Legislature(2003 - 2004)

03/18/2003 01:35 PM Senate L&C

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
                                                                                                                                
              SB  86-INTEREST ON DELINQUENT TAXES                                                                           
                                                                                                                                
CHAIR CON  BUNDE called  the Senate  Labor and  Commerce Standing                                                             
Committee meeting  to order at 1:35  p.m. and announced SB  86 to                                                               
be up  for consideration. Present were  Senators Seekins, French,                                                               
Stevens; Senator Davis was excused.                                                                                             
                                                                                                                                
SENATOR WILKEN, sponsor, related to the committee that:                                                                         
                                                                                                                                
     SB 86  was brought to  him by  a constituent and  is an                                                                    
     act relating to the  interest on delinquent taxes. When                                                                    
     a  business  in Alaska  submits  a  tax report  to  the                                                                    
     Department  of  Revenue,  the  department  reviews  the                                                                    
     report to insure  its accuracy. When an  error is found                                                                    
     in a  report resulting in  an under payment or  an over                                                                    
     payment in  the taxes, an  interest of 11%  is attached                                                                    
     by statute.  This interest rate  is set in  statute, AS                                                                    
     43.22.05,   which   mandates   the  interest   on   the                                                                    
     delinquent taxes  to be 5  percentage points  above the                                                                    
     District  12   Discount  Rate  or  11%,   whichever  is                                                                    
     greater.                                                                                                                   
                                                                                                                                
     SB  86  proposes  to eliminate  the  reference  to  11%                                                                    
     interest and  retain the  12th District  Discount Rate,                                                                    
     plus  5% as  the  formula for  calculating interest  on                                                                    
     delinquent  taxes.  This  will  establish  a  fair  and                                                                    
     reasonable method  of calculating interest  by allowing                                                                    
     it  to  float  with  the   market.  We  believe  it  is                                                                    
     inappropriate  to  charge  Alaskans 11%  on  delinquent                                                                    
     taxes, especially since  many delinquencies result from                                                                    
     honest mistakes, as you will hear today.                                                                                   
                                                                                                                                
     Another  disturbing  practice  is that  the  department                                                                    
     often doesn't find the discrepancy  in a tax report for                                                                    
     two  or three  years. Unfortunately,  for the  business                                                                    
     owner, the 11%  interest accrues from the  date the tax                                                                    
     report  was filed,  not the  date  the discrepancy  was                                                                    
     discovered.                                                                                                                
                                                                                                                                
     According  to the  Department  of  Revenue, the  fiscal                                                                    
     impact to  the state  as a  result of  this legislation                                                                    
     will be  marginal. The  state will  receive a  fair and                                                                    
     reasonable interest  from the delinquent  taxpayers and                                                                    
     will  also  pay  a  fair  and  reasonable  interest  on                                                                    
     refunds to tax payers.                                                                                                     
                                                                                                                                
CHAIR  BUNDE   asked  what  were   the  typical   interest  rates                                                               
throughout the nation when the 11% was first set.                                                                               
                                                                                                                                
MR. DARWIN  PETERSON, Staff to  Senator Wilken, replied  that the                                                               
interest rate was higher than  that. The interest rate in statute                                                               
was simple 8%  until the legislation was enacted  that changed it                                                               
to 5% above the 12th District  Discount Rate or 11%, whichever is                                                               
greater.                                                                                                                        
                                                                                                                                
CHAIR BUNDE asked what the discount rate was then.                                                                              
                                                                                                                                
MR. PETERSON  replied in 1980  the discount  rate was 12%  in the                                                               
12th District.                                                                                                                  
                                                                                                                                
SENATOR STEVENS asked how this  legislation would change the date                                                               
of filing  for the charges  starting to  accrue if a  mistake had                                                               
been made.                                                                                                                      
                                                                                                                                
MR.  PETERSON replied  that  all  this bill  does  is change  the                                                               
interest rate.  The fact  that it takes  the department  years to                                                               
discover  a mistake  begs  the question  that  could be  answered                                                               
under separate legislation  at the end of the  budget process. He                                                               
understands that  statute requires  the department to  discover a                                                               
mistake within  three years.  Since that is  what is  in statute,                                                               
the department often  waits and reviews tax reports  when it gets                                                               
close to  the statutory  deadline. It was  20 months  before they                                                               
realized  there  was  an  honest  mistake  in  Mr.  Walker's  tax                                                               
reports. At that  time the 11% interest rate had  accrued for the                                                               
entire 20 months.                                                                                                               
                                                                                                                                
SENATOR STEVENS  continued saying that  if it's a  floating rate,                                                               
it could be greater or lesser  than when the mistake was actually                                                               
filed. This would base it on when it was discovered.                                                                            
                                                                                                                                
SENATOR  SEEKINS said  this  would  also have  an  effect on  the                                                               
interest  the state  pays  for overpayments  of  taxes and  asked                                                               
where that would tie in statutes.                                                                                               
                                                                                                                                
MR. PETERSON  said that the state  is also liable for  the 11% if                                                               
there is an overpayment of taxes.                                                                                               
                                                                                                                                
SENATOR SEEKINS  asked if  they had considered  putting a  cap on                                                               
the rate.                                                                                                                       
                                                                                                                                
MR. PETERSON said that is a possibility.                                                                                        
                                                                                                                                
MR.  DAN   DICKENSON,  Director,  Tax  Division,   Department  of                                                               
Revenue, said  he wanted to  give them  a little history  of this                                                               
section of the law.                                                                                                             
                                                                                                                                
     Up  until 1980,  if the  taxpayer underpaid  his taxes,                                                                    
     interest was  calculated at 12% simple  interest when a                                                                    
     company  finally  paid  the  amount  due.  As  Governor                                                                    
     Hickel characterized  this situation in his  March 1991                                                                    
     letter  of transmittal  for the  bill that  resulted in                                                                    
     the  current law,  he said  the state  ends up  loaning                                                                    
     billions  of dollars  to  its tax  payers  at very  low                                                                    
     interest rates.                                                                                                            
                                                                                                                                
     As everyone knows,  a huge backlog built up  of oil and                                                                    
     gas  taxes over  the state.  I  was able  to locate  an                                                                    
     accounts receivable payment from  March 1991 that shows                                                                    
     $3.6 billion  dollars in outstanding taxes.  As you can                                                                    
     imagine, over  $3 billion  of that was  in oil  and gas                                                                    
     back taxes.                                                                                                                
                                                                                                                                
     The   legislature  and   administration  made   a  good                                                                    
     decision  in  1991; they  changed  the  law. They  made                                                                    
     three cases.  First of  all interest  was moved  from a                                                                    
     simple   to  more   standard  commercial   practice  of                                                                    
     compounding interest.  The change to  compound interest                                                                    
     made  a dramatic  difference in  the  interest owed  on                                                                    
     long  delayed cases.  Second, interest  was defined  as                                                                    
     the federal  reserve inter-bank rate  plus 5% or  - and                                                                    
     this third point  is the interesting point  - a minimum                                                                    
     of 11%. This  change was designed to  get the attention                                                                    
     of companies that had been  underpaying their taxes and                                                                    
     it did.                                                                                                                    
                                                                                                                                
     At the same  time, in 1991, a change was  made in Title                                                                    
     38 putting  oil and  gas royalties  on the  same higher                                                                    
     intra bank rate  or 11% compounded. Over  the next five                                                                    
     years,  $3.5 in  back taxes  and royalties  flowed into                                                                    
     the CBRF, the constitutional  budget reserve fund and a                                                                    
     whole  different  attitude  became  apparent.  Clearly,                                                                    
     there was more than just  interest rate changes at work                                                                    
     in  this  situation, but  it  is  also clear  that  the                                                                    
     interest rate change played a significant role.                                                                            
                                                                                                                                
     Now,  in  2003,  our  accounts receivable  in  the  tax                                                                    
     division is $71  million or about 2% of what  it was in                                                                    
     1991. So  now it's time  for another good  decision, to                                                                    
     bring  the  interest rates  more  in  line with  market                                                                    
     rates. I don't think this  will bring about a return to                                                                    
     backlog. Since this change  sticks with compound rates,                                                                    
     tax  payer  delay will  rapidly  become  more and  more                                                                    
     expensive to the  tax payer. This bill  does not change                                                                    
     the interest  rate on  tax due  oil and  gas royalties.                                                                    
     This  legislation  simply  eliminates the  11%  minimum                                                                    
     rate on taxes and allows the  rate to float at 5% above                                                                    
     the federal reserve's intra-bank  rate. And just as the                                                                    
     new  rate  structure applies  to  back  taxes owed  the                                                                    
     state, it would also apply  to certain tax refunds paid                                                                    
     by  the  state,  thereby  saving  us  some  money.  The                                                                    
     administration supports  this bill and urges  you to do                                                                    
     the same.                                                                                                                  
                                                                                                                                
CHAIR BUNDE asked him to comment on language stating that the                                                                   
clock starts ticking at the time the taxes are filed rather than                                                                
when the error is found.                                                                                                        
                                                                                                                                
MR. DICKENSON,  in response, asked  the committee to "put  on the                                                               
glasses"  of  a  large  corporation who  is  paying  hundreds  of                                                               
millions of dollars  in taxes to the state.  There are frequently                                                               
conceptual problems  about how things  get characterized  in both                                                               
royalty  or  the  tax  situation.  These  are  sophisticated  tax                                                               
requirements and sophisticated royalty payers.                                                                                  
                                                                                                                                
     In those  situations, we don't  want to have  the state                                                                    
     essentially lending  money to  the companies;  in other                                                                    
     words,  have  the companies  underpay.  We'll  be in  a                                                                    
     dispute  with them  for  a year  or  two, three,  four,                                                                    
     these can  go on, and,  then when it's  finally agreed,                                                                    
     then  the  interest clock  starts  to  run. The  notion                                                                    
     should be that when a tax  amount is agreed upon, we go                                                                    
     back and look  when that was due and we  make sure that                                                                    
     the company doesn't gain any  advantage from not having                                                                    
     paid  when   it  was  due.  That's   a  very  different                                                                    
     perspective than  the small business owner  who perhaps                                                                    
     made an  inadvertent error and  is faced with  the same                                                                    
     situation.                                                                                                                 
                                                                                                                                
CHAIR BUNDE  asked what  would preclude  the interest  clock from                                                               
starting  to tick  the  moment  you found  an  error rather  than                                                               
waiting until after everything was litigated.                                                                                   
                                                                                                                                
MR. DICKENSON  replied that  nothing would  preclude it  and that                                                               
would  set a  small advantage  for the  companies for  not paying                                                               
their taxes.                                                                                                                    
                                                                                                                                
     What it would  really do is totally change  the way the                                                                    
     division was  organized and approaches  problems. Right                                                                    
     now when we, and I'll  just use Exxon, because everyone                                                                    
     understands that  they're a tax payer  here and they're                                                                    
     the world's   largest industrial organization.  When we                                                                    
     audit them,  we don't want  to be going in  every month                                                                    
     and -  the pay production  tax as  a monthly tax  - and                                                                    
     try to catch  the errors so that we  start the interest                                                                    
     clock running. We  wait until we have  a two-year cycle                                                                    
     and go  in, step  back, look  at it  closely, sometimes                                                                    
     subsequent  events have  occurred  that are  important,                                                                    
     sometimes we need to hire  experts that understand some                                                                    
     aspects of the business.                                                                                                   
                                                                                                                                
     We are  certainly organized around a  principle that if                                                                    
     a  company  has  underpaid,  we  can  be  thorough  and                                                                    
     careful and make sure that  we get the right amount and                                                                    
     that we're not  penalized for taking the time  to do it                                                                    
     correctly. If we  were to change the  statute, we would                                                                    
     have to  think about our  emphasis and think  about how                                                                    
     dealt with the timeliness  of findings and pointing out                                                                    
     these kinds of errors...                                                                                                   
                                                                                                                                
SENATOR FRENCH asked  where the statute says  the refund interest                                                               
rate is set the same as the delinquent tax.                                                                                     
                                                                                                                                
MR.  DICKENSON replied  AS 43.05.280  - Interest  on overpayments                                                               
(a) -  Interest shall be  allowed and  paid on an  overpayment of                                                               
tax under  this title at the  rate and the manner  provided in AS                                                               
43.05.225, section 1.                                                                                                           
                                                                                                                                
SENATOR FRENCH  said the  fiscal note  spoke about  the potential                                                               
difference of  close to $1 million  per year in the  amount going                                                               
to the constitutional budget reserve  and asked him to comment on                                                               
that.                                                                                                                           
                                                                                                                                
MR.  DICKENSON replied  that it's  hard to  estimate because  the                                                               
number of payments  is fairly small and the  volatility is fairly                                                               
high. Interest is  about one third of the dollars  going into the                                                               
CBRF and that  could change because the division  is getting more                                                               
and  more caught  up, currently  auditing 2000  and 2001  for the                                                               
major companies and 2002 for some  of the smaller ones. They also                                                               
need to  look at  what future  interest rates  are going  to look                                                               
like. Most  folks think  we're at  an historic  low and  it's not                                                               
safe to use the 7.25%, which  is what the interest rate is today.                                                               
Using  assumptions, they  came up  with a  ballpark figure  of $1                                                               
billion.                                                                                                                        
                                                                                                                                
     In the income tax arena,  we based our analysis on what                                                                    
     the  IRS does.  They are  much further  behind than  we                                                                    
     are.  So, let's  say  we got  notice  of an  adjustment                                                                    
     [indisc.] to  1993 and  made a  tax adjustment  and the                                                                    
     taxpayer  paid us  more tax  based on  that. From  1993                                                                    
     until the  effective date  of this  law, you'd  use the                                                                    
     11% and then  for the number of months  after that, you                                                                    
     would drop  down and use  the 7.25%. So, for  the first                                                                    
     couple of  years, you see  almost no drop in  the CBRF,                                                                    
     but then as you go  out several years, that's where you                                                                    
     see the drop in [indisc.] and perhaps even go over it.                                                                     
                                                                                                                                
SENATOR FRENCH asked how he picked the fed plus 5% figure.                                                                      
                                                                                                                                
MR. DICKENSON replied that he  wasn't directly involved with that                                                               
legislation, but they  take what someone characterized  as a risk                                                               
free rate  and added 5%. Credit  card rates are much  higher than                                                               
that.                                                                                                                           
                                                                                                                                
CHAIR BUNDE asked if they wanted  to keep enough penalty "to keep                                                               
a careful pencil."                                                                                                              
                                                                                                                                
MR. DICKENSON  replied that is  exactly right. He added  that the                                                               
Supreme Court has ruled that  interest has no punitive aspects to                                                               
it; it is merely the time value of money.                                                                                       
                                                                                                                                
MR.  WAYNE  WALKER,  President, A&W  Wholesale,  thanked  Senator                                                               
Wilken and  Mr. Peterson  for working on  this issue  and thanked                                                               
the Department  of Revenue for  trying to help him.  He explained                                                               
that since  1970 he has  been the  sole respondent in  filing the                                                               
tax returns for his company on  cigarettes and they have as clean                                                               
a business as  anybody. A precedent was set by  the Department of                                                               
Revenue that  within a  few weeks  after receiving  their filing,                                                               
the department would  send a letter on whether  it was overstated                                                               
or  understated and  penalties and  interest and  by the  time of                                                               
their next  month's filing,  they were  expected to  pay whatever                                                               
they owed  including penalties  and interest.  That went  on from                                                               
1970  at least  through 1995  and  maybe further.  The report  in                                                               
question  was  sitting  somewhere   for  20  months  before  they                                                               
received a  report from  the Department of  Revenue. If  they had                                                               
received  a report  from them  sooner, the  fine would  have been                                                               
paid immediately.                                                                                                               
                                                                                                                                
MR. WALKER  said the first  letter he  received was for  what was                                                               
owed  on the  cigarettes,  which was  almost  $16,000. Five  days                                                               
later, they got  another letter adding $3,000  worth of interest.                                                               
The reason  they were upset  is because they  couldn't understand                                                               
why 20 months  passed when there was 25 years  worth of precedent                                                               
of a couple of weeks. He said also  it came at a bad time for his                                                               
company as  they had discontinued  selling cigarettes  almost two                                                               
years ago, which  means they didn't have the cash  flow they used                                                               
to have.                                                                                                                        
                                                                                                                                
CHAIR BUNDE thanked him for  his testimony. There were no further                                                               
testifiers  and he  announced that  he  would hold  the bill  for                                                               
further work.                                                                                                                   

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