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CALIFORNIA CORPORATE & SECURITIES LAW

The Taxpayer Transparency And Fairness Act Is Anything But

Recently, I wrote about the stealth with which the California legislature enacted AB 102, which it ironically named the Taxpayer Transparency and Fairness Act of 2017.  Having been birthed in opacity, AB 102 will operate with even less transparency.

The bill transfers certain of the responsibilities of the State Board of Equalization to a newly created Department of Tax and Fee Administration. This new Department will assume the duties, powers, and responsibilities of the SBE with respect to the administration of various taxes and fees other than the duties, powers, and responsibilities imposed or conferred by the California Constitution on the SBE.  Remarkably, the legislature has seen fit to exempt the Department of Tax and Fee Administration from the rulemaking provisions of the California Administrative Procedure Act, Cal. Gov’t Code § 11340 et seq.  Thus, the Department will be free to adopt interpretations, guidelines, and regulations without notice, without public comment, without meeting the minimum standards for regulations, and without review by the Office of Administrative Law.  The legislature’s decision to exempt the Department from these requirements in the name of transparency is remarkable given that the SBE’s rulemaking protocol complies with the APA’s rulemaking requirements.

As I ponder the legislature’s wicked irony in naming AB 102, I am reminded of François-Marie Arouet’s (aka Voltaire) observation:

Ce corps qui s’appelait et qui s’appelle encore le saint empire romain n’était en aucune manière ni saint, ni romain, ni empire.

Essai sur l’histoire générale et sur les mœurs et l’esprit des nations, 248 (1835)

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