Scott Nelson is the Managing Principal of Tax Incentives Group, a San Francisco-based firm which provides tax and financial incentives consulting to small business and middle-market companies.
California: Closed for Business
California Gov. Jerry Brown just had this sign printed and is placing it all over the State; on billboards at the borders, on bumper stickers in Sacramento, on his website, pretty much everywhere possible. He’s even sending letters to governors in neighboring states so they can poach our companies and lure them away. Well, not literally. But figuratively for sure.
I’m sure by now you are aware that Brown has proposed to extend the temporary tax increases approved in 2009 for 5 additional years through 2016. The tax increases include a 0.25 percentage point increase in personal income tax, a reduction of the dependent exemption credit, a 1 percent increase in sales tax, and a 0.5 percent increase in the VLF. The Legislature has to pass by 2/3 vote any legislation that proposes to increase taxes. Brown is so confident that the Legislature will pass these increases that he’s already stated the measures will be put before voters on a June 2011 special election ballot. But those are just some of the tax increases in Brown’s budget proposal.
In addition to the aforementioned items, Brown also wants to eliminate redevelopment agencies and Enterprise Zones in California. Not only is California one of the most difficult and expensive states in which to do business, we hardly have any economic development tools left to attract new business and retain our existing pool of employers. In fact, all that would be left is a credit for research and development. I wonder if Brown will eventually want to eliminate that incentive, too. That would be one way to send a message to Silicon Valley about how much we care about homegrown innovation.
But I digress. Let’s focus on Enterprise Zones. The California Enterprise Zone (EZ) program has been in existence since 1985. It was originally created to help generate new jobs & increase investment in some of California’s most blighted areas which desperately needed development. We’re talking about Economic Development 101. There are currently 42 zones around the state which provide tax credits and other incentives to companies doing business within the boundaries of the zones. It is certainly true that the program has been abused at various levels over the years, but reform legislation has tightened up the program and eliminated some inefficiencies. Don’t get me wrong, more reform is needed and there are some bills already in the works in both arms of the Legislature. However, under Brown’s proposal, businesses would no longer be able to claim any new credits, and they would forfeit all credits they have earned in prior years but not yet claimed on their tax returns.
Legislative hearings have already taken place on Feb. 7 and Feb. 16. Brown’s administration has elicited support from the Legislative Analyst’s Office (which opposes anything that doesn’t create new taxes), labor unions like the California Labor Federation (which dislikes anything pro-business), and the Public Policy Institute of California which issued a study in 2009 that discounts the effectiveness of the EZ program. On the other hand, support for the EZ program has come from the cities which applied for and currently have zone designations, businesses that have benefited from the program and a competing 2008 study from USC that shows the EZs create jobs, increase incomes, and reduce poverty and unemployment in the zones. In fact, the latter group has formed a coalition called Californians for Jobs and Safe Communities (http://jobsandsafecommunities.com). The debate is no doubt heated.
There is even discussion suggesting the proposal to eliminate the EZs is unconstitutional. Donald M. Griswold, an attorney with ReedSmith in Washington D.C., was brought in to provide legal advice to the pro-EZ coalition. Griswold told legislators the proposal to eliminate state EZ credits is bad public policy and would violate the Due Process Clause and Contracts Clause of the U.S. Constitution. The biggest issue being Brown’s plan to eliminate the credits retroactively, meaning companies that have earned credits but not yet claimed them would lose them beginning with the 2011 tax year. Griswold has also stated that the retroactive elimination of outstanding credits would be an unprecedented move. Even the LAO questioned the governor’s plan to void unused credits in their briefing for lawmakers Feb. 7. “Businesses made decisions under the assumption the state would meet its credit commitment,” LAO said. “Voiding unused credits not only raises concerns about the state’s treatment of businesses that have such credits; it also could weaken incentives provided by other credits.”
I am curious about the accounting metrics used by Brown’s administration. Somehow this proposal is now being discussed as a $1 billion annual savings. See if you can follow this logic. The actual savings estimate for the current fiscal year 2010-2011 is $343 million. The actual savings estimate for the next fiscal year 2011-2012 is $581 million. The substantial year-over-year increase is explained in the budget proposal as a “new accrual method”. Apparently with a little magic we can just accept the new accrual method, add the numbers together and get close to $1 billion. Even though the “estimated savings” represent 2 separate fiscal years, they are now being combined into the term “annual savings” by the proposal’s proponents.
Here’s an explanation of that new accrual method directly from the LAO’s budget overview. Generally, the state operates under an “accrual” accounting system that requires recognition of revenues and expenditures to the fiscal year in which they are realized. The administration’s budget package estimates 2010–11 and 2011–12 revenues from its PIT and CT proposals with a new budgetary accrual technique that accrues a portion of final payments to the prior fiscal year. Such final payments previously have been accrued to the same fiscal year in which they are received. The new accrual method increases estimated General Fund revenues in 2010–11 and 2011–12 (combined) by $860 million. Does this sound like “cooking the books” to anyone else? I know politicians aren’t accountants or mathematicians, but let’s not lie to the public and expect them to take everything at face value.
There are many other organizations and individuals who have already gone on record in support of the EZ program including chambers of commerce & mayors throughout the State, assembly members and senators representing both parties. The ultimate fate of the EZ program is still unclear, but bipartisan lawmakers are some of the strongest supporters of the program. The legislators argue the program’s economic incentives are crucial to reviving the state’s weak economy. Some legislators are working to shift the focus from eliminating EZs to reforming the program. Assemblyman V. Manuel Perez (D) has introduced three bills this year to bolster conversation about reforms to the program. A.B. 231, A.B. 232, and A.B.X1 11, introduced Feb. 2, would make various changes to the program. Assemblyman Luis Alejo (D), a co-author of the bills, touted the EZ program and the need to shift the debate from elimination to reform of the program at a news conference Feb. 11 in the Salinas Valley EZ. “These bills that we have introduced are meant as a catalyst for changing the discussion from cutting the enterprise zone program to reforming it and making it more effective,” Alejo said.
Don’t get me wrong, we need to fix the budget issues in California. But not at the expense of economic development programs that help businesses create jobs and increase investment in our State. The EZ program does just that. I have personal knowledge of companies that would not have stayed in California, hired new employees nor made significant investments but for the Enterprise Zone program. Let’s tell Jerry Brown that we want California to be open for business. Now and forever.
While working in the industry for 20 years, Scott has been a frequent speaker at the Tax Executives Institute and authored numerous articles in Site Selection and Area Development magazines. You can find him on LinkedIn (http://www.linkedin.com/pub/scott-nelson/0/258/696) and his company on Twitter @tig535 (http://twitter.com/#!/tig535).