California Proposition 39, Income Tax Increase for Multistate Businesses (2012)

Proposition 39
Quick stats
Type:	State statute
Referred by:	Petition signatures
Topic:	Taxes, Environment
Status:	a

Proposition 39, an Income Tax Increase for Multistate Businesses Initiative, was on the November 6, 2012 ballot in California as an initiated state statute, where it was approved.

Proposition 39:

• Requires out-of-state businesses to calculate their California income tax liability based on the percentage of their sales in California.
• Repeals an existing law that gives out-of-state businesses an option to choose a tax liability formula that provides favorable tax treatment for businesses with property and payroll outside California.
• Dedicates $550 million annually for five years from the initiative's anticipated increase in revenue in order to fund projects that "create energy efficiency and clean energy jobs" in California. Initially, this extra revenue will go to fund "green" energy projects.

Prior to the approval of Proposition 39, businesses located outside of California that, however, transacted some business within the state, had the ability to reduce their California income taxes by not locating facilities or employees within the state.

Supporters of Proposition 39 argued that it will close a tax "loophole" that rewarded out-of-state companies for taking jobs out of California. Opponents argued that Proposition 39 is a tax increase.

Similar laws have been passed in New Jersey, Illinois, and Texas. New Jersey Republican Governor Chris Christie said, "moving to a single sales factor removes a barrier to firms seeking to locate and grow their business and jobs in New Jersey, while also helping retain companies with headquarters in the state."

The primary financial backer of Proposition 39 is Thomas Steyer, who played a lead role in designing the initiative.

Election results

See also: 2012 ballot measure election results

California Proposition 39
Result		Votes	Percentage
a Yes		7,384,417	61.1%
No		4,701,563	38.9%

These final, certified, results are from the California Secretary of State.

Text of measure

See also: Complete text of Proposition 39 and Ballot titles, summaries and fiscal statements for California's 2012 ballot propositions

Title

Tax Treatment for Multistate Businesses. Clean Energy and Energy Efficiency Funding. Initiative Statute.

Summary

Requires out-of-state businesses to calculate their California income tax liability based on the percentage of their sales in California. Repeals existing law giving out-of-state businesses an option to choose a tax liability formula that provides favorable tax treatment for businesses with property and payroll outside California. Dedicates $550 million annually for five years from anticipated increase in revenue for the purpose of funding projects that create energy efficiency and clean energy jobs in California.

Fiscal impact

See also: Fiscal impact statements for California's 2012 ballot propositions

(This is a summary of the initiative's estimated "fiscal impact on state and local government" prepared by the California Legislative Analyst's Office and the Director of Finance.)

Approximately $1 billion in additional annual state revenues—growing over time—from eliminating the ability of out-of-state businesses to choose how their California taxable income is determined. This would result in some out-of-state businesses paying more state taxes. Of the revenue raised by this measure over the next five years, about half would be dedicated to energy efficiency and alternative energy projects. Of the remaining revenues, a significant portion likely would be spent on public schools and community colleges.

Background of Proposition 39

In 2009, the California State Legislature approved a budget that included an option for how out-of-state companies calculated their tax bill. Companies could choose the “three-factor” method or the “single-sales factor” method. The single-sales factor uses in-state sales alone to determine a company’s tax obligation. With the three-factor method, companies use a combination of sales, employees, and property to calculate their taxes. For out-of-state companies with no physical presence in the state, the three-factor method offers a large savings. Thus, out-of-state businesses overwhelmingly choose the three-factor method.

The measure now known as Proposition 39 qualified for the November ballot on June 20, 2012. San Francisco-based philanthropist, businessman, and signer of the Giving Pledge, Tom Steyer conceived the measure. He is also the main financial backer. Steyer is co-chair of the Californians for Clean Energy & Jobs group, which has launched a campaign in favor of Proposition 39.

State legislator John Pérez introduced Assembly Bill 1500 during the most recent session. The bill had the same intent as Proposition 39, but it failed to gain traction among Senate Republicans.

Support

"Yes on 39" logo

Supporters

Thomas Steyer, the founder and co-senior managing partner of Farallon Capital Management, supported Proposition 39. He said, "We have a loophole. It is worth over $1 billion a year. We should close the loophole, and that is what we are doing."

Several California-based companies voiced support for changes to corporate tax law, including Disney, Cisco, Qualcomm, and Amgen. They argued that the law changed by Proposition 39 gave out-of-state companies an unfair advantage.

The California Teachers Association also supported the measure. Atlas Project Support, a green energy firm, said that the measure would greatly increase its business. Genentech, a California-based biotech firm, expressed support for Proposition 39. Executive Andrea Jackson said that the company recently built a $450 million facility in Oregon to take advantage of the three-factor method. She said that the company would rather keep all of its assets in-state.

The San Francisco Chamber of Commerce, former U.S. Secretary of State to Ronald Reagan, George Schultz, The Sacramento Bee, the San Jose Mercury News, California State Assembly Speaker John Perez, the California Labor Federation, and California State Senate President pro Tem Darrell Steinberg, had endorsed the initiative.

On September 26, 2012, the California Democratic Party Chairman, John Burton, announced his endorsement of Proposition 39. Other endorsements of the initiative included: "the San Francisco Chamber of Commerce, California Nurses Association, American Lung Association - California, CA NOW, California Alliance for Retired Americans, California Church IMPACT, Latin Business Association, California Labor Federation, CleanTECH San Diego, Los Angeles/Orange Counties Building & Construction Trades Council, Sacramento Bee, San Jose Mercury News, Los Angeles Business Council, California Community College Trustees, and the California League of Conservation Voters."

As of October 1st, 2012, General Motors, International Paper, Kimberly Clark, Chrysler and Proctor & Gamble will not oppose Proposition 39 any further.

The arguments in favor of Proposition 39 in the state's official voter guide were submitted by:

• Jane Warner. Warner is the president of the American Lung Association in California.
• Thomas Steyer.
• Mary Leslie. Leslie is the president of the Los Angeles Business Council.
• Alan Joseph Bankman. Bankman is a professor of tax law at Stanford Law School.
• Ruben Guerra. Guerra is the CEO of the Latin Business Association.
• Jane Skeeter. Skeeter is a small business owner in California.

Arguments in favor

The arguments presented in favor of Proposition 39 in the state's official voter guide included:

• "At the end of the 2009 budget negotiations in Sacramento, in the middle of the night, legislators and lobbyists for out-of-state corporations made a deal—with no public hearings and no debate. They put a loophole into state law that allows out-of-state corporations to manipulate our tax system every single year, and avoid paying their fair share to California. The cost of this loophole: $1 billion per year in lost revenues for California."

• "Prop. 39 simply closes this loophole. It ends this manipulation of our tax system—and requires that all corporations doing business in California pay taxes determined by their sales here, no matter where they are based."

• "Prop. 39 levels the playing field, ensuring that out-of-state companies play by the same rules as California employers."

• "The current tax loophole lets corporations pay less tax to California if they have fewer employees here—giving companies a reason to send jobs out of state. In fact, the state’s nonpartisan, independent Legislative Analyst has cited studies showing that the tax policy in Prop. 39 will bring California as many as 40,000 jobs. That’s why the independent Legislative Analyst has called for eliminating the present loophole."

• "Multistate corporations that provide few jobs here are using the loophole to avoid paying their fair share to California, costing the state $1 billion per year in lost revenues. Prop. 39 will clovitally-needed revenues for public services. Because almost half of all new revenue is legally required to go to education, hundreds of millions of dollars per year will be dedicated to schools. Additionally, Prop. 39 will create savings for taxpayers. 39 will use a portion of the revenues from closing the loophole to fund energy efficiency projects at schools and other public buildings. Using proven energy efficiency measures like improving insulation, replacing leaky windows and roofs and adding small-scale solar panel installations will reduce state energy costs—freeing up dollars for essential services like education, police, and fire."

• "Prop. 39 contains tough financial accountability provisions —including independent annual audits, ongoing review and evaluation by a Citizens Oversight Board, a complete accounting of all funds and expenditures, and full public disclosure."

Donors

Total campaign cash as of November 3, 2012
Support:	$31,400,000
Opposition:	$45,000

Thomas Steyer is the primary financial backer of Proposition 39.

The donors listed in the chart below are the $25,000 and over donors to the "Yes on 39" campaign as of Saturday, November 3, 2012. Note that some of these donors gave their money to a committee that was simultaneously supporting or opposing more than one of the ballot propositions on the November 6, 2012 ballot. When that is the case, it is not generally possible to break down how much of that donor's money specifically was spent on the campaign for a particular proposition. Those contributions are listed below with shading; readers should not assume that all or even most of a donation to a multi-purpose committee was used for expenditures related to this particular proposition.

Donor	Amount
Thomas Steyer	$29,580,000
Californians for Clean Energy and Jobs	$1,143,227
California State Council of Service Employees (SEIU)	$75,000
National Education Association	$60,025
BISC	$54,721
Asian-Pacific Environmental Network	$53,362
California Teachers Association	$50,000
United Food and Commercial Workers	$50,000
Taxpayers to Preserve Community Jobs	$42,150
Natural Resources Defense Council	$30,000
Green Tech Action Fund	$25,000
League of Conservation Voters	$25,000

Opposition

Opponents

Opponents of the measure argued that California already has an unfriendly business climate. According to the Tax Foundation, California’s business tax climate ranks 48th in the nation.

Several major corporations benefited from the law that was changed by Proposition 39, including General Motors, International Paper, Kimberley-Clark, and Chrysler. From 2006-2012, these companies earned $42.4 million in state contracts. These four companies vocally opposed Assembly Bill 1500, and they equally opposed Proposition 39. In September 2012, Proctor & Gamble and Chrysler both announced they wouldn’t oppose Proposition 39.

The group "California Employers against Higher Taxes" also opposed Proposition 39. Opponents said that Proposition 39 would add more bureaucracy to California government and discourage businesses from contributing to the economy through job creation. They also said that the three-factor method had been on the books since 1966 with no ill effects. The Carpinteria Valley Chamber of Commerce, The Simi Valley Chamber of Commerce, the Oxnard Chamber of Commerce, and the United Chambers of Commerce all oppose Proposition 39.

The arguments against Proposition 39 in the state's official voter guide were submitted by:

• Jack Stewart. Stewart is the president of the California Manufacturers & Technology Association.
• Lew Uhler. Uhler is the president of the National Tax Limitation Committee.
• Pat Kong Kushida. Kushida is the president of the California Asian Pacific Chamber of Commerce.
• Mike Spence. Spence is the president of the California Taxpayer Protection Committee.
• Robert Ming. Ming is the chairman of Friends for Saving California Jobs.
• Jack Stewart. Stewart is the president of California Manufacturers & Technology Association.

Other opponents included:

• Peter DeMarco, a spokesperson for a coalition of businesses that oppose the initiative, said that if approved, Proposition 39 is "going to drive workers and jobs out of California."

• The California Republican Party.

The "Yes on 39" campaign ran a full-page ad in the Sacramento Bee the last week of July 2012 asking four companies who had indicated their opposition to Proposition 39 to back off and pledge not to oppose Proposition 39. The four companies identified in the advertisement were Chrysler, General Motors, Kimberly-Clark and International Paper.

Arguments against

The arguments in opposition to Proposition 39 presented in the state's official voter guide included:

• "Proposition 39 is a massive $1 billion tax increase on California job creators that will result in the loss of thousands of middle class jobs. California's unemployment rate is already third worst in the country at nearly 11%. Prop. 39 makes our problems worse."

• "Proposition 39 is a recipe for waste and corruption. It spends up to $22 million on a new bureaucracy and special interest commission. It gives Sacramento politicians a blank check to spend billions without real accountability or taxpayer protections against conflicts of interest."

• "Here are the facts: a billionaire who CNN called 'California’s Hedge Fund King' is bankrolling 39, spending $20 million to influence your vote and buy the election. His political consultants use terms like 'closing a loophole' but don’t believe them. Prop. 39 is politics at its worst. California needs reform, not more taxes and wasteful spending."

• "$2.5 billion that could go to schools, health and welfare, environmental protection or public safety is instead diverted to a new government commission with fat salaries and little accountability. Our state budget deficit today is nearly $16 billion and Prop. 39 makes things worse by wasting money on a new unnecessary bureaucracy. California needs teachers and police officers, not more bureaucrats!"

• "Manufacturing jobs that provide for families are vanishing. Almost two million hard-working Californians are struggling to find any kind of work. The $1 billion Prop. 39 tax increase changes tax laws that have been in effect for more than 40 years and will cost more union and non-union workers their jobs."

• "You’ve heard it before. Sacramento has a plan to create jobs. We give them money to create a commission of political appointees with an appealing name like Citizens Oversight Board. They get a blank check to spend (or waste) tax dollars. Under Prop. 39, money is spent to give contracts to so-called 'Green Energy' programs. Who is likely to get those contracts? Big campaign contributors, that’s who."

• "California needs reform, not tax increases that eliminate middle class jobs. Prop. 39 raises taxes by $1 billion on California job creators to help fund more government bureaucracy and more bloated pensions. It doesn’t protect against ongoing state budget deficits, high nemployment and continued economic recession. Remember, a billionaire with an agenda is bankrolling 39. It’s up to voters to protect California taxpayers. By voting NO on Prop. 39, you will stop a job-killing $1 billion tax increase on California job creators. You will support middle class California jobs that provide for families and sustain our economy. And you’ll tell Sacramento politicians no more blank checks for more special interest spending on bloated government and pensions."

Donors

Total campaign cash as of November 3, 2012
Support:	$31,400,000
Opposition:	$45,000

These are the $5,000 and over donors to the "no" campaign as of November 3, 2012:

Donor	Amount
General Motors	$20,000
Kimberly-Clark Corporation	$20,000
International Paper	$5,000

Opposition campaign

• A Stop 39 website was registered with GoDaddy on July 18, 2012. The identity of the organization or individual who registered the URL is unavailable, since they used "Domains by Proxy" to shield their identity.
• As of October 14, 2012, visitors to the Stop 39 website see no content, other than the phrase, "This site is under construction."

Editorial opinion

See also: Endorsements of California ballot measures, 2012

"Yes on 39"

2012 propositions
June 5
Proposition 28
Proposition 29
November 6
Proposition 30
Proposition 31
Proposition 32
Proposition 33
Proposition 34
Proposition 35
Proposition 36
Proposition 37
Proposition 38
Proposition 39
Proposition 40
Donations • Vendors
Endorsements • Full text
Ballot titles • Fiscal impact
Local measures

• The Bakersfield Californian: "It's time to fix a bad tax policy, created three years ago by the California Legislature, once and for all."

• The Contra Costa Times: "State lawmakers have refused to correct the mistake they made in 2009 when, in a late-night budget session, they created a tax incentive for companies to locate outside California. Voters need to fix it for them on Nov. 6 by voting for Proposition 39."

• The Daily Democrat (Woodland, California): "Vote yes on this initiative to end a system that lets out-of-state corporations choose their methods of taxation."

• The Fresno Bee endorsed Proposition 39 on October 1st, 2012. They wrote, "If it's approved, the initiative would generate $1 billion a year."

• The Los Angeles Times: "Proposition 39, would raise an estimated $1 billion a year, about half of which would be dedicated temporarily to making public buildings more energy efficient."

• The Marin Independent Journal: "This measure needs to be on the ballot because the state Legislature has refused to close a business tax loophole it approved in a late-night budget decision in 2009."

• The Merced Sun-Star: "The initiative on the Nov. 6 ballot would close a $1 billion corporate tax loophole, one that legislators are incapable of shutting because they are beholden to outside influences."

• The Modesto Bee: "Proposition 39 shows how direct democracy should work."

• The Oakland Tribune: "Prop. 39 will help keep businesses here."

• The Press-Enterprise: "California has no need for a tax break that puts the state at an economic disadvantage."

• The Redding Record Searchlight: "[Proposition 39] ends a billion-dollar giveaway to out-of-state corporations."

• The Sacramento Bee: "Essentially, out-of-state corporations such as cigarette maker Altria gained the privilege to determine which of two methods of taxation allowed them to pay the least in state taxes, and they are allowed to toggle back and forth each year so as to gain the greatest benefit,... Proposition 39 shows how direct democracy should work."

• The San Diego Free Press: "Proposition 39 would eliminate the ability of companies to choose between two methods to calculate their taxable income in California and require them to use sales only for the calculation."

• The San Francisco Bay Guardian: "It's more fair, it creates the right incentives to keep jobs and equipment in the state, and it cuts a hole in the deficit."

• The San Jose Mercury News endorsed Proposition 39, writing, "State lawmakers have so far refused to correct the mistake they made in 2009 when, in a late-night budget session, they created a tax incentive for companies to locate outside California. Voters will be able to fix it for them Nov. 6 by voting yes on Proposition 39."

• The Santa Cruz Sentinel: "Ballot-budgeting? Yes. But as it stands, Steyer's Prop. 39 revenue would help create jobs while also cutting down on energy use and greenhouse gas emissions at public buildings -- and the revenue directed toward these causes is limited to five years. More importantly, the tax loophole is egregious and only encourages multistate companies doing business in California to create jobs outside the state."

• The Vallejo Times-Herald: "We'd prefer to see all the money go to the general fund, but it almost doesn't matter. The important thing is to change a tax policy that now encourages firms to leave California or to expand in other states. Proposition 39 does that."

"No on 39"

• The editorial board of the Appeal-Democrat opposed Proposition 39, writing, "Steyer said the initiative would create green jobs. But taxes kill jobs by sucking money out of the private sector. Similar green-jobs claims were made about Assembly Bill 32, the Global Warming Solutions Act of 2006, by Gov. Arnold Schwarzenegger. But A.B. 32 didn't prevent state unemployment from soaring well above the national rate. California's real employment problem is not a lack of green jobs, but the state's severe anti-jobs climate, to which A.B. 32 and the specter of Steyer's initiative contribute."

• The Bay Area Reporter: "We agree that this is a loophole in the state tax code that should be eliminated. However, this proposition then mandates that the increased revenue, estimated at up to $1 billion annually, be earmarked for specific energy and education programs. This is ballot box budgeting, and we oppose it. It is the role of the legislature to determine the most effective use of revenues, particularly in these hard times of competing priorities. This is a loophole that needs to be closed, but this proposition brings too much other baggage."

• The Long Beach Press-Telegram: "Proposition 39 is a mixed bag - like so many of the initiatives that appear on California's ballots - that should be rejected. At its core is a sound idea: changing the way multistate corporations are taxed in order to remove a perverse incentive against locating operations in California. But the measure has two big problems: One, it's yet another example of ballot-box budgeting, directing half the revenue that would be generated into niche projects instead of into the general fund; and two, it goes back on a budget deal that the Legislature made three years ago."

• The Los Angeles Daily News: "...the measure has two big problems: One, it's yet another example of ballot-box budgeting, directing half the revenue that would be generated into niche projects instead of into the general fund; and two, it goes back on a budget deal that the Legislature made three years ago."

• The Orange County Register: "Prop. 39 ultimately would punish companies with higher taxes and consequently their customers with higher prices, while discouraging hiring in California. We suspect a substantial motive behind the initiative, which largely was funded by a private equity fund partner with clean energy investments, is to extract more taxes, and to use much of the additional money to reward favored projects."

• The Pasadena Star-News opposed Proposition 39, writing that, "PROPOSITION 39 is a mixed bag - like so many of the initiatives that appear on California's ballots - that should be rejected."

• The San Bernadino Sun opposed the initiative, writing, "Of the $1 billion or so in additional tax revenue that change would produce, Proposition 39 directs half into energy efficiency and alternative energy projects for four years."

• The San Diego Union-Tribune opposed Proposition 39, writing, "Proposition 39 targets this same loophole. But instead of using the extra revenue to help small business and spur the struggling economy, the measure would devote half the new revenue, up to $550 million, to alternative energy and energy efficiency projects. These areas are already getting billions of dollars in federal funding, sometimes with horrible track records. We much prefer Fletcher’s approach – or the simplest idea of all: just putting all the money back in the general fund, not half of it."

• The San Francisco Chronicle opposed the initiative in a September editorial, stating that, "Proposition 39, which would direct about half of the extra $1 billion in annual revenue to energy-efficient projects, corrupts a very good idea (tax reform) with a very bad one (ballot-box budgeting)."

• The San Gabriel Valley Tribune: "California can't stand any more ballot-box budgeting that squirrels away money for a single purpose favored by an initiative's proponents - in this case a hedge-fund billionaire. Proposition 39 creates the Clean Energy Job Creation Fund, another otherwise untouchable pot of money like the First 5 and mental health funds that past initiatives have given us. The purposes are good, but they should be weighed against other priorities like education and care for the indigent and elderly."

• The Ventura County Star opposed Proposition 39, stating, "Supporters of Proposition 39 may have had good intentions, but this initiative on the Nov. 6 ballot doesn't measure up to reasonable expectations. The Star recommends a no vote."

• The Victorville Daily Press: "Thomas Steyer, a San Francisco hedge-fund manager who’s worth in excess of $1.3 billion, authored Prop 39 and has invested millions of dollars in the campaign to have it approved. This is far from selfless. Mr. Steyer’s hedge funds invest in 'clean' energy — windmills, you know, and solar plants. So it’s easy to understand why, in writing Prop 39, Mr. Steyer stipulated that for the first five years after it becomes law, some $5 billion of tax revenue it throws off will go into building 'green' projects. Remember, that $5 billion is going to come from you because of higher prices on the stuff you buy, just to keep Mr. Steyer’s hedge funds spewing cash for his investors. Just what we need, another environmental activist mandate to soak Californians’ family budgets — to no justifiable purpose. Like other tax increase measures on the Nov. 6 ballot (Prop 30, for instance) Prop. 39 is just another measure that would raise taxes at the expense of private-sector economic growth, to hand billions of dollars to Gov. Jerry Brown and Legislature to do with as they please."

Polling information

See also: Polls, 2012 ballot measures

A Field Poll taken in late June/early July showed that the "yes" side had a very slight lead over the "no" side, but with less than 50% support.

A Field Poll conducted in mid-September showed similar levels of support and opposition.

Date of Poll	Pollster	In favor	Opposed	Undecided	Number polled
June 21-July 2, 2012	Field Poll	44%	43%	13%	997
September 6-18, 2012	Field Poll	45%	39%	16%	902
September 17-23, 2012	USC Dornsife/Los Angeles Times	51%	29%	20%	1,504
October 7-10, 2012	California Business Roundtable	60.6%	25.1%	14.3%	830
October 21-28, 2012	California Business Roundtable	54.5%	28.5%	17.0%	2,115

A poll of 802 likely voters conducted by the California Business Roundtable and Pepperdine University’s School of Public Policy showed 57 percent of voters in support of Proposition 39. Twenty-nine percent opposed the measure.

Path to the ballot

See also: California signature requirements

• The letter requesting a title and summary was signed by Joseph Caves. Caves is also the proponent of a different initiative, the Pollution Producers To Pay for Pollution Mitigation Initiative.
• The 150-day circulation deadline for #11-0080 was June 11, 2012.
• 504,760 valid signatures were required for qualification purposes.
• Signatures to qualify the initiative for the November 6, 2012 ballot were submitted to county election officials throughout the state on May 4, 2012.
• On June 20, the California Secretary of State announced that Proposition 39 had qualified for the November 6, 2012 ballot.

Cost of signature collection:

The cost of collecting the signatures to qualify Proposition 39 for the ballot came to $1,796,003.

The signature vendor was Masterson & Wright.

See also: California ballot initiative petition signature costs

External links

Suggest a link

Basic information:

• Complete November 6, 2012 official voter guide
• Ballot title, summary and LAO analysis of Proposition 39
• Arguments for and against Proposition 39 in the official state voter guide
• Letter requesting a ballot title for Initiative 11-0080
• Living Voters Guide to Proposition 39
• Proposition 39, an overview prepared by the League of Women Voters of California
• Proposition 39 on Voter's Edge
• Proposition 39 Cheatsheet from KCET
• Proposition 39 on California Choices (sponsored by Next 10, IGS at UC Berkeley, the UC San Diego Political Science Department, the Bill Lane Center for the American West at Stanford, and the Center for CA Studies at Sac State)
• Proposition 39 at the California Voter Foundation

Supporters:

• "Yes on 39" website
• "Yes on 39" on Facebook
• Campaign finance reports for "Yes on 39; Californians to Close the Out-of-State Corporate Tax Loophole"
• Campaign finance reports for "Californians for Clean Energy and Jobs"
• Campaign finance reports for "South LA Power PAC"

Opponents:

• Stop 39
• Campaign finance reports for "California Manufacturers & Technology Association Issues Political Action Committee/No on 39"