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GreenTrader Weblog
GreenTraderTax & GreenTraderFunds
July 26, 2010

Extend the Bush tax cuts for everyone or no one to avoid tax-class warfare

There has been a lot of talk lately about extending the Bush tax cuts, which expire at the end of this year. The Obama administration and many Congressional Democrats have discussed allowing the cuts to expire for families making more than $250,000 a year, but keeping them in place for everyone else.

Raising taxes on families earning $250,000 — each spouse making $125,000 — in expensive cities such as New York, Chicago or Los Angeles seems unfair. Many families living in Manhattan must use private schools, as public schools are overcrowded with desegregation busing and public schools are being downsized with state deficits. These families are not rich and many will be forced to leave their jobs, move and seek new jobs which are hard to find. Not indexing tax rates for cost-of-living by city and region is unfair. The housing allowance for U.S. residents abroad is indexed by city in this manner.

But even worse is singling out and attacking the perceived rich with tax policies, regulations, editorials and political stump speeches. It’s an ugly and dangerous trend in America and it will hurt our country at a time when we need to reinvent ourselves.

President Obama campaigned on uniting our country with shared responsibility and sacrifice for one America: black and white, Democrat and Republican. But current trends embodied by politics in Washington D.C. are dividing us across money lines.

We are at a very dangerous crossroads with discussion turning emotional over tax and other monetary issues, like health care redistribution and now who is entitled to extension of tax cuts and who should be singled out for tax increases. We should be careful not to inflame tax-class warfare, which may lead to further emotional calls of racism in the Tea Party, and a new term I call “richism” by the less fortunate. Attacking wealthy job creators will continue the current capital strike and prevent new job opportunities.

If we turn the wrong way at this juncture, it will unleash more racism, anti-business sentiment, anti-Wall Street emotions, and overall richism — chastising the financially successful. The wrong way is to extend the Bush tax cuts for people making under $250,000 only and to single out the rich for tax increases and more redistribution.

The right way is to unite our country in shared sacrifice and benefit to work out our common problems together; to either extend the Bush tax cuts for everyone or no one.

Will tax hikes rein in growth?
Let’s create a tax commission made up of economists appointed by both political parties (since economists can be pretty political these days too). The Congressional Budget Office (CBO) that scores tax bills should also factor in growth and/or contraction based on behavioral economics. Currently, they leave out such dynamic factors and claim it’s more conservative that way. Hogwash — this method is blind, based on lazy efforts and renders the results almost not usable at all. The CBO is almost always wrong with its scoring and projections.

The key argument is whether hiking tax rates will seriously affect and rein in growth. Supply-side economics on tax policy says that lower tax rates can lead to growth which actually raises tax revenues based on a larger tax base — even though that base pays a lower rate. This is the crux of the current argument over this issue with the Democrats and Republicans. Pundits grab at convenient facts over the past decades to credit or discredit these theories. Heavy lifting is imperative on this far-too-important issue.

If this commission of economists — working with more dynamic CBO scoring — conclude that raising tax rates in 2011 will not unduly damage growth and will raise tax collections (revenues) to reduce our shared deficit, then maybe we should not extend the tax cuts for everyone. Treasury Secretary Geithner and President Obama share this view, but they only want to raise taxes on the rich, not the middle class as that would break the President’s campaign promise — read his lips.

Conversely, if economists and the CBO believe that raising tax rates will materially hurt growth which may lead to a reduction of tax collections, negatively impacting the deficit and job markets, then our government should extend the Bush tax cuts for everyone. Certainly, the wealthy are a major force in consumption, business expansion and job creation.

Leftover “extenders” items
Congress is considering a small-business package to address tax and jobs. Senate Majority Leader Harry Reid (D-Nev.) mentioned this bill would be debated and put up for voting in September.

I’m guessing this bill may include the left over “tax extenders” bill items that were stripped out of the unemployment benefit extension bill, which finally passed last week on its own — paid for with deficit spending.

Now Congress seems interested in bringing back those tax extenders (expensing, credits, AMT patch and more) and tagging them on to the explosive Bush tax cut extension debate, which is shaping up as a key battle-line vote before the midterm elections in November. Favoring the middle class or the upper class is an ideal battle line for the Democrats, since the middle class holds more voting levers.

The tax extenders bill failed because Republicans wouldn’t agree to raising taxes on investment managers and S-Corps to help pay for it. Republican Senators Scott Brown (Mass.), Susan Collins (Maine) and Olympia Snowe (Maine) are willing to break filibusters over deficit spending but to date, not on tax increases. That could change of course.

How will this new small business jobs and tax package be constructed by Democratic leadership? I predict it will bring back all tax extenders, extend the Bush tax cuts for the everyone but the rich and pay for part of it by repealing carried interest on investment managers and repealing the SE tax break in S-Corps.

How will Democratic leadership frame the tax hikes on the rich — as part of “pay go” for this bill? Or will they seek deficit spending as they did on the unemployment benefit extension bill?

I imagine the President will feel it’s improper for the rich to ask for a tax-cut extension (which increases the deficit) if it’s not paid for. Republicans will be forced to filibuster the tax extenders (including the Bush tax cuts for the middle class) because they will demand spending cuts and Democrats won’t agree to that.

Democrats will say small business-heavy tax extensions are needed — Republican language in general — and it must be paid for somehow, so there’s no room for tax cuts on the upper class. They should help pay for it along with investment managers and S-Corp owners too — groups the Democrats will say can afford it.

Republicans will argue as always that spending cuts should be utilized rather than tax increases on job creators.

In my view, growth has already been stimulated enough by the government, so why not just get out of the way now and stop social tax engineering? Let businesses recover fully from that savaging recession on their own. The worst thing to do now is to adopt further tax-class warfare, which will divide our country and lead to counter-productive policies that stunt growth and innovation.

A small-business tax package may sound like a decent idea. But the Republicans are right — many families making $250,000 are small businesses. If you want to encourage their growth, don’t single them out with targeted tax increases, which can lead to a continued capital strike, and insufficient expansion and job creation. These people are already saving up to pay more taxes. It’s not worth the risk to expand and make a few more dollars if most of that money is taxed away anyway. Why work harder and take that added risk?

A country divided...
This brings me back to my biggest point about dividing our country over these tax cuts. Being castigated and singled out for punishment is one of the worst things someone can experience in society. It makes them feel unwanted and unappreciated and it leads to negative thoughts, withdrawal and depression (or continued recession). It’s the underpinnings of racism and richism.

The NAACP recently called some people in the Tea Party racist. Many in the tea party are very upset about uncontrolled government spending, including spending on entitlement programs and redistribution of those benefits — like health care — to less fortunate Americans. Some people took their emotions too far by castigating black Congressmen.

When the benefactors of government social-spending policies attack perceived rich people, it’s richism. Racism and richism feed on each other and to suppress one you should suppress the other too. It was pretty savage during the French Revolution when rich people were carted off for death. Anti-Semitism often is similar to richism too.

I’m not referring to super rich people like Warren Buffett and Bill Gates — they are different. They save hundreds in millions in taxes by deducting charitable donations to their own foundations. They sit on those charitable fortunes for decades and dole out monies, receiving federal and state income tax deductions for these contributions. Normal Americans must make up for their domestic tax breaks, and that’s not fair. They are contributing hundreds of millions/billions to U.S. organizations with foreign activities rather than paying American taxes to help cities like New Orleans. I support their wonderful charitable efforts, but it doesn’t help America’s budget deficit. Why don’t they just pay more taxes too? They shouldn’t get a tax deduction for these payments. They avoid estate taxes with these charitable foundations too. So when they preach about taxes, I take it with a grain of salt.

Compare a successful business to federal governments at this time. In business, the customer is very appreciated and important. The customer brings in revenue to support the business and all of its jobs. During a recession or slow down, managers rarely raise prices on customers, and they try to improve values for customers. They give their best customers the red-carpet treatment, not the red-tape treatment with onerous new regulations. Business managers seek productivity savings and reductions in unnecessary overhead and spending.

It’s the reverse with our federal government. When times are tough, government proposes raising taxes (customer prices) on their best customers (taxpayers), while giving promotional giveaways and running sales for other customers, many of whom are tax “takers,” not payers. Their promotion for rich customers is “two-for-one” — pay for two (the customer plus the less fortunate customer) and you get one (redistribution). Rather than seek productivity with computers like the rest of America, they avoid it by botching those initiatives and they increase headcount and benefits for their co-worker buddies. The federal government needs a constitutional amendment to balance its budget like states do. States are forced to rein in spending now to stay solvent.

What will rich customer taxpayers do with these tax attacks and onerous policies? They won’t shop in that U.S. and state store anymore. They can afford to move abroad and run their business on the Internet.

German news organization Der Spiegel reported today that German companies are giving up their stock-market listings on U.S. exchanges because the red tape of Sarbanes Oxley was onerous and now it’s far worse with Fin Reg. German companies are fleeing U.S. government tax attacks, anti-business policies and lawsuits. They don’t need American listings or major branch offices anymore. And Germany is one of the export powers of the world who wants to export to America.

Look at a city and state like New York. It’s been ravaged with Fin Reg attacks on Wall Street, the prospect of onerous new bank taxes and a weakening real-estate market. There are hundreds of thousands of New Yorkers who make just over $250,000. They are stretched already. Experts say that each rich New Yorker supports seven jobs around the city. These tax hikes can be the stick to break New York City’s back.

Is it patriotic?
Some on the left are raising the patriotic argument — it’s the wealthy’s patriotic duty to pay more, while others enjoy a continuation of tax cuts. I think it’s more patriotic to extend the tax cuts for everyone or no one. Singling out successful Americans for greedy redistribution and punishment is vindictive and ugly.

The President and his public-relations team will pile on the rhetoric now about how the rich should take this opportunity to pay back some of the out-sized benefits they received over the past decade. But many rich aren’t feeling so fortunate. They are being foreclosed on at a faster pace now than the middle class these days. They’re struggling with reduced compensation and benefits, decimated 401ks and falling real-estate prices. Many are stretched pretty slim financially and they can’t afford tax increases. They will save for them at the expense of consumption, business expansion and job creation.

This tax-class warfare will divide and ruin America. Before we attack the perceived rich, why not ask our federal government to follow the same goals for achieving productivity and fairness that businesses and state and local governments are now adopting.

New Jersey Republican Gov. Chris Christie is right about the inappropriate excesses in public unions, which they are fighting to not give up. He asks why should NJ teachers retire much earlier than most Americans and enjoy full goosed up fixed pensions and health care benefits until they die? Why do teachers unions control state politics, have tenure and avoid federal and state efforts for reform? I don’t want to replace rishism with “unionism,” but we need a shared sacrifice.

A united front is necessary
Everyone is contributing some good ideas; we need to find bi-partisan consensus. Democrats are right about fixing health care to help more Americans. Republicans are right about reining in government excess and spending, and forcing them to seek productivity like the rest of America. Rich people and business are right about anti-business policies coming out of Washington D.C.

Bush tax cuts helped all classes during the recession after the Sept. 11, 2001 terrorist attacks in New York City and Washington DC. Our country was more united back then, and Congress and the President passed bi-partisan tax cuts. Democrats wanted tax breaks for their constituents too. We need to be united now too, with either bi-partisan extension or expiration of the Bush tax cuts. Congress built in a trigger for expiration of the Bush tax cuts in 2010 for all taxpayers, since they were not paid for. So why change that wise Congressional action for some, but not all?

Some argue the rich did well during the Clinton years, considering that the expiration of the Bush tax cuts brings back the Clinton tax rates. But the middle class and poorer people did well tax and economic-wise during the Clinton years too.

Tax cuts and the midterm elections
Politicizing the Bush tax-cut extension or expiration issue for the upcoming midterm elections is wrong. It’s too important an issue for America and how we deal with each other to solve our common problems together. Playing the race card for politics is wrong and so is playing the richism card too.

Extending Bush tax cuts for 95 percent of Americans essentially rewards 95 percent of the voters. Isn’t that morally and ethically wrong? It reminds me of pork-barrel politics that got us into this deficit mess in the first place. It’s wrong for corporations and unions to dominate political advertising and for lobbyists to curry too much favor in the halls of Congress. But it’s even worse to buy Democratic votes with a tax cut, while purposely freezing out some big contributing Republicans. Is this tax policy or political science?

Congress may want to punt this political hot potato with a universal extension for one or two years — all they will say the deficit can afford – but I doubt President Obama will agree. He will stand on principal and he won’t want this hot potato to make a mess of the presidential election in 2012.

Could be a bumpy ride in the next few months
The next few months will be intense on these issues. I think both sides won’t agree, the Republicans will filibuster and the tax cuts won’t be extended before the midterms. But each side can gain political votes over this battle line issue. Some Democrats will join Republicans on extending for all since they know it won’t come up for full vote anyway.

This issue will probably be decided in December when the deficit commission reports to Congress. In December, they will throw the kitchen sink into one bill and after lots of horse trading, who knows the outcome. At stake will be income, estate, investment and other types of taxes, spending, the deficit and more. I hope we can be united over it all.

July 22, 2010

Fin Reg calls for derivates contracts to be cleared on futures exchanges, but Congress doesn’t change their tax treatment to lower 60/40 tax rates

The “Restoring American Financial Stability Act of 2010” — also known as "Fin Reg" — signed into law on July 21 moves many derivative contractors from the private marketplace to clearing on futures exchanges. In Section 1601 of the bill, Congress makes it crystal clear this movement isn't like trading and it doesn't afford these derivatives contracts the regulated futures contract tax treatment in Section 1256.

Swap contracts – a form of credit insurance – were at the center of the credit crisis. AIG wrote far too many of these swap contracts (pocketing the premium) and lacked sufficient capital to cover its eventual credit losses at the height of the financial panic. Regulators lacked transparency since swaps were private derivatives contracts.

Fin Reg addresses these problems by moving many derivative swap contracts into clearing on futures exchanges to provide market-based transparency of pricing and terms and normal exchanged-based margin and leverage rules. However, in moving to futures exchanges, Congress did not want to reward swap contracts with the lower 60/40 treatment in Section 1256.

The new law amends Section 1256 to broaden the list of contracts that are barred from the definition. Section 1256 contracts include: regulated futures contracts, foreign currency contracts, nonequity options, dealer equity options, and dealer securities futures contracts. Under pre-Act law, the term Section 1256 contract doesn't include securities futures contracts or options on such a contract unless the contract or option is a dealer securities futures contract.

Law change
For tax years beginning after July 21, 2010 all of the following also are excepted from the definition of a Section 1256 contract: any interest-rate swap, currency swap, basis swap, interest-rate cap, interest-rate floor, commodity swap, equity swap, equity-index swap, credit default swap, or similar agreement. (Code Sec. 1256(b), as amended by Act Sec. 1601. You can find Section 1601 - Title XVI – Section 1256 Contracts on the last pages of the bill.)

The Conference Report says the change addresses the recharacterization of income as a result of increased exchange trading of derivatives contracts by clarifying that Code Sec. 1256 doesn't apply to certain derivatives contracts transacted on exchanges.

Leading tax attorney for investment-management businesses Roger Lorence emailed me, stating that “Swaps were not 60/40 under prior law. The new law clarifies that their status is not 60/40. Leading experts have expressed their views that there was confusion in the marketplace about the treatment of swaps cleared by clearing arms of exchanges, although the swap contracts themselves were not traded on a qualified board or exchange (traded on a QBE is a requirement for 60/40 treatment). There is a difference between clearing and trading — trading means a designated contract market for that contract has been approved by the CFTC and swaps are not eligible for designation as a contract market (there can’t be trading in a swap). No contract that legitimately is 60/40 now loses 60/40 under this bill. The amendment is designed to foreclose aggressive taxpayers from taking the position that swaps are 60/40.”

Thanks Roger, this clarifies my question about traders gaining a new opportunity to trade these derivatives contracts – they don’t get this opportunity. They can gain from the transparency on the exchange clearing.
July 21, 2010

Economic outlook grim after Fin Reg passage

The Financial Regulation Bill ("Fin Reg") passed the Senate last week and President Obama said he plans to sign the bill into law today (July 21). Kudos to our President for working hard to pass another major piece of his reform agenda, after allowing for some give and take with Congress too.

After mounting a significant effort to change Fin Reg, I was saddened to see three Republican Senators — Scott Brown, Susan Collins and Olympia Snowe — break the Republican filibuster to stop this version of Fin Reg. Omitting reform of Fannie and Freddie and the rest of my grievances was unfortunate. There will probably be repercussions in the markets soon.

Now that the bill has passed, it’s time to find opportunities for the future and to avoid pitfalls wherever possible within this new law.

With the Volcker rule limiting investment-management business to 3 percent of bank tier 1 capital and not allowing proprietary trading in FDIC-covered banks, many traders may leave banks to join hedge funds and prop-trading firms. Some may start their own trading and investment-management businesses. Registration rules have been tightened, but those compliance costs are reasonable. For others, it may simply lead to the loss of their jobs and/or reduced compensation and bonuses.

Financial markets and analysts didn’t like Goldman Sachs Q2 2010 earnings reports this week. One contributing factor: Trading revenues (gains) were down by approximately 89 percent. Once Fin Reg is in full effect after a long transition period, imagine trading revenues down by 100 percent (with no trading at all). Focusing on loans only can be a risky business, especially if Fin Reg calls for more forced social lending to less-than-desirable borrowers, and demands that banks retain 5 percent ownership of securitizations. Morgan Stanley released it's earnings after I wrote this blog and they surprised on the upside due to stronger than anticipated trading gains. Taking trading gains out of these banks is like taking the iPad or iPhone out of Apple's earnings and leaving them with computers only.

There doesn’t seem to be many provisions that affect our trader clients in the first read of Fin Reg. There may be new opportunities for traders to trade derivatives which are moving to exchanges. Most stay behind at banks in the private marketplace. I didn’t notice any mention of stiffer leverage and margin requirements or access to markets.

If Fin Reg was in effect in 2008…
Before moving on to greener pastures, I wanted to vent a little more about one last big problem I have with Fin Reg. The bill’s raison d'etre was preventing “too big to fail.” I think Fin Reg may not prevent the next big bank failure, run on the bank, and/or contagion among institutions and toxic asset prices. In fact, I think it may in some cases accelerate all of the above. Let’s apply Fin Reg to the 2008 crisis that precipitated this bill, and project how it may have changed the outcome. For better or worse?

I admit that Fin Reg provisions and new regulators may have spotted and reined in unsustainable risks, abuses in mortgage underwriting, poorly packaged and rated mortgage securitizations and excesses with the GSEs. On the other hand, regulators had tools in place already to deal with these problems and they ignored them thinking the housing market juggernaut would only go up.

Here’s my biggest problem with Fin Reg. During the height of the crisis, it may have accelerated the spread of toxic asset pricing, leading to a faster run on Bear Stearns and Lehman (and other banks too).

Here’s why. This crisis brewed in two Bear Stearns real estate hedge funds, which eventually blew up and contributed to the cause of the crisis. The fund manager told Bear’s clients the fund was net short real estate and not to worry. He was lying and the funds were very long real estate and hiding large losses. Bear Stearns corporate management was not focused enough on these funds and didn’t want to bail them out with corporate monies, or close them down. They hoped real estate would turn around. Remember, Bear turned its back on the Long-Term Capital hedge fund that needed a bailout in 1998. We all know how this “House of Cards” (the book by William Cohan on Bear Stearns demise) worked out.

Now let’s apply Fin Reg to this situation. Under Fin Reg’s Resolution Authority and wind-down provisions, regulators would have seized the Bear Stearns hedge funds quickly and probably sold off the toxic assets at fire-sale prices. That government takeover would have spooked the markets more than what happened in the crisis. Yes, it brings more transparency, but in this case, it would have spread more fear. If you think the new accounting rules for mark-to-market accounting caused havoc on bank balance sheets and accelerated the crisis, then this would have been far worse. Also, bank-sponsored funds of this size wouldn't be allowed with the Volcker Rule but that rule is phased in over many years, so we could have this problem sooner rather than later. Big banks are increasing their investments into hedge funds since Fin Reg was agreed-to and they are not downsizing those departments yet.

Fin Reg doesn’t allow a bank to bailout its own hedge funds. So, Bear would not have had that option. Bear should have bailed out its funds, as it sold them on its good name, not the character manager’s name. That may have stopped the crisis from spreading and not caused a run on real estate prices and fear. Prices had gone up with market sentiment and confidence.

Now we get to even more serious problems. Fin Reg grants the government the ability to modify and even rescind financial, employment and other business contracts executed by an institution during the wind-down procedure. Remember the President, Congress, public and media were inflamed by AIG using TARP-funds to honor 100 percent of its swap contracts with Goldman Sachs and other banks (and their employment contracts as well). Many thought the government should pay for (at a discount) what amounted to a pre-packaged bankruptcy. Treasury Secretary Paulson thought discounts would cause chaos in the financial markets and he was right.

Banks now understand that under Fin Reg, if a counterparty bank runs into trouble, and the government steps in very fast to wind them down, their contracts can be modified or rescinded. Therefore, all financial institutions are only as strong as their weakest link in counterparty transactions. It’s ironic that Fin Reg is intended to prevent contagion, but this linking of losses actually spreads contagion.

After a wind-down, the government is entitled under Fin Reg to send the final bill for all losses to the rest of the big banks in the form of bank taxes or levies. Fin Reg may have dropped $19 billion of upfront bank taxes, but these bank taxes remain on the back-end. It was an accounting gimmick only to drop them and win curry for passage.

Spreading losses from the failed to the strong fundamentally changes capitalism in America and weakens our marketplace. No wonder banks and corporations are on a capital strike now. Who can they trust? Make a deal with a weak player and it can come back to haunt you.

Back to the Bear Stearns saga. If the government took control of the Bear Stearns hedge funds because Bear Stearns wasn’t allowed to, that would have started the contagion and spread of toxic asset prices. All counter parties would then avoid Bear Stearns like the plague thinking the losses could be passed to Bear Stearns and the government might take it over next and rescind its contracts. Banks would start questioning each other and inter-bank lending would seize up. That is the recipe for this type of crisis.

What would management do during these difficult times under Fin Reg? New provisions in Fin Reg allow the government to claw back compensation from managers and that’s just the least of it. The government can also charge managers with a share of the losses. After I read these new provisions, I realized that someone would have to be crazy to work for a bank subject to Fin Reg without knowing their true risks and the bank’s full situation. It reminds me of working for a private partnership in the old days of Wall Street, except now managers don’t see all the cards and they have less say than old time partners in these firms. Certainly, bank managers should take precautions such as seeking their own legal counsel and obtaining sufficient insurance just like directors were forced to do years ago with Sarbanes Oxley regulations.

Some Fin Reg provisions like prop trading and hedge funds phase in over many years, but resolution authority containing these wind-down provisions starts immediately.

Auto bailout results
How did the government do with its decisions on the last bailout? Neil Barofsky, the Treasury special inspector general responsible for TARP, reported not so well. His report released on Monday stated “Treasury made a series of decisions that may have substantially contributed to the accelerated shuttering of thousands of small businesses and thereby potentially adding tens of thousands of workers to the already lengthy unemployment rolls -- all based on a theory and without sufficient consideration of the decisions' broader economic impact." This is not surprising to me as regulators and politicians don’t know business as well as industry pros do. They often make big mistakes in business decisions.

With this Fin Reg bill, we went from “heads: business wins” to “tails: taxpayers lose” to the reverse. Now the government holds the purse strings for business in health care and banking and they can heap huge losses onto industry participants. With this type of anti-business over-reach regulation, I expect the capital strike and lackluster job market to continue.
June 30, 2010

Fin Reg status and opinion

Tuesday was a busy day for the financial regulation reform bill with lots of deal-making machinations. Sen. Scott Brown (R-Mass.) was successful in forcing the bill back into conference where conferees removed most of the bank fees to hopefully win back his “yes” vote, along with votes from Senators Olympia Snowe (R-Maine), Susan Collins (R-Maine) and Charles Grassley (R-Iowa).

Democrats need some of these Republican votes. There’s no concrete word yet from the “on-the-fence” Senators after Tuesday’s deal making. Most pundits expect them to vote yes now and for this bill to be passed. I still think there is a chance for a surprise vote for cloture, which is what happened to the “tax extenders” bill that included tax increases on investment managers, professionals and global corporations.

Conferees used a creative-accounting scheme to re-jigger the TARP program — which no one in the media or Congress has explained properly yet — to “pay for” $11 billion of the bill’s costs. Republicans called this scheme budgetary smoke and mirrors and they may be right. The good news is they don’t charge big banks and hedge funds for these costs.

By the way, doesn’t $18 billion sound very high for oversight costs on these new regulations? The industry will have to match those costs anyway in paying for new employees, consultants, accountants and lawyers and for computers, software and services to comply with all this red tape. As with Sarbanes-Oxley, it’s an “employment act” for accountants and lawyers. Is this part of the government’s jobs program? Too much red-tape and compliance is a waste of money and it usually leads to fewer loans rather than more. Community-bank CEOs are writing editorials now about this problem, describing how this regulation will hurt their business and customers.

Conferees plugged the rest of the removed $18 billion with an increase to the FDIC levy rate. The current rate of 1.15 percent on total insured deposits is raised to 1.35 percent, and it’s scored to yield approximately $6 billion. The change would not affect banks with $10 billion or less in assets. Certainly, the FDIC can always use more money as it will need it to wind down more banks with a “Meltdown 2.0” knocking at our doors. Hedge funds are not covered by FDIC insurance, so they escape all charges with this bill change, at least for now.

This smells like a typical government deal with creative-accounting gimmicks, carve-outs and plugs to kick-the-problem-can down the road. I expect Democrats to try and raise taxes on banks, hedge funds and the investment industry. President Obama’s $90 billion bank fee or tax proposal to pay back perceived TARP losses is coming up next. Sen. Harry Reid (D-Nev.) is still trying to repeal carried-interest tax rules, thus raising taxes, for investment managers.

This last-minute drama over the bank fee (tax) doesn’t divert me from the overriding problem with this “Fin Reg” bill. The Resolution Authority’s wind down procedure calls for big banks and hedge funds to pay the ultimate costs of “winding down” financial institutions that fail. Winners pay for losers. It’s the same concept in the President’s $90 billion bank fee proposal too — the remaining big banks are being charged that new bank fee to pay for final TARP losses.

This is not socialism or communism, because government is not taking over industry, but it’s something else that is almost as disturbing in my view. It changes the dynamics of market-based competition. Should Apple pay for a failed competitor’s demise? Should Ford pay for GM’s unpaid TARP costs? Doesn’t this sound un-American? Study hard in school, build a great company, work hard, compete vigorously and then pay for the companies that don’t match your efforts and success. Isn’t this taking redistribution too far?

Congress and the administration will demand that banks and hedge funds pay a lot more in taxes, fees and other charges going forward, and the wind down procedure costs are not quantifiable or limited. How will CPAs account for this potential risk and cost on bank and hedge-fund balance sheets? Does hedge fund A need to state “Our strategy is x, y and z and here are the risks” in its private placement memorandum? By the way, if hedge funds B and C fail with a different strategy, we (including the investors) will be charged for their losses.

This Fin Reg bill is taking us down the wrong path. I hope Republicans show some back bone and vote against it, putting their fear of the midterm polls aside. It would be better to re-craft financial reforms in a more productive way with bi-partisan input, not just carve-out special deal making like Cornhusker-kickbacks.

Congress should not kick-the-can down the road on Fannie and Freddie and it should also address home buyers walking away from responsibilities on non-recourse loans. Look at the Canadian model. Canada didn’t have a problem with housing or its banks, because its home buyers have recourse loans and banks were not forced by the government to make sub-prime loans.

Congress should focus in on the real problems and not just demonize the banks. Prop trading and alternative investments are profit-centers; they aren’t bad banking. If Republicans don’t take a stand now, when will they? Waiting until the midterm elections in November is too risky in my view. Bi-partisan solutions on financial reform now will be better for everyone.

Latest developments
The House voted in favor of this reform today, but we have to wait until after the Fourth of July recess for the Senate's vote. Reid said there was not enough time procedure-wise to vote before the recess.

According to Reuters today, "’No, it's not amendable ... We don't plan on reopening the bill,’ Chairman Barney Frank (D-Mass.) said when asked if he is concerned that a delay in the Senate vote could provide an opening for lobbyists and critics to push changes to the legislation."

According to The Hill, Collins released a statement saying she would support the revised bill: "While the bill is not what I would have written and contains some provisions that I oppose, on balance I believe that it will lead to stronger financial institutions, curb the abuses that led to the near collapse of our financial markets, and improve financial oversight by creating a council of regulators to identify products, practices, and financial institutions that pose a systemic risk to our economy. Based on my initial review of the final version of the conference report, I am inclined to support it."

Additionally, The Hill reported that Brown issued a noncommittal statement on Wednesday.

“I appreciate the conference committee revisiting the Wall Street reform bill and removing the $19 billion bank tax," Brown said in the statement. "Over the July recess, I will continue to review this important bill."
June 29, 2010

Fin Reg was reopened to remove problem bank fees (taxes)

Ongoing blogging throughout this crucial day for Fin Reg.

$19 BILLION OF NEW CHARGES — some call them taxes, but it's titled a “Financial Crisis Special Assessments” — were slipped into the financial regulation reform bill late Thursday night/early Friday morning. These charges would apply to large financial institutions and hedge funds with over $10 billion in assets under management. Adding this in at the last minute is unfair; this large fee/tax should have been discussed earlier with more transparency.

Monday morning news.
Per The Hill, "Brown would vote 'no' on Wall St. bill; blames $19B in new bank fees", Sen. Scott Brown (R-Mass.) formally announced his no vote due to this very issue. Sen. Olympia Snowe (R-Maine) also took objection to the last-minute huge bank fee increases.

Tax increases were also added-on to the so-called "tax extenders bill," including taxes on the investment community (carried interest) and the S-corp SE tax structure for small-business professionals all around the country. Those tax increases changed the balance of voting and led to the bill's failure in cloture in the Senate.

It seems the Democratic leadership will slip in new taxes and fees on banks, hedge funds and the investment community at any juncture, in any related bill that comes up. President Obama's $90 billion "bank responsibility fee" (i.e., tax) is up next.

Earlier versions of the reform bill had a $50 billion bailout fund for winding down banks, but Republicans objected and that contentious issue was later dropped. Presto, it reappeared as a $19 billion re-branded bank/hedge fund fee at the last hour of conference. Is that playing fair?

During the last day of conference, a popular media clip showed Chairman Barney Frank (D-Mass.) telling a Republican Senator not to worry about going to the bathroom during the day, because he would not propose a change the Republican would object to during his bathroom break. I guess that promise did not include sleeping at night.

Some pundits are correct. Tax and fee increases on banks and the investment community will ultimately fall on the middle class, because businesses will try to pass on those added tax costs to their customers. Banks will also pay taxes and fees from capital and from assets that could otherwise be used for lending to businesses and consumers.

Monday afternoon news.
CNBC reported the conference may be reopened today to accommodate changes for winning back Brown’s vote. The CNBC reporter said conferees might drop the bank tax/fee and replace it with funds left over from TARP, and to end TARP earlier than scheduled.

WSJ, Democrats to Tackle Bank Fee to Win Votes. "One idea under consideration would be to have any new fees go toward bolstering the fund used by the Federal Deposit Insurance Corp. that deals with failed banks. Another idea under consideration is to claim unused cash sitting in the Troubled Asset Relief Program."

"I believe if you take out the new bank tax, on balance, it would improve our financial system, and I would support it," said Sen. Susan Collins (R., Maine.).

Does the TARP redeployment idea make sense? On the one hand, TARP was used to bailout banks and Fin Reg is related to this bank recovery/reform too. But on the other hand, banks are charged with paying back TARP, so they will have to pay back this $19 billion anyway. Asking banks and hedge funds for the tax or fee upfront in Fin Reg or financing it from TARP first and then making the banks and hedge funds pay it back sooner rather than later seems like an accounting-type gimmick.

If Brown is against banks having to pay $19 billion of new taxes or fees, then this type of accounting-gimmick does not hold muster. However, is he considering this change to honor his word in the conference and his prior yes vote on Fin Reg? Is he concerned about being perceived as a flip-flopper? I would rather he not flip-flop on voting for tax and fee increases.

The FDIC levy idea reported on so far seems far-fetched too. It would represent a huge increase in the FDIC-levy rate and it's still a huge cost to the banks, no matter what it’s labeled. Would hedge funds at least be exempt from the FDIC approach?

This reminds me of the other major problem I have with this Fin Reg bill. As I blogged on June 27, the resolution authority’s “wind down” procedure forces winning banks to pay for losing banks after wind down. That may cost banks and hedge funds much more than $19 billion.

Bottom line, Congress shouldn't burden banks with $19 billion at this delicate economic time, no matter what you call those charges.

Developing Story:
Reuters: "Senate Dems propose to cut total of TARP authority from $700 bln to $475 bln: Senate proposal" Sounds interesting. I will blog on this when I see the reporting later tonight.

CNBC Lawmakers Agree to Remove Taxes in Financial Reform Bill. "..lawmakers will likely end the $700 billion TARP program early and use some of that money to help pay for the measure ... The conferees will propose ending the Treasury Department's authority to require banks to accept additional TARP funds. While this authority would sunset over time rather than end immediately, budget rules say that this would result in a savings of something like $10 billion to $11 billion. Additional FDIC premiums also are being considered to bring in $3.5 billion, bringing the total closer to the $19 billion the lawmakers sought to raise with the bank tax. The Republicans are expected to accept this deal. The biggest banks would be subject to the higher FDIC fees, but not hedge funds, since they are not part of the FDIC system. On the other hand, smaller banks — exempted from the fee under the current bill — that operate under the FDIC system would likely find themselves footing the bill."

It's not clear to me where that $10 to $11 billion of TARP savings will come from. TARP was not paid for, it was authorized new-debt financing, so reducing unused program size doesn’t save anything, except the prospect of issuing more debt.

Wow, our government is going out of its way to do sugar-bowl, Enron-type accounting.

It sounds like the FDIC levy part will truly cost banks more money, but the TARP savings is just a mirage to help justify this Fin Reg bill as being true to “pay go” rules.


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