Bill Text: CA SB1396 | 2011-2012 | Regular Session | Amended
Bill Title: Sales and use taxes: excise taxes: fuel.
Spectrum: Partisan Bill (Republican 2-0)
Status: (Introduced - Dead) 2012-05-03 - Set, first hearing. Hearing canceled at the request of author. [SB1396 Detail]
Download: California-2011-SB1396-Amended.html
BILL NUMBER: SB 1396 AMENDED
BILL TEXT
AMENDED IN SENATE APRIL 11, 2012
INTRODUCED BY Senator Dutton
( Principal coauthor: Assembly Member
Beth Gaines )
FEBRUARY 24, 2012
An act to amend Sections 18152 and 18152.5
6011, 6012, 7360, and 60050 of the Revenue and Taxation Code,
relating to taxation , and declaring the urgency thereof, to
take effect immediately .
LEGISLATIVE COUNSEL'S DIGEST
SB 1396, as amended, Dutton. Income taxes: gross income.
Sales and use taxes: excise taxes: fuel.
The Sales and Use Tax Law imposes a tax on retailers measured by
the gross receipts from the sale of tangible personal property sold
at retail in this state, or a tax, measured by the sales price, on
the storage, use, or other consumption of tangible personal property
in this state." That law defines the terms "gross receipts" and
"sales price."
This bill would exclude from the terms "gross receipts" and "sales
price" the amount charged at retail for gasoline and diesel fuels in
excess of $3.88 or $3.52 per gallon, respectively, as provided.
Existing law imposes a sales and use tax and an excise tax on
gasoline and diesel fuels and requires the State Board of
Equalization to annually modify both the gasoline and diesel excise
tax rates on a going-forward basis so that the taxes imposed on
gasoline and diesel fuels, as described above, are revenue neutral.
This bill would require the State Board of Equalization to reduce,
but not increase, certain excise tax rates on gasoline and diesel
fuels to maintain revenue neutrality.
This bill would declare that it is to take effect immediately as
an urgency statute.
The Personal Income Tax Law in modified conformity with federal
income tax laws provides that gross income does not include 50% of
any gain from the sale or exchange of qualified small business stock,
as defined, held for more than 5 years, as provided.
Vote: majority 2/3 . Appropriation:
no. Fiscal committee: no yes .
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 6011 of the Revenue
and Taxation Code is amended to read:
6011. (a) "Sales price" means the total amount for which tangible
personal property is sold or leased or rented, as the case may be,
valued in money, whether paid in money or otherwise, without any
deduction on account of any of the following:
(1) The cost of the property sold.
(2) The cost of materials used, labor or service cost, interest
charged, losses, or any other expenses.
(3) The cost of transportation of the property, except as excluded
by other provisions of this section.
(b) The total amount for which the property is sold or leased or
rented includes all of the following:
(1) Any services that are a part of the sale.
(2) Any amount for which credit is given to the purchaser by the
seller.
(3) The amount of any tax imposed by the United States upon
producers and importers of gasoline and the amount of any tax imposed
pursuant to Part 2 (commencing with Section 7301) of this division.
(c) "Sales price" does not include any of the following:
(1) Cash discounts allowed and taken on sales.
(2) The amount charged for property returned by customers when
that entire amount is refunded either in cash or credit, but this
exclusion shall not apply in any instance when the customer, in order
to obtain the refund, is required to purchase other property at a
price greater than the amount charged for the property that is
returned. For the purpose of this section, refund or credit of the
entire amount shall be deemed to be given when the purchase price
less rehandling and restocking costs are refunded or credited to the
customer. The amount withheld for rehandling and restocking costs may
be a percentage of the sales price determined by the average cost of
rehandling and restocking returned merchandise during the previous
accounting cycle.
(3) The amount charged for labor or services rendered in
installing or applying the property sold.
(4) (A) The amount of any tax (not including, however, any
manufacturers' or importers' excise tax, except as provided in
subparagraph (B)) imposed by the United States upon or with respect
to retail sales whether imposed upon the retailer or the consumer.
(B) The amount of manufacturers' or importers' excise tax imposed
pursuant to Section 4081 or 4091 of the Internal Revenue Code for
which the purchaser certifies that he or she is entitled to either a
direct refund or credit against his or her income tax for the federal
excise tax paid or for which the purchaser issues a certificate
pursuant to Section 6245.5.
(5) The amount of any tax imposed by any city, county, city and
county, or rapid transit district within the State of California upon
or with respect to retail sales of tangible personal property,
measured by a stated percentage of sales price or gross receipts,
whether imposed upon the retailer or the consumer.
(6) The amount of any tax imposed by any city, county, city and
county, or rapid transit district within the State of California with
respect to the storage, use or other consumption in that city,
county, city and county, or rapid transit district of tangible
personal property measured by a stated percentage of sales price or
purchase price, whether the tax is imposed upon the retailer or the
consumer.
(7) Separately stated charges for transportation from the retailer'
s place of business or other point from which shipment is made
directly to the purchaser, but the exclusion shall not exceed a
reasonable charge for transportation by facilities of the retailer or
the cost to the retailer of transportation by other than facilities
of the retailer. However, if the transportation is by facilities of
the retailer, or the property is sold for a delivered price, this
exclusion shall be applicable solely with respect to transportation
which occurs after the purchase of the property is made.
(8) Charges for transporting landfill from an excavation site to a
site specified by the purchaser, either if the charge is separately
stated and does not exceed a reasonable charge or if the entire
consideration consists of payment for transportation.
(9) The amount of any motor vehicle, mobilehome, or commercial
coach fee or tax imposed by and paid the State of California that has
been added to or is measured by a stated percentage of the sales or
purchase price of a motor vehicle, mobilehome, or commercial coach.
(10) (A) The amount charged for intangible personal property
transferred with tangible personal property in any technology
transfer agreement, if the technology transfer agreement separately
states a reasonable price for the tangible personal property.
(B) If the technology transfer agreement does not separately state
a price for the tangible personal property, and the tangible
personal property or like tangible personal property has been
previously sold or leased, or offered for sale or lease, to third
parties at a separate price, the price at which the tangible personal
property was sold, leased, or offered to third parties shall be used
to establish the retail fair market value of the tangible personal
property subject to tax. The remaining amount charged under the
technology transfer agreement is for the intangible personal property
transferred.
(C) If the technology transfer agreement does not separately state
a price for the tangible personal property, and the tangible
personal property or like tangible personal property has not been
previously sold or leased, or offered for sale or lease, to third
parties at a separate price, the retail fair market value shall be
equal to 200 percent of the cost of materials and labor used to
produce the tangible personal property subject to tax. The remaining
amount charged under the technology transfer agreement is for the
intangible personal property transferred.
(D) For purposes of this paragraph, "technology transfer agreement"
means any agreement under which a person who holds a patent or
copyright interest assigns or licenses to another person the right to
make and sell a product or to use a process that is subject to the
patent or copyright interest.
(11) The amount of any tax imposed upon diesel fuel pursuant to
Part 31 (commencing with Section 60001).
(12) (A) The amount of tax imposed by any Indian tribe within the
State of California with respect to a retail sale of tangible
personal property measured by a stated percentage of the sales or
purchase price, whether the tax is imposed upon the retailer or the
consumer.
(B) The exclusion authorized by subparagraph (A) shall only apply
to those retailers who are in substantial compliance with this part.
(13) (A) The amount charged at the retail level for gasoline,
including federally imposed and state-imposed excise taxes, but
excluding state-imposed sales and use taxes, in excess of three
dollars and eighty-eight cents ($3.88) per gallon.
(B) The amount charged at the retail level for diesel fuel,
including federally imposed excise taxes, but excluding state-imposed
excise, sales, and use taxes, in excess of three dollars and
fifty-two cents ($3.52) per gallon.
SEC. 2. Section 6012 of the Revenue and
Taxation Code is amended to read:
6012. (a) "Gross receipts" mean the total amount of the sale or
lease or rental price, as the case may be, of the retail sales of
retailers, valued in money, whether received in money or otherwise,
without any deduction on account of any of the following:
(1) The cost of the property sold. However, in accordance with any
rules and regulations as the board may prescribe, a deduction may be
taken if the retailer has purchased property for some other purpose
than resale, has reimbursed his or her vendor for tax which the
vendor is required to pay to the state or has paid the use tax with
respect to the property, and has resold the property prior to making
any use of the property other than retention, demonstration, or
display while holding it for sale in the regular course of business.
If that deduction is taken by the retailer, no refund or credit will
be allowed to his or her vendor with respect to the sale of the
property.
(2) The cost of the materials used, labor or service cost,
interest paid, losses, or any other expense.
(3) The cost of transportation of the property, except as excluded
by other provisions of this section.
(4) The amount of any tax imposed by the United States upon
producers and importers of gasoline and the amount of any tax imposed
pursuant to Part 2 (commencing with Section 7301) of this division.
(b) The total amount of the sale or lease or rental price includes
all of the following:
(1) Any services that are a part of the sale.
(2) All receipts, cash, credits and property of any kind.
(3) Any amount for which credit is allowed by the seller to the
purchaser.
(c) "Gross receipts" do not include any of the following:
(1) Cash discounts allowed and taken on sales.
(2) Sale price of property returned by customers when that entire
amount is refunded either in cash or credit, but this exclusion shall
not apply in any instance when the customer, in order to obtain the
refund, is required to purchase other property at a price greater
than the amount charged for the property that is returned. For the
purpose of this section, refund or credit of the entire amount shall
be deemed to be given when the purchase price less rehandling and
restocking costs are refunded or credited to the customer. The amount
withheld for rehandling and restocking costs may be a percentage of
the sales price determined by the average cost of rehandling and
restocking returned merchandise during the previous accounting cycle.
(3) The price received for labor or services used in installing or
applying the property sold.
(4) (A) The amount of any tax (not including, however, any
manufacturers' or importers' excise tax, except as provided in
subparagraph (B)) imposed by the United States upon or with respect
to retail sales whether imposed upon the retailer or the consumer.
(B) The amount of manufacturers' or importers' excise tax imposed
pursuant to Section 4081 or 4091 of the Internal Revenue Code for
which the purchaser certifies that he or she is entitled to either a
direct refund or credit against his or her income tax for the federal
excise tax paid or for which the purchaser issues a certificate
pursuant to Section 6245.5.
(5) The amount of any tax imposed by any city, county, city and
county, or rapid transit district within the State of California upon
or with respect to retail sales of tangible personal property
measured by a stated percentage of sales price or gross receipts
whether imposed upon the retailer or the consumer.
(6) The amount of any tax imposed by any city, county, city and
county, or rapid transit district within the State of California with
respect to the storage, use or other consumption in that city,
county, city and county, or rapid transit district of tangible
personal property measured by a stated percentage of sales price or
purchase price, whether the tax is imposed upon the retailer or the
consumer.
(7) Separately stated charges for transportation from the retailer'
s place of business or other point from which shipment is made
directly to the purchaser, but the exclusion shall not exceed a
reasonable charge for transportation by facilities of the retailer or
the cost to the retailer of transportation by other than facilities
of the retailer. However, if the transportation is by facilities of
the retailer, or the property is sold for a delivered price, this
exclusion shall be applicable solely with respect to transportation
which occurs after the sale of the property is made to the purchaser.
(8) Charges for transporting landfill from an excavation site to a
site specified by the purchaser, either if the charge is separately
stated and does not exceed a reasonable charge or if the entire
consideration consists of payment for transportation.
(9) The amount of any motor vehicle, mobilehome, or commercial
coach fee or tax imposed by and paid to the State of California that
has been added to or is measured by a stated percentage of the sales
or purchase price of a motor vehicle, mobilehome, or commercial
coach.
(10) (A) The amount charged for intangible personal property
transferred with tangible personal property in any technology
transfer agreement, if the technology transfer agreement separately
states a reasonable price for the tangible personal property.
(B) If the technology transfer agreement does not separately state
a price for the tangible personal property, and the tangible
personal property or like tangible personal property has been
previously sold or leased, or offered for sale or lease, to third
parties at a separate price, the price at which the tangible personal
property was sold, leased, or offered to third parties shall be used
to establish the retail fair market value of the tangible personal
property subject to tax. The remaining amount charged under the
technology transfer agreement is for the intangible personal property
transferred.
(C) If the technology transfer agreement does not separately state
a price for the tangible personal property, and the tangible
personal property or like tangible personal property has not been
previously sold or leased, or offered for sale or lease, to third
parties at a separate price, the retail fair market value shall be
equal to 200 percent of the cost of materials and labor used to
produce the tangible personal property subject to tax. The remaining
amount charged under the technology transfer agreement is for the
intangible personal property transferred.
(D) For purposes of this paragraph, "technology transfer agreement"
means any agreement under which a person who holds a patent or
copyright interest assigns or licenses to another person the right to
make and sell a product or to use a process that is subject to the
patent or copyright interest.
(11) The amount of any tax imposed upon diesel fuel pursuant to
Part 31 (commencing with Section 60001).
(12) (A) The amount of tax imposed by any Indian tribe within the
State of California with respect to a retail sale of tangible
personal property measured by a stated percentage of the sales or
purchase price, whether the tax is imposed upon the retailer or the
consumer.
(B) The exclusion authorized by subparagraph (A) shall only apply
to those retailers who are in substantial compliance with this part.
For purposes of the sales tax, if the retailers establish to the
satisfaction of the board that the sales tax has been added to the
total amount of the sale price and has not been absorbed by them, the
total amount of the sale price shall be deemed to be the amount
received exclusive of the tax imposed. Section 1656.1 of the Civil
Code shall apply in determining whether or not the retailers have
absorbed the sales tax.
(13) (A) The amount charged at the retail level for gasoline,
including federally imposed and state-imposed excise taxes, but
excluding state-imposed sales and use taxes, in excess of three
dollars and eighty-eight cents ($3.88) per gallon.
(B) The amount charged at the retail level for diesel fuel,
including federally imposed excise taxes, but excluding state-imposed
excise, sales, and use taxes, in excess of three dollars and
fifty-two cents ($3.52) per gallon.
SEC. 3. Section 7360 of the Revenue and
Taxation Code is amended to read:
7360. (a) (1) A tax of eighteen cents ($0.18) is hereby imposed
upon each gallon of fuel subject to the tax in Sections 7362, 7363,
and 7364.
(2) If the federal fuel tax is reduced below the rate of nine
cents ($0.09) per gallon and federal financial allocations to this
state for highway and exclusive public mass transit guideway purposes
are reduced or eliminated correspondingly, the tax rate imposed by
paragraph (1), on and after the date of the reduction, shall be
recalculated by an amount so that the combined state rate under
paragraph (1) and the federal tax rate per gallon equal twenty-seven
cents ($0.27).
(3) If any person or entity is exempt or partially exempt from the
federal fuel tax at the time of a reduction, the person or entity
shall continue to be so exempt under this section.
(b) (1) (A) On and after July 1, 2010,
and before July 1, 2012, in addition to the tax imposed by
subdivision (a), a tax is hereby imposed upon each gallon of motor
vehicle fuel, other than aviation gasoline, subject to the tax in
Sections 7362, 7363, and 7364 in an amount equal to seventeen and
three-tenths cents ($0.173) per gallon.
(B) On and after July 1, 2012, in addition to the tax imposed by
subdivision (a), a tax is hereby imposed upon each gallon of motor
vehicle fuel, other than aviation gasoline, subject to tax in
Sections 7362, 7363, and 7364 in an amount equal to seventeen and
seven-tenths cents ($0.177) per gallon.
(2) For the 2011-12 2013 -14
fiscal year and each fiscal year thereafter, the board shall,
on or before March 1 of the fiscal year immediately preceding the
applicable fiscal year, adjust the rate in paragraph (1) in
that manner as to generate an amount of revenue that will equal the
amount of revenue loss attributable to the exemption provided by
Section 6357.7, based on estimates made by the board
estimate the amount of revenue loss attributable to the exemption
provided by Section 6357.7 and the revenue attributable to the tax
imposed by subparagraph (B) of paragraph (1). If the estimated
revenue attributable to the tax imposed by subparagraph (B) of
paragraph (1) exceeds the revenue loss attributable to the exemption
provided by Section 6357.7, the rate imposed by subparagraph (B) of
paragraph (1) shall be adjusted to generate the amount of revenue
that will be equal to the revenue loss during the state's next fiscal
year , and that rate shall be effective during the state's
next fiscal year.
(3) In order to maintain revenue neutrality for each
year, beginning Beginning with the
rate adjustment on or before March 1, 2012
2014 , the adjustment under paragraph (2) shall also take into
account the extent to which the actual amount of revenues derived
pursuant to this subdivision and, as applicable, Section
7361.1, and the revenue loss attributable to the
exemption provided by Section 6357.7 resulted in a net revenue gain
or loss for the fiscal year ending prior to the rate adjustment date
on or before March 1.
(4) The intent of paragraphs (2) and (3) is to ensure that the
act adding this subdivision and Section 6357.7 does not
produce a net revenue gain in state taxes rate imposed
pursuant to this subdivision does not exceed the rate specified in
subparagraph (B) of paragraph (1) .
SEC. 4. Section 60050 of the Revenue
and Taxation Code is amended to read:
60050. (a) (1) A tax of eighteen cents ($0.18) is hereby imposed
upon each gallon of diesel fuel subject to the tax in Sections 60051,
60052, and 60058.
(2) If the federal fuel tax is reduced below the rate of fifteen
cents ($0.15) per gallon and federal financial allocations to this
state for highway and exclusive public mass transit guideway purposes
are reduced or eliminated correspondingly, the tax rate imposed by
paragraph (1), including any reduction or adjustment pursuant to
subdivision (b), on and after the date of the reduction, shall be
increased by an amount so that the combined state rate under
paragraph (1) and the federal tax rate per gallon equal what it would
have been in the absence of the federal reduction.
(3) If any person or entity is exempt or partially exempt from the
federal fuel tax at the time of a reduction, the person or entity
shall continue to be exempt under this section.
(b) (1) On July 1, 2011, the tax rate specified in paragraph (1)
of subdivision (a) shall be reduced to thirteen cents ($0.13) and
every July 1 thereafter shall be adjusted pursuant to paragraphs (2)
and (3).
(2) For the 2012-13 fiscal year and each fiscal year thereafter,
the board shall, on or before March 1 of the fiscal year immediately
preceding the applicable fiscal year, estimate the revenue loss
attributable to the rate reduction in paragraph (1) and the revenue
gain attributable to Sections 6051.8 and 6201.8. If the revenue gain
attributable to Sections 6051.8 and 6201.8 exceeds the
revenue loss attributable to the rate reduction attributable to
paragraph (1), the board shall adjust the rate reduction in
paragraph (1) in that manner as to result in a revenue loss
attributable to paragraph (1) that will equal the amount of revenue
gain attributable to Sections 6051.8 and 6201.8, based on estimates
made by the board, and that rate shall be effective during the state'
s next fiscal year.
(3) In order to maintain revenue neutrality for
For each year, beginning with the rate adjustment on or
before March 1, 2013, the adjustment under paragraph (2) shall take
into account the extent to which the actual amount of revenues
derived pursuant to Sections 6051.8 and 6201.8 and the revenue loss
attributable to this subdivision resulted in a net revenue gain or
loss for the fiscal year ending prior to the rate adjustment date on
or before March 1.
(4) The intent of paragraphs (2) and (3) is to ensure that the
act adding this subdivision and Sections 6051.8 and 6201.8
does not produce a net revenue gain in state taxes
rate imposed beginning with the 2012 -13 fiscal year shall
not exceed the rate specified in paragraph (1) .
SEC. 5. This act is an urgency statute necessary
for the immediate preservation of the public peace, health, or safety
within the meaning of Article IV of the Constitution and shall go
into immediate effect. The facts constituting the necessity are:
In order to provide tax relief related to the price of gasoline
and diesel fuel at the earliest possible date, it is necessary that
this act take effect immediately. All matter omitted in this
version of the bill appears in the bill as introduced in the Senate,
February 24, 2012. (JR11)
