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Updated Nov. 2, 2018
In South Dakota v. Wayfair, the U.S. Supreme Court upheld a South Dakota law requiring remote sellers to pay sales tax if in the prior calendar year their gross revenue from sales exceeded $100,000 or they made more than 200 separate sales transactions. In doing so, the Supreme Court’s decision overturned a long-standing precedent that physical presence was required for sales tax collection.
The decision impacts states, taxpayers and tax practitioners across the country by allowing for a new standard of substantial nexus for remote sales tax collection. States are re-examining their own tax policy in light of Wayfair and exploring what changes might be necessary to incorporate the new interpretation. Taxpayers and tax practitioners are following closely as the potential implementation of a new standard for when sales tax is due means a number of changes may be needed to comply with new tax obligations.
The California Legislature and California Department of Tax and Fee Administration both recently held informational meetings on Wayfair implementation in California. Also, the Assembly Revenue and Taxation Committee and the Senate Governance and Finance Committee held a joint hearing to assess the Wayfair decision and what it means for California tax policy. You view a recording of the hearing online, as well as review materials from the hearing.
Of note for tax practitioners, it appears the CDTFA intends to issue a notice to remote sellers by the end of 2018 that the reinterpretation of nexus under the Wayfair decision may mean they are obligated to collect and remit sales tax to California.
Similarly, the Legislature has expressed an interest to further address the Wayfair decisions and California’s current tax laws on this topic when it reconvenes in 2019. Legislative action could explore a different standard than the South Dakota law, timing of implementation and other aspects of the administration and compliance of the new law.
Updated: Sept. 6, 2018
The California Legislature adjourned the 2017-2018 session at the end of August after taking action on a number of public policy issues. Over the last few weeks major issues, including consumer data privacy, tax policy, business regulations and wildfire relief, were all on the docket. Some significant pieces of legislation that CalCPA has been following are:
(SB 993) Sales Tax on Business Services: In the last part of May, Senate Bill 993 (Hertzberg) was heard in the Senate Committee on Governance and Finance. Despite claiming to limit revenue volatility by enacting a new 3% sales tax on business services and reducing the sales tax on goods by 2%, this measure would have a disastrous effect on the profession and California businesses.
Due to immense opposition from the affected industries, the chair of the Senate Governance and Finance Committee, Senator Mike McGuire and Senator Bob Hertzberg, the bill’s author, indicated that there would not be a vote on the bill. Instead, they were to include this proposal and the associated discussion as the first installment in a series of additional informational hearings on the topic of broader tax reform.
While the immediate threat of this bill has subsided, the broader issue of tax reform and sales tax on services will continue to be a discussion topic. CalCPA will continue to stay on top of this issue and make sure the profession has a seat on the table as subsequent discussions occur.
(SB 795) CPA Mobility: Following the release of the CBA’s favorable report on the implementation and operation of the current individual CPA mobility program, this bill makes the program permanent. It received broad bipartisan support, and with no opposition, passed to the Legislature and is expected to be signed by Governor Brown.
(SB 227/AB 2217) Charitable Contributions: With the passage of the new federal tax system, many high tax states are still trying to figure out how to best manage the impact on their taxpayers, California is no exception. Specifically, the cap on state and local tax (SALT) deductions inspired the creation of Senate Bill 227 (de Leon) and Assembly Bill 2217 (Burke) which aimed to circumnavigate federal requirements. Both bills would have established a state charitable contribution program for taxpayers to meet their tax obligations as a workaround for the new cap on state and local tax deductions put in place by the new federal tax laws.
Both bills stalled in the Legislature and failed to garner the votes necessary to move to the Governor’s desk. Jurisdictions like NY, NJ and other high-income states have passed similar bills; however, the IRS recently released draft regulations that put these programs into question by limiting how these contributions would be treated as deductions. The regulations state that if a taxpayer receives a benefit for having made a charitable contribution, then that taxpayer must reduce the amount claimed as a charitable deduction on their federal return. However, if the credit is under 15%, then the taxpayer would receive the full deduction. We expect similar ideas to be proposed in 2019 that take into account the IRS regulations and could take the form of either standalone legislation or be included into a broader state tax reform and conformity package.
Updated: May 17, 2018
The Senate Governance & Finance Committee met May 16 to hear SB 993 as a special order agenda item. However, before the bill was heard, the committee chair and Sen. Hertzberg, the bill’s author, indicated that there would not be a vote on the bill. Rather, they would present the bill, take testimony, open it to the committee for discussion and treat this as the first in a series of additional hearings on the topic of a services tax and broader tax reform.
Another hearing is scheduled for June 13 to discuss additional specifics and stakeholder input.
At this point, it does not appear there will be a vote on a services tax anytime soon, but it does increase the discussion of comprehensive tax reform and how a services tax would fit into that. It was a wide ranging conversation and there were a number of business groups, industries and professions—including CalCPA—that testified in opposition to the bill as written.
If you are interested, you can watch the hearing online. (The discussion begins at 1 hour 46 minutes).
Thank you to all of you that made phone calls, sent letters and encouraged your colleagues to do the same. All those efforts made a difference. It is a success that CalCPA was able to work with other stakeholders and engage our grassroots on such short notice. These efforts raised enough issues and concerns to stall any swift actions to jam this proposal through the Legislature.
While the immediate threat of this bill has subsided, the broader issue of tax reform and sales tax on services will continue to be a discussion topic. CalCPA will continue to stay on top of this issue and make sure the profession has a seat on the table as subsequent discussions occur.
Updated: May 11, 2018
SB 993 (Hertzberg), which would impose a sales tax on business services, including professional services provided by CPAs, has been scheduled to be heard in the Senate Governance and Finance Committee on May 16, 2018.
This is a significant issue that CalCPA has been engaged in fighting against and we need your help in opposing this legislation. We urge you to call, fax or email Sen. Hertzberg and the senators who sit on the Senate Governance and Finance Committee expressing your opposition to SB 993. We ask that you act by May 15 so the senators have time to read and listen to your comments.
In an already challenging business climate, SB 993 would impose a massive new tax that will needlessly complicate an already complex state tax code and add a substantial new tax burden to California businesses and consumers without any corresponding benefit. You can read the language of SB 993 online, as well as CalCPA’s formal opposition letter.
This is your opportunity to express to Sen. Hertzberg and the members of Senate Governance and Finance Committee, the detrimental impact a services tax would have on your business and clients. Sen. Hertzberg and the members of the committee need to hear directly from those who would feel the weight of this tax. The voice of 44,000 members cannot go unnoticed and will be an invaluable tool as we continue to oppose SB 993.
We have provided a letter template that you can send as is or add your personal remarks. Personalizing the letter to highlight the direct impact to you and your clients is encouraged to maximize its effectiveness.
At the top of the letter we ask that you insert your letterhead, the appropriate date, the first and last name of the senator, and their room number. After “Dear,” insert the name of the senator. At the bottom, please sign the letter followed by the printing of your name and your address.
If you are a constituent of one of the senators, we encourage you highlight this point.
Thank you for your help in making the voice of the profession heard.
Earlier this year, CalCPA alerted members to SB 993 (Hertzberg), which would impose a sales tax on the purchase of certain business services—including accounting, legal, and consulting. While the bill still lacks many specifics and has not been scheduled for a hearing, CalCPA has proactively sent a letter to reiterate the CPA profession’s opposition to this proposal and ongoing concerns with proposals for a sales tax on services.
CalCPA’s letter disputes the bill’s claim that the new federal tax laws warrant a massive new business services tax and would actually exasperate many of the current challenges taxpayers will be working through to navigate the new tax laws. The letter also reiterates the core concerns of a services tax, including the massive and costly administrative challenges for the state and taxpayers; the added tax burden to California consumers; the competitive disadvantage to California businesses; and the disproportionate harm to small and medium sized businesses.
This letter follows the instrumental efforts of CalCPA members who laid the groundwork for advocating against this issue. In January hundreds of CalCPA members came to Sacramento to participate in CPA CPA Day at the Capitol to meet with legislators and discuss issues of importance for the CPA profession, including the reoccurring discussion of a tax on services. By underlining the profession’s concerns, CalCPA can derail SB 993 early and head off any future discussions of a tax on services.
CalCPA will continue to keep members informed as this issue develops and will be active in communicating to the Legislature the significant concerns with this proposal.
Tax on services continues to be a topic of discussion in the state Legislature. A recently introduced bill, SB 993 (Hertzberg), would impose a sales tax on the purchase of certain business services—including accounting, legal, consulting and other services. The tax rate is not specified in the legislation and certain types of services would be exempted, including health care, education and child care services, and interest and insurance payments subject to the gross premiums tax. Business with gross receipts of less $100,000 in the previous four quarters would also be exempt.
The revenue from the taxes would go toward programs for middle- and low-income Californians, as well as infrastructure and education. The specifics of these programs or how they would accomplish this is unclear.
This proposal is being characterized as a way to mitigate negative impacts of the newly enacted federal tax laws and broaden California’s tax base. Additionally, the bill's author argues that the proposal would offset the reduced tax rates businesses received as a result of the federal tax changes, and that they would still be able to deduct the new services tax from their federal taxes.
Sen. Hertzberg has introduced similar far-reaching tax on services proposals over the last three years, all of which ultimately died in the Legislature when they failed to meet legislative deadlines. As with the previous bills, SB 993 lacks specifics and raises many questions and concerns about such a complex and drastic shift in the tax burden.
The grassroots efforts of CalCPA members continue to be instrumental as tax on services proposals continue to be discussed in the Legislature. In expectation for a tax on services bill to resurface, more than 200 CalCPA members attended CPA Day at the Capitol last month to reiterate concerns with sales tax on services. Members discussed the increased cost for business to comply with the law, the competitive disadvantage for California providers, the disproportionally negative impact on small business and the costly administrative burden, among other major challenges with imposing a tax on accounting services. You can see the talking points on tax on services that CalCPA members delivered to the Legislature online.
CalCPA will continue to keep members informed as this issue develops and will be active in communicating to members of the Legislature the significant concerns with this proposal.
As with most legislation that makes a major policy change in a short time, a clean-up bill is often needed to address unintended consequences, clarify intent and other technical changes. CalCPA was actively involved in raising a concern following passage earlier this summer of AB 102, which distributed much of the Board of Equalization duties to two new state agencies: the California Department of Tax and Fee Administration (CDTFA) and the Office of Tax Appeals (OTA).
The primary responsibility of the OTA, which takes effect Jan. 1, is to hear taxpayer appeals of assessments from the CDTFA and the FTB, and AB 102 established a panel of administrative law judges that would oversee and issue decisions on each appeal. At issue is whether the new OTA is the functional equivalent of a “tax, district or federal court,” and whether the services rendered by a CPA on behalf of a client in such a forum would constitute advocacy services that would potentially impair the CPA’s obligation to be independent related to attest services.
As a result of these concerns, CalCPA worked closely with the governor’s office and legislative leadership to address the issues through amendments to a budget trailer bill that would make technical and clarifying changes to the OTA structure. The product of these efforts, AB 131 was amended and passed just before the end of the legislative session mid-September, and Gov. Brown signed AB 131 into law.
The technical and clarifying changes within AB 131 make clear that an appeal before the OTA is an administrative proceeding and would not in itself threaten to impair a CPA’s independence. The changes further align the structure and operation of the OTA with the Legislature’s overarching intent for a taxpayer to be represented by a broad spectrum of individuals, including CPAs, at every stage of an appeal before the OTA.
Specifically, the statute makes it clear that “taxpayers continue to be able to choose to be represented by certified public accountants and others at every stage of the hearings and proceedings before a tax appeals panel, as was previously the case in matters before the BOE prior to the transfer of duties.”
Additionally, AB 131 includes a mechanism for a taxpayer to request a closed hearing before the OTA. One of the objective criteria for requesting such a hearing is that it is necessary to ensure that an authorized person, including a CPA, may represent the taxpayer.
These adjustments will help shape the forthcoming regulatory structure of the OTA and greatly improve the ability of CPAs who may be representing an audit client in tax matters before the OTA in the same fashion that they did before the BOE.
Given the fast moving and politically charged reforms to the BOE, getting clean-up legislation to make significant adjustments to the OTA structure that maintains the ability for a large number of CPAs to continue to represent clients on tax appeals is a big advocacy success.
Recently, the Governor appointed Kristen Kane, 34, of Sacramento, to be chief counsel in the Office of Tax Appeals, where she will serve as acting director. She most recently served as deputy director of the California Competes Tax Credit Program at the Governor's Office of Business and Economic Development (GO-Biz) since 2016 and as tax counsel at the California Franchise Tax Board from 2010 to 2016.
OTA is looking to hire three administrative law judges to serve on the panel and hear appeals cases. The qualifications include being a member of the California State Bar and having tax law experience. These cases would cover all areas of tax law, from sales and use taxes to income taxes. All three positions are located in Sacramento, but hearings could be across California. More information is available online.
Additionally, as the CDTFA takes shape and implements the duties previously belonging to the BOE, we encourage you to regularly check its website.
September marks the last month of the first year in the two-year legislative cycle. Legislators return back to Sacramento after summer recess to debate and vote on pending legislation. With September 15th being the last day for bills to be passed and sent to the Governor this year, it is safe to assume there will be many long days as bills are debated late into the night. Even though this has already been a year packed full of major policy change and government reorganization, it is not uncommon to see new policy initiatives appear in the final days.
A long used procedural process, known as gut-and-amend, allows legislators to “gut” the entire contents of a bill, minus the bill number, and “amend” the bill with entirely new content and policy. This allows the legislator to create a new bill without having to start at the beginning of the process. Mainly used during the last weeks of the legislative calendar, this practice is often used for clean-up language to legislation passed earlier in the year, or to pass major policy quickly and without much debate, or transparency. With the passage of Proposition 54 in 2016, it is now required that any proposed amendments to bills be available to the public for 72 hours before they are voted on. While this limits the ability to move these bills quickly and allow greater transparency for public comment, it is still uncertain how much this will stop the practice of the gut-and-amend.
One relevant example for the end of this session relates to the recent Board of Equalization reforms. As with all major public policy changes, it is safe to assume we will see clean-up language in the form of a “gut-and-amend.” CalCPA continues to work with Legislative leaders and the administration to ensure that CPA’s would continue to be able to represent taxpayers in front of the newly minted Office of Tax Appeals as they did before the BOE.
The recent legalization of the recreational use of cannabis has brought a set of new challenges to California. Throughout the year, the State Treasurer’s Office, legislative committees, independent research organizations and industry representatives, have held meetings and informational sessions to discuss the administrative and policy challenges to the implementation of Prop. 64, which legalized the recreational use of cannabis. Much of the discussion focuses on how the state can allow an industry to operate that is still federally illegal. Policy leaders are working hard to develop the oversight structure for those in the industry to properly track and report their business transactions and finances
Specifically, Treasurer Chiang has lead meetings of the Cannabis Banking Working Group, which includes stakeholders from the cannabis industry, tax regulators, local governments, and the banking industry. The working group discussed a number of issues surrounding the regulation of cannabis in California, particularly the challenges resulting from the lack of reliable banking. The group is expected to release a final report and recommendations later this Fall. Specifically to the CPA profession, in July Lori Ajax, Chief of the California Bureau of Medical Cannabis Regulation, spoke to the California Board of Accountancy (CBA) at its July meeting where she gave remarks on the bureaus efforts to create a regulatory framework to oversee the cultivation, distribution, and sale of medical and recreational use cannabis.
Understanding the need for CPAs in this emerging industry, the CalCPA Education Foundation hosted the 2017 California Cannabis Industry Symposium in August. Leaders in the CPA profession, state agency officials and industry representatives presented and discussed topics which included the history of the cannabis industry in California, the former and current regulatory structure, taking on a cannabis industry client, federal and California income tax issues, and other pertinent topics. Board of Equalization Member Fiona Ma was the keynote speaker and gave her perspective on the industry and the role CPAs can play as it grows.
While still many uncertainties still exist. This emerging industry presents the opportunity for CalCPA members to gain new clientele in an exciting and dynamic industry, and CalCPA wants to make sure you have the information and knowledge you need to be successful.
With the Legislature on summer recess, Sacramento is gearing up for it's final sprint of the 2017 legislative year. Hundreds of bills will be heard an voted on in August. all leading up to the September deadline. CalCPA has positioned itself, through the integral help of its grassroots efforts, to be the voice for CPAs in all matters relating to the profession. We will work diligently to ensure that CPAs are heard and fairly represented as legislation continues to be developed.
Over the last few weeks, the governor, legislative leaders and members of the State Board of Equalization have addressed significant issues identified in a Department of Finance audit report of the BOE—particularly the inappropriate misallocation of staff and revenue. Recently, the governor’s office and legislative leaders reached a deal that would remove the BOE of all its responsibilities except for those constitutionally assigned to it.
AB 102, known as the “Taxpayer Transparency and Fairness Act of 2017,” was introduced as part of the budget process and passed by the Legislature in just a few days. Under the bill, the BOE retains its state constitutional duties of reviewing and adjusting property tax assessments; setting the rate for gas taxes; and handling assessment of taxes on pipelines, insurance companies and alcoholic beverages. Elected BOE members and the State Controller will continue to oversee these areas.
The bill also moves former BOE duties into two new state agencies, also created under this bill:
As the proposal was discussed and introduced, CalCPA provided comments to the governor and legislative leaders. CPAs advise millions of taxpayers on tax related matters, assist them with compliance responsibilities and represent them before tax regulators. For the CPA profession, and the taxpayers they represent, the preservation of an equitable process for CPAs to assist taxpayers by appealing tax disputes to a truly independent tax adjudicating body is significant.
CPAs should continue to be able to assist their clients in making their case and receive a final decision after an often lengthy tax protest, just as they are able to do before the current BOE. Further, CPAs should continue to receive reasonable guidance and assistance on navigating complex tax laws on behalf of their clients.
Once the proposal was released, CalCPA raised concerns specific to the CPA profession and its ability to represent clients before the OTA as they did before the BOE. The concerns focused on ensuring that the appeals process is appropriately insulated from politicization and that the new appeals process does not in itself preclude a CPA from representing a client due to independence or the practice of law issues that may arise due to the new appeals venue.
Specifically, CalCPA’s comments focused on:
Both of these points were recognized by the governor’s office and the Legislature. They expressed that the intent was not create a new process that might preclude CPAs from practicing before the new OTA. After the bills passed, both houses adopted a letter to the file to clarify intent and direction related to these reforms. Due in part to the concerns raise publicly by CalCPA, the letters included parts specific to these concerns. This provides a basis to engage and address issues that may come up as the OTA takes shape. Further it is a recognition that the preservation of an equitable process for CPAs to assist taxpayers by appealing tax disputes to a truly independent tax adjudicating body as they have before the current BOE is a significant issue.
Tax on services continues to be a topic of discussion in the Legislature. SB 640 (Hertzberg) proposes to enact a sales tax on services—including those provided by CPAs. While this bill has stalled for this year and never was amended with specifics of how such a complex shift in the tax burden would be accomplished, the introduction of this legislation keeps the issue on the radar within the public policy arena—particularly as tax reform conversations heat up at both the state and federal level. Similar far-reaching tax on services proposals have been introduced in the past. In 2015 and 2016 Sen. Hertzberg introduced SB 8 and SB 1445. Both bills ultimately died in the Legislature when they failed to meet legislative deadlines. Without specifics, these proposals have been characterized as a way to broaden California’s tax base to address a volatile stream of tax revenue. Yet, it would also impose an extremely complex shift in the tax burden to raise billions in new tax revenues.
While the legislation has not moved forward, it will continue to be a marker for future efforts. A tax on service will likely be part of the discussion for a future comprehensive tax reform effort. This conversation could increase should a significant state budget gaps emerge from federal changes to state funding for healthcare coverage or tax policy. A tax on services proposal could be just one piece of larger reform to broaden the tax base and stabilize the state budget.
Legislators on both sides of the aisle that agree California needs to place a greater emphasis on teaching financial literacy in our classrooms. Through the CalCPA Institute, CalCPA continues to partner with legislators to help meet the financial literacy needs of Californians. It is encouraging to see legislators take this matter seriously and propose legislation that aims on educating our youth with this vital information.
Assembly Bill 858 (Dababneh) would establish the California Financial Literacy Initiative as a program for improving financial literacy by offering instructional materials for teachers and parents to provide high-quality financial literacy education for K-12 students.
Senate Bill 583 (Stone) seeks to provide a model curriculum in financial literacy for students grades 9-12. Once approved and adopted by the Superintendent of Public Instruction, it would be posted for use on a voluntary basis by educators.
As expected, much of the first few months of the legislative session has been marked by public battles between the Trump administration and Democratic leaders in California. With a commitment by President Trump and a Republican majority in both houses in Congress, legislation is already moving through Congress that focuses on repealing and replacing the ACA. While we wait to see what the final version of the federal health legislation looks like when it heads to the President’s desk, the Democrat majority in the state has committed to preserving, or even expanding, the current health care system and has proposed numerous pieces of legislation that do just that. Similar divergence in policy agendas for immigration, education, and environmental regulations, have further divided leaders in Washington and California. The lack of cooperation between the state and Washington continues to overshadow the legislative session as legislators keep a watchful eye on the new administration.
The Little Hoover Commission recently released a study on “occupational licensing” focusing on the “impact of occupational licensing on upward mobility and opportunities for entrepreneurship and innovation for Californians, particularly those of modest means.” The report noted that while occupational licensing provides many benefits to consumers, it also presents a number of negative impacts to consumers and individuals who are prevented from practicing due to licensure requirements. The report particularly discusses these impacts for former offenders, military spouses, veterans and foreign-trained workers. The report offers recommendations to address the identified concerns, including changes to how California licenses occupations and governs its regulatory process. While the Little Hoover Commission study is focused on licensing of occupations rather than professions, there is a concern that the study and resulting recommendations could lead to proposals that may alter general state licensing practices in California, including those of CPAs.
The CBA has approved draft regulatory framework to incorporate new CPE delivery methods, nano-learning and blended learning. The framework also will allow for partial CPE credit in as little as 1/5 increments. CBA staff will now bring back final language and begin the regulatory process, which can take 12-14 months before it is completed. The proposed language largely follows the same framework for current CPE delivery methods.
Among the most significant of the proposed changes was the addition of nano-learning and blended learning, two new delivery methods for CPE programs. Nano-learning is defined as a tutorial program that focuses on a single learning subject in a 10-minute timeframe. Blended learning is a format that incorporates multiple learning platforms within the same program.
The draft regulatory language would specifically:
Check out Capitol Track for more information on these important issues.