April 27, 2024

High & Low Finance: Congressman’s Proposal Is a First Step Toward a Tax Overhaul

If real tax change is ever to be adopted, we are going to have to be specific on small things as well as large.

Representative Dave Camp, the Michigan Republican who heads the House Ways and Means Committee, has taken an impressive step in that direction with a proposal to make substantial changes in the taxation of financial instruments.

Mr. Camp’s proposal got relatively little attention in the media, although it has set off alarm bells in some Wall Street precincts, where it threatens to dismantle some cherished ways that Wall Street has invented to allow banks to profit by taking a cut of tax benefits they offer to customers.

“Congressman Camp’s proposal reflects his efforts to respond to the changing realities of modern financial markets,” said Mark Price, who leads the financial institutions and products group at KPMG’s Washington national tax practice.

Studying Mr. Camp’s proposal is not always easy sledding. This is an area of law that has grown exceedingly complicated, in large part because each change in the law is greeted by new tax avoidance tactics and strategies, which eventually lead to new provisions that combat those but may open the way to still more maneuvers. And on and on. Many innovations in finance accomplish nothing for the overall economy, but instead are aimed solely at gaming either tax or regulatory rules.

Lobbyists for one part of the financial services industry or another have gotten provisions passed to benefit their products over those of competitors, leading to demands by competitors for equal treatment.

It would be nice to report that the chairman has found a magic way to end these games, but he has not. Some on Wall Street are already talking about ways that some of his proposals, if enacted, could be abused.

Mr. Camp understands that and has called his proposal a “discussion draft,” one that is aimed at getting comments from those who would be affected.

He will get plenty of them.

One principle that the Camp proposal would establish is to provide what the congressman calls “uniform tax treatment of financial derivatives.” The definition of derivative is very wise — it includes short sales of stock as well as options, swaps and futures.

Under the Camp proposal, a derivative could create only ordinary gains or losses no matter how long it was held. And changes in value would be subject to tax every year, as the market price changed, whether or not the investor sold. There could never be a long-term capital gain involving a derivative, and therefore the investor could never qualify for the preferential tax rate on long-term capital gains.

There are many tax-oriented strategies to create differing tax treatments for what are actually offsetting investments. The idea is to have a loss treated as ordinary income, and recognized as soon as possible, while the offsetting gain is delayed and then treated as a long-term capital gain if that is possible.

The Camp proposal would establish a general rule that both arms of an offsetting strategy will be taxed as ordinary income or loss on a mark-to-market basis at the end of each year. So if one position made money while the other lost, they would wash each other out. There would be little reason to enter into many such transactions. And derivatives — except those that businesses use in ways that qualify for hedge accounting — will automatically be marked to market.

One type of product that appears to be targeted is so-called exchange-traded notes. They are devised to be alternatives to other investments, but with better tax treatment. Consider a mutual fund that invests in the stocks in the Standard Poor’s 500. If you buy shares in that fund, dividends will be distributed to you each year, and you pay taxes on them even if you reinvest them in the fund. But if a bank issues a “note” tied to the total return on the same index, you will not owe taxes until you sell the note. The effect is to defer taxes on the dividend income.

To get that tax break, you pay a fee to the bank that issued the note, and you take the credit risk. If the bank fails, you will suffer no matter how well the index does.

Floyd Norris comments on finance and the economy at nytimes.com/economix.

Article source: http://www.nytimes.com/2013/02/15/business/congressmans-plan-is-first-step-to-a-tax-overhaul.html?partner=rss&emc=rss

High & Low Finance: A Clash of Auditors in H.P. Deal

But the eternal question asked whenever a fraud surfaces — “Where were the auditors?” — does have an answer in this case.

They were everywhere.

They were consulting. They were advising, according to one account, on strategies for “optimizing” revenue. They were investigating whether books were cooked, and they were signing off on audits approving the books that are now alleged to have been cooked. They were offering advice on executive pay. There are four major accounting firms, and each has some involvement.

Herewith a brief summary of the Autonomy dispute:

Hewlett-Packard, a computer maker that in recent years has gone from one stumble to another, bought Autonomy last year. The British company’s accounting had long been the subject of harsh criticism from some short-sellers, but H.P. evidently did not care. The $11 billion deal closed in October 2011.

Last week, H.P. said Autonomy had been cooking its books in a variety of ways. Mike Lynch, who founded Autonomy and was fired by H.P. this year, says the company’s books were fine. If the company has lost value, he says, it is because of H.P.’s mismanagement.

Autonomy was audited by the British arm of Deloitte. H.P., which is audited by Ernst Young, hired KPMG to perform due diligence in connection with the acquisition — due diligence that presumably found no big problems with the books.

That covered three of the four big firms, so it should be no surprise that the final one, PricewaterhouseCoopers, was brought in to conduct a forensic investigation after an unnamed whistle-blower told H.P. that the books were not kosher. H.P. says the PWC investigation found “serious accounting improprieties, misrepresentation and disclosure failures.”

That would seem to make the Big Four tally two for Autonomy and two for H.P., or at least it would when Ernst approves H.P.’s annual report including the write-down.

But KPMG wants it known that it “was not engaged by H.P. to perform any audit work on this matter. The firm’s only role was to provide a limited set of non-audit-related services.” KPMG won’t say what those services were, but states, “We can say with confidence that we acted responsibly and with integrity.’

Deloitte did much more for Autonomy than audit its books, perhaps taking advantage of British rules, which are more relaxed about potential conflicts of interest than are American regulations enacted a decade ago in the Sarbanes-Oxley law. In 2010, states the company’s annual report, 44 percent of the money paid to Deloitte by Autonomy was for nonaudit services. Some of the money went for “advice in relation to remuneration,” which presumably means consultations on how much executives should be paid.

The consulting arms of the Big Four also have relationships that can be complicated. At an auditing conference this week at New York University, Francine McKenna of Forbes.com noted that Deloitte was officially a platinum-level “strategic alliance technology implementation partner” of H.P. and said she had learned of “at least two large client engagements where Autonomy and Deloitte Consulting worked together before the acquisition.” A Deloitte spokeswoman did not comment on that report.

To an outsider, making sense of this brouhaha is not easy. In a normal accounting scandal, if there is such a thing, the company restates its earnings and details how revenue was inflated or costs hidden. That has not happened here, and it may never happen. There is not even an accusation of how much Autonomy inflated its profits, but if there were, it would be a very small fraction of the $8.8 billion write-off that H.P. took. Autonomy never reported earning $1 billion in a year.

That $8.8 billion represents a write-off of much of the good will that H.P. booked when it made the deal, based on the conclusion that Autonomy was not worth nearly as much as it had paid. It says more than $5 billion of that relates to the accounting irregularities, with the rest reflecting H.P.’s low stock price and “headwinds against anticipated synergies and marketplace performance,” whatever that might mean.

Some of the accounting accusations relate to how Autonomy booked expenses. The H.P. version is that the British company made sales of hardware — personal computers it bought and resold — look like sales of valuable software. It hid some costs as marketing expenses when they should have been reported as costs of goods sold.

All that, if true, would inflate operating profit margins and growth rates for the most important part of the business. But it would not change net earnings.

Floyd Norris comments on finance and the economy at nytimes.com/economix.

Article source: http://www.nytimes.com/2012/11/30/business/auditors-clash-in-hp-deal-for-autonomy.html?partner=rss&emc=rss

DealBook: British Panel Urges Sweeping Banking Overhaul

Banks at Canary Wharf in London.Andy Rain, via European Pressphoto AgencyBanks at Canary Wharf in London.

6:47 p.m. | Updated

LONDON — As banks across Europe came under renewed pressure, Britain’s government proposed a radical industry makeover on Monday that could cost the financial firms as much as £7 billion ($11 billion).

On Monday, the government-appointed Independent Commission on Banking called for banks to separate their deposit-taking operations from investment banking services, stopping short of completely breaking up the firms. The panel plans to give banks until 2019 to adapt to new rules intended to make the financial sector more stable, saying an “extended implementation period would be appropriate.”

George Osborne, the chancellor of the Exchequer, said the commission, led by a former Bank of England chief economist, John Vickers, “has done an excellent job.”

“John Vickers himself has set out a timetable and I intend to stick to that timetable,” Mr. Osborne said.

John Vickers, a former Bank of England chief economist, headed a 14-month review of British banks.Leon Neal/Agence France-Presse — Getty ImagesJohn Vickers, a former Bank of England chief economist, headed a 14-month review of British banks.

Jon Pain, a partner at KPMG, called the proposals “game changing” and said they were “a return to a more simple 1940s and ’50s style of retail banking where it is perceived as more of a basic utility.”

The proposals, which go beyond banking reforms in the United States and elsewhere, are expected to lead to extensive lobbying from the banks before any final decisions on new rules are made by the British government.

Under the proposal, British banks would have to separate their businesses taking deposits and lending to consumers and businesses from groups involved in stocks, derivatives and equity and debt underwriting. The two subsidiaries would be separately capitalized, have different boards, different cultures and report results as if they were two different companies, the commission report said. Capital from the investment banking unit could be injected into the retail bank if needed, and the two businesses could share customers and expertise, the commission said.

Some banking executives have argued that the changes would hurt investors, the economy and industry competitions.

Banks with large investment banking operations, including Barclays and Royal Bank of Scotland, may be most affected by the new rules, some analysts have said. The separation could drive up their funding costs if investors and lenders perceived them as riskier. Spokesmen for the two banks declined to comment.

British banking stocks fell on Monday, with Barclays down 1.6 percent and Royal Bank of Scotland more than 3 percent, as markets were unnerved by the nagging prospect of a Greek default.

But the commission has argued that the benefits — particularly a healthier banking industry with less probability of government bailouts — would outweigh the short-term costs.

“Retail subsidiaries would be legally, economically and operationally separate from the rest of the banking groups to which they belonged,” the commission said in its 360-page report. “The improved stability that structural reform would bring to the U.K. economy would be positive for investment both in financial services and the wider economy.”

The 2019 deadline is about four years later than some analysts had expected; the new rules would be adopted after the next general election.

Prime Minister David Cameron has grown increasingly nervous that making major changes now could harm an already weak economic recovery, two government officials said last week. They declined to be identified because no final decision had been made.

Mr. Vickers warned the government that scrapping parts of the proposals or changing them in favor of the banks would be “a great mistake.”

“The too-big-to-fail problem must not be recast as a too-delicate-to-reform problem,” Mr. Vickers said.

“More stress for banks” this year because of Europe’s sovereign debt crisis “underlines that the status quo is not an option,” he said. “Things will need to change.”

Ed Balls, the opposition Labor Party’s candidate for the treasury position, said the commission put forward “a tough and radical proposal” and that “the stalled recovery is not an excuse for ducking reform.”

Article source: http://dealbook.nytimes.com/2011/09/12/britains-i-c-b-recomends-gradual-banking-reform/?partner=rss&emc=rss