Legislature(1993 - 1994)

04/26/1994 09:10 AM Senate FIN

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
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  SENATE BILL NO. 161                                                          
                                                                               
       An Act relating  to interest  rates and calculation  of                 
       interest  under certain  judgments and  decrees  and on                 
       refunds of  certain  taxes, royalties,  or  net  profit                 
       shares; and providing for an effective date.                            
                                                                               
  Co-chair  Pearce directed  that  SB 161  be  brought on  for                 
  discussion and referenced the original bill, CSSB 161 (STA),                 
  CSSB 161 (Jud),  a $39.3 fiscal  note from the Alaska  Court                 
  System, four zero fiscal  notes, the Governor's  transmittal                 
  letter,   and   a   position  paper   from   the   Dept.  of                 
  Transportation  and Public  Facilities.   She then  directed                 
  attention to two amendments.                                                 
                                                                               
  DEBORAH VOGT, Contract  Attorney for the  Dept. of Law,  and                 
  LARRY MEYERS,  Director, Division of  Oil and Gas,  Dept. of                 
  Revenue, came before committee.  Ms. Vogt explained that the                 
  bill was introduced by the Governor to address two issues:                   
                                                                               
       1.   Pre-judgment and post-judgment interest in civil                   
            litigation.   The current rate is 10.5%.   That is                 
            dramatically out  of  proportion  to  the  current                 
            market.                                                            
       2.   Interest on back taxes and royalties.                              
                                                                               
  Speaking  to  pre-  and  post-judgment  interest,  Ms.  Vogt                 
  explained  that  the  original  bill  proposed  to calculate                 
  interest on judgments in accordance  with the system used by                 
  federal  courts:  a  market-rate indicator tied  to sales of                 
  federal treasury bills.   Interest rates on  judgments would                 
  then be tied to a realistic  market rate that will fluctuate                 
  over time so that the statute  does not subsequently have to                 
  be amended  as the market rises and  falls.  Since the state                 
  is frequently the defendant in litigation, it seeks  the new                 
  calculation because the current 10.5% is too high.                           
                                                                               
                                                                               
  Ms. Vogt noted that the legislature amended statutes dealing                 
  with interest on back taxes and royalties in 1991, setting a                 
  rather high floating  market rate of  five points above  the                 
  federal discount rate, with an 11% floor.  The taxpayer thus                 
  pays whichever is higher.   The rationale for the relatively                 
  high rate of interest  is the fact that taxes  and royalties                 
  are the life-blood of the state.  It is thus  important that                 
  payments  be timely made.   The high  rate encourages prompt                 
  payment  and   provides  an  incentive  to   resolve  large,                 
  outstanding disputes.                                                        
                                                                               
  Since enactment of amendments in 1991, it has been perceived                 
  that the  high interest rates could provide an incentive for                 
  "people to  intentionally overpay"  taxes in  order to  take                 
  advantage of a rate  of return that could not be achieved in                 
  the market.   That is the  reason the issue is  addressed in                 
  this legislation.                                                            
                                                                               
  Ms. Vogt next directed attention to  CSSB 161 (Jud) and said                 
  that it accomplishes neither of the Governor's purposes.  It                 
  sets a  rate for  pre-  and post-judgment  interest of  five                 
  points above  the federal  discount rate--the  intentionally                 
  high  rate  chosen  for  taxes   and  royalties.    That  is                 
  substantially higher than the rate proposed by the Governor.                 
  It is  also higher  than  what the  state  can earn  on  its                 
  investments.   The short-term  rate of return  for the  past                 
  twelve to twenty-four months has been  "in the three to four                 
  percent neighborhood rather than the eight percent" required                 
  under CSSB 161 (Jud).  The state is opposed to  the floating                 
  market indicator selected by Senate Judiciary.                               
                                                                               
  On the tax  and royalty side, CSSB 161 (Jud)  no longer does                 
  what  the  Governor  intended.    It does  not  establish  a                 
  disparate rate between underpayments and  overpayments.  The                 
  Governor   proposed   the   legislation   to   establish   a                 
  differential--an  element of federal tax  law and tax law in                 
  many states.   The Senate  Judiciary Committee removed  that                 
  provision as  well  as the  11% floor.   That  substantially                 
  lowers  accruing interest  on large,  outstanding taxes  and                 
  royalties.     As  the  legislation  presently  stands,  the                 
  administration can no longer support it.                                     
                                                                               
  Ms. Vogt next spoke to Amendment  No. 2.  She explained that                 
  current  law  and  proposed   amendments  submitted  by  the                 
  Governor  use  the  language  "percentage  points  above the                 
  federal  discount  rate."    CSSB  161 (Jud)  uses  "percent                 
  above."    That  could be  construed  to  mean  that if  the                 
  discount  rate  is  three  percent,  five percent  of  three                 
  percent  is .15  percent--a tremendous  difference  from the                 
  original intent.   Amendment No.  2 thus replaces  "percent"                 
  with "percentage points above" throughout the legislation.                   
                                                                               
  Senator  Rieger  asked  if constitutional  issues  would  be                 
                                                                               
                                                                               
  raised  by application  of differential  rates  of interest.                 
  Ms. Vogt explained that legislation proposed by the Governor                 
  did  not differentiate between  "types of civil  suits."  It                 
  differentiates between underpayment and overpayment of taxes                 
  and  royalties.   She  further  acknowledged that  royalties                 
  involve civil dispute.  That  question was addressed in 1991                 
  when royalties were separated out  of other civil litigation                 
  and "lumped together  with taxes," for purposes  of interest                 
  rates.                                                                       
                                                                               
  Discussion followed  between Senator Rieger  and Mr.  Meyers                 
  regarding  differential  rates.   Mr.  Meyer noted  that the                 
  Internal Revenue Services and ten states use different rates                 
  for underpayment  and overpayment.   Rates  average 15%  for                 
  underpayment and 9% for overpayment.                                         
                                                                               
  In response to  an additional question from  Senator Rieger,                 
  Ms. Vogt  explained that  AS 45.45.010 sets  both the  legal                 
  rate  of interest  and the usury  rate.   The legal  rate is                 
  currently 10.5%.  Usury statutes  speak to five points above                 
  the federal discount  rate.  That  was not changed in  1991.                 
  Those provisions were  merely incorporated into the  tax and                 
  royalty  statute.    Further discussion  of  the  usury rate                 
  followed.                                                                    
                                                                               
  Responding  to  a  question from  Co-chair  Frank,  Ms. Vogt                 
  advised that  CSSB 161  (STA) is similar  to the  Governor's                 
  bill, with minor changes.                                                    
                                                                               
  In further discussion of changes within CSSB  161 (JUD), Ms.                 
  Vogt explained that the  Governor proposed interest equating                 
  to  the  federal  reserve  discount   rate,  plus  two,  for                 
  overpayments.  Senate Judiciary changed that to five points-                 
  -current law.   For underpayments current law  requires "fed                 
  plus five or 11%, whichever is higher."                                      
                                                                               
  Co-chair Frank asked  why the federal reserve  discount rate                 
  was not  used for pre-  and post-judgment interest  as well.                 
  Ms.  Vogt  said  that  the  administration  based   judgment                 
  interest on federal  treasury bills  since that standard  is                 
  used by the  federal court system.   It is currently  3.49%.                 
  She then  distributed a  tabulation (copy  on file)  listing                 
  judgment  interest rates  under the  federal  discount rate,                 
  CSSB 161 (Jud), and treasury coupons.                                        
                                                                               
  Co-chair Pearce referenced an arrangement whereby the former                 
  attorney general lowered the interest  rate on taxes owed by                 
  a taxpayer in exchange for  other considerations (statute of                 
  limitations was  mentioned).   Noting that  that action  was                 
  outside of statutory  authority, the Co-chair then  asked if                 
  changes in the  proposed bill would allow  that flexibility.                 
  Ms. Vogt said that if the  action was improper under current                 
  law,  it  would   be  improper  under  the   proposed  bill.                 
  Statutory  amendments  contained   therein  do  not  address                 
                                                                               
                                                                               
  changes   in   discretion   for   enforcement  of   interest                 
  provisions.                                                                  
                                                                               
  As a final issue, Ms. Vogt expressed concern that provisions                 
  of CSSB 161 (Jud) may no longer be consistent with the title                 
  because the legislation  is no longer confined  to judgments                 
  and  refunds  of taxes  and  royalties.   It  also addresses                 
  underpayments of those items since it removes the  11% floor                 
  and  changes the  manner in  which  interest changes  and is                 
  compounded.    Current law tracks the federal rate quarterly                 
  and is compounded quarterly.  CSSB 161 (Jud) tracks annually                 
  and is compounded annually.                                                  
                                                                               
  Discussion  followed  between Co-chair  Frank  and  Ms. Vogt                 
  regarding  pre-   and  post-judgment  interest.    Ms.  Vogt                 
  explained that, under current law, interest accrues from the                 
  date  a  suit  is  filed.    Under  both   Senate  Committee                 
  Substitutes, interest would accrue from  the date of injury.                 
  Both the original bill  and CSSB 161 (STA) set  the interest                 
  rate as of the initial event (the date of injury or the date                 
  on  which a  suit is  filed).   That rate remains  in effect                 
  until  the  date of  judgment,  at  which time  a  new post-                 
  judgment rate  is set  and continues  until  payment of  the                 
  judgment.    Under the  Senate  Judiciary version,  the rate                 
  changes.  Ms. Vogt advised that the court system staff would                 
  speak to that impact.                                                        
                                                                               
  In response to  further comments by Senator  Frank regarding                 
  interest  rates  and  inflation,  Ms.  Vogt  said  that  the                 
  administration seeks  to  find "that  number" which  neither                 
  benefits nor penalizes the party "who didn't have the  money                 
  who was supposed to have the  money."  It is not the  intent                 
  to make pre- and post-judgment  interest either a benefit or                 
  penalty  to  the litigant.    It should  provide  neither an                 
  incentive to settle nor  incentive to drag out a  lawsuit in                 
  the hope  that  interest  will  continue  to  accrue  at  an                 
  unusually high rate.   The administration believes  that the                 
  treasury  coupon  rate is  close.    Five points  above  the                 
  federal  discount rate is  too high.   Co-chair  Frank noted                 
  that the treasury  rate generally reflects the  market while                 
  the federal discount rate may be  used to effect the market.                 
                                                                               
                                                                               
  Senator  Rieger  voiced support  for  two separate  rates of                 
  interest.   He noted  that in  commercial transactions,  the                 
  value  of  possession  of  the  cash  is much  higher.    In                 
  commercial transactions the five percent premium is probably                 
  necessary as an inducement to  avoid dragging out the  case.                 
  Ms. Vogt  advised that  the  original bill  and both  Senate                 
  versions leave in current law  provisions that allow parties                 
  to contract for  different rates.   That is likely to  cover                 
  commercial litigation and is different from the default rate                 
  set in statutes.                                                             
                                                                               
                                                                               
  Mr. Meyers noted  that refunds  from the treasury  currently                 
  earn between 3 and 4%.  Those refunds are presently paid out                 
  at 11%.   Lack of fluctuation and variance  of the two rates                 
  is  costing   the  state   a  considerable   amount.     The                 
  administration is proposing  to do  no different than  banks                 
  which use different types of rates.  Since the 11% floor was                 
  established in 1991,  the state collected over  $1.7 billion                 
  in  settlements.  The interest rate  was a primary motivator                 
  in reaching agreements.  Mr. Meyer expressed concern that if                 
  rates are too low, there will be no incentive for parties to                 
  "get together."   The floating floor is  intended to provide                 
  inducement.  The department has over $3 billion in interest,                 
  relating to outstanding settlements, on the books.                           
                                                                               
  In  response  to questions  from  Senator Rieger,  Mr. Meyer                 
  advised of "provisions for failure to file or failure to pay                 
  of 5% a month, not to exceed 25%."  There are thus penalties                 
  in  addition to interest.  Penalties only arise in instances                 
  relating to filing and compliance in payment of tax returns.                 
  They  do  not apply  to  settlements whereby  taxpayers have                 
  filed and paid what they believe they owe, and the amount is                 
  in dispute.  Penalties are not imposed in those instances.                   
                                                                               
  Co-chair  Frank  inquired  regarding overpayments  following                 
  1991 interest rate changes.  Mr.  Meyers said for the period                 
  commencing  July 1,  1991,  and ending  March 15,  1992, the                 
  state paid out  $8.8 million.   For the same period  through                 
  1993, a total of  $22 million was paid.  From  July 1, 1993,                 
  to  March  15, 1994,  payments  total  $65 million.  In  one                 
  instance for which the department "paid  out a refund of the                 
  tax  of $31 million, interest  was $8 million."   On that $8                 
  million in interest,  the state treasury earned  $2 million.                 
  The taxpayer earned 11% on the refund which sat in the state                 
  treasury for two  years, and the  interest payment cost  the                 
  state $6 million.                                                            
                                                                               
  CHRIS  CHRISTENSEN,  General Counsel,  Alaska  Court System,                 
  next  came before  committee.   He explained  that CSSB  161                 
  (Jud)  establishes  an  immediate  effective  date  for  the                 
  legislation.  At the  request of the Court System,  CSSB 161                 
  (STA) provided a delayed effective date of sections relating                 
  to court judgments.   Mr. Christensen directed  attention to                 
  proposed Amendment No. 1  and explained that it  changes the                 
  effective date for judgment interest to January 1, 1995.  At                 
  the present time, court system  computers cannot perform the                 
  interest calculations required  by the bill.  They will have                 
  to be  reprogrammed, associated forms and  booklets provided                 
  to  litigants will have  to be  revised, and  personnel will                 
  have to  receive additional  training.   A six-month  window                 
  would be helpful.                                                            
                                                                               
  Reviewing  the  amendment,  Mr. Christensen  noted  need  to                 
  change the  January 1, 1995,  date to January  2, 1995.   He                 
  said that would be  in keeping with a further  change within                 
                                                                               
                                                                               
  CSSB  161 (Jud), requiring that  the interest rate change on                 
  January 2 of every year.                                                     
                                                                               
  Mr.  Christensen  further remarked  that  additional changes                 
  made  by  Senate  Judiciary  have  the  effect  of  doubling                 
  personal services  costs on  the fiscal  note from  $7.4 per                 
  year to $19.5.   Proposed Amendment  No. 1 would reduce  the                 
  note by  approximately $10.0 for  FY 95  since new  interest                 
  rates would only be  in effect for half of  the fiscal year.                 
  The  Senate  State  Affairs  bill  calls  for  two  interest                 
  calculations:   one for  pre-judgment interest  and one  for                 
  post-judgment  interest.    CSSB  161  (Jud) calls  for  the                 
  interest  rate  to be  recalculated  every year  for ongoing                 
  cases.   An individual  who is  injured and  files suit  two                 
  years thereafter and  receives a judgment three  years hence                 
  is entitled to  pre-judgment interest for  five years.   The                 
  specific rate will be different for  each of the five years.                 
  Further   if  payment  on  the  judgment  is  not  made  for                 
  approximately three years, post-judgment  interest will also                 
  be different for each  year.  In a number  of cases, instead                 
  of performing two  interest calculations,  the court  system                 
  will perform  six or  eight or  ten.   That translates  into                 
  extra  clerical  time.   The  court  system  presently makes                 
  approximately 10,000 calculations annually.   Most are small                 
  claims cases, however it takes equally  as long to calculate                 
  interest  on small  amounts  as it  does  for larger  cases.                 
  Further, the court  system is responsible  for recalculating                 
  figures presented by attorneys.  If this is not done, and an                 
  incorrect  interest  figure  is applied,  the  state  may be                 
  liable for the difference.                                                   
                                                                               
  Co-chair Pearce  queried members  concerning disposition  of                 
  the  bill.   Co-chair  Frank  voiced  a preference  for  the                 
  original bill.  Senator Rieger acknowledged that he also was                 
  more comfortable with  the original version.   Senator Sharp                 
  termed the  Senate Judiciary  version "too  fat" because  of                 
  provisions allowing for  5 points over the  federal discount                 
  rate.  That more  than doubles the market interest  rate for                 
  the past  several years.   He  voiced a  preference for  the                 
  Senate  State  Affairs  bill.   Co-chair  Pearce  asked that                 
  Senators Rieger  and Sharp  work on  an  alternate draft  to                 
  bring  back to the  next meeting.   SB 161 was  thus HELD in                 
  subcommittee.                                                                
                                                                               

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