Booz Allen does much more than you might think. What a great company and community leader! And, did I mention, they are looking for good people for fantastic careers?
How Long Does It Take to Have a Home on Kauai?
Today, we focus on Kauai real property tax, thanks to an alert reader who has given us a horrifying account of something so commonplace as buying a home there. How long do you think it takes between buying a home on Kauai and having the “home exemption” effective for real property tax there?
Did you guess 21 months? That’s right, the better part of two years.
Suppose a couple getting on in years, tired of the hustle and bustle in New York, or San Francisco, or Silicon Valley, decides to move to Kauai. They buy a house there and move in October 2017.
To have a home exemption recognized for real property tax purposes in Kauai, an application for the exemption needs to be in by September 30th. Darn! The deadline has already passed. So, the form, when filed, will be in the batch due on September 30, 2018. Exemptions applied for in that batch will be effective for the next succeeding fiscal year, and that year would begin on July 1, 2019.
From October 2017 to July 2019 is twenty-one months.
What difference does that make? The most favorable property tax classification on Kauai is “Homestead,” currently with a tax rate of $3.05 per $1,000 of net taxable value. To get that classification, a home exemption must be in place. And, a home that doesn’t qualify for a home exemption and is valued at $2 million or more is classified as “Residential Investor” with a tax rate of $8.05. That’s right, it would be more than two and a half times the property tax of a homestead. (And if the property is valued at less than $2 million, the classification is “Residential” with a tax rate of $6.05, which is a little better but it’s still almost double the rate of Homestead property.)
But wait, there’s more! If the property tax surcharge amendment passes on the November ballot, the State will be authorized to tax that property even more, as it will now fall into the same classification as homes held by evil, nasty, foreign real estate speculators. Although it’s unclear what kinds of “investment real property” would be subject to the surcharge, Residential Investor property would surely be included. We don’t know how much the surcharge is going to be, but in the 2017 legislative session the number that appeared in proposed implementing legislation was $7.50.
The $7.50 would be added to the $8.05, making the total tab $15.55, or $31,100 per year on a $2 million property, as opposed to $6,100 that would be due under the Homestead classification.
If we don’t count the state surcharge, the 21 months result in the County of Kauai pocketing $17,500 in extra tax from the elderly couple who have occupied the Kauai house as their home since they bought it. If the state surcharge were in effect, the $17,500 taken would mushroom to $43,750. Hawaii is supposed to have the lowest property taxes in the nation, but this couple certainly wouldn’t be feeling the love in their situation.
And that doesn’t even include the Conveyance Tax that was paid to the State back in October 2017 when the property changed hands. The rate of tax on a $2 million property is $6.00 per $1,000, so another $12,000 needed to be paid by someone.
All these tax shenanigans are enough to drive folks straight to the airport where they can move to somewhere else with a much better cost of living. Better watch out, because some of our folks are doing just that!
Cashing In On Production Credits
In this space, I often have unflattering things to say about tax credits. Every year, legislators propose tax credits for some little-noticed niche in an industry. Sometimes the credit is well thought through, and sometimes it isn’t. Sometimes the desired effect can be accomplished more cheaply and simply, and sometimes the justification for the credit is sketchy at best.
For example, I never knew what “preceptors” in the health care industry were (they’re working professionals that provide on-site clinical education and nurture students’ professional development) until bills were introduced in the 2018 session proposing to give them tax credits. “This is all well and good,” I said, “but the amounts are pretty small so why doesn’t the State just write them a check instead of burdening the tax system, which is already complicated enough?” (The credits became law anyway.)
One example of a credit that has some meat in its justification claims is the Motion Picture, Digital Media and Film production tax credit. The Hawaii Film Office in DBEDT reported earlier this year that in calendar year 2016, 35 productions spent almost $200 million in qualified expenditures and received about $44 million in Hawaii tax credits in exchange. DBEDT’s Research and Economic Analysis Division translated those figures as indicating $344 million in generated economic activity and almost $80 million in Hawaii household income.
The following year, 48 productions registered for the credit, with estimated qualified expenditures north of $268 million in exchange for $55 million in tax credits. According to the Film Office, the estimated total 2017 spending for those productions, qualified expenses or not, was expected to be $320 million, the largest production year in our history since 2010.
In addition, productions that get tax credits in Hawaii are required to make an “education or workforce development contribution” to the community. This could include cash contributions or in-kind resources such as internships, professional training workshops, or donations of equipment.
This year, “Hawaii Five-O” will begin its ninth season here, “Magnum, P.I.” is back, and we’ve wrapped production on “Jurassic World: Fallen Kingdom,” Marvel’s “Inhumans,” and “Jumanji: Welcome to the Jungle.” Many of these productions are in themselves advertisements for visiting the islands that have provided the lush tropical backdrop for the movie scenes.
In short, this program is on a roll.
Effective January 1, 2019, Act 143 of 2018 changes the credit program in several respects. A per-production credit cap will be replaced with a statewide $35 million cap, which worries some folks in the industry and in government. Lawmakers have been continuing to tinker with the credit program by floating mandates such as a cultural sensitivity requirement; a requirement to be compliant with ALL federal, state, and county rules and regulations; and adding hiring criteria. Efforts to make the credit fiscally responsible have included a per-production cap and an overall statewide cap on the credit.
Lawmakers certainly have their hands full trying to strike a delicate balance between what the industry needs, what the community wants, and what we can afford in lost revenue. Stakeholders should continue to be engaged in the continued evolution of this credit.
Weekends Safe Once Again, Maybe
Back in 2014, we wrote in this space about a nasty Honolulu City & County rule involving real property tax appeals. That rule said that if you as a property owner didn’t like your real property tax assessment and you wanted to appeal it, the appeal had better be in by January 15th. It didn’t matter if the government was open on January 15th. If the appeal came in after the 15th, the appeal would be late, and the City would have it dismissed.
Along comes a taxpayer, Kalaeloa Ventures, LLC. It wanted to file fourteen different real property tax appeals against the City taxing authorities. However, it wasn’t quite ready to file on Friday, January 13, 2017. (How unlucky!) The government closed for the weekend, which included Sunday, January 15th and Monday, January 16th, which was Martin Luther King, Jr. Day. It reopened for business on Tuesday, January 17th, and the taxpayer filed Notices of Appeal to the Tax Appeal Court in all fourteen cases.
Cackling with glee, City attorneys marched straight to Tax Appeal Court and asked the court to throw out all fourteen appeals. “Tsk, tsk. Late,” they said. “The court doesn’t have jurisdiction over late appeals.”
“Wait a minute,” the taxpayer said. “There’s a state statute, HRS section 1-32, allowing acts that are legally required to be performed on a particular date to be done the next business day when the deadline day is a Sunday or a holiday.” Under that statute, we’re good to go.”
“No, you’re not,” the City contended. “Our tax appeal ordinance, section 8-12.1, specifically says that the appeal must be in on or before January 15. The City also has an ordinance regarding due dates on a Saturday, Sunday, or holiday, namely section 8-1.16, and that ordinance specifically does not apply to tax appeals. So, a tax appeal must be in by January 15 whether the City government offices are open or not.”
“But you forgot one thing,” said the taxpayer. “The tax appeal court is a state court. It deals with appeals from all the different counties. The law governing state court procedure is state law. There is no state exception for property tax appeals. Therefore, the appeal was on time!”
“Absolutely not!” huffed the City attorney, with a noticeably quickening pulse. “The Hawaii Constitution expressly says, ‘all functions, powers and duties relating to the taxation of real property shall be exercised exclusively by the counties.’ All functions, powers and duties mean we, not the State, get to specify not only the property tax system, but also the procedure surrounding it. So, the state statutes are trumped by the property tax ordinances when it comes to property tax!”
This dispute then played out through the court system. The Tax Appeal Court thought the City had the better of the argument and tossed out the appeals. The taxpayer appealed the dismissals, and the arguments were made before the Supreme Court of Hawaii.
On July 27, 2018, the Supreme Court of Hawaii issued its decision. Apparently, the court couldn’t stomach the thought of having a state court subject to numerous procedural rules created by each county, and that the state statutes and court rules creating the court would have questionable validity because they would not be exercised exclusively by the counties. Judgment for the Taxpayer!
A word of caution: This decision might not apply when real property tax appeals are made to the Board of Review, which is a county creation, as opposed to the Tax Appeal Court, which is part of the state judiciary. To prevent taxpayer confusion, we hope that the counties won’t be too “hard head” about this and allow the weekend rule to apply across the board.
Wayfair – Playing Catch-Up
This week, we continue with our coverage of Wayfair, the U.S. Supreme Court case that held online sellers can be made to collect state sales taxes even if they don’t have a physical presence in that state.
Here in Hawaii, Act 41 of 2018 was fashioned after the South Dakota threshold and says that if a business has 200 transactions or $100,000 in sales in Hawaii within the previous or current taxable year, it needs to pay General Excise Tax (“GET”) in Hawaii for that taxable year.
Our Department of Taxation has interpreted “taxable year” as being the whole taxable year, from the beginning. Therefore, if a calendar year business that didn’t hit the threshold in 2018 but meets it in the middle or end of 2019, it would be expected to pay GET on all transactions from January 1, 2019. The Department has graciously said that it will not impose late filing penalties on the catch-up tax and will allow the catch-up tax to be paid by spreading it over the remaining months in the year. But it wants that tax.
Some of the affected businesses think that approach is unfair. Although there are taxes such as income taxes where the ultimate tax rate won’t be known until the end of the year (when you subtract your deductions from your income and find out what tax bracket you fall into), there are other taxes which are imposed on transactions as they occur such as sales taxes and our GET. The effect is very dramatic with a sales tax, which is imposed on the customer and collected by the business. The business needs to know the correct tax rate at the time the transaction takes place, because after the transaction is done the business might never see that customer again, and even if it does the customer is unlikely to relish being called on the carpet to pay more sales tax on a sale, or maybe several sales, that took place in the past. In Hawaii, we have a GET instead of a sales tax and it is the business, rather than the customer, who is technically liable for the tax. It may therefore seem logical in our state that the business should have to eat the cost, but it may still be unfair to do that once the transactions with the customer have closed and it’s not possible to renegotiate the transactions with the tax considered.
In response, the Department may say that if a business thinks it’s going to hit the sales threshold, it should register and start paying tax at the beginning of the year and collect from its customers if it wants to do so. If a business genuinely didn’t expect to be doing business here and lands a big sale, or flurry of sales, at the end of the year that pops it over, the maximum amount of unplanned tax the business is going to have is 4.5% of $100,000, or $4,500, because after that point the business knows it must collect and pay. $4,500 arguably isn’t that much for a business that has done more than $100,000 in sales in Hawaii for the year. Doing any less, the Department could say, wouldn’t be fair to the businesses with physical stores here, the ones that employ local residents and generally contribute in many ways to the community they are in, because those businesses are also going to be paying tax from the beginning of the year and they have a right to expect that their competitors will do the same.
For now, Hawaii has drawn its line in the sand. Other states will draw theirs. One good thing is that Hawaii has made its position known early, so that those businesses who choose to compete in our marketplace will know what the rules are beforehand.
Who Can We Beat Up With Property Tax?
The ongoing furor in Honolulu over the extent to which the rail project is adequately funded, or lack thereof, and the possibility of new state-mandated property taxes to fund education lead us to look at how we can or should make property tax classifications.
Real property tax is currently a county tax. It applies to real property that is owned by a taxpayer, or to residential property subject to a long-term (varies by county, but usually more than 20 years) lease. If the object is to raise more revenue, and to spare all or most normal people who otherwise would be motivated to kick out present or future county officials at the ballot box, we need to make classifications. How can that be done?
According to the teachers’ union’s public testimony on the constitutional amendment bill, we should be heavily taxing nasty foreign real estate speculators and vacation home buyers. If they can afford million-dollar homes, so they say, then they can afford money to educate our keiki.
Under constitutional law, it’s easy to create tax classifications. They only need a “rational basis,” which means it is very hard for a classification scheme to fail. For example, most counties already have different tax classifications for residential property, commercial property, hotel/resort, and agriculture, and they apply wildly different tax rates to those classifications. There are some classifications that are impermissible, however. Governments can’t discriminate based on race, sex, or religion. That comes at no surprise. They also can’t discriminate on nationality. So, a higher tax classification for foreigners wouldn’t fly.
Most jurisdictions that impose a real property tax give a break, typically a “home exemption,” to people whose primary residence is the property being taxed. So far, courts haven’t viewed that kind of classification as discrimination against those in other states and countries. The City & County if Honolulu then took this principle to the next level when it established its “Residential A” classification, which targets properties over a certain dollar value that are not registered for a home exemption. That classification was challenged in court and has survived, at least for now.
Just because a classification is constitutional, however, doesn’t mean that it does what it’s supposed to. Does Residential A hit speculators and the owners of vacation homes? Sure, but it also hits rental properties and properties where the owner wants to but can’t live there (for example, where the owner is of advanced age and needs to be in a nursing home; we wrote about that some time ago). Residential A also applies where the owner was eligible for a home exemption but, for whatever reason, didn’t apply for one — ouch. It turned out that there were quite a few people who fell into that category, prompting the City Council to enact relief measures.
To be administered properly, a tax classification should be simple and should be capable of verification with information that the tax agency has or can get without excessive additional cost. If a county wanted to tax homeowners with high incomes, for example, it would need access to Social Security numbers and income tax data. But what about the foreigners it might want to tax? Neither the State nor the IRS might have data on how much these people make, or what their net worth is.
So, how does a county zero in on foreign fat cats and speculators? It’s tough to find a classification that is constitutional, works correctly, and doesn’t create collateral damage. We wish the authorities good luck, because they are going to need it!
If You Don’t Rock the Boat, How Do You Change Its Direction?
A little over twenty years ago, on May 6, 1998, then-Maui Mayor Linda Lingle was speaking to a group of business leaders from the Chamber of Commerce of Hawaii.
Before the meeting, she was told that she could speak on anything she wanted to, but she was specifically told not to criticize any specific person in the government. She complied with the request, but she also said this:
“Why is the Chamber so reluctant to speak up? The Chamber should be standing and speaking loudly and openly criticizing the policies that have brought our economy to its knees. The Chamber of Commerce plays a major role in maintaining the status quo by failing to speak up!”
When many of us in Hawaii grew up, we were taught to go with the flow, that we shouldn’t rock the boat, that it will all work out in the end. Maybe that is one reason why so few of us turn out to elections. We just sit tight and hope that it all works out.
And, for those of us who do turn out to vote, or to engage in campaign activities, we vote for the person we voted for before, or we support a candidate we supported before. So what if the person supported a stupid bill or said something idiotic when speaking about it in the committee hearing? He is my candidate and I support him, or she has a lot of power and I better support her or else. All of these are variations on the theme of, “Let’s maintain the status quo.”
On the business side, many of us are fearful that we’ll lose customers or attract political retribution if we support a specific candidate or a specific policy or platform. Some of us contribute to opposing candidates so whoever wins will be our “friend.” Again, these are just variations on the theme of supporting the status quo.
But what if we don’t like the status quo? What if we think that our economy is in the toilet and our elected officials are constantly making it worse? What if we think that real problems that we now face, like staggering unfunded liabilities for pension and health benefits for state workers, or the homeless, or invasive species, are not being adequately dealt with?
We’ve got to rock the boat.
If you’re walking peacefully in the park one day and you step on a huge thorn on the ground, do you just remain silent, not wanting to bother anyone around you? Of course not! You howl in pain, bounce around on the other foot, and cry for help!
So, if you are suffering because of our cost of living, or you see government resources wasted or mismanaged, or you confront problems that we should be dealing with but aren’t, howl in pain! Make your sentiments known! Educate yourself on some of the critical issues we face and share your knowledge. You can even share your knowledge with your elected officials, because some of it, maybe lots of it, may be news to them! (You’d be surprised. Really.)
If you have an issue you are passionate about for all the right reasons, get other people on your side too! Unions like HSTA, UPW, or HGEA, or politically active nonprofits like the Sierra Club or the Nature Conservancy, don’t have a monopoly on organizing people to support their respective causes. The more people you can convince, the more you can rock the boat.
Remember, if no one rocks the boat, it will never change direction!
It’s Not Easy Bein’ — an Employer
It’s tough being an employer, especially here in Hawaii.
If I am a business, or even a nonprofit, in Hawaii and I want to hire paid staff, there are all kinds of things to consider.
Before I hire the worker, I need to comply with laws saying what I can and can’t ask the prospective employee. I might get in trouble if I ask the prospect what he or she was paid at the prospect’s previous job, for example. If I clear that mine field and find a prospect that I want to hire (which is challenging because our unemployment rate is so low) there are laws saying I need to check on things like immigration status and documentation, or whether there is an outstanding child support obligation.
When I pay the worker, I need to comply with wage and hour laws, meaning that I need to pay the worker at least a certain amount per hour, provide breaks at various times, and if I go over a certain number of hours in a week I need to provide for overtime pay. The definition of exempt employee who can be paid on a salaried basis has been shifting, so I need to be sure my understanding of that is current as well.
Then, I need to set up withholding for federal and state income tax, unemployment tax, and Social Security. I need to have some required insurance in place, like temporary disability insurance, workers’ compensation, and Obamacare-compliant prepaid health care insurance. Each of the insurers then has the right to audit my operations, to make sure I am in the proper risk category. So, I can look forward to a bit of extra work whenever one of these audits takes place.
At the place of employment, I need to make sure that I have a number of signs and placards that are required by federal, state, and local employment laws. There are different agencies that specify the content of these placards, and from time to time the required language changes. So, I need to have a current set of these signs and placards.
Besides having all of these required items, and I probably missed some, then there are items that I as an employer need to provide just to be competitive. For the overall work schedule, I provide for paid holidays, sick leave, family leave, vacation. Providing a simple “here’s x days of paid time off,” although previously legal, now might lead to problems.
Some workers want to see that employers have a retirement plan (that the employer pays into). Having one of these is not a piece of cake. When I had one, IRS requirements shifted every year, so I would have to have a law firm review the plan every two or three years, and of course the firm charged a princely sum for their services. When a financial advisor I knew found out how many employees I had that were covered by the plan (I could count them on one finger), he burst out laughing. I got rid of the plan at the end of that year.
Man, it’s not easy bein’ an employer.
The Warlord’s Hospital (Part Two)
Author’s Note: In June 1988, I joined an American non-governmental organization (NGO) and the Royal Thai Government Ministry of Public Health to manage a 5-year cooperative health and development project to provide comprehensive health services to highland residents of an isolated, politically sensitive and culturally unspoiled region in the extreme north of Thailand along the Burmese border.
The Project included a 10-bed hospital, with outpatient and laboratory services, simple administrative offices, kitchen and staff housing, as well as community-based primary health care, health education and community development in the surrounding villages. Electricity arrived during my second year there, and we used a radio – powered by the truck battery – to contact the District Hospital in the lowland.
The Project developed a locally appropriate model for preventive and clinical health care delivery by training and facilitating the entrance of hill tribe health workers into the Thai National Health System, together with innovative community-based health and development strategies such as gravity-fed village water systems, household gardening, opium detoxification, and vector-borne disease control.
Remote and politically unstable, our district was the last one in the country to be developed for primary health care — and for other basics such as piped water, electricity and sealed roads.
Many of the area residents are spirit worshipers with little or no understanding of Western medicine or the linkages of proper hygiene and nutrition with good health, and water is scarce in the hilltop villages.
For example, mothers typically keep a child’s head covered with a warm, colorfully woven cap. But due to cultural beliefs and scarce water, they rarely if ever bathed the child’s head. So, it was not uncommon to find a raw, infected and bleeding scalp under a child’s cap.
It was also a challenge to encourage the local people to use pit latrines, and to sleep under mosquito nets. Sometimes, a supportive village headman would try to set an example for the community by using a pit latrine at his home. But this was a hard sell to locals who were used to relieving themselves in the bush, and complained that the pit latrines smelled badly. In addition to providing bed nets to the villagers for malaria control, we conducted studies on their use – as they often ended up being used for fishing.
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Working with the District Health Department, the Project helped villagers build gravity-fed water systems — hacking through the dense bush and rugged mountain terrain to lay the pipeline and pouring cement tanks for water storage in the village.
A particularly grand sight was joyful kids frolicking under the water taps flowing with fresh water into their hilltop villages for the first time ever. These community-based water projects were jointly financed by the Project and the communities themselves – who took out loans against their projected rice harvest. Access to clean water is one of the most basic of needs, and was highly valued by our communities.
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The Project also facilitated village-based opium detoxification to gradually move addicts off opium and onto the government’s liquid methadone treatment program – an alternative which seeks to reduce the risk related to injecting drugs. Recovering addicts were put to work building a village fish pond while reducing the methadone dosage day by day.
All the addicts in the village were required to participate or they would be forced to leave the village – and this was not easy, especially since some addicts had been smoking or eating opium for 30 years more and had no desire to stop.
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Ongoing immunization campaigns were of particular importance, as it was not uncommon to see kids dying of immunizable diseases like Diphtheria. So, whenever we were in the field, we made it a priority to immunize every woman of child-bearing age against Tetanus. Our nursing staff even trained me how to give injections to support these busy campaigns.
Interestingly, the local women typically lined up to get their shots from me – the tall, foreign ‘doctor’ – despite my admonitions that they were more likely to receive a painless shot from our more experienced local nurses.
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Our Project staff also joined government health teams for week-long treks to outlying health stations along the border — flying in by helicopter and then walking out through villages, mountains, dense jungle, rushing streams, and fields of ripe rice — escorted throughout by the Thai Border Police in full combat gear for our security.
Regular skirmishes between the local narcotics traffickers were ongoing, and several years earlier, two Russian doctors were kidnapped from the area and held as ransom for an opium warlord’s release from Burmese government captivity.
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As Project Director, my time was divided between a mountain of administrative tasks at the Highland Health Center, and a full schedule of planning and logistical work with our Thai Government counterparts in the lowland.
Thirteen kilometers of our road (and most bridges) washed away each rainy season, so four-hour walks (barefoot for better traction) and moving supplies and medicines by horseback to the nearest road was an on-going adventure from June to October.
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Staggering out of the office dazed and bleary-eyed after full and exhausting days — but always in time for a swim in the local reservoir before dinner at our village’s only restaurant. A warm beer and BBQ’d chicken feet on a stick smothered in hot chili sauce to cover the toe nails and crunchy cartilage topped off the quiet nights in the village — before returning to the charming glow of oil lamp light illuminating the health center windows.
Whenever possible, brief holiday trips by overnight VIP bus to quiet islands in the Gulf of Siam provided much-needed breaks in the sun, the sea, and coconuts.
Stay tuned for more stories – coming soon!
You can read more about Jim’s backstory, here and here.