Senate Revenue and Tax
Feb. 23, 2023
Sen Hickey: The first bill that we’re going to hear today is going to be House Bill 1263 by Representative Richmond. If you would, Mr. Gehring, do you mind coming to the table? Because the way we’ve been handling this is to only put bills that either have no fiscal impact or just a minuscule amount on there. We don’t actually have that, but Mr. Gehring from DFA is going to tell us today that House Bill 1263, you’ve told me, does not have an impact. Is that correct?
Gehring (DFA) Thank you. Thank you, Mr. Chair. Paul Gehring with DFA. So regarding the bills that are on the agenda that DFA has not issued a fiscal impact statement. Those include House Bill 1263, House Bill 1224, as well as Senate Bill 207, as well as House Bill 1191. We did review those bills when they were filed with the General Assembly. We corresponded with the sponsors to let them know that we did review those bills. They did not pertain to a tax, license, or fee that is administered by the Department of Finance and Administration. So that we determined that there would not be a fiscal impact to those taxes that we administer. So we are not issuing a fiscal impact on those for that reason.
Sen Hickey: Okay. And we just want to get that on record since we didn’t actually have the green sheet. So we’ll let that suffice. So thank you, Mr. Gehring. Representative Richmond, you’re recognized, whenever you want to begin, sir.
Rep Richmond: All right. Technology is not one of my strong points, obviously. I’m State Representative Marcus Richmond, District 52. With your permission, Mr. Chair, I’d like to ask for Mr. Kelly Boyd of the Land Commission Office to join me at the table.
Sen Hickey: Yes, sir.
Rep Richmond: Thank you, sir. And which bill do you have as the first bill that you want?
Sen Hickey: We have House Bill 1263.
Rep Richmond: Okay.
Sen Hickey: Is that a good one to start with?
Rep Richmond: That’s great. That’s the one we’ll start with.
Sen Hickey: Mr. Boyd, just, I think we all know you, but if you don’t mind, if you’d turn the mic on and introduce yourself so you can be included in the record.
Boyd (CSL): Thank you, Mr. Chairman. Committee. I’m Kelly Boyd, Deputy Commissioner of State Lands.
Sen Hickey: Okay, Mr. Boyd. Mr. Richmond, you’re recognized.
Rep Richmond: Thank you, sir. House Bill 1263 is designed to help address a couple of specific issues being faced by the Commission of State Lands. The first is cash payment at tax delinquent auctions being an avenue to launder cash. The possibility exists for an entity to pay a cash payment for a tax delinquent property. Then during the 10 day period following the sale to assist the owner in redeeming the property. Once it is redeemed, the COSL, State Land Commissioner, provides a payment by check to the purchaser for the full amount of the purchase. The Land Commission does not report transactions to the IRS. In the past four years, COSL has held delinquent parcels auctions in which individuals have paid as much as $200,000 in cash for parcels purchased during the auction. Many of the larger sales have generated total cash purchases far in excess of this. State Land has held various meetings with a variety of law enforcement entities, both state and federal, who have expressed concern regarding this issue. This is an issue that can be totally eliminated by passage of HB 1263. The second issue is where individuals will wait to see if the parcel sells before they redeem the property. Thus, a property selling today could be redeemed by a redeemer who simply waited to see if the property sold at auction or not. When a property sells and is then redeemed, State Land Commission must go through the process of refunding the money to the purchaser. This is a cost inefficient process and ties the money of the purchaser up for 30 or more days while the process is completed. There’s been 115,135 parcels have gone through the process of being redeemed and in the 10 day window at least once and then returned certified to the State Land as tax delinquent. One parcel has been certified here as tax delinquent 10 times and has been redeemed in a 10 day period every time. The next nine highest round trip parcels have gone through the process the same way nine times. The State Land Commission has a budget to process these refunds of somewhere in the range of $25 million or so. It is simply a large part, just the money transfer process that can be totally eliminated by the passage of HB 1263. And I’m open for questions at this time.
Sen Hickey: Any members have any questions with regard to this? Senator Payton.
Sen Payton: Thank you, Mr. Chair. And I really appreciate the language at the top of page 4, line 6. That paragraph specifically says that we’ll accept cash, which I’ve been a proponent of. But I’m not seeing the language in this bill that says we won’t. Somehow your testimony sounded like you were going to, this bill somehow eliminates the acceptance of cash.
Rep Richmond: Mr. Chair, I’d like for Mr. Boyd to answer these questions.
Sen Hickey: Okay. Mr. Boyd.
Boyd (CSL): Senator Payton.
Sen Hickey: If you would turn your mic on, Mr. Boyd.
Boyd (CSL): Thank you, Mr. Chairman. Senator Payton, we will be accepting cash for all of these payments. That’s why that language is specifically in this bill.
Sen Payton: Okay, so maybe I misheard him. The problem or the worry about people laundering money. I mean, this is a public transaction that’s subject to public records and nothing is hidden from federal authorities investigating it. Is that correct?
Boyd (CSL): That is correct. And the way that the mechanism will work. Today if you purchase property at a tax delinquent auction, then for 10 more business days, that property can be redeemed. So this eliminates that 10 day period. The owner of the property still has at a minimum four years to redeem this property. This eliminates that 10 day period. That means the day that it goes to auction, it sells. If it sells at the auction, it sells. And so there won’t be a refund. So there won’t be any cash transaction changes.
Sen Payton: I think I understand now. And I think that’s a great idea because I’m an auctioneer and it’s obviously going to bring us closer to market price that way when the buyers do not have the fear of wasting their time. So I think that’s a great move. And obviously, the property owner has had a lot of time to take care of their tax burden. And if it sells for a higher price because the conditions are more favorable to a buyer, then anything above the tax debt is reverted back to the owner of the property anyway. Is that correct?
Boyd (CSL): They have two years to claim it. And then if no one claims it at the end of that time, it goes back to the county in which the property was located.
Sen Payton: Thank you. Thank you, Representative Richmond.
Sen Hickey: Thank you, Senator Payton. Any other members have any other questions in regards to this bill? We have anyone in the audience that wishes to speak for this bill? Anyone wish to speak against it? You want to close, sir?
Rep Richmond: Yes, sir. Mr. Chair, I’m closed and appreciate a good vote from the Committee.
Sen Hickey: Go ahead. Senator Caldwell.
Sen Caldwell: Thank you, Senator Hickey. For the record, I have participated in sales before, auctions before, and I just want to make that public.
Sen Hickey: Okay. Senator Dismang, you’re recognized.
Sen Dismang: I think I’ve already done this once. But again, I also, I work in an accounting function for an entity that buys and sells tax delinquent properties and have for years at this point.
Sen Hickey: All right, we have those disclosures. I’m sure those are in their Senate file additionally. So you’re closed. Have a motion do pass by Senator Caldwell. We have a second by Senator Payton. All in favor, say aye. Any opposed like sign. Seeing none. Congratulations, you have passed your bill. All right, it’s my understanding, Representative Richmond, that you’re going to run House Bill 1224, and you have the authorization by the sponsor to do that, is that correct? You’re recognized, whenever you’re ready. Is Mr. Boyd going to, he’s stay with you on this one?
Rep Richmond: Mr. Boyd is going to stay with me on all of them.
Sen Hickey: Sounds good. You’re ready to go.
Rep Richmond: Thank you, Mr. Chair. Thank you, Committee. Again, House Bill 1224. There’s a growing problem in the issue of non-sufficient funds. Checks being written and given to pay for property, and things that end up bouncing. In the last four years there’ve been a total of 154 instruments have been submitted for payment and either dishonored or the payment was stopped by the purchaser or redeemer. This is a growing problem. In just the last two years, 74 instruments have been submitted and dishonored for a total of $1,637,318.83. Section 1, 26 37 on 137 simply says that duplicate language found elsewhere in the Arkansas code allows for– to implement a penalty of 10% or $20, whichever is greater in the event or payer stops payment or the payment is dishonored. This language is a duplication of language found in the Department of Finance and Administration. Again, the primary problem situations are an owner of a parcel up for sale at a tax delinquent auction will redeem the property by check just prior to the sale, and then the check is either dishonored or the check is stopped by the writer. This stops the process and the tax delinquent property never goes to sale at the auction. It awaits the next year’s sale. And this is a frequent occurrence. And I’m open to any questions.
Sen Hickey: Okay. Senator Payton, you recognized, sir.
Sen Payton: Thank you, Mr. Chair. I’m just curious were any of those credit cards or were they all checks?
Boyd (CSL): Senator Payton, they were all checks. And the bulk of them were non-sufficient funds, but there were a significant number of very large ones that were stop payments. And in Arkansas, they’re treated as a non-sufficient fund check if presented and then declined. So this will mirror language that the Department of Finance Administration has to allow us to apply a penalty. We will notify a writer first of a dishonored instrument by phone. We contact every one of them by phone and give them a chance to make good on the instrument before we would do anything else.
Sen Payton: Thank you. Thank you, Mr. Chair.
Sen Hickey: Any other members have any questions on that? I guess I will. Okay. So we go to an auction, somebody writes a check, the check bounces. So did I understand you to say at that point the property will not go back for auction for a year?
Boyd (CSL): Yes, sir. Senator. Correct. If the sale cancels, then it has to wait another year before we can bring it back up.
Sen Hickey: So what we’re doing is allowing anybody to come down there and just say, well, for $20, I’m going to do that. I don’t know that the language is strong enough, personally. I appreciate what you all are trying to do. On something like that are we not going to the prosecutor? I mean, because if they’ve written a check, a hot check, for lack of a better word, one with insufficient funds. I mean, and they’re stopping a sale. I mean, it looks like to me that that could be done on purpose. I mean, we should be pursuing them through the prosecutor because the transaction wasn’t completed.
Boyd (CSL): Senator, we do that, but you’ll be surprised at how many of these are out of state.
Sen Hickey: Fair enough. Any other questions? Senator Payton.
Sen Payton: Just to be clear, is it $20 or is it 10% of the purchase price with a floor of $20?
Rep Richmond: I may have misread that wrong. So, let Mr. Boyd.
Boyd (CSL): It’s $20 or 10% of the purchase price, whichever is greater. You write us a check for $60,000 it won’t be $20.
Sen Payton: Thank you.
Rep Richmond: And I didn’t say that right. So the mistake on that was my part, so. Okay.
Sen Hickey: Yes, Senator Petty.
Sen Petty: So are those that are tendering insufficient funds doing what Senator Hickey referred to is just trying to buy more time or are they trying to get something for nothing? And at what point would they receive the deed to the land in this process?
Boyd (CSL): Senator Petty, there are several circumstances. We had one in Saline County last year. An out-of-state purchaser came down, paid us $63,000 in a check. They then went out doing their due diligence, found the property not what they wanted it to be, and stopped the check. And this– I don’t want to say that’s the primary reason we’re doing this, but that’s a good bit of it. You’re going to always have the person that wrote the check out of the wrong account. We call them and they make it good right away. What we’re seeking is a stick to add to the bill.
Sen Hickey: Senator Dees, you have a question, sir?
Sen Dees: Is there any reason for the year time frame? In other words, could we expedite that process on a delinquent sale? And also, would it be possible just to go to the next highest bidder? Do we consider either of those?
Boyd (CSL): Senator Dees, the check won’t be found bad until after the sale. And we are required, a parcel first has to sell at tax delinquent auction. That’s in the code. So I can’t put it into any other sale function until it has sold at auction. So we don’t hold these sales but once a year. So it by law has to wait an additional year.
Sen Hickey: Any other questions? Anyone from the audience want to speak for the bill? Anyone want to speak against the bill? You want to close, sir?
Rep Richmond: Yes, sir Mr. Chair. I’m closed and would appreciate a good vote.
Sen Hickey: All right. We have a motion by Senator Payton. We have a second by Senator Caldwell. All in favor, say aye. Any opposed, like sign. Seeing none. That also passed. With that, do you have another one?
Rep Richmond: I’ve got one more. It’s HB 1191, sir.
Sen Hickey: Okay. So, HB 1191. That one’s actually your bill, is that correct?
Rep Richmond: Yes, sir.
Sen Hickey: All right, you’re recognized.
Rep Richmond: Thank you, sir. Again, in HB 1191, probably 95% of the changes that you have in this particular bill is technical corrections, because getting the language, referring to parcels instead of land, and having consistency within the bill. Also, there was legislation several years ago, I don’t know specifically which one, that also makes some of the bill obsolete and that language has been struck. But I can go through and I’ll tell you what each section does. In Section one, it gives the Commissioner of State Land the option to invest in T-bills or savings bonds in the event the interest rates are higher than CDs. This happens through much of last fall when we were being offered rates between 1% and 2% while Treasury securities were in the 3% to 5% range or 3% to 5% to 4% or higher range.
Rep R Section 2 will help clean up problems where the Commissioner of State lands does not have the ability to return back to the county, a single incorrectly certified parcel. When parcels are certified to the Commissioner of State Lands, the county sends them in as a batch. If we find a parcel with a problem, that’s non-existent. Incorrect name, incorrect legal description, the Commissioner of State Land has to either keep the parcel and sell it, dealing with the fallout after the sale, or return the entire certification back to the county. Now, in the House there was a question about, well, how can there be a parcel for land that’s not there? Well, sometimes rivers and things like that will actually erode a piece of land to the point where it’s gone. The other thing is maybe a highway or something like that gets built through it. So it changes the structure of that. So that’s the answer to one of those things. Section 3, 5, 6, 7, 8, 9, 13, and 14 are all simply replacing the word land or the word property with the word parcel to help standardize the code. Section 4 removes the requirement to publish the assessed value of the parcel when notification of the sale is made. Assessed values have played no role in selling tax delinquent parcels since 2013. In Section 10 deletes obsolete language referring to the change in the code made in 2005 and 2018. Section 11 clarifies how long excess proceeds shall remain in escrow. There has been some misunderstanding regarding how long the period is, and this language clarifies that.
Rep Richmond: Section 12 specifies that when someone who is not the owner redeemed someone else’s tax delinquent parcel, the redemption deed goes to the owner and the redeemer receives a redemption receipt. If the owner is the redeemer, the owner would receive both the deed and the receipt. The reason to clarify that language is because there was people out there that thought if they would go in and pay the taxes, that they could take possession of the land. And so just trying to make that more clear so people won’t be making that mistake and they understand what they’re actually paying for. Section 15 repeals obsolete language since assessment values are no longer part of the processing tax delinquent parcels at the Commissioner of State Lands.
Sen Hickey: Any questions on this bill by the members? Anyone in the audience want to speak against the bill? Anyone want to speak for the bill? You closed?
Rep Richmond: I’m closed, sir. Would appreciate a good vote.
Sen Hickey: Motion by Senator Payton. Second by Senator Crowell. All in favor, say aye. Any opposed? Hearing none. Your bill did pass. Thank you.
Rep Richmond: Thank you, Mr. Chair. Thank you, Committee. You guys have a great day.
Sen Hickey: Is there anyone else here to run a bill that’s on the agenda? Oh, I’m sorry, Senator Johnson. Okay. Senator Johnson, you’re recognized to run SB207.
Sen B Johnson: If the Chair would allow Secretary of State’s to come up.
Sen Hickey: Yes, sir. When you get to the table, sir, you can recognize yourself for the record.
Rosenbaum (SOS): Good morning. I’m Sid Rosenbaum, Director of Business and Commercial Services for the Secretary of State’s Office.
Sen Hickey: Good to have you. Senator Johnson, you’re recognized to begin.
Sen B Johnson: Members, this bill was brought to me by the Secretary of State’s. And this process of franchise tax whenever you file to have a corporation or LLC. That process since 2009 has been done by an outside vendor. And the fees on Section 3 is being codified. But those fees have been collected by that outside vendor and a procurement process has not been in place. This software is out of date and they want to bring this in house. And we passed some stuff over there this morning to begin that process of bringing it in house. And those fees will be used to keep this software up to date.
Sen Hickey: We have anything to add or? Senator Dismang, you’re recognized for a question.
Sen Dismang: All right. And I apologize, I’m just reading this for the first time. Page 3 when we’re talking about that fee structure, I’m a little bit confused. So, right now, and I guess the program’s going to change, but you’re allowed to batch file franchise tax returns. So you can file for 50 companies at one time. CPAs are going to do that. Owners of multiple companies are going to do that. They’re going to batch file as it sees fit. When I’m reading this, it says “shall collect a processing fee for each document required under this chapter, when delivered by an electronic means.” When I batch file, there is a document for every single franchise tax return that’s filed. And then you get into the rest of the language. It talks about a $4 cap on $50 or less, $5, $51, 3% on above $167. So does the cap apply to the cumulative total that’s paid during the batch or does it apply to the total amount being paid? So the full 3%?
Rosenbaum (SOS): No, sir. It’s to each LLC that’s batch filed. So it’s not going to change at all what’s being done right now.
Sen Dismang: I just think the language says that it may because it says for each document required under this chapter when delivered, it says $50 less, $150, and then 3% of the total, which I think what that’s speaking to is a corporate filer that may have a higher franchise tax than the typical $150. I’m not sure that’s speaking to the batch filer that may have a bill that’s $8,000 because that’s the number of entities that they’re associated with.
Rosenbaum (SOS): Correct. We interpret it just like it’s being done and has been done for many years. And if you’re a batch filer, then it’s going to be for each individual person that files, that you file on behalf of.
Sen Dismang: So then it– what do you mean by that?
Rosenbaum (SOS): Well, so it would be the $5 if your LLC is $150, and you pay with a credit card online, it would be the $5. Or we send out batch coupons. Some people do that, batch filers. And then they send us a check back. It would just be the $150. This would strictly be if it’s an online payment. But most batch filers get a coupon and they send the money in.
Sen Dismang: Are you going to allow– so we’re going to continue with the coupon process?
Rosenbaum (SOS): That’s correct.
Sen Dismang: So I’m going to go file for whatever the deadline is and you’re going to send me a bill a week later or whenever it is that you processed. And then we’re going to send a check and then we don’t worry about this fee.
Rosenbaum (SOS): That’s correct. Yes, sir.
Sen Dismang: Okay.
Sen Hickey: Senator Petty, you’re recognized.
Sen Petty: And maybe I’m just misreading this. You were referring to the $150 LLC fee, which I’m familiar with. We pay those batch processing like Senator Dismang talks about. But is there a separate section dealing with corporations that make it a minimum of $300 or are now all the LLCs going to be a minimum of $300 as well?
Rosenbaum (SOS): No, sir. That’s not changing at all. The amount of the tax, that’s staying the same. This is just basically the convenience fee when somebody pays online. It’s just the same that the Secretary of State’s been doing for many, many years now.
Sen Hickey: Senator Payton.
Sen Payton: Thank you. So that last statement, the Secretary of State’s been doing it for many years. Why would we need to codify it if they’ve already been doing it?
Rosenbaum (SOS): Because this fee is currently being collected by a third-party administrator for our IT system. And we’re looking at getting a new system. And in order to do that, we need to be able to collect the fee to pay for the new system.
Sen Payton: Okay. And so my other question is, what percentage of your filers are doing this electronically, and what percentage is doing it with the coupons?
Rosenbaum (SOS): Last year it was 78% online filing electronically.
Sen Payton: So we’re imposing this fee then on close to 80% of the transactions. What would that fiscal impact be? I mean, how much money are we talking about?
Rosenbaum (SOS): Well, this is not a new fee. This is currently being done by our third-party administrator. So what happens is when you as an LLC pay online, you pay $150 plus the $5 convenience fee to our third-party administrator. Under this, you would pay the same amount. We would take the $155, and the $5 would be used for a new system. So nothing changes at all.
Sen Payton: And I understand that. I guess part of this is because I sit on Budget, but it’s going to be added to your budget as revenue and the expense of creating this in house system is going to be in your budget as expense. And I’m just trying to find out what those numbers are going to look like. I mean, are you collecting enough to cover it or too much to cover it or? I just have questions about the fiscal impact and the budget. The Secretary of State’s budget and line items and the revenue coming in, that it be spent according to the need rather than having revenue coming in that may be excessive and can be used for other items. So, I have a lot of questions about that. I don’t know if my colleagues do or not but thank you.
Rosenbaum (SOS): Yes, sir.
Sen Hickey: I don’t know who’s first, Senator Dismang?
Sen Dismang: I mean, I think the question I think it’s a good one is there’s a lot of efficiency that’s created in paying online, not just for the payer, but also the entity that’s being paid to. So I hate, for instance, when you’re paying your property taxes online and the fees are so substantial, even though you’re creating a benefit on both sides. What I don’t mind is making up the difference that you’re being charged by to process that. So there’s a credit card company is going to charge a fee to be able to utilize their service and for you to transmit those funds. I mean, I don’t want to argue about the efficiency there, but. And the benefit that would have to Secretary of State. But how much of this is over what is actually going to be charged by the processor to collect that electronic payment, if that makes sense? I mean, is it the standard 3% or is the processor charging you 1.5% and there’s 1.5% float? I mean, what is the– I think that’s the question.
Rosenbaum (SOS): Our best guesstimate is 2% of that fee. So that’s typical processing fees. But we would put that out for an RFQ to a payment processor.
Sen Dismang: So if we write into law that it will be 3%, it will be 3%. You’ll have no financial incentive to make it less than 3%. I mean, typically these are written, I think, to guarantee a wash. You can’t charge more. You’re not supposed to be charging more than your processing fees are. Anyway, I’ll stop there. I think that’s essentially what Senator Payton was driving at, how much of this is going to be revenue generated for the SOS, and how much of it is actually to cover the payments required, I mean, the processing fees that you’re required to pay to whoever your vendor’s going to be.
Sen Hickey: Didn’t you answer that question specifically? I mean, I think I heard I mean, we’re always talking about the credit card discount or whatever that they’re going to pay. Is this a revenue producer to you all?
Rosenbaum (SOS): Yes, sir. It will be to pay for the new system that we desperately need. So we’re thinking about half and half, half credit card processing fees. Half will be going to the IT system, new IT system.
Sen Hickey: Okay. And do you know how long that is, the payout on that? I understand you got to have the cash flow to make the payment out till it’s over.
Rosenbaum (SOS): Yes, sir, it’ll probably be a while because we’ll have ongoing maintenance for the system.
Sen Hickey: Okay. Members, let’s let Senator– if you don’t mind, Senator Dees, I should have already recognized him. Senator Dees.
Sen Dees: Thank you, Mr. Chair. Mine’s just a quick clarification. I see on page 5 and 6 and throughout, there’s a lot of changing of forfeiture to revoked language all throughout. And my question was, was around with LLCs. Does that change by moving to that definition or that word change, does that have anything to do with purging delinquent LLCs that haven’t paid their? Would that help, would that hurt, would it slow down the process specifically around names that are available for new businesses to come in and acquire forfeiture or revoked now names?
Rosenbaum (SOS): Yes, Senator. Right now it’s seven years. This would change it to five years before a company becomes what’s in forfeited charter and that name immediately becomes available for others to use. So we would be taking it from seven years to five years, which would allow more names to become available for new entities that are trying to form.
Sen Dees: And going to revoked doesn’t hurt the definition of any of that at all or?
Rosenbaum (SOS): No, sir.
Sen Dees: All right. Thank you.
Sen Hickey: Any other questions? Senator Johnson, did you have something else to add?
Sen B Johnson: The relevance in the collection of these fees. Whenever they bring this in house is they will have the revenues to be able to maintain it rather than it going to this third-party vendor that has not maintained their system. And it was down last week, two days?
Rosenbaum (SOS): Yes, sir.
Sen B Johnson: So, whenever that system is in house and they’re collecting the fees rather than this outside vendor that hadn’t went through the procurement process since 2009. I don’t think any of us agree with that. And this would make it more accountable.
Sen Hickey: Any other questions? Anyone from the audience want to speak for the bill? How about against the bill? You want to close, Senator Johnson?
Sen B Johnson: I’m closed, and I make motion do pass.
Sen Hickey: All right. Senator Johnson’s made a motion do pass. Do we have a second? We have a second by Senator Dees. All in favor, say aye. Any opposed? Okay, I’m going to rule that it passes. Congratulations. Any other business that any of the members have that we need to discuss? Okay, with that, we’re adjourned.