Report 2015-119 All Recommendation Responses

Report 2015-119: State Board of Equalization: Its Tobacco Tax Enforcement Efforts Are Effective and Properly Funded, but Other Funding Options and Cost Savings Are Possible (Release Date: February 2016)

Recommendation for Legislative Action

To make the board's licensing program self-supporting, the Legislature should consider passing legislation to implement a funding model that will include a license fee increase or a combination of license fee increases, continued use of money from the Cigarette Tax Fund, and a cigarette tax increase similar to one of the proposed options outlined in this report.

Recommendation #2 To: Equalization, Board of

Unless the Legislature directs the board to eliminate the compliance fund's excess fund balance within a time frame of more than a year, the board should eliminate the excess fund balance by June 30, 2017 by using it to offset the licensing program's annual funding shortfall. The board should also limit the fund's future balance to no more than two months' worth of licensing program expenditures.

Agency Response*

The California Department of Tax and Fee Administration (CDTFA) and the Department of Finance are in the process of eliminating all funding for the Cigarette Licensing Program that comes from the cigarette tax revenues through the annual budget process. This will result in the program being funded solely from the fees generated by the program in the 2018-19 fiscal year. It will also bring the CDTFA into compliance of AB 2770, which prohibits the use of cigarette tax revenue to fund the administration of the Licensing Program by July 1, 2019, one year earlier than required.

Limiting the Balance of the Compliance Fund

The Department of Finance and the Legislature control how much is appropriated from the Compliance Fund. The amount appropriated to CDTFA, other state departments, and for Statewide General Administrative Expenditures (pro rata) versus the revenue collected from license fees influence the fund balance every year. The completion date of the recommendation is dependent on these factors.

Pursuant to AB 2770, the CDTFA is required to report "on or before January 1, 2019, and on and before January 1 annually thereafter," on the adequacy of funding for the Licensing Program. The annual report, as required by Business and Professional Code 22990.5, will provide a monitoring mechanism. It will report data, maintain an effective enforcement program, and can make recommendations to limit the fund balance to an appropriate level limit the fund balance.

The CDTFA will fully implement "a practice of limiting its balance to no more than two months' worth of expenditures," as is stated in the recommendation, when it assesses a full year's worth of data on the impact of the legislation and the tax change. A recommendation will be made when the CDTFA reports this information to the Legislature, which is due by January 1, 2019.

  • Response Type†: Annual Follow Up
  • Estimated Completion Date: 7/1/2019
  • Response Date: November 2017

California State Auditor's Assessment of Status: Pending


Agency Response*

In the 2016-17 Budget Act, the Legislature shifted funding of the Cigarette and Tobacco Products Licensing Program (Licensing Program) from the four funds that receive Cigarette and Tobacco Products Surtax revenue to the Cigarette and Tobacco Products Compliance (Compliance) Fund. This funding shift will decrease the Compliance Fund by $5.2 million annually. In 2016, the Legislature also enacted ABx2-11, which changed the retailer licensing fee from a $100 one-time fee to an annual $265 fee and increased the annual fee for wholesalers and distributors from $1,000 to $1,200. Combined, these legislative changes will both reduce the Compliance Fund's balance and make the Licensing Program self-funded. In addition the Legislature enacted AB 2770, which prohibits the BOE from using revenues derived from the Cigarette and Tobacco Products Surtax to fund the Licensing Program by July 1, 2019. This Legislation also requires the BOE to report to the Legislature no later than January 1, 2019, and annually thereafter, regarding whether the Licensing Program is adequately funded.

  • Response Type†: 1-Year
  • Completion Date: September 2016
  • Response Date: March 2017

California State Auditor's Assessment of Status: Pending

Although there have been several law changes, the status of this recommendation is pending the outcome of fiscal year 2016-17 to determine if the excess balance in the compliance fund has been eliminated. Additionally, in its follow-up communications with us, the board indicates that it will implement a practice of limiting the compliance fund's balance to no more than two months worth of expenditures, after it assesses a full fiscal year of data on the impact of these law changes.

  • Auditee did not substantiate its claim of full implementation

Agency Response*

The Legislature approved an action that reallocated $5.2 million of BOE's appropriation for the Cigarette and Tobacco Licensing Program in the spring of 2016. This reallocation will shift expenditures to the Cigarette and Tobacco Tax Compliance (Compliance) fund from the four funds that receive revenue from the Cigarette and Tobacco Products Surtax. This action will reduce the Compliance fund in the 2016-17 fiscal year by increasing BOE's appropriation to $7.5 million.

Additionally, two pieces of legislation were signed into law in May 2016 that changed the requirements of the Cigarette and Tobacco Licensing program. ABx2 11 increased the cost of the license and changed it from a one-time fee to an annual fee. SBx2 5 added to the definition of "tobacco products" any electronic nicotine delivery device, including, but not limited to, an electronic cigarette, cigar, pipe, or hookah; any component, part, or accessory of a tobacco product, whether or not sold separately. These law changes will change the revenue of the Compliance fund. BOE will continue to work with the Department of Finance and the Legislature to ensure the fund balance is at appropriate levels.

  • Response Type†: 6-Month
  • Estimated Completion Date: TBD
  • Response Date: September 2016

California State Auditor's Assessment of Status: Pending

Ultimately, the excess of the fund balance depends on the affect of the recent legislation.


Agency Response*

The Board of Equalization is in active discussions with the Department of Finance as to the best way to reduce the fund balance in the recommended time frame. Any adjustment to the appropriation of the Cigarette Licensing Program would require the approval of the Department of Finance and notification to the Legislature.

  • Response Type†: 60-Day
  • Estimated Completion Date: tbd
  • Response Date: April 2016

California State Auditor's Assessment of Status: Pending


Recommendation #3 To: Equalization, Board of

The special taxes division should amend its budgeting process to reflect actual work that supervisors and support staff perform instead of adjusting staff members' predetermined allocations of time to ensure that the division does not exceed each program's budget.

Agency Response*

The Special Taxes divisions have amended the time reporting processes for supervisory and support positions to be consistent with the BOE Time Reporting Manual regarding prorated time codes. The BOE Time Reporting Manual states:

"When time is spent on assignments involving more than one tax program and/or function and it is impractical to make an exact distribution of time, the time should be prorated according to a pattern which is representative of the individual employee's actual working conditions. The pattern may be based on records of actual hours worked or work counts during a sample period. The pattern should be updated annually or when changing conditions indicate the pattern may no longer be representative."

Staff analyzed actual hours worked throughout the various branches within the Special Taxes Divisions to determine the proration that is now used. The proration for supervisors and support staff is directly related to the work completed and hours charged to Special Taxes programs by each branch. The new prorated time codes were implemented for the May 2016 pay period and will be re-analyzed at the end of each fiscal year to ensure the proration reflects actual working conditions.

  • Response Type†: 6-Month
  • Completion Date: May 2016
  • Response Date: September 2016

California State Auditor's Assessment of Status: Fully Implemented


Agency Response*

The Special Taxes divisions will amend time reporting processes for supervisory and support positions to be consistent with the BOE Time Reporting Manual regarding prorated time codes. The BOE Time Reporting Manual states:

"When time is spent on assignments involving more than one tax program and/or function and it is impractical to make an exact distribution of time, the time should be prorated according to a pattern which is representative of the individual employee's actual working conditions. The pattern may be based on records of actual hours worked or work counts during a sample period. The pattern should be updated annually or when changing conditions indicate the pattern may no longer be representative."

Staff is currently analyzing actual hours worked throughout the various branches within the Special Taxes Divisions to determine the proration that will be used. The proration for supervisors and support staff will be directly related to the work completed and hours charged to Special Taxes programs by each branch. It is estimated that the new prorated time codes will be used starting with the June 2016 pay period and will be re-analyzed at the end of each fiscal year to ensure the proration reflect actual working conditions.

  • Response Type†: 60-Day
  • Estimated Completion Date: July 2016 + each FY
  • Response Date: April 2016

California State Auditor's Assessment of Status: Pending


Recommendation #4 To: Equalization, Board of

The investigations division should ensure that investigators charge their time according to division policy and should determine a method to more accurately allocate investigators' time instead of using the predetermined method established in 2005 and since discontinued.

Agency Response*

The Investigation Division (ID) has implemented a new timesheet template, starting with the September 2016 pay period, effectively discontinuing the limited use of the 2005 template. In regards to the integrated cigarette and tobacco codes and how it applies to ID enforcement activities, time study research was completed. A four week time study of a criminal investigator's time related to criminal cigarette and tobacco products investigation activity was gathered along with feedback from an ID senior investigator who, for over 14 years, has participated and overseen more than one hundred cigarette and tobacco felony investigations at the state and federal level. The study's findings are that it is difficult to determine a specific breakdown of time associated with cigarette and tobacco product felony investigation activities and the application of time separately to the interrelated cigarette and tobacco product codes precisely. The optimal result is to split the time equally (50/50) for felony enforcement activities by allocating equal time to the two cigarette and tobacco codes.

  • Response Type†: 6-Month
  • Completion Date: September 2016
  • Response Date: September 2016

California State Auditor's Assessment of Status: Fully Implemented


Agency Response*

The Investigation Division (ID) will discontinue the use of the timesheet template from 2005. With the development of a replacement template, the ID weekly timesheet template is currently on clearance. Upon approval, the most current Board timesheet and updated ID weekly templates will be distributed to supervisors and staff with instructions on usage of the templates.

An analysis of criminal investigator functions was discussed to determine if a time study is an option to address the allocation of time for the integrated cigarette and tobacco codes for a criminal cigarette and tobacco investigation. A criminal investigator is now completing a two week time study. ID will then determine if the information gathered will be helpful with clarifying the allocation of time to cigarette and tobacco codes for criminal investigations.

ID met (and will continue to work) with the BOE Budget Unit in regards to the allocation of time for the two integrated cigarette and tobacco codes and how it applies to ID enforcement activities.

  • Response Type†: 60-Day
  • Estimated Completion Date: TPD
  • Response Date: April 2016

California State Auditor's Assessment of Status: Pending


Recommendation #5 To: Equalization, Board of

To reduce the licensing program's enforcement cost without compromising the level of increased compliance with the cigarette and tobacco products tax law that the inspection program has produced, the board should reduce the number of annual inspections and reinspections of retailers, distributors, and wholesalers that it conducts each year to reflect changes in the number of licensees that sell cigarette and tobacco products in California. This adjustment should align with the same frequency of inspections that the board followed when it implemented the inspection program, which is 26 percent—or approximately one inspection every four years—of these licensed locations.

Agency Response*

This recommendation was fully implemented with the passage of Proposition 56, the Cigarette Tax to Fund Healthcare, Tobacco Use Prevention, Research, and Law Enforcement Act, and the passage of the California 2017/18 budget act. The California Department of Tax and Fee Administration, formally the Board of Equalization, Investigations Division worked with the Department of Finance to establish an appropriate level of enforcement to efficiently address anticipated evasion levels resulting from the 230 percent increase in Cigarette Excise Taxes, and 37 percent ad-valorem increase in other tobacco product taxes. Revised staffing levels were incorporated into the FY 17/18 budget.

  • Response Type†: Annual Follow Up
  • Completion Date: July 2017
  • Response Date: November 2017

California State Auditor's Assessment of Status: Resolved

Citing the need for additional enforcement due to the passage of Proposition 56, the department received funding for additional positions and a continuation of its current inspection frequencies. Although we recommended an inspection frequency of once every four years, the passage of Proposition 56 increased the taxes on cigarette and tobacco products, which the department believes will increase retailers' attempts to evade payment of these taxes.


Agency Response*

To date, one PY position has been redirected (one PY redirection = 250 license verification inspections) to absorb new inspection workload generated from SB x 2-5 Electronic Cigarettes. SB x 2-5 added approximately 1,100 new licensees for e-cigarette and vaping shops (Budget Request 0860-002—BCP-2017-GB). This workload was a very conservative estimate as education and compliance efforts are expected to extend the time required for a typical inspection due to the variety of vaping and e-cigarette products available in the market place. Analysis of inspection zone data was completed to address the recommended reduction, while maintaining the safety of staff and improving existing team efficiencies, whether fully staffed or not. This analysis included use of GIS software to better balance inspection zones within Board districts.

The CSA recommendation, made prior to the passage of Proposition 56, was for a reduced number of inspections due to improved compliance and a reduced number of retailers. This recommendation resulted in a further reduction of two (2) additional personnel years, beyond the already redirected personnel. With the passage of Proposition 56, Investigations Division (ID) Management submitted a Budget Change Proposal (BCP), approved by the Board, which used the current ID budgeted tobacco program baseline to address anticipated evasion growth resulting from the 230 percent increase in cigarette taxes and projected increase of 38.7 percent in other tobacco products taxes. Within the BCP, ID recalibrated the frequency and annual number of inspections and anticipated enforcement activities necessary to mitigate and address anticipated elevated levels of evasion, while maintaining diligent levels of boots-on-the-ground enforcement related to the Master Settlement Agreement (MSA). As a result, CSA's recommendation 5 will be fully implemented following the implementation of Proposition 56.

  • Response Type†: 1-Year
  • Estimated Completion Date: July 2017
  • Response Date: March 2017

California State Auditor's Assessment of Status: Pending


Agency Response*

To date, one PY position has been redirected (one PY redirection = 250 license verification inspections) to absorb new inspection workload generated from SB x 2-5 Electronic Cigarettes. SBx 2-5 adds approximately 1,100 new licensees for e-cigarette and vaping shops (Budget Request 0860-002—BCP-2017-GB). The analysis of the inspection zone data is in progress to ensure that issues related to the recommended reduction are addressed appropriately, while maintaining the safety of staff and improving existing team efficiencies, whether fully staffed or not.

  • Response Type†: 6-Month
  • Estimated Completion Date: 6/30/2017
  • Response Date: September 2016

California State Auditor's Assessment of Status: Pending


Agency Response*

The analysis of a potential reduction of inspection teams from ten to nine teams is being completed to address the recommended reduction of enforcement activity (inspections) proportionate to the overall decrease in licensed retailers. After working with available data, the inspection zone data was summarized into a workable format. With the proposed reduction of inspectors, the assigned geographical area and associated distributor, wholesaler and retailer permits will require a re-allocation from the current designated zones to a reduced number of inspection zones. ID is starting to work with the summarized inspection zone data to develop option(s) for potential inspection zones with reduced staffing levels. ID's analysis and recommended option(s) will be submitted to the Board Members for further direction.

  • Response Type†: 60-Day
  • Estimated Completion Date: TBD
  • Response Date: April 2016

California State Auditor's Assessment of Status: Pending


All Recommendations in 2015-119

Response Type refers to the interval in which the auditee is providing the State Auditor with their status in implementing recommendations made in an audit report. Auditees must submit a response regarding their progress in implementing recommendations from our reports at three intervals from the release of the report: 60 days, six months, and one year or subsequent to one year.

*Agency responses received after June 2013 are posted verbatim.


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