Untitled California Attorney General Opinion ( 1998 )

TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
DANIEL E. LUNGREN
Attorney General
______________________________________
OPINION :
: No. 97-1205
of :
: April 20, 1998
DANIEL E. LUNGREN :
Attorney General :
:
ANTHONY M. SUMMERS :
Deputy Attorney General :
:
______________________________________________________________________
THE HONORABLE THOMAS F. CASEY III, SAN MATEO COUNTY COUNSEL, has
requested an opinion on the following question:
Does the County of San Mateo have the authority to impose a 0.5 percent transactions and
use tax for the support of public elementary and secondary education, community colleges,
parks, recreation, and libraries, which tax would be used to fund these activities in incorporated
as well as unincorporated areas of the county?
CONCLUSION
The County of San Mateo has the authority to impose a 0.5 percent transactions and use tax
for the support of public elementary and secondary education, community colleges, parks,
recreation, and libraries, which tax would be used to fund these activities in incorporated as well
as unincorporated areas of the county. However, prior approval by two-thirds of the electorate is
necessary.
ANALYSIS
Section 24 of article XIII of the Constitution states: "The Legislature may not impose taxes
for local purposes but may authorize local governments to impose them." With respect to what is
generally known as "sales taxes," the Legislature has imposed such taxes at the state level and in
addition has authorized local governments to impose them under specified conditions.
Under the "Sales and Use Tax Law" (Rev. & Tax. Code, §§ 6001-7176), Footnote No. 1 the
state imposes a sales tax at a specified rate upon retailers for the privilege of selling tangible
personal property in this state. (§§ 6051-6055.) The state also imposes a complementary use tax
on the storage, use, or other consumption of tangible personal property purchased from any
retailer. (§§ 6201-6207.) Payment of the sales tax generally constitutes an exemption from
liability for the use tax. (§ 6401.) The State Board of Equalization ("Board") administers these
state taxes. (§ 7051.)
Under the "Bradley-Burns Uniform Local Sales and Use Tax Law" (§§ 7200-7212), local
agencies may by ordinance impose an additional sales and use tax. Local agencies are required to
contract with the Board for the performance of all functions incident to the administration of
these local taxes. (§ 7202.)
Under the "Transactions and Use Tax Law" (§§ 7251-7279.6), certain local districts may
impose a transactions and use tax for specified purposes. A transactions tax, like a sales tax, is
imposed for the privilege of selling personal property at retail. The complementary use tax under
this statutory scheme, like the state use tax, is imposed upon the storage, use, or other
consumption of personal property purchased from any retailer. These local taxes must also be
administered by the Board. (§ 7270.)
Finally, under "Additional Local Taxes" (§§ 7280-7288.6), a variety of local tax levies are
authorized by the Legislature, including the authority of a county to enact a transactions and use
tax in conformity with the Transactions and Use Tax Law (§§ 7285-7285.8).
The question presented for resolution is whether the County of San Mateo may impose a 0.5
percent transactions and use tax for the support of public elementary and secondary education,
community colleges, parks, recreation, and libraries, which tax would fund these activities in
incorporated as well as unincorporated areas of the county. We conclude that it may.
Four statutes require our examination in addressing this inquiry. Section 7285 provides:
"The board of supervisors of any county may levy a transactions and use tax at a rate of
0.25 percent or a multiple thereof, if the ordinance or resolution proposing that tax is approved
by a two-thirds vote of all members of the board of supervisors and the tax is approved by a
majority vote of the qualified voters of the county voting in an election on the issue. The board
of supervisors may levy more than one transactions and use tax under this section, if the adoption
of each tax is in the manner prescribed in this section. The transactions and use tax shall conform
to Part 1.6 (commencing with Section 7251)."
Section 7285.5 states:
"As an alternative to the procedure set forth in Section 7285, the board of supervisors of any
county may establish an authority for specific purposes.
"An authority so established may impose a transactions and use tax at a rate of 0.25 or 0.5
percent for the purpose for which it is established, if all of the following requirements are met:
"(a) The ordinance proposing that tax is approved by a two-thirds vote of the authority and
is subsequently approved by a majority vote of the qualified voters of the county voting in an
election on the issue.
"(b) The transactions and use tax conforms to Part 1.6 (commencing with Section 7251).
"(c) The ordinance includes an expenditure plan describing the specific projects for which
the revenues from the tax may be expended."
Section 7285.8 provides:
"(a) In addition to any authority established pursuant to Section 7285.5, the Board of
Supervisors of the County of San Mateo may establish an authority for the support of public
elementary and secondary education in that county. Any authority so established may impose a
transactions and use tax at a rate of 0.5 percent for the support of public elementary and
secondary education in the County of San Mateo, if all of the following requirements are met:
"(1) The ordinance proposing that tax is approved by a two-thirds vote of the governing
board of the authority, and is subject to any otherwise applicable voter approval requirement.
"(2) The ordinance proposing that tax requires that revenues derived from the tax be
allocated only for purposes of public elementary and secondary education within the County of
San Mateo. Revenues from the tax, to the extent the tax exceeds the rate authorized under
Section 7251.1, shall not be expended in any manner that increases any entitlement to state
funding on the part of any local educational agency.
"(3) The transactions and use tax conforms to Part 1.6 (commencing with Section 7251).
"(b)(1) Revenues from any tax imposed pursuant to this section shall not be considered
"allocated local proceeds of taxes" pursuant to Section 41202 of the Education Code or
paragraph (2) of subdivision (b) of Section 8 of Article XVI of the California Constitution.
"(2) Revenues from any tax imposed pursuant to this section shall supplement, and shall not
be offset against, the allocations made pursuant to Section 2558 or 42238 of the Education
Code."
Finally, section 7286.59 states:
"(a) In addition to the tax levied pursuant to Part 1.5 (commencing with Section 7200), and
any other tax authorized by this part, a board of supervisors of a county may impose a
transactions and use tax in lieu of, and not in addition to, a tax imposed under Section 7285.5 for
the purposes described in paragraph (4), by the adoption of an ordinance in accordance with this
part if each of the following conditions are met:
"(1) The ordinance imposing the tax is submitted to and approved by the voters of the
county by a two-thirds vote of those voters voting on the ordinance in accordance with Article
3.7 (commencing with Section 53720) of Chapter 4 of Part 1 of Division 2 of Title 5 of the
Government Code.
"(2) The ordinance includes an expenditure plan describing the specific purposes for which
the revenues from the tax may be expended.
"(3) The tax is imposed at a rate of 0.125 or 0.25 percent for a period not to exceed 16
years.
"(4) The revenues collected from the tax are used only for funding public library
construction, acquisition, programs, and operations within the county. These revenues shall be
used only to supplement existing expenditures for public libraries and shall not be used to
supplant existing funding for the support of public libraries.
"(5) The transactions and use tax conforms to part 1.6 (commencing with Section 7251).
"(b) 'Public library' means a library, or two or more libraries that are operated as a single
entity by one or more public jurisdictions, that serve the general public and are required to report
appropriations to the State Librarian under the provision of Section 18023 of the Education
Code.
"(c) The board of supervisors may impose a transactions and use tax in any succeeding
period not to exceed 16 years per period if all of the conditions specified in subdivision (a) are
met for that succeeding period."
Looking first at the provisions of section 7285, we find that it authorizes "a transactions and
use tax at a rate of 0.25 percent or a multiple thereof," without restriction as to the use of the tax
revenues. Accordingly, it is a tax for general purposes. (Gov. Code, § 53721; Monterey
Peninsula Taxpayers Assn. v. County of Monterey (1992) 8 Cal. App. 4th 1520, 1531, 1535; 73
Ops.Cal.Atty.Gen. 111, 114-115 (1990).) On the other hand, a tax for the support of public
elementary and secondary education, community colleges, parks, recreation, and libraries, with
the funds raised by the tax usable only for those purposes, would constitute a "special tax" even
though for multiple types of projects. (See Gov. Code, § 53721; Rider v. County of San Diego
(1990) 1 Cal. 4th 1, 15.) As we will explain below, the Constitution and various statutes
distinguish between general taxes and special taxes. Since section 7285 authorizes only the levy
of a "general tax" and not a "special tax," it is not available to serve as authority to impose the
tax in question for the specified purposes.
Next, we find that section 7285.5 authorizes a county to levy a transactions and use tax "for
specific purposes" if "approved by a majority vote of the qualified voters of the county voting in
a election on the issue." This statute would authorize the imposition of a "special tax" for the
specified purposes in question, unlike section 7285. However, at the general election of
November 4, 1976, Proposition 62 was adopted as an initiative measure adding, among other
provisions, Government Code sections 53722 as follows:
"No local government or district may impose any special tax unless and until such special
tax is submitted to the electorate of the local government, or district and approved by a two-
thirds vote of the voters voting in an election on the issue."
A county is a local government for purposes of this statute. (Gov. Code, § 53720, subd. (a).)
Moreover, the Constitution permits a county to impose a special tax only upon a two-thirds vote
of the electorate. (Cal. Const., art. XIII A , § 4; art. XIII C, § 2, subd. (d).) Special taxes that are
not approved by a two-thirds vote are invalid. (Rider v. County of San Diego, supra, 1 Cal.4th at
5-6; Monterey Peninsula Taxpayers Assn. v. County of Monterey, supra, 8 Cal.App.4th at 1526.)
May the majority vote requirement of section 7285.5 be severed from the statute, so as to
allow the levy of the tax upon a two-thirds vote of the electorate under other statutory and
constitutional provisions? Section 26 provides:
"If any provision of this code, or its application to any person or circumstance, is held
invalid, the remainder of the code, or the application of the provision to other persons or
circumstances, is not affected."
On its face, section 26 applies to section 7285.5 as it does to all the provisions of the Revenue
and Taxation Code. The voter approval requirement of section 7285.5 is mechanically severable,
but would the Legislature have adopted the rest of the statute if its partial invalidity had been
foreseen? (See Calfarm Ins. Co. v. Deukmejian (1989) 48 Cal. 3d 805, 821.)
In Monterey Peninsula Taxpayers Assn. v. County of Monterey, supra, 8 Cal. App. 4th 1520,
the court ruled upon the application of section 7285.5 but did not strike down the statute. We
believe the Legislature intended to make the tax levy of section 7285.5 dependent upon voter
approval; voter approval is mandatory under the Constitution; and the more stringent voter
approval requirement of the Constitution was intended by the Legislature to control a less
stringent requirement in section 7285.5 rather that invalidating the entire statute. Footnote No. 2
As so construed, and subject to compliance with its procedural requirements, section 7285.5
authorizes the County of San Mateo to levy a transactions and use tax for the support of public
elementary and secondary education, community colleges, parks, recreation, and libraries. The
levy would require a prior two-thirds vote of the electorate and be subject to the county's
maximum tax rate limitation contained in section 7251.3.
Are there any other statutory provisions that would allow the County of San Mateo to levy
the tax in question for the specified purposes? Section 7285.8 expressly grants "the Board of
Supervisors of the County of San Mateo " the power to "establish an authority for the support of
public elementary and secondary education," with such authority empowered to "impose a
transactions and use tax at a rate of 0.5 percent for the support of public elementary and
secondary education in the county of San Mateo." The tax must receive two-thirds electorate
approval. (Cal. Const., art. XIII C, § 2, subd. (d); § 7285.8, subd. (a)(1).) By its own terms,
section 7285.8 is not sufficiently broad enough to authorize the use of the tax revenues for the
other purposes proposed by the county: community colleges, parks, recreation, and libraries.
Section 7285.8 does not, therefore, provide the necessary authorization for the county's proposal
as specified in the question presented.
Finally, section 7286.59 authorizes the imposition of "a transactions and use tax in lieu of,
and not in addition to, a tax imposed under Section 7285.5 for . . . funding public library
construction, acquisition, programs, and operations within the county." Similar to the terms of
section 7285.8, the provisions of section 7286.59 do not allow the funding of all of the county's
proposed projects. As such, section 7286.59 is unavailable to provide the necessary authorization
for the county's projects as set forth in the present inquiry. Footnote No. 3
We conclude that the County of San Mateo has the authority to impose a 0.5 percent
transactions and use tax for the support of public elementary and secondary education,
community colleges, parks, recreation, and libraries, which tax would be used to fund these
activities in incorporated as well as unincorporated areas of the county. Section 7285.5 provides
the basic authority; however, prior approval by two-thirds of the electorate is necessary.
*****
Footnote No. 1
All references to the Revenue and Taxation Code are by section number only.
Footnote No. 2
To the extent our analysis in 73 Ops.Cal.Atty.Gen 111 (1990) supports a contrary conclusion, it is disapproved. We
note that portions of our 1990 opinion have been questioned (76 Ops.Cal.Atty.Gen. 98, 101, fn. 3 (1993)),
"disapproved" (76 Ops.Cal.Atty.Gen. 102, 111 (1993)), and found "unpersuasive" (Santa Clara County Local
Transportation Authority v. Guardino (1995) 11 Cal. 4th 220, 246-247, fn. 17), and can be distinguished for various
reasons that need not be articulated here.
Footnote No. 3
While we are aware of the apparent ambiguity contained in section 7286.59 with regard to section 7285.5, it would
appear from the legislative history that a county may form an authority to levy a tax pursuant to section 7285.5 for
special purposes other than the support of public libraries and that the county itself may levy a tax under the terms of
section 7286.59 to support its library system. Of course, there is also a limitation upon the total tax rate in the
County of San Mateo (§ 7251.3) that must be observed.