Legislature(1997 - 1998)

06/14/1997 02:00 PM Senate JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
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        SJR 18 - CONST. AM: PERM. FUND INCOME & DIVIDEND                       
                                                                               
CHAIRMAN ROBIN TAYLOR called the Senate Judiciary Committee meeting            
to order at 2:00 p.m. and announced SJR 18 to be up for                        
consideration.                                                                 
                                                                               
SENATOR GREEN, sponsor of SJR 18, said there is a fear among people            
that something is going to be done to the Permanent Dividend Fund              
that people haven't had input on or that the legislature might at              
some point use the Permanent Fund for something other than what                
they think it's intended.  Most people already think that nothing              
can be done with the Permanent Fund without their vote, but that               
isn't the case.  SJR 18 corrects that and makes sure that the                  
people are consulted before anything is done with the Permanent                
Fund.                                                                          
                                                                               
MR. TUCKERMAN BABCOCK, former staff to Senator Green, explained                
that SJR 18 does not propose a change to the existing management of            
the earnings of the Permanent Fund, except for the statutory basis             
which now can be changed any time by 11 senators, 21                           
representatives and a signature of the Governor.  SJR 18 changes it            
to a constitutional basis requiring 14 senators, 27                            
representatives, and a vote of the people before any changes could             
be made to the Permanent Fund.                                                 
                                                                               
The effect of this change would be to take the spending of                     
dividends and the spending of inflation-proofing off the table                 
unless the voters approve changing it.  It also adds the                       
requirement that left-over money (undistributed income) can only be            
spent if the voters approve it.                                                
                                                                               
SJR 18 is good public policy, he said, because for the last 18                 
years fear has been a big part of the process and it would                     
eliminate the confusion about what to do with the undistributed                
income and how that might affect the dividend.  There is no change             
to the status, definition or earnings.  It only makes it a                     
constitutional  basis instead of a statutory basis.                            
                                                                               
MR. BABCOCK suggested that the Committee might want to add findings            
to SJR 18 clearly describing the public purposes behind the                    
dividend, inflation proofing, and undistributed income.                        
                                                                               
MR. JIM KELLY, Director, Communications, Alaska Permanent Fund                 
Dividend Corporation, cautioned the Committee that this legislation            
might weaken the State's long-standing position that fund income is            
not subject to federal taxation.  Secondly, he said, that in the               
future legislators might wish to move away from a distribution                 
policy tied to fund earnings to something other like market value              
which a lot of endowments do now.  The Investment Policy Options               
Committee is in the process of doing extensive review on that very             
topic, but hasn't made a recommendation yet.                                   
                                                                               
He also noted that the Permanent Fund is made up of two parts, the             
principal, which is protected by the Constitution, and the income,             
all of which is subject to appropriation by the legislature every              
year.                                                                          
                                                                               
MR. RON LORENSON, Private Attorney, said he was concerned that the             
income would be subject to federal income tax.  They have always               
taken the position that it isn't, but there is no guarantee that               
that will continue to be the case.  A real concern is that a change            
in the purpose of the fund could increase arguments in favor of its            
being taxable right now.                                                       
                                                                               
There are a couple of issues in question.  One is whether or not               
the income accrues to the State or does the legislature have access            
to that income which it does under the present arrangement.  Under             
the proposed constitutional amendment, a significant portion of                
that income would be taken off of the legislature's plate which                
disqualifies it as income accruing to the State.                               
                                                                               
Another way to approach this question as to whether the income from            
a governmental fund accrues to the State is to analyze whether or              
not any part of that income is subject to any private interests.               
Now there are no private interests that have any right to any part             
of the income of the fund.                                                     
                                                                               
SENATOR GREEN asked for clarification.                                         
                                                                               
MR. LORENSON explained that the dividend is created by statute so              
the legislature has the ability to modify the dividend and having              
that ability defeats the argument that there's a private interest.             
                                                                               
SENATOR GREEN asked what is a private interest.                                
                                                                               
MR. LORENSON explained that a private interest belongs to someone              
who is not part of government, like a private individual or                    
corporation.  If the Permanent Fund dividend is established by the             
constitution as an absolute right of every resident of the State,              
you would substantially strengthen the argument that you have                  
created a private interest in that income.  These two things                   
certainly enhance the potential for the argument that the income of            
the fund would be taxable under federal law.                                   
                                                                               
The other approach that's used by the courts and the IRS in looking            
at whether or not income of a government is taxable is if the                  
entity provides official governmental services or functions.                   
Changing the constitution would at least weaken our argument that              
the purpose of the Permanent Fund is to provide some sort of                   
essential  governmental functions or services.  Right now all of               
the income is available to the legislature for appropriation for               
those purposes  with the intent that the legislature determines                
what is necessary.                                                             
                                                                               
CHAIRMAN TAYLOR asked what type of tax structure we would be                   
looking at if the people decided to vote for more protection for               
the Permanent Fund.                                                            
                                                                               
MR. LORENSON replied that he hasn't tried to study that and he is              
not a tax expert, although he has assumed it would be the corporate            
rate.                                                                          
                                                                               
CHAIRMAN TAYLOR asked him to check on that for the committee.                  
                                                                               
SENATOR GREEN asked if there is an annual review by the federal                
government of the Board and the vulnerability of that status.                  
                                                                               
MR. LORENSON replied that he wasn't aware of any.                              
                                                                               
SENATOR GREEN asked what was the difference between declaring the              
dividend and declaring it in advance.                                          
                                                                               
MR. LORENSON explained that the important difference was who has               
control over whether there will be a dividend and what it will be.             
Right now the legislature retains the control each year.  Under the            
constitution, the ability to make those decisions will be taken                
away from the legislature.                                                     
                                                                               
SENATOR TAYLOR explained that income from a revokable trust, for               
instance, is taxable.  An irrevocable trust is not taxable.  Part              
of his concern is that the dividend is less than 50% of the income             
that comes in because of five-year averaging and the inflation                 
proofing and the undistributed income account.  Vesting this right             
to every individual citizen might very well make this thing                    
taxable.  If we did, the IRS would tax the Permanent Fund for the              
full amount of income, about $700 million.  He thought they should             
really look at this.                                                           
                                                                               
MR. LORENSON concurred with his comment.  He said he didn't really             
have a solution to this problem.                                               
                                                                               
SENATOR TAYLOR asked if anyone has requested an advisory opinion               
from the IRS.                                                                  
                                                                               
MR. LORENSON replied that no one had done that because of wanting              
to stay low on the IRS radar scope.                                            
                                                                               
MR. DWAIN R. CARNEY said he thought this legislation was stupid.               
He said they elect legislators to spend some money sometimes.  To              
have an election every time they want to spend some extra money                
would be expensive and time consuming.  He also thought we ought to            
spend some of the money for prevention, maintenance, and                       
infrastructure instead of saving it.                                           
                                                                               
SENATOR TAYLOR said he thought that there was a lot to be said for             
the original purposes for which the fund was set up which was to               
provide for what everyone believed would occur, the down turn of               
the oil economy in Alaska and to have a fund available for the                 
rainy day.  And that's exactly what's happening.                               
                                                                               
MR. CARNEY said he didn't see where all the fear was that it was               
going to get spent.                                                            
                                                                               
MR. CARL CONDOR, SR. said they should make every effort to make any            
issue perfectly clear to the people who are going to vote on it.               
Right now the packet they have is not enough, especially if what               
Mr. Lorenson says is true.  He thought protecting the dividend and             
inflation proofing was a good idea.  He thought the legislature                
should have some leeway.  He felt if they just did something with              
public safety with what's left over, they will have accomplished               
something and lived up to the voters.  Public safety is the number             
one item under any government.                                                 
                                                                               
MS. HOLLY GERLACK testified that what bothers her according to what            
Mr. Lorenson said is that the government is somehow separate from              
us, the people.  She asked if Senator Green introduced the                     
legislation because the legislature wasn't doing its job.  Why                 
introduce this law if the legislators are listening to the people?             
                                                                               
TAPE 97-38, SIDE B                                                             
Number 001                                                                     
                                                                               
MS. GERLICK said she was concerned with the assumption that the                
money would become private if we, the people, have some say in how             
it's spent.  She also wanted to know why the proceedings with the              
Permanent Fund are kept confidential.                                          
                                                                               
SENATOR TAYLOR said he didn't really know, but imagined there were             
some situations where an investment might affect the price of a                
stock if it were public information, as in insider trading.  He                
noted that the FTC closely monitored information that was let out.             
                                                                               
He also said that the legislature had never appropriated any of                
those monies for any purpose other than to put them back into the              
Fund.  The money has never been used for a special project.                    
                                                                               
MR. JOHN MURPHY said he understood that by 2018 there would be                 
enough money in the Permanent Fund to perpetuate for eternity.  He             
preferred to take his chances for better or worse for what the                 
dividend turns out to be, but he didn't want the legislature to                
control that.  He also asked why we have to go to the IRS and ask              
them how to run our State.  This is not income that we earn.                   
                                                                               
SENATOR GREEN responded that it's because of the way the Permanent             
Fund was set up as a business that operates independently.                     
                                                                               
CHAIRMAN TAYLOR added that every state and city has an independent             
savings account which is invested and taxes aren't paid on those.              
                                                                               
MR. MURPHY said he thought the IRS issue was just a scare tactic               
that had no founding in fact.                                                  
                                                                               
SENATOR GREEN said she wanted to make sure that he didn't construe             
this as capping the Fund.                                                      
                                                                               
MR. WALTER FERGUS said when the legislature gets to the point where            
they can no longer provide the services the State is required to               
serve like roads, public safety and education, that's the time to              
use the Permanent Fund.  He wanted to see the people have a vote               
also, but didn't want to have to pay federal taxes.                            
                                                                               
CHAIRMAN TAYLOR said that Alaskans are in a higher tax bracket than            
anyone else in America.  He thought we should have to ask those                
folks who work if they want taxes increased and if they want it to             
come out of the Permanent Fund.                                                
                                                                               
MR. MARVIN B. COOK said he thought the State government had certain            
innate functions that must be performed, but it is the mark of                 
socialism if a government owns the wealth-making properties of a               
state or nation.  We are not supposed to be a socialist government,            
we are supposed to have the freedom of a republic.  We don't have              
the freedom to own the oil wealth in the State of Alaska, nor the              
coal wealth.  That is an abomination that should be corrected.                 
                                                                               
Funding an educational endowment is symptomatic of a socialist                 
government.  He did not want the governor or anyone else                       
establishing a fixed education trust to pay all the money the                  
education establishment wants.  The State Legislature should                   
eliminate whatever power they have over the education establishment            
of the State and put that power in the hands of the local                      
communities and let them run it so we can have true education                  
again.                                                                         
                                                                               
MR. COOK also said that he supported this year's legislature.                  
                                                                               
CHAIRMAN TAYLOR said he agreed with his socialist comments because             
a government shouldn't own anything but the buildings government               
sets in and a DOT warehouse to make sure the road grader is out of             
the rain.  They don't need to own anything else.  Lands in the                 
original 15 states are owned privately except for land that was                
purchased by the government from the state and private people who              
owned it.  This is why he introduced a bill to give away 103                   
million acres of land and put it into private ownership.                       
                                                                               
MR. CHARLIE HUGGINS supported Mr. Cook's testimony.  He supported              
this year's legislature.  He thought there might be a tax                      
liability, but he thought that could be determined and suggested               
calling a tax consultant who could give them just as good an                   
opinion as an IRS person.                                                      
                                                                               
MR. BRUCE KNOWLES supported SJR 18.  He thought that legislators               
loose touch with their homes when they go to Juneau.                           
                                                                               
MR. LEO KAYE supported SJR 18.  He thought it was good for issues              
to go back to the people for a vote.  He thought that too often we             
don't have the opportunity.                                                    
                                                                               
MR. ROY BURKHART said his Board of Directors voted unanimously to              
congratulate the legislature on the good job they did last year.               
He agreed with Senator Taylor regarding private lands.                         
                                                                               
MS. JUNE BURKHART said it's exciting to be part of the process                 
using faxes, computers, telephones and working with people like                
Senator Green and Representative Osterman.                                     

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