  
               this bill seeks to provide a source of stable revenues to  
               continue the EMHI matching grants.   
              
              c)   A note on unintended consequences  :  Some might argue  
               that, by increasing the retail price of ammunition sold in  
               California, this bill might inadvertently encourage  
               consumers to purchase ammunition from out-of-state  
               retailers.  This, in turn, could have a negative effect on  
               sales tax revenues derived from ammunition purchases.  This  
               bill attempts to address this issue by imposing a  
               complimentary excise tax, akin to a use tax, on the  
               storage, use, or other consumption in this state of  
               "ammunition".  The use tax itself, however, has been  
               historically underreported by consumers.  Specifically,  
               when consumers buy goods from out-of-state retailers that  
               are not obligated to collect California's use tax, many  
               consumers simply fail to report their use tax obligation  
               directly to the state, as the law requires.  Moreover,  
               these purchases are very difficult to identify, and  
               auditing individual consumers is most often cost  
               prohibitive.  It is possible that this bill's excise tax on  
               ammunition could prove susceptive to similar complications.

              d)   The exemption for peace officers  :  This bill exempts  
               from taxation any item of ammunition purchased by a peace  
               officer who must carry a weapon requiring ammunition while  
               on duty.  The exemption, however, does not specify whether  
               a peace officer would be able to purchase tax-free  
               ammunition for recreational purposes.  The author may wish  
               to clarify this point.       
                   
              e)   A tax upon a tax?  :  California's sales tax is based upon  

             --------------------------
          <1> It is not clear to which fund this bill refers, given that  
          the bill does not establish a separate fund for the deposit of  
          revenues.  








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               a retailer's gross receipts from TPP sales, including sales  
               of ammunition.  Because this bill does not specifically  
               exclude the ammunition tax from the definition of gross  
               receipts, the new tax would likely be included in the final  
               sales price of ammunition subject to sales tax.  The author  
               may wish to clarify this issue by either specifically  
               including or excluding the new tax from the definition of  
               "gross receipts" subject to sales tax.      
              
              f)   Federal tax on firearms and ammunition  :  As noted above,  
               federal law imposes a Firearms and Ammunition Excise Tax  
               (FAET) on the sale of firearms and ammunition by  
               manufacturers, producers, and importers.  Because the  
               federal tax is imposed higher up the distribution chain, it  
               does not fall prey to some of the potential administrative  
               complications noted in BOE's staff analysis.  Specifically,  
               the FAET does not require retailers to track ammunition  
               sales separately from other sales, which could result in  
               significant compliance costs for smaller retailers and  
               attendant reporting errors.   
              
              g)   Related legislation  :  

               i)     AB 180 (Bonta), of the current legislative session,  
                 would authorize the City of Oakland to enact and enforce  
                 an ordinance that is more restrictive than state law  
                 regulating the registration or licensing of commercially  
                 manufactured firearms.  AB 180 has been referred to the  
                 Assembly Committee on Public Safety.  

               ii)    AB 187 (Bonta), of the current legislative session,  
                 would impose a 10% tax upon retailers for the privilege  
                 of selling ammunition on or after January 1, 2014.  AB  
                 187 has been referred to this Committee.  

               iii)   AB 992 (Ridley-Thomas), of the 2003-04 legislative  
                 session, would have imposed a fee of $0.10 on every  
                 munition, as defined, sold at retail.  Revenues raised  
                 would have been used to pay firearm-injury victims for  
                 uncompensated pecuniary losses.  AB 992 died on the  
                 Assembly inactive file.  

               iv)    SCA 12 (Perata), of the 2001-02 legislative session,  
                 would have imposed a tax on retailers at the rate of  
                 $0.05 for each munition sold at retail in this state.   









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                 Revenues collected would have been deposited in a  
                 newly-established Trauma Center Fund.  SCA 12 died in the  
                 Senate Committee on Revenue and Taxation.    

              h)   Technical amendments  :  Committee staff suggests the  
               following technical amendments to this bill:  

               i)     On page 3, line 23, strike "1991" and insert  
                 "1991,"; 

               ii)    On page 3, line 37, strike "constraints" and insert  
                 "constraints,";

               iii)   On page 5, line 28, strike "sharpel" and insert  
                 "shrapnel";   

               iv)    On page 5, line 33, strike "definition" and insert  
                 "definitions"; 

               v)     On page 6, line 20, insert "of" before "ammunition";  


               vi)    On page 7, line 17, strike "tax" and insert "taxes";  


               vii)   On page 7, line 21, strike "tax" and insert "taxes";  
                 and, 

               viii)  On page 7, line 23, strike "that" and insert "this".  
                    

           REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           
          Children Now (sponsor)
          Autism Deserves Equal Coverage
          Autism Health Insurance Project
          BlueSkies for Children
          Brighter Beginnings
          California Black Health Network
          California Council of Community Mental Health Agencies
          California Division of the American Association for Marriage and  
          Family Therapy
          California Immigrant Policy Center









                                                                  AB 760
                                                                  Page J
          California Pan-Ethnic Health Network 
          California School Health Centers Association
          California Tax Reform Association
          Children's Advocacy Institute
          Children's Defense Fund - California
          Children's Partnership
          Coalition Against Gun Violence
          Early Edge California
          Lincoln Child Center
          Los Angeles County Education Foundation
          Los Angeles Trust for Children's Health
          Lucile Packard Children's Hospital
          Mental Health America of California
          Oakland Schools Foundation
          Public Profit
          Time For Kids
          United Advocates for Children and Families

           Opposition 
           
          California Association of Firearms Retailers
          California Chapters of Safari Club International
          California Rifle and Pistol Association
          California Sportsman's Lobby
          California Waterfowl Association
          Crossroads of the West Gun Shows
          National Rifle Association
          National Shooting Sports Foundation, Inc. 
          Outdoor Sportsmen's Coalition of California
          Shasta County Sheriff Tom Bosenko
          State Board of Equalization Member George Runner
          2 individuals
           
          Analysis Prepared by  :  M. David Ruff / REV. & TAX. / (916)  
          319-2098