Legislative Update: What Made It Through the 2019 Session

Vetoed Bills

Recently, an alert and concerned reporter, when visiting the offices of Senate Ways and Means Committee Chair Donovan Dela Cruz, spotted a whiteboard with 14 bill numbers written on it.  All of the bills are supposed to be revenue raisers, so we thought it important to share them.  (Yes, I know that a “dozen” is 12, but two of them were already dead when we got the list, and Donovan’s Fourteen doesn’t sound catchy.  That’s my story, and I am sticking to it.)

So here they are, in order of bill number:

Closing the REIT Loophole?  Real Estate Investment Trusts, or REITs, are allowed under federal tax law to pay no tax at the corporate level if they distribute their net earnings to their shareholders as dividends.  The Feds receive one layer of federal tax.  Our state generally conforms to the REIT law, but we tend to miss out because the REIT doesn’t pay state income tax and its shareholders are taxed on their dividends where they live, which generally isn’t in Hawaii.  SB 301 proposes to fix this by treating REITs as regular corporations.  Proponents say it closes a giant loophole.  Opponents note that REITs have invested lots of money in Hawaii and passing an extra tax will cause them to pack up and leave.

Resort Fees as a Price of Lodging?  Many resorts in the U.S. and other countries charge “resort fees” as the price of hotel amenities and services.  Our Tax Department has taken the position that if the fees are mandatory for a guest staying the night, they are part of the room rate and subject to 10.25% Transient Accommodations Tax.  SB 380 proposes to write into law that mandatory resort fees are subject to TAT.  A similar bill passed last year without the word “mandatory,” meaning that meals, Internet service fees, in-room movies, and similar items would be subject to TAT.  The Governor vetoed last year’s bill.

We Don’t Like the Timeshare Tax Formula, So Let’s Double It!  TAT applies as well to timeshare owners occupying their own units.  Because there is no room rate, it applies to half the average daily maintenance fee for a week.  The Department is saying this amount is grossly inadequate, but it apparently never made use of a procedure in existing law to challenge the formula.  SB 382, instead, applies the tax to 100% of the average daily maintenance fee.  (This measure is dead, but its substance may appear in other bills.)

All Aboard for Single Sales Factor!  When businesses operate in many states, it’s always a challenge to figure out how much business is taxable by each state.  Most states take a weighted average of the property factor (how much property is in the state divided by how much property is everywhere), payroll factor, and sales factor and multiply it by net income from everywhere to yield net income taxable in the state.  The classic formula, which Hawaii now has, is an equally weighted average.  Most states have upweighted the sales factor, and 31 states ignore the other two factors, at least for some classes of taxpayers.  The basic idea is that the formula would favor those who export.  SB 394 would have Hawaii join the 31 states.

Conveyance Tax on Short Commercial Leases:  Hawaii imposes conveyance tax when real property is sold or leased and the deed or lease is then recorded.  We presently exempt leases of less than five years from the tax, although leases for more than one year need to be recorded.  SB 395 would restrict the exemption to residential leases one year or less and would repeal the exemption altogether for commercial property.  For leases the tax is applied to the present value of rent payable under the lease, capitalized at 6%.

We Got Online Sellers, Now Let’s Go for Their Marketplaces:  Previously, online sellers could offer products to Hawaii customers without paying Hawaii tax.  That gave them an advantage over local stores.  Last year, following a state-friendly U.S. Supreme Court ruling, our state adopted a law requiring many of those businesses to register and pay general excise tax.  The businesses then said they would pay tax on their own sales but wouldn’t if they were merely representing sellers didn’t have to pay tax to Hawaii.  SB 396 solves that problem by taxing the marketplace provider as if it sold the product directly.  This bill already has been sent to the Governor’s desk.

And Let’s Not Forget Income Tax:  When our state adopted the law last year on the heels of the favorable Supreme Court decision, as described in the previous paragraph, the law applied to general excise tax only.  SB 495 would create a similar law that applies to income tax.  But wait – we have other tax types too, such as Franchise, Public Service Company, or Transient Accommodations, so what are we going to do about them?

You Foreign? You Withhold!  When a nonresident sells real estate in Hawaii, our laws require withholding of 7.25% of the gross price.  That way, it’s less likely that the owner would be able to skip town without paying state taxes, such as income tax on capital gains.  Under current law, entities, such as corporations and partnerships, are exempt from withholding if they register with our DCCA even though they might have been formed in another state.  SB 712 subjects foreign entities to this withholding scheme whether they registered with DCCA or not. 

Online Travel Companies Beware, We’ll Get Our TAT Yet!  Suppose an online travel company (OTC) sells a hotel room to a tourist for $150 a night and pays the local hotel $120.  The hotel pays TAT on the $120.  After years of litigation, the Hawaii Supreme Court ruled that the OTC doesn’t pay TAT on the $30 because it’s not a hotel or a hotel operator.  SB 714 would require the OTC to pay TAT on the $30.  It also contains the substance of SB 380 and SB 382, previously discussed.  (This measure is dead, but its substance may appear in other bills.)

The “AirBnB Bill” Returns Yet Again:  This bill is about “transient vacation rentals,” from bed and breakfast establishments to people just wanting to rent out a room in their house for a little extra money to help make ends meet.  Those who do so are confronted with state laws imposing GET and TAT on the proceeds, and county zoning laws that often forbid TVR use in residential properties altogether.  A bill passed in 2016 proposed to allow TVR platforms such as AirBnB and Flipkey to collect and pay over the state taxes, but the bill was vetoed because of county objections.  This incarnation of the bill, SB 1292, would require the platforms to collect and pay over the tax and provides a citation process with monetary fines for hosts who do not register.

Do we Really Trust Foreigners to Pay Tax?  Currently, we don’t tax Subchapter S corporations, but we do tax their shareholders.  To ensure that non-Hawaii shareholders pay appropriate business taxes, we ask that they file a statement that they will file Hawaii returns and pay taxes.  If they don’t, we withhold Hawaii tax at the company level.  SB 1360 applies the same concept to partnerships, estates, and trusts, except we don’t give the out-of-state partners and beneficiaries the option.  We will just withhold.

When the Certainties in Life — Death and Taxes — Happen at the Same Time:  SB 1361 hikes the maximum estate tax rate to 20%, which would be tied for the highest state estate tax rate in the country.  The rate would kick in for taxable estates over $10 million.  This bill already has been sent to the Governor’s desk.

Jacking Up Conveyance Taxes Again:  Conveyance tax is imposed whenever Hawaii real estate is sold or leased.  SB 1362 proposes to hoist the tax on a condominium or single-family residence for which the owner is not eligible for a county homeowners’ exemption.  For properties $2 to $4 million, the tax would go from 0.6% to 1%, an increase of 67%.  For properties $4 to $6 million, the tax would go from 0.85% to 2%, an increase of 135%.  For properties $6 to $10 million, the tax would go from 1.1% to 3%, an increase of 172%.  For properties $10 million or more, the tax would go from 1.25% to 4%, an increase of 220%. 

A Half Penny for the Keiki!  We’ve written about this before.  SB 1474 proposes a 0.5 percentage point increase in the GET in order to raise $200 million or so for K-12 schools and $50 million for the University of Hawaii.  The bill has crossed over from the Senate, but Finance Chair Sylvia Luke has been quoted as saying that the bill won’t get a hearing in the House.  This bill is probably dead.

Courtesy of the Tax Foundation of Hawaii:

Legislative Update:  Winners and Losers of the 2018 Session

We’ll now go through some of the losers, the bills that are now dead, and the winners, which have been sent up to the Governor’s office for approval or veto.

Some Bills Dead for This Session

HB 207 Status:  Dead (Estate and Conveyance Tax Hikes)

HB 1718 Status:  Dead (Nonrefundable Credit for Child Care Costs)

HB 2007 Status:  Dead (GET Exemption for Service and Maintenance Facilities for Non-Jet Aircraft)

HB 2462 Status:  Dead (GET Exemption for Sales of Farm Equipment and Machinery to Producers)

HB 2605 Status:  Dead (“AirBnB Bill” to Allow Withholding Tax on Transient Vacation Rentals)

HB 2702 Status:  Dead (Tax on Real Estate Investment Trusts)

SB 2100 Status:  Dead (Expand Solar Credit to Include Battery Backup Systems)

SB 2890 Status:  Dead (GET Applied to “Marketplace Providers”)

SB 2905 Status:  Dead (Credit for On-Site Early Childhood Facilities)

SB 2910 Status:  Dead (Loan Green Infrastructure Fund $ to State Agencies at 3.5%)

TrumpTax Is Alive and Well, but Hawaii Is Stuck in 2017

For the last sixty years, the Hawaii income tax law has conformed, to a great degree, to the federal Internal Revenue Code.  That normally helps both the taxpayer and the State.  The taxpayer doesn’t have to do tax returns two radically different ways, and the State can easily piggyback on an IRS audit when the IRC and state law are similar.  SB 2821, however, refuses to conform in several key areas, most of which affect individual tax.  The federal amendments limit itemized deductions, such as state and local tax, mortgage interest, and miscellaneous itemized deductions (those deductible if they exceed 2% of AGI).  The state bill provides that those federal amendments don’t apply.  The state bill also decouples from bonus depreciation and section 179 changes, key elements in the federal code.  The state standard deduction, personal exemption, and all tax rates are unchanged.  Business tax changes, including disallowance of a writeoff for entertainment expenses, are adopted.  The federal estate and generation-skipping tax changes similarly are not adopted; the Hawaii estate tax kicks in using the federal limits in place for 2017.
SB 2821 Status:  ACT 27

HARPTA!  Bless You!  A Cure for the Wrong Disease?

The Hawaii Real Property Tax Act, or HARPTA for short, provides that when a nonresident person or company sells Hawaii real property, 5% of the gross price is withheld to pay possible tax liabilities, such as income tax on capital gains.  SB 508 changes the withholding percentage to 7.25%, the same as the top capital gains rate.  The Senate wanted the rate even higher, at 9%, perhaps on the theory that some of these properties are rented and the GET and TAT on the rentals can be collected from the withheld income tax.

SB 508 Status:  ACT 122

The Bob Nakata Act

The Rev. Bob Nakata has devoted 20 years of his life to issues surrounding homelessness and affordable housing in Hawaii, including tirelessly prowling the Capitol halls this year lobbying for affordable housing bills.  HB 2748, dubbed the “Bob Nakata Act,” adds $200 million to the Rental Housing Trust Fund, puts $10 million into the Dwelling Unit Revolving Fund, and expands and extends the GET exemption for construction of affordable units.

HB 2748 Status:  ACT 39

You Can’t See It or Touch It, But We Can Tax It!

To protect our local business people, Hawaii has a Use Tax.  A buyer has a choice between buying from someone who is subject to General Excise Tax (a local store, perhaps) and someone who is outside our taxing jurisdiction (an online seller, perhaps).  If the buyer chooses to buy from the latter, the buyer needs to pay Use Tax, generally the same as the GET that would have been levied on the local seller.  We already have extended the Use Tax beyond purchases of tangible goods, so that it also applies to the import of services and contracting.  HB 2416 broadens the Use Tax to apply to the value of intangible property imported or used in the State, while exempting the sale of intangible property exported or used outside the State.  The bill exempts stocks and other securities, bonds and other evidence of debt, commodity futures and similar options and rights, interests in land, or dividends.  Still, the trouble is in the details.  Intangible property isn’t like a mango that stays put, so figuring out whether it’s been imported will be a challenge.  And then, are we ready for the results?

HB 2416 STATUS:  ACT 183

Class, Your Assignment Is to Fix Our Unreasonably Low Real Property Taxes, and Not Tell the Pesky Money Chairs!

Hawaii has the lowest real property tax in the nation.  Many see that as a good thing; the teachers’ union sees it as an opportunity to slap a surcharge on that tax to Help Our Keiki.  Because our state constitution now gives all the real property tax to the counties, constitutional changes are needed before such a bill can take effect.  SB 2922 puts the question on the ballot for voters in 2018.  The voters only will be asked to give the Legislature the power to impose the tax, so the implementing legislation, which would define what is subject to the surcharge as well as the amount of the surcharge, can be changed at any time.  Furthermore, there is no guarantee that any of the new tax will find its way into the classroom.  Why?  The State now appropriates almost $2 billion in General Fund money to the Department of Education.  While the constitutional amendment earmarks the new tax for education, there is nothing to prevent the existing $2 billion from being “repurposed.”  Interestingly, the legislation in both the Senate and the House bypassed the respective money committees entirely.  In the Senate, it was heard by Education and Judiciary, while the House referred it only to Education.

SB 2922 Status:  To Ballot

Special Fund Housekeeping Bill Transforms into Money Grab, Then Returns to Normal

HB 1652 started out as a housekeeping bill, to get rid of some special funds that weren’t being used, following a State Auditor’s report identifying those funds.  But then the Senate did two things.  First, it added “auto-raid” provisions placing new dollar caps on fourteen different special funds, so that if the special fund has more money at the end of the State fiscal year the excess is dropped into the state general fund.  Then, it added a provision that increases by 40% the “central services skim,” a fee that the State sucks out of most special funds and plops into the general fund, ostensibly for services that the State provides to the fund (although the skim may exceed by far the cost of those services).  The Conference Committee returned the bill to its original mild-mannered form.

HB 1652 Status:  ACT 164

Let’s Apply 14% Tax to Everything on a Hotel Bill!

A “resort fee,” which also goes on your bill if you stay at a hotel not only in Hawaii but also in many locations in the mainland U.S., Mexico, and the Caribbean, is to pay not for basic lodging, but for amenities such as use of the hotel’s weight room, or pool, or Wi-Fi internet service.  But some think that it’s in substance part of the room charge, so that the Transient Accommodations Tax at 10.25% needs to be imposed on top of the GET at 4% or 4.5%.  The Department has been distinguishing room charges from fees subject only to the GET by asking whether the fees are mandatory for a guest staying at the hotel.  SB 2699, however, reacts to the issue by making all resort fees subject to TAT whether they are mandatory or not, and by defining a “resort fee” as “any charge or surcharge imposed by an operator, owner, or representative thereof to a transient for the use of the transient accommodation’s property, services, or amenities.”  This could mean ANYTHING on the guest’s hotel bill, including meal charges, massages, Internet fees, or phone charges.  This certainly was not the intent of the TAT when it was enacted, and it would be far different from most hotel room taxes across the country and internationally if the tax is applied in this manner.

SB 2699 Status:  VETOED

Online Sellers Beware!  We’re Going After You!

Under U.S. constitutional law, a certain amount of connection between a potential taxpayer and a State is needed before the State has power to impose tax.  Quill Corp v. North Dakota, 504 U.S. 298 (1992), held that some physical presence is needed before substantial nexus can be found.  However, states have been closing in on online sellers who have lots of business in those states, arguing that a sufficient amount of activity will give the state the necessary nexus.  South Dakota took this position and went after one large online seller, and the case, Wayfair Corp. v. South Dakota, has been accepted by the U.S. Supreme Court and may yield a clarifying opinion later this year.  In the meantime, SB 2514 adopts provisions similar to those in South Dakota, saying that nexus is established with $100,000 in sales or 200 separate transactions.

SB 2514 Status:  ACT 41

Courtesy of the Tax Foundation of Hawaii:

Some Bills Dead for This Session

Choo-Choo-Choo!  Two Different Tracks!  Will There Be a Winner?

Income Tax Poverty Relief, “Robin Hood” Style:  May Start in 2018

Obamacare for Hawaii?  Let’s Study It Before It Really Dies

Lights, Camera, Five More Years of Action!