BILL ANALYSIS                                                                                                                                                                                                    Ó



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

                              
          
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          |Bill No:  |SB 38                            |Hearing    |4/29/15  |
          |          |                                 |Date:      |         |
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          |Author:   |Liu                              |Tax Levy:  |No       |
          |----------+---------------------------------+-----------+---------|
          |Version:  |3/23/15                          |Fiscal:    |Yes      |
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          |Consultant|Bouaziz                                               |
          |:         |                                                      |
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                PERSONAL INCOME; CREDIT:  EARNED INCOME:  TAX PREPARER  
                                      EDUCATION



          Allows a refundable Earned Income Tax Credit (EITC), upon  
          appropriation of the Legislature, equal to 30% or 100% of the  
          federal EITC.


           Background and Existing Law

           Federal law allows eligible individuals a refundable EITC, which  
          allows the taxpayer to obtain a refund for the excess of the  
          credit over the taxpayer's liability.  As the name implies, the  
          credit is based on a percentage of the taxpayer's earned income,  
          and phases out as income increases.  The percentage varies  
          depending on whether the taxpayer has qualifying children.   
          Married individuals are eligible for only one credit on their  
          combined earned income and must file a joint return to claim the  
          credit.  

          Federal law specifies that if the federal EITC is denied, and  
          the Internal Revenue Service (IRS) determined that the  
          taxpayer's error was due to reckless or intentional disregard of  
          EITC rules, the EITC would be denied for the next two years.  If  
          the error was due to fraud, the denial period would be ten  
          years.

          State law provides various tax credits designed to provide tax  







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          relief for tax-payers who incur certain expenses or to influence  
          behavior, including business practices.

          State law allows individuals with income below a certain  
          threshold to not file a return, when the standard deduction and  
          personal exemption credit eliminate any tax liability.  For  
          2014, these thresholds are $16,047 in gross income or $12,838 in  
          adjusted gross income (AGI) for single taxpayers and $33,097 in  
          gross income or $25,678 in AGI for married individuals filing  
          jointly.  These thresholds are increased based on the number of  
          dependents claimed, and are increased annually for inflation.   
          State law does not provide an EITC.


           Proposed Law

           Senate Bill 38 allows a refundable tax credit, upon  
          appropriation by the Legislature, equal to 30% of the federal  
          EITC for eligible individuals with qualifying children or 100%  
          for individuals with no qualifying children.  In a year when an  
          appropriation is not made by the Legislature, the credit becomes  
          nonrefundable, but can be carried over to succeeding taxable  
          years until exhausted.


          An "eligible individual" would have the same meaning as in  
          Section 32(c)(1) of the Internal Revenue Code (IRC), except that  
          an individual without a qualifying child would qualify for the  
          credit at age 21 instead of 25.  Any amounts refunded to a  
          taxpayer under SB 38 would not be included in income.

          For an individual who is a nonresident or is a part-year  
          resident of this state, the amount of the credit or refund  
          allowed under this bill would be determined based on the part of  
          the earned income credit that is attributable to California.

          SB 38 also requires FTB to establish a pilot program to allow  
          eligible individuals to secure advance payments of the EITC  
          through their employers and requires FTB to report findings on  
          the program.  The pilot program applies to taxable years  
          beginning on or after January 1, 2017 and before January 1,  
          2019.

          SB 38 requires FTB to report to the legislature information on  








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          the effectiveness of the credit.  Additionally, the bill  
          requires providers of basic and continuing education to tax  
          preparers to include instruction for preparing taxes for a  
          taxpayer who is eligible for the state earned income tax credit   
           

          SB 38 takes effect immediately as a tax levy and applies to  
          taxable years beginning on or after January 1, 2016 and before  
          January 1, 2027.

           State Revenue Impact

           FTB estimates that this bill would reduce General Fund revenues  
          by $60 million in fiscal year 2015-16, $300 million in 2016-17,  
          and $350 million in 2017-18 if there is no appropriation made by  
          the Legislature.  

          If there is a yearly appropriation made by the Legislature, FTB  
          estimates that this bill would reduce General Fund revenues by  
          $600 million in 2015-16, $2.9 billion in 2016-17, and $3 billion  
          in 2017-18


           Comments

           1.  Purpose of the bill.   According to the author, "SB 38 will  
          create a refundable state Earned Income Tax Credit (EITC) equal  
          to 30% of the federal EITC for eligible individuals with  
          qualifying dependents and 100% of the federal rate for eligible  
          individuals with no qualifying dependents.  Further, it calls  
          upon the Franchise Tax Board (FTB) to establish a pilot advance  
          pay program for the credit.  The state EITC will help thousands  
          of low- and middle-income working Californians and is an  
          excellent complement to the federal tax credit.  The federal  
          EITC lifts 6.6 million Americans, including 3.3 million  
          children, out of poverty each year, making it the nation's  
          largest and most successful anti-poverty program.  Research  
          shows that the credit does more than reduce poverty and provide  
          a short-term safety net for low-income working families  The  
          EITC, which benefits between 25 and 30 million low- and  
          moderate-income families, stimulates the local economy by  
          increasing their spending power.  That is in addition to the  
          income, employment, educational, and health benefits to children  
          that can extend into adulthood.  Nearly 70% of families living  








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          in poverty in 2013 had at least one working adult.  Further,  
          according to the PPIC 61% of all of our state's impoverished  
          children live in working families.  The state Earned Income Tax  
          Credit will help struggling families while increasing the take  
          up rate of the federal EITC, bringing more federal dollars into  
          our state.  With the economy improving this is an ideal time to  
          make an investment in those that have yet to recover from the  
          Great Recession.  The state EITC is an effective anti-poverty  
          policy and will help working Californians and our state's  
          children."  

          2.  What is an EITC?   The EITC is a federal tax credit for  
          low-to-moderate income individuals and families.  Congress  
          originally approved the tax credit legislation in 1975, in part  
          to offset the burden of social security taxes and to provide an  
          incentive to work.  When EITC exceeds the amount of taxes owed,  
          it results in a tax refund to those who claim and qualify for  
          the credit.  

          In order for a taxpayer to qualify for the credit, an  
          individual's AGI in the 2014 taxable year must be less than:

                 $46,997 ($52,427 filing jointly) with three or more  
               qualifying children. 

                 $43,756 ($49,186 filing jointly) with two qualifying  
               children.

                 $38,511 ($43,941 filing jointly) with one qualifying  
               child.

                 $14,590 ($20,020 filing jointly) without a qualifying  
               child.  

          The 2014 maximum credit for taxpayers is as follows:

                 $6,143 with three or more qualifying children.

                 $5,460 with two qualifying children.

                 $3,305 with one qualifying child.

                 $496 with no qualifying children.









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          Taxpayers cannot claim the federal EITC if their 2014 investment  
          income (from interests and dividends) is more than $3,350.  The  
          amount of the federal EITC is reduced by the alternative minimum  
          tax (AMT), if any.

          In 2009, 800,000 eligible Californians failed to claim over $1.2  
          billion worth of federal EITC dollars.  According to the New  
          America Foundation study Left on the Table, if these refunds  
          were claimed, they would spur over $1.2 billion in business  
          sales, pay $311 million in wages, and add nearly 7,500 jobs to  
          the California economy, which would result in $88 million in  
          taxes coming back to the state.  According to the Internal  
          Revenue Service (IRS), currently, 25 states and the District of  
          Columbia offer state-level EITC for their residents.

          3.  A Note on Fraud.   Although the federal EITC lifts families  
          and individuals out of poverty, the refundable credit is highly  
          susceptible to fraud.  The Treasury Inspector General for Tax  
          Administration estimates that improper EITC claims total over  
          $10 billion a year.  The payments paid out improperly for 2012  
          were at least 21-25% of all payments, according to the latest  
          report from the IRS inspector general.

          4.  Another way?   As stated in SB 38's legislative findings, the  
          federal EITC is a proven antipoverty measure, but there are  
          other programs we can invest in to help working families.  The  
          state can invest in increasing TANF grants, restore CalWORKs  
          childcare subsidies that were cut during the recession, and  
          increase funding for food stamps, to name a few.     

          5.  Let's get clear.   SB 38 lays out the framework for a  
          California EITC, and a pilot program to secure advance payment  
          of an EITC, but leaves out many critical details needed to  
          implement both components of the bill.  For example, the credit  
          is refundable upon appropriation of the legislature, thus if  
          there is no appropriation in the first two years, but an  
          appropriation in the third, can individuals who would have  
          received a refund amend their last two returns?  Would  
          individuals who are amending returns be entitled to payment  
          first or would FTB prioritize individuals filing original  
          returns?  The simple solution would be to amend the bill to  
          include a continuous appropriation; however this would likely  
          result in the bill requiring a 2/3 vote for passage.  
          Additionally, the pilot program does not specify an application  








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          process for participating or an entity that would process  
          applications and determine eligibility.  Also the pilot program  
          does not contain a funding mechanism so employers can make  
          advance payments.  The Committee may wish to consider amending  
          the bill to provide the infrastructure needed to implement the  
          pilot program and to clarify the mechanics of who is eligible  
          for a refund when an appropriation is made by the Legislature. 

          6.  Related legislation.   SB 152 (Vidak) creates a refundable  
          EITC equal to 15 percent of the federal EITC.  SB 152 is set to  
          be heard on April 29, 2015 in this Committee.  AB 43 (Stone)  
          creates a refundable EITC equal to 15 to 60 percent of the  
          federal EITC. AB 43 is set to be heard in the Assembly Revenue  
          and Taxation Committee.

          7.  FTB's Implementation Concerns.   FTB notes the following  
          implementation concerns in its analysis of this bill:

                 Many taxpayers eligible for the federal EITC have no  
               California income tax return filing requirement.  These  
               non-filers would be required to file a California income  
               tax return to claim the proposed state EITC, which could  
               impact the department's programs and costs.

                 Typically, refund returns are filed early in the filing  
               season.  If taxpayers claiming the California EITC file  
               late in the filing season, after they receive their federal  
               EITC, that behavior could have a major impact on the  
               processing of returns and possibly cause delays in the  
               issuance of refunds.  The taxpayer error rate on the  
               federal EITC and the fraud concerns cause the IRS to adjust  
               many returns.  Consequently, the correct federal EITC  
               amount may be unknown until after the taxpayer has filed  
               the state return, claimed the proposed California credit,  
               and received a refund.  FTB could be required to issue an  
               assessment to retrieve incorrect refunds and incur costs to  
               do so.

                 Relying on the EITC under federal law may present  
               implementation problems for Registered Domestic Partners  
               (RDPs).  RDPs are required to file California income tax  
               returns using the rules applicable to married individuals.   
               If the author's intent is to allow EITCs for RDPs, a rule  
               should be included in the bill to address the difference  








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               between federal and state law.

                 Historically, the department has had significant  
               problems with refundable credits and fraud.  These problems  
               are aggravated because if a refund is made that is later  
               determined to be fraudulent, the refund commonly cannot be  
               recovered.  Striking the refund provision from this credit  
               would substantially reduce the department's concerns  
               regarding fraud.

          8.  Let's get technical.   FTB has proposed the following  
          clarifying amendment:  

                 On page 6, line 19, after 17052.1, add "for taxable  
               years beginning" 

                 On page 6, line 19, after "on or after" strike out  
               "taxable years" and add "January 1, 2017"


           


          Support and  
          Opposition   (4/23/15)


           Support  :  Alameda County Board of Supervisors; American Academy  
          of Pediatrics, California; American Association of University  
          Women (AAUW); California Association of Food Banks; California  
          Catholic Conference of Bishops; California Food Policy Advocates  
          (CFPA); California Hunger Action Coalition (CHAC); California  
          Partnership; California Reinvestment Coalition; Children's  
          Defense Fund - California (CDF-CA); Coalition of California  
          Welfare Rights Organization; Community Action Partnership of  
          Kern (CAPK); Community Action Partnership of Riverside County  
          (CAP); Courage Campaign; Friends Committee on Legislation of  
          California; Lutheran Office of Public Policy - California;  
          National Association of Social Workers, California Chapter  
          (NASW-CA); Pacoima Beautiful; PolicyLink; Ventura County Board  
          of Supervisors; Western Center on Law and Poverty.

           Opposition  :  California Taxpayers Association (CalTax)









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