Dicon Fiberoptics, Inc. v. Franchise Tax Board

Filed 4/26/12

IN THE SUPREME COURT OF CALIFORNIA

DICON FIBEROPTICS, INC. )
)
Plaintiff and Appellant, )
) S173860
v. )
) Ct.App. 2/8 B202997
FRANCHISE TAX BOARD, )
) Los Angeles County
Defendant and Respondent. ) Super. Ct. No. BC 367885
____________________________________)

The Enterprise Zone Act (Gov. Code, § 7070 et seq.) was enacted ―to
stimulate business and industrial growth‖ in ―areas within the state that are
economically depressed due to a lack of investment in the private sector.‖ (Id.,
§ 7071, subd. (a).) Among the incentives available to businesses that operate
within an enterprise zone is a hiring tax credit in the amount of a percentage of the
wages paid to a ―qualified employee.‖ (Rev. & Tax. Code, § 23622.7, subd. (a).)
A ―qualified employee‖ is an employee who falls into one of several categories,
such as being eligible for the federal Job Training Partnership Act or the Greater
Avenues for Independence Act of 1985 (GAIN). To claim the tax credit, the
employer must satisfy several requirements, including obtaining from a
governmental agency ―a certification that provides that a qualified employee meets
the eligibility requirements.‖ (Rev. & Tax. Code, § 23622.7, subd. (c).)
Dicon Fiberoptics, Inc. (Dicon) is a California corporation that does
business in an enterprise zone. Dicon hired workers for whom it had obtained the
required certifications, and it claimed a hiring tax credit. The Franchise Tax

1
Board (FTB) conducted an audit and refused to accept some of the certifications,
demanding that Dicon produce documents to establish the workers were ―qualified
employees.‖ The FTB found that the documents Dicon produced were
insufficient, and it denied the requested tax credit in part.
The Court of Appeal ruled that a certification issued by a governmental
agency constitutes ―prima facie proof a worker is a ‗qualified employee.‘ ‖ The
court held that although the FTB may conduct an audit to determine whether an
employee actually was ―qualified,‖ the FTB bears the burden of rebutting the
certification, ―typically by proving the worker did not meet the criteria to be a
‗qualified employee.‘ ‖ The Court of Appeal erred in part. As explained below,
the FTB may conduct an audit and require the taxpayer to establish that the worker
is a ―qualified employee‖ within the meaning of the statute.
FACTS
On March 13, 2007, Dicon filed in the Los Angeles Superior Court a
―Complaint for Refund of Amounts Paid‖ against the FTB. As later amended, the
complaint alleged that in November 2003, Dicon timely submitted a claim for a
refund of taxes paid for the taxable year ending March 31, 2001. Dicon‘s
submission included a claim in the amount of $3,157,119 for the enterprise zone
hiring tax credit set forth in Revenue and Taxation Code section 23622.7.
Dicon alleged that it had obtained certifications (commonly called
vouchers) from ―the California agency . . . statutorily authorized to review, process
and certify tax credit eligibility.‖ The amended complaint further alleged that, in
response, the FTB demanded ―documentation that was outside Dicon‘s possession,
custody and control . . . that the Revenue and Taxation Code does not require a
taxpayer to keep once certification from an authorized vouchering agency has
been obtained and which the vouchering agency had specifically informed Dicon
that it was not required to keep.‖ According to the amended complaint, ―the

2
documents sought were readily available to the FTB through the vouchering
agency that issued the certification.‖ Dicon alleged that ―in order to receive the
tax credit, only two things are required of an employer: first, the employer must
obtain (from an authorized agency) a certification that provides that a qualified
employee meets the eligibility requirements; and second, the employer must retain
a copy of the certification and provide it upon request to the FTB.‖
As indicated in the FTB‘s ―Notice of Action‖ on the request for refund, the
FTB ―made adjustments based on the field audit schedules dated 07/07/06‖ and
approved an enterprise zone hiring tax credit of $2,052,127, or roughly two-thirds
of the amount Dicon claimed. After Dicon‘s appeal to the State Board of
Equalization was dismissed, Dicon sued for the remaining $1,104,992 that the
FTB had refused to refund. In its demurrer to the amended complaint, the FTB
argued that Dicon had not alleged a cause of action ―because the [FTB] was not
required to accept the vouchers issued for enterprise zone hiring credit and was
authorized by law to require that Dicon provide documentation to support the
enterprise zone hiring credit before allowing the tax deduction.‖
The superior court sustained the FTB‘s demurrer without leave to amend,
concluding that under Revenue and Taxation Code section 19504, the FTB ―may,
for purposes of administrating its duties, including ascertaining the correctness of
any return, demand taxpayers to provide information or make available for
examination or copying any books, papers or other data which may be relevant to
that purpose.‖ The court further observed that ―Rev[.] and Tax[.] Code
[section] 19032 requires defendant, as soon as practicable after the return is filed,
to examine it and determine the correct amount of tax.‖ The case was dismissed,
and Dicon appealed.
The Court of Appeal reversed. It ruled that the superior court erred in
sustaining the demurrer because all that Dicon was required to allege in order to

3
state a cause of action was that ―plaintiff paid the tax, filed a tax return, requested
the refund, and the tax authority denied the refund.‖ In the alternative, the Court
of Appeal ruled that ―if a cause of action for a tax refund must identify the taxing
authority‘s particular legal error in denying the refund,‖ the superior court erred in
denying Dicon leave to amend its complaint to allege that the FTB conducted its
audit improperly.
The Court of Appeal then went beyond those rulings to address ―the
unanswered legal question looming over these proceedings: Does FTB‘s authority
to examine and audit tax returns permit FTB to reject a voucher issued by a local
employment or social services agency?‖ Rather than hold that the FTB has the
authority to simply reject a voucher, the Court of Appeal held that ―vouchers are
prima facie proof a worker is a ‗qualified employee,‘ ‖ and the ―FTB bears the
burden of rebutting the voucher‘s prima facie value, typically by proving the
worker did not meet the criteria to be a ‗qualified employee.‘ In trying to meet
that burden, FTB may not rely on the employer‘s failure to produce during the
audit documents establishing a worker‘s eligibility to the extent regulations
governing the tax credit charge the enterprise zone, not the employer, with the
obligation to maintain documents of workers‘ eligibility.‖
The FTB did not challenge the Court of Appeal‘s ruling that the superior
court erred in sustaining the demurrer without leave to amend. Instead, the FTB
sought review of the portion of the decision that addressed the FTB‘s authority to
reject a voucher, framing the issue as follows: ―When an employer seeks a tax
refund from the Franchise Tax Board for allegedly hiring a qualified employee
under Revenue and Taxation Code section 23622.7, and the employer‘s only
supporting documentation is a voucher issued by an enterprise zone agency, is the
voucher prima facie evidence that a worker is a ‗qualified employee‘ that shifts the
burden of proof to the Board?‖ We granted the FTB‘s petition for review.

4
 For the reasons that follow, we conclude that the FTB may conduct an audit
to determine whether a taxpayer is entitled to the enterprise zone hiring tax credit.
During such an audit, the FTB may require the taxpayer to establish that the
worker is a ―qualified employee‖ within the meaning of the statute. The FTB is
not required to accept a certification or voucher as conclusive or prima facie proof
that an employee is qualified, nor is the FTB required to establish that the worker
is not a ―qualified employee‖ under Revenue and Taxation Code section 23622.7,
subdivision (c).
DISCUSSION
The Enterprise Zone Act (Gov. Code, § 7070 et seq.) was enacted ―to
stimulate business and industrial growth in the depressed areas of the state by
relaxing regulatory controls that impede private investment.‖ (Id., § 7071, subd.
(a).) Under specified circumstances, Revenue and Taxation Code section 23622.7,
subdivision (a), permits a taxpayer that ―employs a qualified employee in an
enterprise zone‖ to claim a tax credit for five years. The amount of the credit is 50
percent of the employee‘s ―qualified wages‖ in the first year and decreases
incrementally to 10 percent of ―qualified wages‖ in the fifth year. (Id., § 23622.7,
subd. (a).) (Further undesignated statutory references are to the Revenue and
Taxation Code.)
Subdivision (b) of section 23622.7 defines several terms used in the statute.
―Qualified wages‖ may not ―exceed 150 percent of the minimum wage,‖ must be
received during the five-year period beginning when the employee begins work,
and must meet other criteria. (§ 23622.7, subd. (b)(1).) To be a ―qualified
employee,‖ at least 90 percent of the employee‘s services must ―directly relate[] to
the conduct of the taxpayer‘s trade or business located in an enterprise zone,‖ and
the employee must perform at least 50 percent of his or her services in the
enterprise zone. (Id., subd. (b)(4)(A).) In addition, the employee must come

5
within one of several categories. These include being eligible for services under
the federal Job Training Partnership Act or being eligible to be a ―registrant‖
under GAIN. (Id., subd. (b)(4)(A)(iv)(I), (II).) They also include being ―an
economically disadvantaged individual‖; a ―dislocated worker‖; a ―disabled
individual who is eligible for . . . a state rehabilitation plan or is a service-
connected disabled veteran, veteran of the Vietnam era, or veteran who is recently
separated from military service‖; an ―ex-offender‖; a ―person eligible for‖ one of
several forms of government financial assistance; or a ―member of a federally
recognized Indian tribe,‖ among other categories. (Id., subd. (b)(4)(A)(iv)(III)–
(XI).)
Subdivision (c) of section 23622.7 requires that ―[t]he taxpayer shall do
both of the following: [¶] (1) Obtain from [certain governmental agencies] a
certification that provides that a qualified employee meets the eligibility
requirements . . . .‖ and ―(2) Retain a copy of the certification and provide it upon
request to the Franchise Tax Board.‖ During the tax year at issue, and when
Dicon‘s claim for a tax refund was submitted, subdivision (c)(1) of section
23622.7 required the taxpayer to obtain the certification ―from either the
Employment Development Department, as permitted by federal law, or the local
county or city Job Training Partnership Act administrative entity or the local
county GAIN office or social services agency, as appropriate . . . .‖ (Former
§ 23622.7, subd. (c)(1) as amended by Stats. 2000, ch. 862, § 78, p. 6208.) In
2004, section 23622.7 was amended to also permit the taxpayer to obtain the
certification from ―the local government administering the enterprise zone.‖
(§ 23622.7, subd. (c)(1) as amended by Stats. 2004, ch. 225, § 67, p. 2510.)
In the Court of Appeal, Dicon argued that by requiring the taxpayer to
obtain from certain governmental agencies ―a certification that provides that a
qualified employee meets the eligibility requirements‖ (§ 23622.7, subd. (c)(1)),

6
the Legislature had charged those agencies with the responsibility for determining
whether a worker was a ―qualified employee‖ within the meaning of section
23622.7. According to Dicon, the Enterprise Zone Act did not authorize the FTB
to review the local agency‘s determination that an employee was qualified. The
FTB countered that nothing in the Enterprise Zone Act limits the FTB‘s general
authority to conduct an audit (§ 19032) and to require taxpayers to provide
information that is relevant to an audit (§ 19504).
The Court of Appeal adopted a middle ground. While agreeing with the
FTB that it had the authority to audit certifications, the court also agreed in part
with Dicon that the certification constitutes prima facie proof that the employee is
qualified and shifts the burden to the FTB to prove during an audit that the
employee is not qualified. This approach, however, is not compelled by the
language of the Enterprise Zone Act or by the law governing the FTB‘s general
powers.
Section 19032 confers broad authority on the FTB to ―examine‖ a tax
return and to ―determine the correct amount of the tax.‖ Section 19504 provides
that the FTB, in conducting an audit, ―shall have the power to require by demand,
that an entity of any kind including . . . employers . . . provide information or
make available for examination or copying . . . any book, papers, or other data
which may be relevant to that purpose.‖ Title 18, section 19032, subdivision
(a)(5) of the California Code of Regulations, titled ―Duty to Maintain Records,‖
states: ―Generally, it is the taxpayer who will be in possession or control of the
necessary information, documents, books and records and who will have the
knowledge regarding the circumstances of the relevant activities such that a
determination of the correct tax can be made. . . . A taxpayer has a duty to
maintain relevant records and documents . . . .‖ (See also § 19133 [authorizing
FTB to assess a penalty where taxpayer fails to provide requested information].)

7
Further, section 19801 provides that the FTB, in determining the correct amount of
tax, is not ―bound by the determination of any other officer or administrative
agency of the state.‖
In adjudicating tax disputes, we have said that ―[t]ax credits are a matter of
legislative grace‖ and that statutes granting tax exemptions must be strictly
construed against the taxpayer, ―resolving any doubts in favor of the [FTB].
[Citations.]‖ (General Motors Corp. v. Franchise Tax Bd. (2006) 39 Cal.4th 773,
790 (General Motors).) ―In a suit for refund of tax, the burden of proof is on the
taxpayer. [Citation.] The taxpayer must not only prove that the tax assessment is
incorrect, but also he must produce evidence to establish the proper amount of the
tax. [Citations.] In an action for refund, ‗the taxpayer has the burden of proof to
show that he is entitled to his claim. He cannot assert error and thus shift to the
state the burden to justify the tax. . . .‘ ‖ (Honeywell, Inc. v. State Bd. of
Equalization (1982) 128 Cal.App.3d 739, 744; Apple, Inc. v. Franchise Tax Bd.
(2011) 199 Cal.App.4th 1, 22.)
While acknowledging this background law, Dicon argues that it is
superseded by section 23622.7 because ― ‗a special statute dealing with a
particular subject constitutes an exception so as to control and take precedence
over a conflicting general statute on the same subject.‘ ‖ (Turlock Irrigation Dist.
v. Hetrick (1999) 71 Cal.App.4th 948, 953.) However, we agree with the FTB that
the certification scheme set forth in the Enterprise Zone Act need not be construed
to conflict with the general statutes and legal principles concerning the FTB‘s
authority.
As a textual matter, we find nothing in section 23622.7 that displaces or
qualifies either the FTB‘s statutory authority to conduct an audit or the general
principle in our case law that the taxpayer has the burden of proof in a suit for a
refund. By its terms, section 23622.7 does not abrogate the general rule that the

8
FTB is not ―bound by the determination of any other officer or administrative
agency of the state.‖ (§ 19801.) Nor does the text of section 23622.7 otherwise
limit the FTB‘s authority or expressly designate the certifying agencies as the
exclusive arbiters of who is a qualified employee. Although obtaining a voucher
is necessary for an employer to claim a hiring tax credit, the statute does not say
that doing so shall be sufficient and conclusive in every case. The Enterprise Zone
Act was enacted against the backdrop of the general statutes conferring broad
power on the FTB as well as our precedents placing the burden of proof on the
taxpayer. In the absence of express language limiting that background law, we are
reluctant to read section 23622.7 to effectuate an implied repeal. (See Shatz v.
Allen Matkins Leck Gamble & Mallory (2009) 45 Cal.4th 557, 573 [― ‗ ― ‗[A]ll
presumptions are against a repeal by implication. [Citations.]‘ [Citation.] Absent
an express declaration of legislative intent, we will find an implied repeal ‗only
when there is no rational basis for harmonizing the two potentially conflicting
statutes, and the statutes are ―irreconcilable, clearly repugnant, and so inconsistent
that the two cannot have concurrent operation.‖ ‘ [Citation.]‖ ‘ [Citation.]‖].)
Despite no textual inconsistency between section 23622.7 and the general
statutes concerning the FTB‘s authority, the Court of Appeal reasoned that a
voucher constitutes prima facie evidence that a worker is a qualified employee
because ―[t]he employer‘s compliance with the statute ought to count for
something.‖ Dicon similarly argues that ―[i]t would make no sense‖ for the
Legislature to authorize various agencies to make discretionary certification
decisions, only to have those decisions second-guessed by the FTB. Dicon argues
that the FTB may not reject a voucher on the ground that it disagrees with a
reasonable contrary determination by the certifying agency that the worker is a
qualified employee. However, upholding the FTB‘s authority to independently
determine whether a worker is a qualified employee would not render pointless or

9
nonsensical the certification process set forth in section 23622.7, subdivision (c).
Even if the FTB may later examine the validity of the certification and require the
taxpayer to prove that the employee is qualified, requiring the taxpayer to obtain a
voucher from a governmental agency decreases the chance that a taxpayer will
improperly claim the tax credit through fraud or mistake. The FTB may rely upon
this certification if it so chooses, and the Attorney General has acknowledged that
the FTB likely will do so ―perhaps even in most cases,‖ to the employer‘s benefit.
As the FTB explains in its opening brief: ―It is . . . reasonable to conclude
that vouchers provide for an additional level of review which may satisfy the
Board in some cases, while not in others. For example, in some cases the Board‘s
review of a statistically significant sample of an employer‘s vouchers may
convince it that the vouchers were properly issued only for eligible workers. In
this case the Board may accept the vouchers without demanding the production of
specific documentation of worker eligibility, or without any additional
investigation. In other cases, though, the review of the employer‘s vouchers may
raise concerns with the Board, or even reveal that vouchers were improperly
issued. In these cases the Board will prudently demand evidence or
documentation of worker eligibility. The Board is not required to audit every
voucher in every case, just as it is not required to audit every taxpayer‘s return; in
fact, the Board‘s limited budget effectively prevents this as a practical matter. In
fact, given budgetary constraints, one would expect that the Board‘s review of
employee eligibility would probably occur only in those cases where it has
information that vouchers may have been improperly issued.‖ The FTB cites
several weaknesses in the vouchering process that could lead the FTB to audit a
voucher, noting that ―at the time the vouchers were issued in this case there were
no statutory or regulatory requirements regarding the documentation required to
obtain or issue a voucher. In addition, there is no requirement for an agency that

10
issues vouchers to communicate at all with the employees for whom it is required
to supply vouchers, and vouchers may be retroactively issued years after the
employment takes place. [¶] Nor, until new regulations that became effective
November 27, 2006, was there even a requirement that enterprise zone agencies
keep voucher records. [Citation.]‖
We find reasonable the FTB‘s view that ―[t]he voucher process
complements the review/audit process and enhances its efficiency by allowing the
Board to rely on vouchers in those situations where it has confidence in their
accuracy, while requiring evidence in those cases where it does not.‖ Because the
FTB‘s interpretation of section 23622.7 is reasonable, there is no statutory conflict
that requires the certification process to be harmonized with the laws governing
the FTB‘s authority in the particular way urged by Dicon and the Court of Appeal.
Dicon argues that the FTB should not be permitted to displace the judgment
of a governmental agency with expertise that the FTB lacks. But there is nothing
to indicate that the FTB has arbitrarily or unreasonably questioned expert
determinations in this case or in other audits of the hiring tax credit. Title 18,
section 19032, subdivision (a)(4) of the California Code of Regulations requires
the FTB to ―apply and administer the law in a reasonable, practical manner.‖ In
other circumstances, we have said that the FTB may not abuse its discretion,
although it is the taxpayer‘s burden to show by clear and convincing evidence that
the FTB acted arbitrarily or unreasonably. (See McDonnell Douglas Corp. v.
Franchise Tax Bd. (1968) 69 Cal.2d 506, 512; RKO Teleradio Pictures, Inc. v.
Franchise Tax Bd. (1966) 246 Cal.App.2d 812, 819.) As explained above, it is not
unreasonable for the FTB to require a taxpayer to prove that a worker meets the
statutory definition of a qualified employee when the FTB lacks confidence in a
voucher‘s accuracy. We can address situations in which the FTB is alleged to
have acted arbitrarily or unreasonably if and when they arise.

11
 Dicon further argues that it is unfair — ―a trap for the unwary,‖ as Dicon
puts it — for the FTB to require proof beyond a voucher because section 23622.7,
subdivision (c) ―expressly limit[s] the taxpayer-employer‘s record-keeping
obligations‖ to retaining the voucher. It is true that section 23622.7, subdivision
(c) requires the taxpayer to retain the voucher and to present it upon request to the
FTB. But nothing in the statute expressly limits the taxpayer‘s record-keeping
obligations to retaining the voucher, nor does the statute otherwise relieve the
taxpayer of its general obligation to retain tax documents. (See § 19504 [FTB
may require employers to provide information relevant to determining correct
amount of tax]; Cal. Code Regs., tit. 18, § 19032, subd. (a)(5) [―A taxpayer has a
duty to maintain relevant records and documents . . . .‖].)
Dicon contends that section 23622.7, subdivision (c), by simply instructing
the employer to ―[r]etain a copy of the certification,‖ implies that an employer
need not retain the documents it submitted to the certifying agency. Dicon
represents in this court that it intends to amend its complaint to allege that the
FTB, despite having all the records that were submitted to the certifying agencies,
demanded additional documents that had not been submitted to the certifying
agency. Dicon argues that it was not required under section 23622.7, subdivision
(c), to retain or submit documents that were not submitted to the certifying agency.
As reasonable as those interpretations may be, however, we cannot say that they
are the only reasonable interpretations of the statute. The FTB contends,
reasonably in our view, that section 23622.7, subdivision (c) does not displace the
general recordkeeping requirements applicable to all taxpayers. Whatever
ambiguity may exist in the statute, it does not amount to a trap for the unwary.
For we have made clear, long before Dicon filed its claim, that we construe
statutes governing tax credits ―strictly against [the taxpayer], resolving any doubts
in favor of the [FTB].‖ (General Motors, supra, 39 Cal.4th at p. 790, citing Miller

12
v. McColgan (1941) 17 Cal.3d 432, 442; see also Pacific Company, Ltd. v.
Johnson (1931) 212 Cal. 148.)
Perhaps the strongest point raised by Dicon is that ―[t]he statutory incentive
for hiring disadvantaged workers would be diluted by exposing Enterprise Zone
employers to the risk that agency certification determinations might be undone
years later by FTB auditors simply because the FTB disagrees with discretionary
determinations made by the certifying agencies.‖ Amicus curiae California
Taxpayers‘ Association (Association) echoes the concern that ―taxpayers will not
take advantage of tax incentives if they prove to be unpredictable.‖ The
Association argues that one legislative purpose of requiring the taxpayer to obtain
the certification ―is to provide taxpayers with advance assurance that they will be
able to take advantage of the hiring tax credit.‖ In support of these claims, Dicon
and the Association rely on the legislative history of the certification scheme.
The certification scheme was added to the statute in 1994. (Stats. 1994,
ch. 755, § 3, p. 3737.) Prior to this amendment, from 1991 to 1994, former section
23622, subdivision (c), had defined a qualified employee as one who was actually
―receiving subsidized employment training, or services funded by the federal Job
Training Partnership Act,‖ was a ―registrant‖ under GAIN, or had been ―certified
eligible by the California Employment Development Department under the federal
Targeted Jobs Tax Credit Program . . . .‖ (§ 23622, subd. (c), as amended by
Stats. 1991, ch. 472, § 25, p. 2311.) As introduced, the 1994 amendment proposed
expanding two of the three categories defining qualified employees to include
persons eligible for, even if not actually receiving, services under the federal Job
Training Partnership Act or benefits under GAIN. (Sen. Bill No. 1770 (1993-1994
Reg. Sess.) § 2, as introduced Feb. 24, 1994.) But the proposal did not require the
taxpayer to obtain a certification.

13
 The Assembly Committee on Revenue and Taxation stated: ―The purpose
of the bill is to broaden the pool of individuals whom an Enterprise Zone employer
can hire and still qualify for the EZ hiring tax credit. Supporters argue that hiring
individuals who are eligible for various job training and social service programs
fulfills the same goals as hiring a participant in those programs.‖ (Assem. Rev. &
Tax. Com., Analysis of Sen. Bill No. 1770 (1993-1994 Reg. Sess.) as amended
June 2, 1994, for hearing Aug. 15, 1994, pp. 2-3.) The Assembly Committee also
noted, however, that the bill did not provide a means for establishing eligibility for
these programs: ―As currently drafted, no documentation of eligibility would be
required, opening the door for potential abuse of the credit. [¶] If the intent of this
measure is to insure that benefits are targeted to the disadvantaged, should
employers be required to obtain proof of an individual‘s status in order to claim
the credit?‖ (Id. at p. 3.) In response to this concern, the bill was amended on
August 22, 1994 to add the certification scheme set forth in section 23622.7,
subdivision (c). (Sen. Bill No. 1770 (1993-1994 Reg. Sess.) § 2, as amended Aug.
22, 1994.)
According to Dicon, this legislative history shows that the certification
scheme was adopted in order to balance the Legislature‘s dual goals of
encouraging employers to hire disadvantaged workers and preventing mistake or
fraud. We agree. But the specific question we face is whether the Legislature, in
striking that balance, sought to supplement or supplant the FTB‘s general audit
authority with the certification scheme. We find nothing in the legislative history
decisively resolving that question, and it is not unreasonable to think that the
Legislature added the certification scheme on the assumption that the FTB‘s audit
authority, though insufficient by itself to prevent abuse of the tax credit, would
remain intact. The certification scheme, so construed, provides employers with a
strong hiring incentive because ―the Board may accept [a certification] without

14
further documentation or an audit, as it often does.‖ Although Dicon is correct
that the hiring incentive would be incrementally stronger if a certification were
prima facie (or conclusive) evidence that a worker is a qualified employee, the
corresponding risk of abuse would be greater as well. The legislative history does
not illuminate whether such incremental incentive and incremental risk were
specifically intended by the Legislature when it adopted the certification scheme.
Dicon and the Association further argue that the FTB itself recognized that
a voucher conclusively proves a worker is a qualified employee when the FTB, in
analyzing a 2004 bill to amend the Enterprise Zone Act, said: ―The vouchering
process serves numerous functions for all parties affected, including the taxpayer,
FTB, and DCHD [Department of Housing and Community Development] such as:
[¶] . . . [¶] 2. Provides an up-front verification process for taxpayers regarding the
determination of whether a potential employee is a ‗qualified employee.‘ [¶]
3. Minimizes intrusiveness into the employee‘s personal life and provides
confidentiality for the employee since the agency that administers the public
assistance program is the one that issues the voucher. [¶] 4. Allows the employer
(taxpayer) to retain less documentation to support a claim that an employee is a
‗qualified employee.‘ [¶] 5. Promotes consistency in application of the definition
of a ‗qualified employee‘ . . . by requiring those most familiar with (and
responsible for administering) the public assistance statutes to determine whether a
potential employee is a ‗qualified employee.‘ [¶] 6. Allows FTB to verify an
employee‘s eligibility if the hiring credit is reviewed during an FTB audit
examination. [¶] 7. Allows both FTB and DHCD to verify that the credit is
limited to individuals and businesses that qualify for the credit as the Legislature
intended.‖ (FTB, Analysis of Sen. Bill No. 1097 for Sen. Budget Com.
(2003-2004 Reg. Sess.) as amended July 27, 2004, p. 3, available online at

15
 [as of Apr. 26,
2012].)
For the same reasons we have given above, these statements do not
necessarily mean that the FTB must be barred from looking behind a certification
during an audit. The certification process serves many useful functions in the
usual circumstance where the FTB has confidence in the accuracy of the certifying
agency‘s determinations. Acknowledging those functions does not necessarily
rule out the possibility of an independent audit where the FTB lacks confidence in
the certification process.
Our conclusion is supported by the fact that another portion of the 2004 bill
that amended the Enterprise Zone Act demonstrates that the FTB had the authority
to reject a voucher. The 2004 legislation amended Government Code section 7076
to direct the Department of Housing and Community Development to assess a fee
for each application for issuance of a certificate pursuant to section 23622.7.
(Stats. 2004, ch. 225, § 14, p. 2456.) The statute as amended further stated: ―Any
fee assessed and collected . . . shall be refundable if the certificate issued . . . is not
accepted by the Franchise Tax Board.‖ (Ibid.)
In addition, information pamphlets issued by the FTB in earlier tax years
reflect that the FTB viewed the vouchers as only the minimum documentation
required. In FTB publication No. 1047, 2001 Guidelines for Enterprise Zone Tax
Incentives Record Keeping, the FTB stated at page 4: ―If you hire qualified
employees and claim this credit on your tax return, keep records including (at
least): [¶] Copies of Form TCA EZ1 for each qualified employee hired; [¶]
Records of any other federal or state subsidies you may have received for hiring
qualified employees;‖ and specified information about each employee and his or
her hours, wages, job site, and duties. (Italics added, available online at
[as of Apr. 26, 2012].) Thus, it

16
appears the FTB has viewed a voucher as necessary, but not necessarily sufficient,
to qualify for the hiring tax credit.
In sum, the text and history of section 23622.7, subdivision (c) may suggest
— but do not compel — the conclusion that the Legislature intended the FTB to
accept a certification as conclusive or prima facie proof that a worker is a qualified
employee. Because ―[t]he taxpayer has the burden of showing that he clearly
comes within the exemption‖ (Hospital Service of California v. City of Oakland
(1972) 25 Cal.App.3d 402, 405), and because ―the statute must be construed
liberally in favor of the taxing authority, and strictly against the claimed
exemption‖ (ibid.), we hold that section 23622.7, subdivision (c) neither prohibits
the FTB from independently examining whether a worker is a qualified employee
nor shifts the burden of proof to the FTB where the employer has obtained a
voucher. In adopting the certification process, the Legislature reasonably could
have intended to strengthen the employer‘s hiring incentive while refusing to
require the FTB to accept a possibly erroneous certification. We find nothing in
the statute or its legislative history decisively indicating that the Legislature
intended to strike a different balance by altering the well-established rules that put
the burden on the taxpayer to prove it is entitled to a credit and that confer broad
power on the FTB to conduct an audit and to demand whatever information it
needs to determine the correct amount of tax.
Our holding is consistent with the administrative decision of the State
Board of Equalization (SBE) in In re Appeal of Deluxe Corp. (Dec. 12, 2006, No.
297128, 2006-SBE-003) 2006 Cal. Tax Lexis 432, that the FTB ―does have the
authority to review and disallow hiring credit vouchers.‖ (Id., 2006 Cal. Tax
Lexis 432, at p. *19.) ―The Legislature has delegated to the SBE the duty of
hearing and determining appeals from actions of the FTB. [Citation.]‖ (Citicorp
North America, Inc. v. Franchise Tax Bd. (2000) 83 Cal.App.4th 1403, 1418.)

17
―Although we are not bound by administrative decisions construing a controlling
statute, we accord ‗ ―great weight and respect to the administrative construction.‖ ‘
[Citations.] The amount of deference given to the administrative construction
depends ‗ ―upon the thoroughness evident in its consideration, the validity of its
reasoning, its consistency with earlier and later pronouncements, and all those
factors which give it power to persuade, if lacking power to control.‖ ‘
[Citation.]‖ (Hoechst Celanese Corp. v. Franchise Tax Bd. (2001) 25 Cal.4th 508,
524.)
The SBE concluded in Deluxe Corp. that section 23622.7 ―does not address
[the FTB]‘s role in reviewing the validity of vouchers; the section neither requires
not prohibits [the FTB]‘s audit of vouchers.‖ (In re Appeal of Deluxe Corp.,
supra, 2006 Cal. Tax Lexis 432, at pp. *16-17.) Thus, the Board relied, as we do,
on the FTB‘s ―general authority to review returns and ascertain the correct tax‖
and its power ―to require by demand that any entity provide information relevant
to the purpose of administering [the FTB]‘s duties (including ascertaining the
correctness of any return).‖ (Ibid.)
The SBE‘s decision in In re Appeal of Cort (May 21, 1980, No. 80-SBE
055) 1980 WL 4984) is distinguishable. That decision interpreted former section
17299, which provided that ―a taxpayer who derives rental income from
substandard housing‖ may not claim various tax deductions. (Id., 1980 WL 4984,
at p. *2.) The statute defined substandard housing as ―housing which (1) has been
determined by a state or local government regulatory agency to violate state law or
local codes . . . .‖ (Ibid.) The SBE ruled that the language of former section
17299 ―quite clearly requires the determination that property constitutes
substandard housing to be made solely by the regulatory agency, be it state or
local. No discretion is placed either in [the FTB] or in this board to review that
determination.‖ (In re Appeal of Cort, supra, 1980 WL 4984, at p. *3.) The

18
difference between former section 17299 and section 23622.7 is that former
section 17299 defined substandard housing as housing that the state or local
agency had determined violated state or local law. Once the agency so
determined, the definition was satisfied. Section 23622.7 does not define a
qualified employee as one who has been determined to be qualified by a
designated agency. Whether an employee is qualified depends upon whether the
employee meets the criteria specified in section 23622.7, not upon whether the
designated agency has determined the employee is qualified. The contrast
between former section 17299 and section 23622.7 shows that the Legislature
knows how to make an agency determination conclusive upon the FTB when it
wishes to do so.
For the foregoing reasons, we conclude that the FTB may conduct an audit
to determine whether a taxpayer is entitled to the enterprise zone hiring tax credit.
During such an audit, the FTB may require the taxpayer to establish that the
worker is a ―qualified employee‖ within the meaning of the statute. The FTB is
not required to accept a certification or voucher as conclusive or prima facie proof
that an employee is qualified, nor is the FTB required to establish that the worker
is not a ―qualified employee‖ under section 23622.7, subdivision (c).

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 DISPOSITION
We reverse the Court of Appeal‘s holding that a certification issued by a
governmental agency for purposes of the hiring tax credit under Revenue and
Taxation Code section 23622.7 constitutes ―prima facie proof a worker is a
‗qualified employee,‘ ‖ which shifts to the Franchise Tax Board the ―burden of
demonstrating an employee is not a qualified worker for which no voucher should
have issued.‖ In all other respects, the Franchise Tax Board does not challenge the
Court of Appeal‘s judgment, and it is affirmed.
LIU, J.

WE CONCUR: CANTIL-SAKAUYE, C. J.
KENNARD, J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
CORRIGAN, J.

20
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Dicon Fiberoptics, Inc. v. Franchise Tax Board
__________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 173 Cal.App.4th 1082
Rehearing Granted

__________________________________________________________________________________

Opinion No. S173860
Date Filed: April 26, 2012
__________________________________________________________________________________

Court: Superior
County: Los Angeles
Judge: Mel Red Recana
__________________________________________________________________________________

Counsel:

Bird, Marella, Boxer, Wolpert, Nessim, Drooks & Lincenberg, Thomas R. Freeman, Paul S. Chan;
Dakessian Law Firm, Akerman Senterfitt, Reed Smith, Mardiros H. Dakessian; The California Credits
Group, LaShelle T. Wilson and Mark Danscecs for Plaintiff and Appellant.

Winston & Strawn, Charles J. Moll III, Krista M. Enns and Linda T. Coberly for California Taxpayers‘
Association as Amicus Curiae on behalf of Plaintiff and Appellant.

Silverstein & Pomerantz, Amy L. Silverstein and Edwin P. Antolin for Deluxe Corp. as Amicus Curiae on
behalf of Plaintiff and Appellant.

Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, David S. Chaney and Dane R. Gillette,
Chief Assistant Attorneys General, Gordon Burns, State Deputy Solicitor General, Paul D. Gifford and
Pamela C. Hamanaka, Assistant Attorneys General, W. Dean Freeman, Felix E. Leatherwood, Mark P.
Richelson and Ronald N. Ito, Deputy Attorneys General, for Defendant and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Thomas R. Freeman
Bird, Marella, Boxer, Wolpert, Nessim, Drooks & Lincenberg
1875 Century Park East, 23rd Floor
Los Angeles, CA 90067-2561
(310) 201-2100

W. Dean Freeman
Deputy Attorney General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013-1230
(213) 897-2489