11th Annual Domestic Tax Conference. 28 April 2016 New York City

Transcription

1 11th Annual Domestic Tax Conference 28 April 2016 New York City

2 Emerging trends around regulatory capital and legislative changes for financial services organizations

3 Disclaimer EY refers to the global organization, and may refer to one or more, of the member firms of Ernst & Young Global Limited, each of which is a separate legal entity. Ernst & Young LLP is a client-serving member firm of Ernst & Young Global Limited operating in the US. This presentation is 2016 Ernst & Young LLP. All rights reserved. No part of this document may be reproduced, transmitted or otherwise distributed in any form or by any means, electronic or mechanical, including by photocopying, facsimile transmission, recording, rekeying, or using any information storage and retrieval system, without written permission from Ernst & Young LLP. Any reproduction, transmission or distribution of this form or any of the material herein is prohibited and is in violation of US and international law. Ernst & Young LLP expressly disclaims any liability in connection with use of this presentation or its contents by any third party. Views expressed in this presentation are those of the speakers and do not necessarily represent the views of Ernst & Young LLP. This presentation is provided solely for the purpose of enhancing knowledge on tax matters. It does not provide tax advice to any taxpayer because it does not take into account any specific taxpayer s facts and circumstances. These slides are for educational purposes only and are not intended, and should not be relied upon, as accounting advice. Page 2

4 Today s presenters Basel III DTA Planning John Taylor Partner, Ernst & Young LLP IRC 305(c) Convertible Bond Tax Services Timothy Morin Partner, Ernst & Young LLP Page 3

5 Today s presenters Section 871(m) Justin O Brien Principal, Ernst & Young LLP Information Reporting and Withholding, Financial Services Organization Lauren Lovelace Principal, Ernst & Young LLP International Tax, Financial Services Organization Sean Conroy Senior Manager, Ernst & Young LLP Business Tax Advisory, Financial Services Organization Page 4

6 Basel III DTA planning

7 Agenda Basel III Hypo Carrybacks Refresher Interesting elements Real-time vs. CCAR/DFAST Planning Would do items Do now to alter next yr s starting point 17% limit game changer Page 6

8 Hypo carrybacks Page 7

9 Hypo carrybacks Rules 12 CFR (hereafter, B3 ) Hypo carryback rules in B3 22(e)(3)(ii) & 22(d)(1)(i). Does the phrase net operating loss carrybacks IRC 172(b)? If yes, then capital losses escape all limits under B3 22(a)(3) If not, then hypo c/b might incorporate other carryback rules as well Considering capacity and gauging risk Dislodged credit carrybacks under IRC 39 & 904(c) Capital loss carrybacks that might derive from certain deferred tax assets (DTAs) Esoteric issues: spreadbacks of forced method changes, claim of right Target entity taxes paid: applying IRC 381(b)(3), Other nuanced issues Page 8

10 Example 1 Facts Deferred tax assets 12/31/16 Ordinary $ 300 Capital $ 100 NOLS and other carryforward $ 100 Deferred tax liabilities (DTL) all ordinary $ (150) NET DTAs $ 350 Page 9

11 Example 1 Facts Prior tax history Summary of 1120s Ordinary income/<loss> $ 100 $ 50 $ 80 $ 100 Capital gain/<loss> $ - $ 50 $ 20 $ - Taxable income before NOL $ 100 $ 100 $ 100 $ 100 Less: capital loss carryback $ - $ - $ - $ - Taxable income after capital loss $ 100 $ 100 $ 100 $ 100 carryback Less: NOL carrybacks $ - $ - $ - $ - Less: NOL capital loss carryforward $ - $ - $ - $ - Taxable income after $ 100 $ 100 $ 100 $ 100 Rate 35% 35% 35% 35% Regular tax before credits $ 35 $ 35 $ 35 $ 35 Less: tax credits (75% cap) $ (15) $ (20) $ (20) $ (10) Net tax $ 20 $ 15 $ 15 $ 25 Page 10

12 Example 1 Facts Summary of 3800s Credits originally produced $ 15 $ 20 $ 20 $ 10 Plus: credit carryovers $ - $ - $ - $ - Plus: credit carrybacks $ - $ - $ - $ - Total available credits $ 15 $ 20 $ 20 $ 10 Taxable income limit (75%) $ 26 $ 26 $ 26 $ 26 Credits utilized $ (15) $ (20) $ (20) $ (10) Excess credits before carryback $ - $ - $ - $ - Excess credits carried back $ - $ - $ - $ - Excess credits carried forward $ - $ - $ - $ - Page 11

13 Example Hypo carryback Hypo carryback of gross temps Summary of 1120s Ordinary income/<loss> $ 100 $ 50 $ 80 $ 100 Capital gain/<loss> $ - $ 50 $ 20 $ - Taxable income before NOL $ 100 $ 100 $ 100 $ 100 Less: capital loss carryback $ - $ (50) $ (20) $ - Taxable income after capital loss carryback $ 100 $ 50 $ 80 $ 100 Less: NOL carrybacks $ - $ - $ (80) $ (100) Less: NOL capital loss carryforward $ - $ - $ - $ - Taxable income after $ 100 $ 50 $ - $ - Rate 35% 35% 35% 35% Regular tax before credits $ 35 $ 18 $ - $ - Less: tax credits (75% cap) $ (22) $ (13) $ - $ - Net tax $ 13 $ 4 $ - $ - Page 12

14 Example 1 Dislodging of credits Summary of 3800s Credits originally produced $ 15 $ 20 $ 20 $ 10 Plus: credit carryovers $ - $ - $ - $ - Plus: credit carrybacks $ 7 $ - $ - $ - Total available credits $ 22 $ 20 $ 20 $ 10 Taxable income limit (75%) $ 26 $ 13 $ - $ - Credits utilized $ (22) $ (13) $ - $ - Excess credits before carryback $ - $ 7 $ 20 $ 10 Excess credits carried back $ - $ (7) $ - $ - Excess credits carried forward $ - $ - $ 20 $ 10 Page 13

15 Example 1 Summary of results Straight Two-Year Carryback = $40 Including Third Prior Year = $51 Full carryback with dislodged credits = $58 But what about AMT? Historical treatment by regulators Complexity wrought by repeated suspensions of IRC 56(d) during crisis periods AMT largely ignored by Interagency Policy Statement on Tax Sharing Agreements Page 14

16 Planning Real-time vs. Comprehensive Capital Analysis and Review (CCAR) and Dodd-Frank Act Stress Testing (DFAST)? Page 15

17 Real vs. CCAR/DFAST plans Real-time vs. CCAR/DFAST Difference maker: fading years carryback capacity In CCAR, preference exists for temps vs. NOLs/Credit carryovers In real-time, conversion of capacity into cash can have negative results But, current pain for future CCAR and/or future better positions often is present Basic gist: think like an individual; treat all income tax as an expense Current posture matters in real time: Nagging carryforwards expand temp DTAs/DTLs for netting Profitable with large temps accelerate deductions Existing tax capacity use it! Net DTLs more is better; future M&A could import large DTAs on B/S Page 16

18 Example 2 What s best? Income or deductions? 12/31/16 GAAP Regular adjustment s Hypo Subtotal Netting Buckets Temp DTAs $ 100 $ - $ (27) $ 73 $ (40) $ 33 General business credit (GBC)/ foreign tax credit (FTC) carryforwards Mortgage servicing rights (MSRs)-related DTLs $ 200 $ - $ $ 200 $ (110) $ 90 $ (80) $ 80 $ $ - $ $ - Other DTLs $ (150) $ - $ $ (150) $ 150 $ - Net DTA $ 70 $ 80 $ (27) $ 123 $ - $ 123 Page 17

19 Example 2 Tax history and 2016 forecast Summary of 1120s Ordinary income/<loss> $ 100 $ 100 $ 100 $ 100 Less: NOL carrybacks $ - $ - $ - $ - Taxable income after $ 100 $ 100 $ 100 $ 100 Rate 35% 35% 35% 35% Regular tax before credits $ 35 $ 35 $ 35 $ 35 Less: tax credits (75% cap) $ - $ (26) $ (26) $ (26) Net tax $ 35 $ 9 $ 9 $ 9 Page 18

20 Example 2 Current Common Equity Tier 1 (CET1) computation Tangible common equity $ 1,000 Less: attribute DTAs $ (90) CET1 before 10% limits $ 910 Less: DTAs > 10% limit $ - Less: MSRs > 10% limit $ (58) CET1 before the 15% limit $ 852 Remaining thresholds $ 124 Fully-phased 17.65% limit $ 129 CET1 (fully-phased) $ 852 Page 19

21 Example 3 Accelerate $200 of deductions 12/31/16 GAAP Regular adjustments Hypo Subtotal Netting Buckets Temp DTAs $ 30 $ - $ (9) $ 21 $ (12) $ 9 GBC/FTC carryforwards $ 242 $ - $ $ 242 $ (138) $ 104 MSR-related DTLs $ (80) $ 80 $ $ - $ $ - Other DTLs $ (150) $ - $ $ (150) $ 150 $ - Net DTA $ 42 $ 80 $ (9) $ 113 $ - $ 113 Page 20

22 Example 3 Tax history and 2016 forecast Summary of 1120s Ordinary income/<loss> $ 100 $ 100 $ 100 $ (100) Less: NOLs $ - $ (100) $ - $ 100 Taxable income after $ 100 $ - $ 100 $ - Rate 35% 35% 35% 35% Regular tax before credits $ 35 $ - $ 35 $ - Less: tax credits (75% cap) $ (10) $ - $ (26) $ - Net tax $ 25 $ - $ 9 $ - Page 21

23 Example 3 Current CET1 computation Tangible common equity $ 1,000 Less: attribute DTAs $ (104) CET1 before 10% limits $ 896 Less: DTAs > 10% limit $ - Less: MSRs > 10% limit $ (59) CET1 before the 15% limit $ 837 Remaining thresholds $ 99 Fully-phased 17.65% limit $ 130 CET1 (fully-phased) $ 837 Page 22

24 Planning effects Real-time vs. CCAR Unintuitive A strategy that makes real-time CET1 worse can produce a better future-state result in CCAR severely adverse scenarios Unlike other areas of tax (where impacts can be measured with simple algebra), regulatory capital has too many inter-related variables B3 DTA consequences are elusive model it! Unless you can perform quadratic equations in your sleep Most important modelling issues Existence of carryback capacity Tax techniques that trade earlier year taxes for later year taxes can be favorable Headroom in the 10% and 15% limits Whether those thresholds are breeched and when they are breeched are critical E.g., converting NOLs to temps when subject to the 15% limit can be neutral Page 23

25 Projected tax planning in CCAR Choices in CCAR Can one assume that certain discretionary choices would be made different E.g., 200% DB depreciation on a lease portfolio in future projected loss years? Bad debt deferral and/or opting out of conformity? What about cancellation of debt events? Modelling and evaluating You have to use a good model and continue to pressure test it Deferred deductions are generally (but not always) beneficial through all nine qtrs How do CET1 savings translate into planned capital actions? Are the assumed positions something approaching a forbidden mgmt. action? Consider IRC 166 & 168 deferrals and other planning options Page 24

26 In the new world of Basel III & CCAR, there are no temporary differences; all tax positions present capital costs or opportunities that should be carefully evaluated. Page 25

27 Questions? Page 26

28 IRC 305(c) convertible bond tax services

29 Agenda Background Convertible securities What is IRC 305(c) Increased regulatory focus Impacted parties Challenges of IRC 305(c) compliance Key points from proposed regulations Questions Page 28

30 Background convertible securities Convertible securities are instruments that can take many forms (e.g., bonds, preferreds, etc.) but all provide for a conversion into the equity of the issuing company at a predefined rate. To protect holders of convertible securities from the loss of value in the conversion ratio over the term of the security, anti-dilution clauses are typically included in the indenture. Anti-dilution clauses are unique to the terms of the indenture but typically function under the premise of adjusting conversion ratio based on specified corporate distributions (e.g., dividends, spin-offs, stock splits, etc.). Page 29

31 Background what is IRC 305(c) In the event a conversion ratio is adjusted due to a taxable distribution from the issuer, 305(c) requires holders of convertible securities to recognize the change in conversion ratio as income. The value of the change in a convertible security s conversion ratio is termed a deemed dividend distribution. Examples of distributions that can result in a deemed dividend: Cash dividend, Taxable stock distribution Taxable spin-off Page 30

32 Background increased regulatory focus Reasons for the increased focus on IRC 305(c) IRC 305(c) was enacted in 1969 but typically did not apply to conventional convertible securities except in rare and unusual circumstances and remained that way for decades. In 2010 with the enactment of IRC 871(m) and the proposed regulations in 2013 to prevent US tax evasion on dividends through equity swap or other financial products including convertible debt brought 305(c) back into the spotlight. On 12 April 2016 the IRS issued proposed regulations that provided further guidance and amend regulation sections 305, 860G, 861, 1441, 1461, 1471, 1473 and 6045B. Impacted parties Brokers, custodians, mutual funds and withholding agents, and their clients holding specified assets Page 31

33 Key points from proposed regulations Provides that the deemed dividend amount is the excess of (A) the fair market value of the right to acquire stock over (B) the fair market value of the right to acquire stock without the applicable adjustment both determined immediately after the applicable adjustment Specifies that the obligation to withhold on a deemed distribution does not occur until the issuer of the specified security reports the information required (under Section 6045B) or when the withholding agent has actual knowledge Specifies that information reporting and withholding is required to both US and foreign taxpayers Page 32

34 Challenges of IRC 305(c) compliance Convertible securities are issued with unique terms that create challenges in nearly every step in 305(c) compliance: Timely identification of securities subject to anti-dilution Obtaining the required terms and limitations from the convertible security s indenture Identification of issuer distribution events that impact the conversion ratio Calculation of the change to the conversion ratio based on the security s term Identification of changes to the conversion ratio that were due to a taxable distribution Varying interpretations as the appropriate calculation method Page 33

35 Questions? Page 34

36 Section 871(m)

37 Agenda Introduction to Section 871(m) Key concepts Exceptions from withholding Qualified derivatives dealers Qualified index Timing of withholding and reporting Challenging areas Combined transactions Partnership-linked derivatives Operational challenges Page 36

38 Introduction to Section 871(m) Policy objective: Section 871(m) serves to address an arbitrage opportunity in the prior tax regime, which allowed offshore hedge funds to receive US dividends tax-free by entering into equity-linked swaps with US financial institutions. Background: US Congress believed swaps and other derivative contracts had been used in the past by non-us persons to circumvent US withholding tax on dividends since they were not holding the actual security at the ex-dividend date. The intention: Application of the withholding tax to dividend equivalent amounts (DEAs) from derivatives which reference US equities that pay dividends. Page 37

39 Introduction to Section 871(m) Section 871(m) imposes 30% US withholding (unless reduced by a treaty) on DEAs, which potentially arise from the following payment types: Any substitute dividend that references a US-source dividend made pursuant to a securities lending or sale-repurchase transaction Any payment that references a US-source dividend made pursuant to a specified notional principal contract (NPC) The final section 871(m) regulations expand the in-scope payments to include: Any payment that references a US-source dividend made pursuant to a specified equity linked instrument (ELI) Any other substantially similar payment Page 38

40 Introduction to Section 871(m) Criteria to determine Section 871(m) eligibility on a given issuance: In-scope products can include NPCs, options, futures, forwards, structured notes, securities lending, repurchase agreements, convertible debt, equity-linked notes, contracts for difference and other ELIs. Long party must be a non-us person (at original issuance or on the secondary market). Referenced security must be a US equity. The value of delta is 0.8 in the case of simple contracts (or the substantial equivalence test yields an in-scope transaction for complex transactions) Simple contract is a term of art with specific requirements as laid out in the regulations which, if met, permit the Section 871(m) tax to be calculated using delta rather than the substantial equivalence test. Generally, Section 871(m) withholding would apply to the in-scope contracts issued on 1 January 2017 or after. However, there is a very narrow population of contracts, which are subject to the withholding under the old rules. Page 39

41 Section 871(m) from multiple perspectives issuer Section 871(m) has various regional and business impacts that need to be considered based on the type of transaction and the role being assumed. Considerations should be give to the Investment Bank, Wealth Management, Asset Management, Asset/Fund and Prime Services. Issuer Party that issues or executes an equity derivative product For structured notes, convertible debt and other OTC products, the issuer is considered the party that first issues the security For listed derivatives, a broker dealer that executes the contract on behalf of the long party principal would be considered the determining party in a Section 871(m) transaction Page 40

42 Section 871(m) from multiple perspectives long party Section 871(m) has various regional and business impacts that need to be considered based on the type of transaction and the role being assumed. Considerations should be give to the Investment Bank, Wealth Management, Asset Management, Asset/Fund and Prime Services. Long party The party that has long exposure on a given Section 871(m) contract The party that is receiving the dividend equivalent amount Page 41

43 Section 871(m) from multiple perspectives custodian Section 871(m) has various regional and business impacts that need to be considered based on the type of transaction and the role being assumed. Considerations should be give to the Investment Bank, Wealth Management, Asset Management, Asset/Fund and Prime Services. Custodian From an IRS perspective, the custodian is generally considered the withholding agent on the transaction because the firm has sufficient knowledge if a transaction is potentially subject to Section 871(m) and is within the stream of payments. Any party to a Section 871(m) contract can be specifically designated as a withholding agent. Section 871(m) defines party to the transaction as any person that is a long or short party to a potential Section 871(m) transaction (i.e., a principal to the transaction), any agent acting on behalf of the long party or short party, or any person acting as an intermediary with respect to the potential Section 871(m) transaction Page 42

44 Key concepts Page 43

45 Key concepts A simple contract is a derivative for which payments are calculated by reference to a single, fixed number of shares determined at issuance and that has a single maturity or exercise date. A complex contract is any potential Section 871(m) contract that is not a simple contract. A simple contract would be in scope for Section 871(m) purposes if its delta is at least 0.8 or higher. Delta is the change in fair market value of the contract over the change in fair market value of the referenced US equity position. Delta is tested at a contract s initial issuance, unless a significant modification has occurred. Page 44

46 Key concepts A complex contract is a derivative contract with an indeterminable delta because the number of shares of the underlying security, or securities, that determine the payout of the derivative cannot be known at the time the contract is entered into. The substantial equivalence test (SET) is applied to determine if a complex contract is a Section 871(m) transaction. The SET states that a transaction is a Section 871(m) transaction if the expected change in value of a complex contract and its initial hedge is less than or equal to the expected change in value of the simple contract benchmark and its initial hedge. SET is tested at a contract s initial issuance, unless a significant modification occurred. Page 45

47 Key concepts When is a contract considered to be issued? A contract is treated as issued when it is entered into, purchased, or otherwise acquired at its inception or original issuance. Basket contracts: For contracts referencing baskets of 10 or more securities, the short party may use the hedge security to determine the delta instead of testing each individual security in the basket. For contracts referencing a basket of 25 or more securities, the short party is permitted to treat all dividends on the securities as paid on the last day of the calendar quarter. Page 46

48 Key concepts Dividend equivalent payment calculation: For simple contracts The amount of the per share dividend multiplied by, The number of shares of the underlying security, and The delta of the Section 871(m) transaction with respect to the underlying security at the time of initial issuance. For complex contracts The amount of the per share dividend multiplied by: The amount of underlying stock that would fully hedge the contract at initial issuance. Page 47

49 Exceptions Page 48

50 Exceptions Dividend equivalent payments made with respect to the following contracts are not subject to Section 871(m) withholding: Qualified indices Due bills Certain M&A transactions Life insurance and annuities Employee compensation Dividends withheld upon under Section 305(c) Page 49

51 Exceptions A qualified index is a passive diversified index of publicly traded securities that is widely used by market participants. An index may reach a qualifying status in one of two ways: Be broad-based and pass a series of stress tests, including weight metrics, rebalancing criteria, dividend caps, comprising primarily only long positions and having options or futures traded over it on certain national or foreign exchanges; or Have no more than a 10% US stock weighting in the aggregate. Qualification is determined on the first day of the calendar year in which an index is issued. Page 50

52 Qualified derivatives dealer Page 51

53 Qualified derivatives dealer A qualified intermediary (QI) acting as a qualified derivatives dealer (QDD) will not be subject to withholding dividend equivalent amounts that the QDD receives while acting in its capacity as a dealer. Note that the QDD will have to withhold on the payments it makes on the second leg of the transaction (i.e., the customer leg). The QDD may have to self-assess in certain instances. In order to act as a QDD, a QI needs to provide withholding agents with a certificate stating that they are acting in a QDD capacity and comply with other various requirements. Page 52

54 Withholding and reporting Page 53

55 Withholding and reporting A short party (or other withholding agent) is not required to withhold on a foreign long party until a payment is made under the derivative or there is a final settlement of the derivative. However, the regulations require to withhold on a final settlement, which includes lapse of an option, even if the withholding agent is not required to make a payment to the foreign counterparty. Page 54

56 Withholding and reporting If only one party to a transaction is a broker or a dealer, they are required to determine whether the transaction would be in scope for Section 871(m) and provide other parties, including agents and intermediaries, with all relevant information, such as delta, dividend equivalent amount, any tax withheld, etc. The information must be provided within 10 business days after a request was submitted. Alternatively, if both parties are brokers or dealers, then the short party bears the reporting burden. Similarly, if neither party is a broker or dealer, the short party would also be responsible. Page 55

57 Combined transactions q Page 56

58 Combined transactions Two or more transactions must be combined when: A long party (or a related person) enters into two or more transactions that reference the same underlying US security. Two or more transactions replicate the economics of a single Section 871(m) transaction The transactions are entered into in connection with each other If the transactions need to be combined, then the deltas of the two transactions are combined to see if the 0.8 delta threshold is reached. Remember: once in scope, always in scope! Page 57

59 Combined transactions For a short party, the regulations provide a presumption rule, whereby a broker may treat transactions as not entered into in connection with each other if: The transactions are in separate accounts, or The transactions were entered into two or more business days apart. Page 58

60 Partnership-linked derivatives If a derivative references a partnership interest, it still may be in scope. If a partnership meets the following criteria, the holder of the derivative is treated as holding a derivative that directly references the securities held by the partnership: The partnership is either a dealer or trader in securities It has significant investments in securities, i.e.: 25% or more of the value of the partnership's assets consist of underlying securities of the potential Section 871(m) transactions; or The value of the underlying securities of the potential Section 871(m) transactions equals or exceeds $25m; or It holds an interest in a lower-tier partnership that meets these criteria. Asset management companies that are publicly traded partnerships will be looked through because they hold interests in lower-tier partnerships (i.e., hedge funds) which meet the criteria above based on their significant investments in securities. Page 59

61 Operational challenges 1 Exchange/OCC Reference data Page 60

62 Operational challenges The following items highlight the potential operational and technology areas/systems impacted by Section 871(m): 1 Inability to identify contracts that are potentially in-scope for 871(m), including partnerships and qualified indexes, during pre-trade contract modeling that could have significant impact on contract economics. 2 The data elements required to calculate SET are not readily available (e.g., +/- standard deviation, price of benchmark contract) at order execution or within order management systems. 3 Delta used at time of modeling a bilateral contract is not retained currently for any other purposes. Page 61

63 Operational challenges Firms will need to establish an auditable form of communication to clients and related parties for in-scope transactions thus far no industry solution has been developed No current process to link both the corporate action (e.g., mergers, stock splits) and dividend events to the in-scope derivative contracts No process to fund withholding liability on implicit payments (e.g., cashless payment) Inability to process the overlap between Section 305(c) and Section 871(m) Page 62

64 Ernst & Young LLP has developed tools and accelerators to streamline the industry s compliance with Section 871(m), including our: Qualified Index Service Substantial Equivalence Test Calculator Dividend Equivalent Suite Page 63

65 Questions? Page 64

66 11th Annual Domestic Tax Conference 28 April 2016 New York City