EHB 1354

This analysis was prepared by non-partisan legislative staff for the use of legislative members in their deliberations. This analysis is not a part of the legislation nor does it constitute a statement of legislative intent.

As Reported by Senate Committee On:

Ways & Means, April 3, 2019

Title: An act relating to providing that scan-down allowances on food and beverages intended for human and pet consumption are bona fide discounts for purposes of the business and occupation tax.

Brief Description: Providing that scan-down allowances on food and beverages intended for human and pet consumption are bona fide discounts for purposes of the business and occupation tax.

Sponsors: Representatives Walen, Stokesbary, Wylie, Orcutt, Vick, Frame, Eslick and Ormsby.

Brief History: Passed House: 3/28/19, 93-0.

Committee Activity: Ways & Means: 4/03/19 [DP].

Brief Summary of Bill

  • Provides a business and occupation tax deduction for scan-down allowances.


Majority Report: Do pass.

Signed by Senators Rolfes, Chair; Frockt, Vice Chair, Operating, Capital Lead; Mullet, Capital Budget Cabinet; Braun, Ranking Member; Brown, Assistant Ranking Member, Operating; Honeyford, Assistant Ranking Member, Capital; Bailey, Becker, Billig, Carlyle, Conway, Hasegawa, Hunt, Keiser, Liias, Palumbo, Pedersen, Rivers, Schoesler, Wagoner and Warnick.

Staff: Jeffrey Mitchell (786-7438)

Background: Washington State's major business tax is the business and occupation (B&O) tax. B&O tax is imposed on the gross receipts of business activities conducted within the state, without any deduction for the costs of doing business. A business may have more than one B&O tax rate, depending on the types of activities conducted. Major tax rates are 0.471 percent for retailing; 0.484 percent for manufacturing, wholesaling, and extracting; and 1.5 percent for services, and activities not classified elsewhere. Several lower rates also apply to specific business activities.

A B&O tax deduction reduces the amount of taxable income subject to tax.

A bona fide discount negotiated by a grocer from a distributor upon purchase of goods is not subject to B&O tax. However, if a grocer performs a service, such as advertising, in addition to selling goods in exchange for the discount, then the discount is subject to B&O tax. As provided in an excise tax advisory, the Department of Revenue (DOR) has historically taken the position a payment or credit by a distributor to a grocer exclusively for the grocer selling a specific volume of products during a specific timeframe is not subject to B&O tax on the value of the payment or credit. These payments or credits are often referred to as scan-down allowances. In a 2014 court ruling (Klein Honda v. State), the court concluded under a dealer cash program, where a car manufacturer offers dealers a specified amount of cash for each sale the dealer makes in a specific period of time, the cash payment is subject to B&O tax. After Klein Honda, DOR reviewed its policy regarding bona fide discounts and found its guidance in the excise tax advisory is inconsistent with the court decision.

All new tax preference legislation must include a tax preference performance statement. Tax preferences include deductions, exemptions, preferential tax rates, and tax credits. The performance statement must clearly specify the public policy objectives of the tax preference as well as the specific metrics and data used by the Joint Legislative Audit and Review Committee (JLARC) to evaluate the efficacy of the tax preference. New tax preferences expire ten years after the effective date of the tax preference, unless otherwise provided.

Summary of Bill: A B&O tax deduction is provided on scan-down allowances for food and pet food products. Scan-down allowance is generally defined as payment or credit offered to a seller by a manufacturer or wholesaler of products where:

The bill is exempt from JLARC review and the automatic ten-year expiration date.

Appropriation: None.

Fiscal Note: Available.

Creates Committee/Commission/Task Force that includes Legislative members: No.

Effective Date: Ninety days after adjournment of session in which bill is passed.

Staff Summary of Public Testimony: No public hearing was held.

Persons Testifying: N/A

Persons Signed In To Testify But Not Testifying: N/A