San Francisco Business Tax Reform: Summary of Gross Receipts Tax Legislation Introduced on June 12, 2012
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1 San Francisco Business Tax Reform: Summary of Gross Receipts Tax Legislation Introduced on June 12, 2012 Ben Rosenfield, Controller Ted Egan, Chief Economist
2 Background At the request of the Mayor and Board President, the Controller's Office has been working with the Treasurer's Office, the City Attorney's Office, and local businesses on a redesign of the City's business tax system. On May 10 th, the Controller's Office published a status report that outlined a replacement to the payroll expense tax with a gross receipts tax. On June 12 th, the Mayor and President Chiu jointly introduced gross receipts tax legislation based on this ongoing work. Their proposal would generate an additional $13 million in new revenue from business license fees. Supervisor Avalos also introduced gross receipts tax legislation on that date that was substantially similar in most respects, although it was designed to generate $40 million in additional revenue from business license fees. This report provides an overview of key features of both pieces of legislation. It is not intended to be a legal summary and interested persons should consult the draft legislation for exact wording. In addition, several areas of the legislation are subject to amendment during the legislative process. 2
3 Key Features of Both Ordinances Exclusions from Gross Receipts Small Business and Other Exemptions Schedules of Maximum Gross Receipts Tax Rates Combined Filing Issues Apportionment Handling of Multiple Business Activities Treatment of Administrative Offices Phase-In of Gross Receipts Tax Rates Phase-Out of Payroll Expense Tax Rate Existing Payroll Expense Tax Exclusions Cancellation of Existing Registration Fees, Establishment of New Registration Fees 3
4 Exclusions from Gross Receipts Taxes 952.3(c): Gross Receipts excludes taxes if and only if the taxes are: on retail sales, or on a business, but reimbursed by the customer through a separately-stated charge, or a third-party tax collected by a business on behalf of a governmental entity. Related entities 952.3(d): All gross receipts received from related entities are excluded. Two taxpayers are defined as related entities (952.5) if they are required under the California Revenue and Taxation code to reflect their income on the same combined report. Two taxpayers, each only doing business in California, are considered to be related entities if they would have been required to file a combined report had they been doing business both within and outside California. Financial Services 952.3(e): Gross Receipts excludes the cost to acquire financial instruments. In addition, a business whose sole activity is the receipt of interest and/or dividends from passive investments in financial instruments is not subject to the tax. Construction 953.5(c): Gross Receipts excludes payments to construction subcontractors. Rent-Controlled Housing 954(d): Gross Receipts excludes 50% of receipts from rentcontrolled buildings. Sales of Real Estate 954(e): Gross Receipts excludes sales of real property that are subject to the Transfer Tax. 4
5 Small Business and Other Exemptions (Sec ) Except for residential real estate lessors, all businesses with San Francisco gross receipts of less than $1 million are exempt from the gross receipts tax. Residential real estate lessors are exempt from the tax associated with any building having less than four units. Residential real estate lessors can also report and pay the tax on a building-by-building basis. As is currently the case, non-profit organizations are exempt from the gross receipts tax and the business license fee. In addition, existing State constitutional exemptions, for banks, insurers, and others will continue to apply. The rates on the following pages do not apply to these businesses. 5
6 Schedule 1 Maximum Gross Receipts Tax Rates (Sec ) Applicable to Businesses with Over $1 million in Gross Receipts Gross Receipts Level Required Payment $0 - $1,000, % of Gross Receipts $1,000,001 - $2.5 million 0.100% of Gross Receipts $2.5 million - $25 million 0.150% of Gross Receipts $25 million % of Gross Receipts Schedule 1 applies to Retail Trade, Wholesale Trade, and "Certain Services" (NAICS 81) 6
7 Schedule 2 Maximum Gross Receipts Tax Rates (Sec ) Applicable to Businesses with Over $1 million in Gross Receipts Gross Receipts Level Required Payment $0 - $1,000, % of Gross Receipts $1,000,001 - $2.5 million 0.200% of Gross Receipts $2.5 million - $25 million 0.350% of Gross Receipts $25 million % of Gross Receipts Schedule 2 applies to Manufacturing; Transportation & Warehousing; Information; Biotechnology; Clean Technology; and Food Services. 7
8 Schedule 3 Maximum Gross Receipts Tax Rates (Sec ) Applicable to Businesses with Over $1 million in Gross Receipts Gross Receipts Level Required Payment $0 - $1,000, % of Gross Receipts $1,000,001 - $2.5 million 0.325% of Gross Receipts (Mayor/Chiu) 0.350% of Gross Receipts (Avalos) $2.5 million - $25 million 0.325% of Gross Receipts (Mayor/Chiu) 0.375% of Gross Receipts (Avalos) $25 million % of Gross Receipts Schedule 3 applies to: Real Estate & Rental and Leasing Services; Accommodations; Arts, Entertainment, and Recreation. 8
9 Schedule 4 Maximum Gross Receipts Tax Rates (Sec ) Applicable to Businesses with Over $1 million in Gross Receipts Gross Receipts Level Required Payment $0 - $1,000, % of Gross Receipts $1,000,001 - $2.5 million 0.550% of Gross Receipts $2.5 million - $25 million 0.600% of Gross Receipts $25 million % of Gross Receipts Schedule 4 applies to: Private Education and Health Services, and Administrative and Support Services. 9
10 Schedule 5 Maximum Gross Receipts Tax Rates (Sec ) Applicable to Businesses with Over $1 million in Gross Receipts Gross Receipts Level Required Payment $0 - $1,000, % of Gross Receipts $1,000,001 - $2.5 million 0.350% of Gross Receipts $2.5 million - $25 million 0.400% of Gross Receipts $25 million % of Gross Receipts Schedule 5 applies to Construction. 10
11 Schedule 6 Maximum Gross Receipts Tax Rates (Sec ) Applicable to Businesses with Over $1 million in Gross Receipts Gross Receipts Level Required Payment $0 - $1,000, % of Gross Receipts $1,000,001 - $2.5 million 0.450% of Gross Receipts $2.5 million - $25 million 0.500% of Gross Receipts $25 million % of Gross Receipts Schedule 6 applies to Financial Services, Insurance, and Professional, Scientific, and Technical Services. 11
12 Combined Filing Requirement (Sect ) Businesses are required to file returns on a combined basis with all related entities, as defined in Section Certain California business taxpayers may make a water's edge election, under which they combine only those entities earning income that is taxable by the U.S. government. If they do not make such an election, they report on a worldwide combined basis. The same grouping used for State tax reporting is required by this legislation. In other words, the combined gross receipts and combined payroll of the filing group is either water's edge or worldwide, depending on the State filing. 12
13 Apportionment (Sec and 956.2) The gross receipts of Real Estate, Rental and Leasing Services, and Accommodations industries is taxable if the property is rented or used within San Francisco. Sec (f). Section defines the allocation of gross receipts based on payroll. San Francisco gross receipts equal combined gross receipts, times San Francisco payroll, divided by combined payroll. The following industries apportion gross receipts entirely using 952.2: Certain Services (Schedule 1); Arts, Entertainment, and Recreation (Schedule 3); Education and Health Services, and Administrative and Support Services (Schedule 4); Financial Services, Insurance, and Professional, Technical, and Scientific Services (Schedule 6). Section defines the allocation of gross receipts from tangible and intangible property sales into San Francisco based on the customer location. The following industries apportion 50% of their gross receipts using 956.1, and 50% using 956.2: Wholesale and Retail Trade (Schedule 1); Manufacturing, Transportation and Warehousing, Information, Biotechnology, Clean Technology, and Food Services (Schedule 2); Construction (Schedule 5). 13
14 Rules for Multiple Business Activities (Sec ) If a business conducts multiple lines of business in San Francisco that cross multiple rate schedules, the following rules apply. If one activity accounts for more than 80% of the business's total gross receipts, then the business will use that activity's schedule for all of its gross receipts. If no activity accounts for more than 80% of the total, businesses must compute gross receipts for each line of business separately. However, any set of activities comprising less than 20% of gross receipts together may be combined, using the highest rate within the group. 14
15 Treatment of Administrative Offices (Sec ) Any business having over 50% of its San Francisco payroll associated with administrative and management services is classified as an Administrative Office. Administrative and management services include activities that do not directly generate gross receipts, but involving managing or providing services to the rest of the enterprise: executive management, record-keeping, legal, accounting, personnel, etc. Such a business will not be subject to the Gross Receipts tax that applies to other businesses. The sponsors' intent is not to change the tax currently paid by Administrative Offices, but for them to continue to pay a 1.5% tax on payroll expense, as it is currently defined. The sponsors' intent is not that the tax will be paid on occupancy or other expenses other than payroll. Note: the language in the introduced legislation is incorrect, and will need to be amended to reflect this intent. 15
16 Phase-In of Gross Receipts Rates (Sec. 959) The Gross Receipts tax rates listed on the schedules are maximum rates. From 2014 to 2018, Gross Receipts rates will be set by a Controller calculation, involving multiplying the maximum rates by the following phase-in factors: 2014: 10% 2015: 25% 2016: 50% 2017: 75% 2018: 100% If, in any year between 2015 and 2018, the payroll expense tax rate is phasedout to 0%, then the phase-in factor for Gross Receipts rates will be less than indicated above, and will remain at that reduced level for all future years. 16
17 Phase-Out of Payroll Expense Tax Rates (Sec ) As the Gross Receipts tax rates are phased-in, the Payroll Expense tax rate will be phased-out, on the following schedule: 2014: 1.35% 2015: 1.125% +/- ADJ 2016: 0.75% +/- ADJ 2017: 0.375% +/- ADJ 2018: 0% + ADJ In each year , the Controller will calculate an adjustment (ADJ) equaling the payroll expense tax rate required to achieve the specified revenue target, depending on the previous year's actual gross receipts collections. In any year that the calculation above would lead to a payroll expense tax rate less than 0%, the rate would be set at 0% for that year and all future years. If that does not happen, the payroll tax will remain at the rate established in 2018 for all future years. Note: the phase-out and phase-in formulas in the current version of the legislation will require amendment. 17
18 Existing Payroll Tax Exclusions The City currently maintains five payroll tax exclusions: for biotechnology, clean technology, the local enterprise zone, the Central Market area, and pre-ipo stock compensation. In the Mayor and President Chiu's legislation, biotechnology, clean technology, and enterprise zone exclusions would convert to a gross receipts tax credit equal to what the exclusion would be worth with a 1.5% payroll tax rate. (Sec. 960). In this legislation, the Central Market exclusion would convert to one in which an affected business's combined business tax payment would never exceed their base year level. (Sec. 961). In this legislation, the Pre-IPO stock compensation exclusion is not changed, and the existing expiration dates of the exclusions are retained. Supervisor Avalos's legislation does not specify any change to any of the payroll tax exclusions, and they would continue to apply to the payroll tax as it is phased-out. 18
19 Business License Fees to Replace Existing Fees and Generate $13 million: Mayor/ President Chiu (Sec. 855) Gross Receipts Level Required Payment $0 - $100,000 $75 $100,001 - $250,000 $150 $250,001 - $500,000 $250 $500,001 - $750,000 $500 $750,001 - $1,000,000 $700 $1,000,000 - $2.5 million $100 $2.5 million - $7.5 million $250 $7.5 million - $15 million $750 $15 million - $25 million $1,000 $25 million - $50 million $5,000 $50 million - $100 million $10,000 $100 million and over $20,000 19
20 Business License Fees to Replace Existing Fees and Generate $40 million: Sup. Avalos (Sec. 855) Gross Receipts Level Required Payment $0 - $100,000 $50 $100,001 - $250,000 $100 $250,001 - $500,000 $100 $500,001 - $750,000 $200 $750,001 - $1,000,000 $300 $1,000,000 - $2.5 million $100 $2.5 million - $7.5 million $250 $7.5 million - $15 million $500 $15 million - $25 million $500 $25 million - $50 million $22,500 $50 million - $100 million $45,500 $100 million and over $100,000 20
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