SB 2362: DBEDT; Income Tax; Real Estate Investment Trusts; Dividends Paid Deduction; Study; Report

A BILL FOR AN ACT

RELATING TO TAXATION.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

     SECTION 1.  The legislature finds that the majority of income received from real estate investment trusts by corporate entities doing business in the State is not taxed at the state level.  These trusts enjoy a preference that exempts them from paying taxes on dividends paid on revenues generated in the State.  According to the department of taxation, the estimated amount of income tax revenues that will be foregone due to this preference in taxable year 2026 may be as much as $26.8 million.

     The legislature also finds that, in September 2016, the department of business, economic development, and tourism, through its research and economic analysis division, commissioned a report to evaluate the recovery of income tax revenues from real estate investment trusts within the State.  The findings revealed that Hawaii received only $954,842 from in-state residents paying taxes on dividend income associated with Hawaii real estate investment trusts.  In contrast, the majority of the real estate investment trust income taxes were paid to other states by out-of-state shareholders receiving dividends, meaning that Hawaii did not benefit from the bulk of the income generated by real estate investment trusts operating within its borders.  The legislature further finds that real estate investment trust income generated through the use of state resources should be taxed in Hawaii to benefit the State.

     The legislature additionally finds, however, that disallowing the dividends paid deduction may negatively affect the state economy by disincentivizing the investments and revenue generating business activities of real estate investment trusts.

     Accordingly, the purpose of this Act is to require the department of business, economic development, and tourism to conduct a study on the impacts of eliminating the dividends paid deduction for real estate investment trusts.

     SECTION 2.  The department of business, economic development, and tourism shall conduct a study evaluating the potential impacts of disallowing the dividends paid deduction for real estate investment trusts.  The department shall submit a report of its findings and recommendations, including any proposed legislation, to the legislature no later than twenty days prior to the convening of the regular session of 2027.

     SECTION 3.  There is appropriated out of the general revenues of the State of Hawaii the sum of $           or so much thereof as may be necessary for fiscal year 2026-2027 to conduct the study required pursuant to section 2 of this Act.

     The sum appropriated shall be expended by the department of business, economic development, and tourism for the purposes of this Act.

     SECTION 4.  This Act shall take effect on July 1, 2050.

Report Title:

DBEDT; Income Tax; Real Estate Investment Trusts; Dividends Paid Deduction; Study; Report

Description:

Requires the Department of Business, Economic Development, and Tourism to study the impacts of disallowing the dividends paid deduction for real estate investment trusts.  Requires a report to the Legislature.  Effective 7/1/2050.  (SD1)

The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.

A BILL FOR AN ACT

relating to taxation.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

     SECTION 1.  The legislature finds that the majority of income received from real estate investment trusts by corporate entities doing business in Hawaii is not taxed at the state level.  They enjoy a preference that exempts them from paying taxes on dividends paid on revenues generated in Hawaii.  According to the department of taxation, the estimated amount of income tax revenues that will be foregone in the 2026 taxable year may be as much as $26,800,000.

     The legislature also finds that, in September 2016, the department of business, economic development, and tourism, through its research and economic analysis division, commissioned a report to evaluate the recovery of income tax revenues from real estate investment trusts within the State.  The findings revealed that Hawaii received only $954,842 from in-state residents paying taxes on dividend income associated with Hawaii real estate investment trusts.  In contrast, the majority of the real estate investment trust income taxes were paid to other states by out-of-state shareholders receiving dividends, meaning that Hawaii did not benefit from the bulk of the income generated by real estate investment trusts operating within its borders.  The legislature further finds that real estate investment trust income generated through the use of state resources should be taxed in Hawaii to benefit the State.

     Accordingly, the purpose of this Act is to disallow the dividends paid deduction for real estate investment trusts.

     SECTION 2.  Section 235-2.3, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows:

     "(b)  The following Internal Revenue Code subchapters, parts of subchapters, sections, subsections, and parts of subsections shall not be operative for the purposes of this chapter, unless otherwise provided:

     (1)  Subchapter A (sections 1 to 59A) (with respect to determination of tax liability), except section 1(h)(2) (relating to net capital gain reduced by the amount taken into account as investment income), except sections 2(a), 2(b), and 2(c) (with respect to the definition of "surviving spouse" and "head of household"), except section 41 (with respect to the credit for increasing research activities), except section 42 (with respect to low-income housing credit), except sections 47 and 48, as amended, as of December 31, 1984 (with respect to certain depreciable tangible personal property), and except section 48(d)(3), as amended, as of February 17, 2009 (with respect to the treatment of United States Department of Treasury grants made under section 1603 of the American Recovery and Reinvestment Tax Act of 2009).  For treatment, see sections 235-110.91, 235-110.7, and 235-110.8;

     (2)  Section 78 (with respect to dividends received from certain foreign corporations by domestic corporations choosing foreign tax credit);

     (3)  Section 86 (with respect to social security and tier 1 railroad retirement benefits);

     (4)  Section 91 (with respect to certain foreign branch losses transferred to specified 10-percent owned foreign corporations);

     (5)  Section 103 (with respect to interest on state and local bonds).  For treatment, see section 235-7(b);

     (6)  Section 114 (with respect to extraterritorial income).  For treatment, any transaction as specified in the transitional rule for 2005 and 2006 as specified in the American Jobs Creation Act of 2004 section 101(d) and any transaction that has occurred pursuant to a binding contract as specified in the American Jobs Creation Act of 2004 section 101(f) are inoperative;

     (7)  Section 120 (with respect to amounts received under qualified group legal services plans).  For treatment, see section 235-7(a)(9) to (11);

     (8)  Section 122 (with respect to certain reduced uniformed services retirement pay).  For treatment, see section 235-7(a)(3);

     (9)  Section 135 (with respect to income from United States savings bonds used to pay higher education tuition and fees).  For treatment, see section 235-7(a)(1);

    (10)  Section 139C (with respect to COBRA premium assistance);

    (11)  Subchapter B (sections 141 to 150) (with respect to tax exemption requirements for state and local bonds);

    (12)  Section 151 (with respect to allowance of deductions for personal exemptions).  For treatment, see section 235-54;

    (13)  Section 179B (with respect to expensing of capital costs incurred in complying with Environmental Protection Agency sulphur regulations);

    (14)  Section 181 (with respect to special rules for certain film and television productions);

    (15)  Section 196 (with respect to deduction for certain unused investment credits);

    (16)  Section 199 (with respect to the U.S. production activities deduction);

    (17)  Section 199A (with respect to qualified business income);

    (18)  Section 222 (with respect to qualified tuition and related expenses);

    (19)  Sections 241 to 247 (with respect to special deductions for corporations).  For treatment, see section 235-7(c);

    (20)  Section 250 (with respect to foreign-derived intangible income and global intangible low-taxed income);

    (21)  Section 267A (with respect to certain related party amounts paid or accrued in hybrid transactions or with hybrid entities);

    (22)  Section 280C (with respect to certain expenses for which credits are allowable).  For treatment, see section 235-110.91;

    (23)  Section 291 (with respect to special rules relating to corporate preference items);

    (24)  Section 367 (with respect to foreign corporations);

    (25)  Section 501(c)(12), (15), (16) (with respect to exempt organizations); except that section 501(c)(12) shall be operative for companies that provide potable water to residential communities that lack any access to public utility water services;

    (26)  Section 515 (with respect to taxes of foreign countries and possessions of the United States);

    (27)  Subchapter G (sections 531 to 565) (with respect to corporations used to avoid income tax on shareholders);

    (28)  Subchapter H (sections 581 to 597) (with respect to banking institutions), except section 584 (with respect to common trust funds).  For treatment, see chapter 241;

    (29)  Section 642(a) and (b) (with respect to special rules for credits and deductions applicable to trusts).  For treatment, see sections 235-54(b) and 235-55;

    (30)  Section 646 (with respect to tax treatment of electing Alaska Native settlement trusts);

    (31)  Section 668 (with respect to interest charge on accumulation distributions from foreign trusts);

    (32)  Subchapter L (sections 801 to 848) (with respect to insurance companies).  For treatment, see sections 431:7-202 and 431:7-204;

    (33)  Section 853 (with respect to foreign tax credit allowed to shareholders).  For treatment, see section 235-55;

    (34)  Section 853A (with respect to credits from tax credit bonds allowed to shareholders);

    (35)  Section 857(b)(2)(B) (with respect to the dividends paid deduction for real estate investment trusts);

   [(35)] (36)  Subchapter N (sections 861 to 999) (with respect to tax based on income from sources within or without the United States), except sections 985 to 989 (with respect to foreign currency transactions).  For treatment, see sections 235-4, 235-5, and 235-7(b), and 235-55;

   [(36)] (37)  Section 1042(g) (with respect to sales of stock in agricultural refiners and processors to eligible farm cooperatives);

   [(37)] (38)  Section 1055 (with respect to redeemable ground rents);

   [(38)] (39)  Section 1057 (with respect to election to treat transfer to foreign trust, etc., as taxable exchange);

   [(39)] (40)  Sections 1291 to 1298 (with respect to treatment of passive foreign investment companies);

   [(40)] (41)  Subchapter Q (sections 1311 to 1351) (with respect to readjustment of tax between years and special limitations), except for section 1341 (with respect to computation of tax where taxpayer restores substantial amount held under claim of right);

   [(41)] (42)  Subchapter R (sections 1352 to 1359) (with respect to election to determine corporate tax on certain international shipping activities using per ton rate);

   [(42)] (43)  Subchapter U (sections 1391 to 1397F) (with respect to designation and treatment of empowerment zones, enterprise communities, and rural development investment areas).  For treatment, see chapter 209E;

   [(43)] (44)  Subchapter W (sections 1400 to 1400C) (with respect to District of Columbia enterprise zone);

   [(44)] (45)  Section 1400O (with respect to education tax benefits);

   [(45)] (46)  Section 1400P (with respect to housing tax benefits);

   [(46)] (47)  Section 1400R (with respect to employment relief);

   [(47)] (48)  Section 1400T (with respect to special rules for mortgage revenue bonds);

   [(48)] (49)  Section 1400U-1 (with respect to allocation of recovery zone bonds);

   [(49)] (50)  Section 1400U-2 (with respect to recovery zone economic development bonds); and

   [(50)] (51)  Section 1400U-3 (with respect to recovery zone facility bonds)."

     SECTION 3.  Section 235-71, Hawaii Revised Statutes, is amended by amending subsection (d) to read as follows:

     "(d)  In the case of a real estate investment trust there is imposed on the taxable income, computed as provided in sections 857 and 858 of the Internal Revenue Code but with the changes and adjustments made by this chapter (without prejudice to the generality of the foregoing, for the taxable years beginning before January 1, 2026, the deduction for dividends paid is limited to [such] the amount of dividends as is attributable to income taxable under this chapter[),] and, for taxable years beginning after December 31, 2025, no deductions for dividends paid shall be allowed), a tax consisting in the sum of the following:  4.4 per cent if the taxable income is not over $25,000, 5.4 per cent if over $25,000 but not over $100,000, and on all over $100,000, 6.4 per cent.  In addition to any other penalty provided by law any real estate investment trust whose tax liability for any taxable year is deemed to be increased pursuant to section 859(b)(2)(A) or 860(c)(1)(A) after December 31, 1978, (relating to interest and additions to tax determined with respect to the amount of the deduction for deficiency dividends allowed) of the Internal Revenue Code shall pay a penalty in an amount equal to the amount of interest for which the trust is liable that is attributable solely to the increase.  The penalty payable under this subsection with respect to any determination shall not exceed one-half of the amount of the deduction allowed by section 859(a), or 860(a) after December 31, 1978, of the Internal Revenue Code for the taxable year.

     Notwithstanding the foregoing, beginning January 1, 2022, the department shall require a real estate investment trust subject to this chapter to:

     (1)  Notify the department, in the manner prescribed by the department, of its operation as a real estate investment trust in the State no later than fifteen days from the first day of operation in the State; provided that, for real estate investment trusts operating in the State as of July 1, 2021, the department shall be notified no later than January 15, 2022;

     (2)  Properly designate on its tax return that it is a real estate investment trust, as required by the department;

     (3)  Complete its tax return in the specific manner required by the department, including following line‑by-line instructions; and

     (4)  Submit a copy of the real estate investment trust's federal tax return covering the same period with each state tax return that the real estate investment trust files with the department under this chapter.

Any real estate investment trust that fails to comply with these requirements shall be assessed a penalty of $50 per day."

     SECTION 4.  Statutory material to be repealed is bracketed and stricken.  New statutory material is underscored.

     SECTION 5.  This Act, upon its approval, shall apply to taxable years beginning after December 31, 2025.

Report Title:

Income Tax; Real Estate Investment Trusts; Dividends Paid Deduction

Description:

Disallows the dividends paid deduction for real estate investment trusts.

The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.

STAND. COM. REP. NO. 2864

Honolulu, Hawaii

RE:     S.B. No. 2362

        S.D. 1

Honorable Ronald D. Kouchi

President of the Senate

Thirty-Third State Legislature

Regular Session of 2026

State of Hawaii

Sir:

     Your Committee on Ways and Means, to which was referred S.B. No. 2362, S.D. 1, entitled:

"A BILL FOR AN ACT RELATING TO TAXATION,"

begs leave to report as follows:

     The purpose and intent of this measure is to promote income tax equity.

     More specifically, this measure:

     (1)  Requires the Department of Business, Economic Development, and Tourism to conduct a study on the impacts of eliminating the dividends paid deduction for real estate investment trusts; and

     (2)  Appropriates moneys to the Department of Business, Economic Development, and Tourism.

     Your Committee received written comments in support of this measure from the Church of the Crossroads; Hawaii Regional Council of Carpenters; Hawaiian Council; Operating Engineers Local 3; Public Storage; and nineteen individuals.

     Your Committee received written comments on this measure from the Department of Business, Economic Development, and Tourism; Chamber of Sustainable Commerce; Hawaii Appleseed Center for Law and Economic Justice; Hawaii Children's Action Network Speaks!; Indivisible Hawaii; Hawaii Laborers and Employers Cooperation and Education Trust; Host Hotels and Resorts; Land Use Research Foundation of Hawaii; NAIOP Hawaii; Nareit Hawaii; Park Hotels and Resorts; Tax Foundation of Hawaii; UNITE HERE Local 5; and ten individuals.

     Your Committee finds that the majority of income received from real estate investment trusts by corporate entities doing business in the State is not taxed at the state level.  These trusts enjoy a preference that exempts them from paying taxes on dividends paid on revenues generated in the State.  Your Committee also finds that a study commissioned by the Department of Business, Economic Development, and Tourism in 2016 revealed that the majority of the real estate investment trust income taxes were paid to other states by out-of-state shareholders receiving dividends, meaning that Hawaii did not benefit from the bulk of the income generated by real estate investment trusts operating within its borders.

     Your Committee believes that the study required by this measure is necessary to determine the potential impacts that eliminating the deduction may have on investments and revenue‑generating business activities.

     As affirmed by the record of votes of the members of your Committee on Ways and Means that is attached to this report, your Committee is in accord with the intent and purpose of S.B. No. 2362, S.D. 1, and recommends that it pass Third Reading.

Respectfully submitted on behalf of the members of the Committee on Ways and Means,

STAND. COM. REP. NO. 2630

Honolulu, Hawaii

RE:     S.B. No. 2362

        S.D. 1

Honorable Ronald D. Kouchi

President of the Senate

Thirty-Third State Legislature

Regular Session of 2026

State of Hawaii

Sir:

     Your Committees on Economic Development and Tourism and Commerce and Consumer Protection, to which was referred S.B. No. 2362 entitled:

"A BILL FOR AN ACT RELATING TO TAXATION,"

beg leave to report as follows:

     The purpose and intent of this measure is to disallow the dividends paid deduction for real estate investment trusts, commonly called REITs.

     Your Committees received testimony in support of this measure from the Hawaiʻi Public Health Institute, Hawaiʻi Children's Action Network Speaks!, Indivisible Hawaiʻi, Church of the Crossroads, Hawaii Appleseed Center for Law and Economic Justice, Hawaiian Council, UNITE HERE! Local 5, Hawaiʻi Alliance for Community-Based Economic Development, ACLU Hawaiʻi, Chamber of Sustainable Commerce, and fifty individuals.

     Your Committees received testimony in opposition to this measure from NAIOP Commercial Real Estate Development Association Hawaii; Douglas Emmett, Inc.; Nareit Hawaii; Hawaiʻi Association of REALTORS; Extra Space Storage Inc.; Hawaii Laborers-Employers Cooperation and Education Trust Fund; Park Hotels & Resorts Inc.; International Union of Operating Engineers Local 3; Sunstone Hotel Investors, Inc.; OPTrust; Host Hotels & Resorts, Inc.; Simon Property Group; Public Storage; Housing Hawaiʻi's Future; Grassroot Institute of Hawaii; Realty Income Corporation; and two individuals.

     Your Committees received comments on this measure from the Department of Taxation and Tax Foundation of Hawaii.

     Your Committees find that under the State's current taxation system, real estate investment trusts (REITs) are afforded an exemption from paying corporate income taxes on dividends paid to shareholders.  While shareholders pay federal and state income taxes on earnings from the trust, most shareholders do not live in the State.  Therefore, incomes generated from local properties contribute to state tax revenues elsewhere.  According to the Department of Taxation, this will amount to $26.8 million in forgone income tax revenue in taxable year 2026 alone.  Other states, including Connecticut, Illinois, and Virginia, have successfully enacted measures to ensure income generated within their borders is taxed equitably.  This measure will increase the State's tax revenues, contributing funds to public education, basic infrastructure, climate change mitigation and adaptation, and numerous other policy objectives.

     Your Committees acknowledge the concerns raised in testimony by various real estate industry stakeholders that disallowing the dividends paid deduction may negatively impact the State's economy, including by disincentivizing investment; harming the construction trades, building suppliers, architects, and engineers; slowing construction of workforce and affordable housing; and stifling growth.  Your Committees recognize that evaluating the full economic consequences of this measure, including weighing any potential increase in tax revenue against revenue lost due to businesses divesting from the local market, is critical to informed policymaking.  Therefore, amendments to this measure are necessary to address this matter.

     Accordingly, your Committees have amended this measure by:

     (1)  Deleting language that would have disallowed the dividends paid deduction for REITs;

     (2)  Inserting language that requires the Department of Business, Economic Development, and Tourism to:

          (A)  Conduct a study evaluating the potential impacts of eliminating the dividends paid deduction for REITs; and

          (B)  Submit a report to the Legislature before the Regular Session of 2027;

     (3)  Inserting a blank appropriation amount;

     (4)  Amending section 1 to reflect its amended purpose;

     (5)  Inserting an effective date of July 1, 2050, to encourage further discussion; and

     (6)  Making technical, nonsubstantive amendments for the purposes of clarity and consistency.

     As affirmed by the records of votes of the members of your Committees on Economic Development and Tourism and Commerce and Consumer Protection that are attached to this report, your Committees are in accord with the intent and purpose of S.B. No. 2362, as amended herein, and recommend that it pass Second Reading in the form attached hereto as S.B. No. 2362, S.D. 1, and be referred to your Committee on Ways and Means.

Respectfully submitted on behalf of the members of the Committees on Economic Development and Tourism and Commerce and Consumer Protection,