C’mon, Mr. Producer, Do You Even Know What All The Laws Are?

by Tom Yamachika, Interim President, Tax Foundation of Hawaii

One of the bills now making its way through the Legislature concerns the motion picture, digital media, and film production tax credit. That’s the credit used by TV shows and movie producers to coax them to come to Hawaii to shoot, as opposed to other venues like Louisiana and Puerto Rico which, I understand, offer juicier production credits but…well…they’re Louisiana and Puerto Rico.

The bill, Senate Bill 2079, says that a production would have to be in compliance with “all applicable statutes, ordinances, rules, and regulations of the federal, state, and county governments” to be eligible for the credit. If, for example, the production's equipment truck is clocked going 26 mph in a 25 mph zone, does that then mean its $5 million production credit is forfeited? I mean, really. Who among us can even say that they even know where to look up all of the laws, ordinances, and rules?

Apparently this bill grew out of a reality TV series on the History Channel called "American Jungle." It depicted "clans" hunting on the Big Island...but the folks depicted were neither native nor accurate. The TV producers applied for a permit to film on state lands and were denied it. Yet folks looked at the maps shown on the show and concluded that they did indeed shoot on state land. Furthermore, there were some night hunting scenes—but night hunting is illegal on both private and public land. Our Department of Land and Natural Resources was unhappy and apparently persuaded legislators to introduce the bill. DLNR also appeared at legislative hearings to testify in support of the bill.

(By the way, the bill also says that reality shows are not allowed any production credit whatsoever. Whoever sponsored the bill must have been VERY unhappy.)

When I went to one of these legislative hearings to offer comments on the bill, I pointed out that the laws and regulations already provide penalties for noncompliance, so why should we add forfeiture of the production credit on top of that? I was told that it wouldn't be realistic to expect a multi-million dollar production to be deterred by a measly $5,000 fine under the land statutes. Furthermore, the production needs to realize that the availability of the production credit is a privilege.

A similar line of reasoning would suggest lawmakers’ pay to be contingent upon compliance with all applicable laws, ordinances, rules, and regulations. Break one, and the state keeps your paycheck. Why? Isn't elected public office a privilege?

Do you think this condition is reasonable? This is not the first time it has been used. It was in a temporary credit for flood victims that was enacted in 2006. It also was proposed in other tax credit bills. So there is a distinct possibility that, if we aren’t careful and if we let this language slip by, conditions like this could become a standard feature in Hawaii tax credits just like the “claim it within one year or lose it” feature that is now in almost all of the Hawaii income tax credits.

To be sure, I am not saying that TV and film producers should be allowed to get away with murder. They should be accountable for what they do just like the rest of us. For example, if a state agency is planning to fine a production, it would be entirely appropriate to withhold enough of the credit to secure payment of the proposed fine since after the production wraps and cast and crew leave town, the producers may be less motivated to care about what happens here. But we shouldn’t be imposing unreasonable conditions either, whether it be on productions or on the rest of us.

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