What's Right and What's Wrong With (SPEs), SPVs, and VIEs
http://www.trinity.edu/rjensen/theory/00overview/speoverview.htm
Bob Jensen at Trinity University
The Whitewing SPE is only one of the thousands of Special Purpose Entities set up by Enron CFO Andy Fastow with the assistance of its auditor, Andersen, and its law firm. The SPE appears to be almost hopelessly complex to hide risk as well as hide the trail of the millions of dollars Andy Fastow was making in double dealing at Enron. As an educator, I find the following chart interesting because it illustrates the hopelessness of applying the new 2003 FASB Interpretation 46 (FIN 46) that requires tracing out the ultimate risks in deciding whether to consolidate SPEs (that are now called VIEs by the FASB). The chart below appears as Appendix D beginning on Page 372 of the infamous Enron whistleblower's book. Power Failure: The Inside Story of the Collapse of Enron, by Mimi Swartz, Sherron Watkins, Page 373.
WARNING: Most portions of this document were written prior to the issuance of FASB Interpretation No. 46 in January 2003. Most of those portions have not been revised in light of the newer interpretation. For example, major portions of various Emerging Issues Task Force (EITF) issues that applied prior to January 2003, no longer apply. The affected EITF issues include EITM Issue Numbers 10-15, 95-6, 96-21, 97-1, 97-2 and 84-30. Prior message threads remain in this document to help historical researchers. Deloitte and Touche provides a nice summary of FIN 46. The new interpretation was prompted in large measure by the fraudulent use of offshore special purpose entities (now called variable interest entities).
The link for your friends and family is at http://www.deloitte.com/dtt/newsletter/0,2307,sid%253D2002%2526cid%253D35660,00.html
For technical details see the following book:
Structured Finance and Collateralized Debt Obligations: New Developments in Cash and Synthetic Securitization (Wiley Finance) by Janet M. Tavakoli (2008)
Questions
How many fraudulent SPEs did CFO Andy Fastow create to steal over $50 million from his employer (Enron)?
What is most unusual and actually unethical about the way Enron's SPEs were managed? How were these related party dealings disclosed and yet obscured in the infamous Footnote 16 of Enron's Year 2000 Annual Report?
Answer
Over 3,000
See the answers to Questions 14 and 15 at http://www.trinity.edu/rjensen/FraudEnronQuiz.htm#14
Special Purpose Entity (SPE) and Special Purpose Vehicle (SPV)--- http://en.wikipedia.org/wiki/Special_purpose_entity
Variable Interest Entity (VIE) --- http://en.wikipedia.org/wiki/Variable_interest_entity
"New challenge to VIEs," China Accounting Blog, March 5, 2013 ---
http://www.chinaaccountingblog.com/weblog/new-challenge-to-vies.html
I have learned from some investors that there has been a major challenge against the VIE structure of a U.S. listed Chinese company. The challenge relates to whether the VIE can be consolidated into the financial statements. The SEC has been aggressively examining VIE arrangements, but I have been unable to learn whether this challenge is a result of an SEC investigation, or who the company or auditor are.
Bear with me; this discussion has to get technical.
Under the VIE accounting rules, consolidation of the VIE is allowed if the public company is considered to be the primary beneficiary of the VIE (ASC 810-25-20). In a typical VIE arrangement, there are two potential beneficiaries of the VIE: 1) the Chinese individual who owns the shares in the VIE, and 2) the public company that has contracts with both that individual and the VIE that transfer control and economic interests to the public company. VIE arrangements are structured to make it clear that all of the control and economic interest flows to the public company.
Clear until now, anyway.
In many VIEs the founder of the company is the owner of the VIE. The founder also usually has voting control over the public company, which is often retained after the IPO by use of two classes of shares. Founders typically retain voting control even if their share holdings are reduced to a minority position. The two class of shares approach to retaining control by founders is common in technology offerings, most famously in Facebook. Two classes of stock are not allowed on the Hong Kong exchange, and that presents a challenge for U.S. listed companies that may want to move onto the Hong Kong exchange if they get kicked out of the U.S., but that is another story.
Under typical VIE agreements, the founder agrees to transfer his VIE shares to another VIE shareholder at the public company's request, and to otherwise vote those shares and select VIE management at the public company’s direction. Since the public company can remove the VIE owner at will, it has been thought that the VIE owner has no rights, and accordingly no interest in the VIE. Therefore the public company is the only beneficiary of the VIE and can consolidate it into their financial statements.
The founder, however, could stop any attempt to remove him as the owner of the VIE since he has voting control over the public company. With voting control, the founder has the power to elect the board that selects, terminates and sets the compensation of management, and establishes operating and capital decisions of the company. Do these powers mean that the founder is actually the primary beneficiary of the VIE? If the founder is the primary beneficiary, the public company cannot consolidate the VIE and instead will report its share of earnings as it receives them.
What happens if the SEC or auditors decide that this is the correct approach? Companies with this fact pattern will be forced to deconsolidate their VIEs, and restate prior financial statements. The VIE will drop out of the financial statements, possibly turning income into losses in some companies, while having a minor effect on some others.
Companies affected by this are likely to restructure their VIEs to be allowed to consolidate in the future. The easy solution seems to be to pick someone other than the founder to own the VIE. While that may fix the accounting problem, it introduces a huge amount of risk. One reason that the VIE is usually held by the founder is to align the interests of the VIE shareholder with the interests of the public shareholders. The idea is that the founder will not steal the VIE since doing so would destroy the value of his shares in the public company.
If the SEC is making this position clear to the accounting firms, we could see some real surprises when companies file their Form 20F over the next few weeks.
Question
How is the current Olympus scandal in Japan related to the Enron scandal?
Hint:
Think Special Purpose Vehicles (SPVs)
Accounting Fraud in Japan
Olympus Urged to Extend Purge of Executives Over Hidden Losses
At least eight Cayman Islands entities have been linked to Olympus acquisitions that are suspected of playing a role in the accounting scandal. Five of those no longer exist, according to a search of the Caymans registry, which doesn’t give details on the individuals behind the companies.
Olympus President Shuichi Takayama yesterday said the company was looking into the role played by special purpose funds in hiding the losses, which date back to the 1990s.
After he was fired, Woodford went public with his concerns over the advisory fees and writedowns on three other transactions. All involved payments to Cayman Islands companies or special purpose vehicles whose beneficiaries are not known.
"Olympus Urged to Extend Purge of Executives Over Hidden Losses," Business Week, November 8, 2011 ---
http://www.businessweek.com/news/2011-11-08/olympus-urged-to-extend-purge-of-executives-over-hidden-losses.html
Olympus Corp.’s admission that three of its top executives colluded to hide losses from investors fails to address the roles played by other officials, according to the company’s biggest overseas shareholder.
The Japanese camera maker’s shares slumped 29 percent yesterday after it reversed weeks of denials that there was any wrongdoing in past acquisitions. The company fired Executive Vice President Hisashi Mori over his role in covering up the losses with former Chairman Tsuyoshi Kikukawa, who resigned last week, and said auditor Hideo Yamada would step down.
Olympus’ biggest overseas shareholder is now demanding investor relations head Akihiro Nambu go too because of his role as a director of Gyrus Group Plc, the U.K. takeover target used to funnel more than $600 million in inflated advisory fees to a Cayman Islands fund. And after Nambu, the rest of the board must follow, said Josh Shores, a London-based principal for Southeastern Asset Management Inc.
“Even if they didn’t know the specific details around where payments were going and exactly why, they knew that cash was going out the door and they also failed to raise their hands to ask questions,” Shores said. “I don’t know who else is involved, but somebody else is. There is a third party somewhere who received this money.”
Olympus President Shuichi Takayama yesterday said the company was looking into the role played by special purpose funds in hiding the losses, which date back to the 1990s.
Cayman Links
At least eight Cayman Islands entities have been linked to Olympus acquisitions that are suspected of playing a role in the accounting scandal. Five of those no longer exist, according to a search of the Caymans registry, which doesn’t give details on the individuals behind the companies.
Kikukawa, Mori and Nambu became the three directors of Gyrus in June 2008 following the $2 billion acquisition of the U.K. medical equipment maker in February that year. They were also directors of three companies set up to handle the takeover, including the decision to pay out advisory fees that amounted to more than a third of the acquisition’s value, filings show.
Olympus declined a request to interview Kikukawa and Mori. In six attempts to talk to Kikukawa at his home, the former chairman didn’t appear. Mori’s home address given in U.K. filings leads to a house under renovation in Kawasaki city, about an hour from central Tokyo. Nobody answered the doorbell on a recent visit to Nambu’s home in a seven-story condominium about 27 kilometers from the city center.
Japanese and U.S. regulators are probing allegations by former chief executive officer Michael C. Woodford that more than $1.5 billion was siphoned through offshore funds. That money may have been used to cancel out non-performing securities that Olympus was keeping off its books, according to a report in the Shukan Asahi magazine, which cited people familiar with the process.
Cockroaches
Yesterday’s plunge in Olympus shares pulled other Japanese equities lower on concerns the country hasn’t escaped corporate governance weaknesses that have dogged it since the stock market bubble burst at the end of 1989. Olympus shares have lost 70 percent of their value since Woodford took his accusations public after he was axed on Oct. 14.
“Institutional investors will stay away from Japan’s market until they confirm this is an isolated case,” said Koichi Kurose, chief economist in Tokyo at Resona Bank Ltd. Some “investors probably think that if there’s one cockroach, there may be 10 more,” he said.
‘Tobashi’
Olympus’ revelations echo the practice of hiding losses known as “tobashi” that became widespread in Japan in the late 1980s and led to the failure of Yamaichi Securities Co., according to Yasuhiko Hattori, a professor at Ritsumeikan University in Kyoto. Yamaichi used overseas paper companies to hide problematic securities, until it failed in 1997 with 260 billion yen ($3.3 billion) in hidden impairments.
Takayama declined to comment on the involvement of any securities firms in Olympus’ cover-up. The Topix Securities and Commodity Futures Index fell 11 percent, the most of any industry group in the broader gauge. Nomura Holdings Inc. tumbled 15 percent to the lowest in 37 years.
“There is speculation in the market that Nomura may somehow be involved in this Olympus case,” said Shoichi Arisawa, an Osaka-based manager at IwaiCosmo Holdings Inc. “Individual investors in particular probably sold after seeing a high volume of Nomura’s shares being traded.”
Nomura didn’t participate in Olympus’s concealment of losses, said Hajime Ikeda, managing director of corporate communications for the securities firm.
Nomura Unaware
“We are not aware of any involvement by Nomura in Olympus’s hiding of losses in the 1990s, and we weren’t involved when Olympus wrote off the losses” between 2006 and 2008, Ikeda said in a telephone interview in Tokyo yesterday.
Olympus plunged by its 300 yen daily limit in Tokyo trading, closing at 734 yen. The Topix ended 1.7 percent lower, the worst-performing Asian stock index.
The Tokyo Stock Exchange said it’s considering moving the shares in Olympus, the world’s biggest maker of endoscopes, to a watchlist for possible delisting. Takayama pledged to continue with the investigation into the losses, which he said were probably inherited by Kikukawa.
“The investigation must continue to determine how much rot there is,” said David Herro, chief investment officer of Harris Associates LP. “All responsible must, at a minimum, leave. Also, since the management’s credibility is nearly nonexistent, all of what they say must be verified.”
Bowed in Apology
Harris held 10.9 million Olympus shares as of June 30, a 4 percent stake that makes it the company’s second-biggest overseas investor. Southeastern had a 5 percent stake as of Aug. 16, according to data compiled by Bloomberg.
Olympus President Takayama yesterday said he was unaware of the hidden losses until he was told by Mori and Kikukawa the previous evening. At the press conference, he bowed three times in seven minutes to apologize.
In the weeks running up to his dismissal, Woodford was engaged in an exchange of letters with Kikukawa and Mori in which he detailed the allegations and which were copied to all member of the board.
After he was fired, Woodford went public with his concerns over the advisory fees and writedowns on three other transactions. All involved payments to Cayman Islands companies or special purpose vehicles whose beneficiaries are not known.
Olympus paid a total of 73.4 billion yen to increase stakes in Altis Co., News Chef Co. and Humalabo Co. between 2006 and 2008, which was also used to hide losses, it said yesterday. Olympus wrote down 55.7 billion yen, or 76 percent of the acquisition value, in March 2009, the company said in a statement Oct. 19.
“It’s beyond belief that Mr. Takayama claims he only found out about it last night,” Woodford said in a telephone interview yesterday. “If he didn’t know before I started writing my letters then he should have known after.”
Continued in article
Abstract
Enron's accounting for its non-consolidated special-purpose entities (SPEs), sales of its own stock and other assets to the SPEs, and mark-ups of investments to fair value substantially inflated its reported revenue, net income, and stockholders' equity, and possibly understated its liabilities. We delineate six accounting and auditing issues, for which we describe, analyze, and indicate the effect on Enron's financial statements of their complicated structures and transactions. We next consider the role of Enron's board of directors, audit committee, and outside attorneys and auditors. From the foregoing, we evaluate the extent to which Enron and Andersen followed the requirements of GAAP and GAAS, from which we draw lessons and conclusions.
The accounting issues
The transactions involving SPEs at Enron, and the related accounting issues are, indeed, very complex. This section summarizes some of the key transactions and their related accounting effects. The Powers Report, a 218-page document, provides in great detail a discussion of a selected group of Enron SPEs that have been the central focus of the Enron investigations. While very much less detailed than the Powers Report, the discussion in the following section (which may seem laborious at times), supplemented with additional material that became available after publication of the Report, should provide the reader with insight into how Enron sought to bend the accounting rules to their advantage. However, even a cursory review of this section will give the reader a sense of the complex financing structures that Enron used in an attempt to create various financing, tax, and accounting advantages.
Six accounting and auditing issues are of primary importance, since they were used extensively by Enron to manipulate its reported figures: (1) The accounting policy of not consolidating SPEs that appear to have permitted Enron to hide losses and debt from investors. (2) The accounting treatment of sales of Enron's merchant investments to unconsolidated (though actually controlled) SPEs as if these were arm's length transactions. (3) Enron's income recognition practice of recording as current income fees for services rendered in future periods and recording revenue from sales of forward contracts, which were, in effect, disguised loans. (4) Fair-value accounting resulting in restatements of merchant investments that were not based on trustworthy numbers. (5) Enron's accounting for its stock that was issued to and held by SPEs. (6) Inadequate disclosure of related party transactions and conflicts of interest, and their costs to stockholders.
Continued in article at
http://www.trinity.edu/rjensen//theory/00overview/speOverview.htm
Teaching Cases on Olympus and SPV Frauds
From The Wall Street Journal Accounting Weekly Review on December 2, 2011
Olympus Heat Rises
by: Juro Osawa and Phred Dvorak
Nov 25, 2011
Click here to view the full article on WSJ.com
Click here to view the video on WSJ.com
TOPICS: Audit Quality, Audit Report, Auditing, Auditor Changes, Auditor/Client Disagreements, business combinations, Business Ethics, Fraudulent Financial Reporting SUMMARY: The series of events leading to questions about auditing practices at Olympus that failed to uncover a decades-long coverup of investment losses is highlighted in this review. The company must submit its next financial statement filing to the Tokyo Stock Exchange by December 14, 2011 for the period ended September 30, 2011 or face delisting. CLASSROOM APPLICATION: The review focuses on auditing questions about sufficient competent evidence, change of auditors, and ability to provide an audit report given knowledge of the length of time this coverup has been ongoing. QUESTIONS:
1. (Introductory) What fraudulent accounting and reporting practices has Olympus, the Japanese optical equipment maker, admitted to committing?
2. (Advanced) What services is Mr. Woodford calling for to investigate the inappropriate payments and accounting practices by Olympus? Specifically name the type of engagement for which Mr. Woodford thinks that Olympus should contract with outside accountants.
3. (Introductory) Refer to the related articles. What questions have been raised about outside accountants' examinations of Olympus's financial statements for many years?
4. (Advanced) Based only on the discussion in the article, what evidence did Olympus's auditors rely on to resolve their questions about the propriety of accounting for mergers and acquisitions? Again, based only on the WSJ articles, how reliable was that audit evidence?
5. (Advanced) What happened with Olympus's engagement of KPMG AZSA LLC as its outside auditor? What steps must be taken under U.S. requirements when a change of auditors occurs?
6. (Introductory) What challenges will Olympus face in meeting the deadline of December 14 to file its latest financial statements? What will happen to the company if it cannot do so?
Reviewed By: Judy Beckman, University of Rhode Island
"Olympus Heat Rises (video)," by: Juro Osawa and Phred Dvorak, The Wall Street Journal, November 25, 2011 ---
http://online.wsj.com/video/olympus-we-hid-investment-losses-for-decades/54207106-7753-477D-9EA5-7C152AF62DF4.html
Bob Jensen's threads on the criminal activity at Olympus
Scroll down deeply at
http://www.trinity.edu/rjensen/Fraud001.htm#KPMG
What's Right and What's Wrong With (SPEs), SPVs, and VIEs ---
http://www.trinity.edu/rjensen//theory/00overview/speOverview.htm
From The Wall Street Journal Weekly Accounting Review on December 9, 2011
Panel Calls Olympus "Rotten" at Core
by: Daisuke Wakabayashi and Phred Dvorak
Dec 07, 2011
Click here to view the full article on WSJ.com
TOPICS: Auditing, Auditor/Client Disagreements, Fair Value Accounting, Historical Cost Accounting, Investments SUMMARY: This review continues coverage from last week of the accounting scandal at Olympus Corp. The Investigation Report into Olympus Corporation and its management, written by the "Third Party Committee" hired by the Board of Directors on October 14, 2011, is available directly online at http://online.wsj.com/public/resources/documents/third_party_olympus_report_english_summary.pdf The report provides the clearest description yet of the investment loss and accounting scandal that has brought the Japanese imaging equipment maker to the brink of delisting from the Tokyo Stock Exchange. As described in the opening page of the document, the Olympus Corporation Board of Directors called for a third party review because "the shareholders and others doubted that" payments by Olympus to a financial advisor and acquisitions by Olympus, along with subsequent recognition of impairment losses on those investments, were appropriate. The findings in the report essentially state that Olympus began incurring financial losses on speculative investments that were originally hoped to bolster corporate earnings when operating earnings declined due to a strengthening yen in the late 1980s. "However, in 1990 the bubble economy burst and the loss incurred on Olympus by the financial assets management increased" (p. 6). Then, in 1997 to 1998, "when the unrealized loss was ballooning," Japanese accounting standards were changed to require fair value reporting of financial assets, as did those in the U.S. "In that environment, Olympus led by Yamada and Mori started seeking a measure to avoid the situation where the substantial amount of unrealized loss would come up to the surface..." because of this change in accounting standards. The technique was so common in Japan that it was given a name, "tobashi." As noted in the WSJ article, the Olympus auditors at the time, KPMG AZSA LLC "...came across information that indicated the company was engaged in tabshi, which recently had become illegal in Japan....[T]he auditor pushed them...to admit to the presence of one [tobashi scheme] and unwind it, booking a loss of 16.8 billion yen." CLASSROOM APPLICATION: Questions relate to the accounting environment under historical cost accounting that allows avoiding recognition of unrealized losses and to the potential for audit issues when management is found to have engaged in one unethical or illegal act. QUESTIONS:
1. (Introductory) For how long were investment losses hidden by accounting practices at Olympus Corp?
2. (Advanced) What is the difference between realized and unrealized investment losses? How are these two types of losses shown in financial statements under historical cost accounting and under fair value accounting methods for investments?
3. (Introductory) What accounting change in the late 1990s led Olympus Corp. management to search for further ways to hide their investment losses? In your answer, comment on the meaning of the Japanese term "tobashi."
4. (Introductory) What happened in 1999 when KPMG AZSA "came across information that indicated the company was engaged in tobashi, which recently had become illegal in Japan"?
5. (Advanced) Given the result of the KPMG AZSA finding in 1999, what concerns should that raise for any auditor about overall ability to conduct an audit engagement?
Reviewed By: Judy Beckman, University of Rhode Island "Panel Calls Olympus 'Rotten' at Core," by: Daisuke Wakabayashi and Phred Dvorak, The Wall Street Journal, December 7, 2011 ---
http://online.wsj.com/article/SB10001424052970204083204577082163172106608.html?mod=djem_jiewr_AC_domainid
The secret held for a quarter-century, quietly passed among senior executives. Within Olympus Corp. the goal was clear. Hide some $1.5 billion in investment losses from public view.
The toll on Olympus mounted as time went by. "The core part of the management was rotten, and that contaminated other parts around it."
So concluded a 200-page reported issued Tuesday, the most complete account yet of a scandal that routed money through more than a dozen banks, funds and investment firms around the globe, ultimately leading to the departure of several top executives and putting the respected optical-equipment maker on the bubble for a stock delisting.
Starting in the mid-1980s, Olympus, along with other Japanese exporters, turned to speculative financial investments as a way to ease the sting of a surging yen with what they believed would be easy profits.
At Olympus, that strategy set in motion a chain of events that were the heart of the company's accounting scandal, according to the report, written by a six-member outside panel appointed by the company last month.
The document, based on 189 interviews with current and former Olympus employees and business partners, also brought into relief the organizational problems that plague many Japanese companies: lack of transparency, little regard for shareholder rights and reluctance to challenge authority.
"The situation was an epitome of the salaryman mentality in a bad sense," said the panel, referring to Japan's culture of corporate loyalty.
Olympus on Tuesday said it "takes very seriously the results" of the investigation and "is considering further fundamental measures to restore confidence."
The report identified former Vice President Hisashi Mori, his former boss in the company's accounting department, Hideo Yamada, and two former Olympus presidents among a "select few" with knowledge of the original investment losses, the effort to hide the losses and then the attempts to account for them through inflated acquisition prices and advisory fees.
Based on the report's account, Olympus's financial troubles started with the Plaza Accord in 1985, an agreement to devalue the U.S. dollar.
The ensuing rise in the yen dented the company's operating profit, and its president at the time, Toshiro Shimoyama, decided Olympus should augment its core business with zaiteku, or financial investments.
It didn't go well.
Read more:
http://online.wsj.com/article/SB10001424052970204083204577082163172106608.html#ixzz1g3z5Q5SY
Bob Jensen's threads on the criminal activity at Olympus
Scroll down deeply at
http://www.trinity.edu/rjensen/Fraud001.htm#KPMG
Bob Jensen's threads on the Enron, Worldcom, and Andersen scandals ---
http://www.trinity.edu/rjensen/FraudEnron.htm
Accounting for Collateralized Debt Obligations (CDOs)
"Balance Sheets Are Busting Out All Over: About $1.2 trillion in off-balance-sheet assets could end up on the balance sheets of banks that have yet to claim them, or "on no one's balance sheet," a new report claims," by Marie Leone, CFO.com, April 23, 2010 ---
http://www.cfo.com/article.cfm/14492562/c_14492952?f=home_todayinfinance
New accounting rules governing off-balance-sheet transactions went into effect for most companies in January. As a result, 53 large companies have already estimated that they will have put back an aggregate $515 billion in assets to their balance sheets during the first quarter, according to a new study of S&P 500 companies released by Credit Suisse.
But the future state of the companies' balance sheets remains unclear, since they only consolidated 9% of the $5.7 trillion in off-balance sheet assets they reported in the fourth quarter of last year. About $4 trillion of the remaining assets will be taken up on the balance sheets of mortgage companies Fannie Mae and Freddie Mac, which guaranteed many of the subprime residential mortgages. The rest of the assets — about $1.2 trillion worth — could find their way to the balance sheets of companies that have yet to claim them, or "on no one's balance sheet," assert report authors David Zion, Amit Varshney, and Christopher Cornett.
Because some assets are lingering in accounting limbo or hidden by murky disclosures, gauging their final effect on company financials could be akin to hitting "a moving target," says the report. Indeed, Credit Suisse notes that it's unclear whether all reported estimates issued during the first quarter included deferred taxes, loan loss provisioning, and such off-balance-sheets assets as mortgage-servicing rights. (Selling mortgage servicing rights is a multi-billion dollar industry.)
The rules that force companies to put such assets back on their balance sheets were issued in 2008 and went into effect at the beginning of this year. They are Topic 860 (formerly FAS 166), which deals with transfers and servicing of financial assets and liabilities, and Topic 810 (formerly FAS 167), the rule governing the consolidation of off-balance-sheet entities in their controlling companies' financial reports.
In reviewing the results and disclosures as of March 11, the study's authors found that only 183 companies in the S&P 500 reported the balance-sheet effects of FAS 166 in their financial results, with 24 providing an estimated impact and 117 reporting either no impact or an immaterial one. Forty-two companies are still evaluating the effects of the new rules, while 317 made no mention of the rules at all. In contrast, 342 companies disclosed the effects of FAS 167, with 29 providing estimates and 214 registering no impact or an immaterial one. That leaves 99 companies still evaluating the FAS 167 impact, and 158 making no mention of the financial statement effects.
Predictably, most of the asset increases belong to companies in the financial sector, where off-balance-sheet transactions like securitization, factoring, and repurchase agreements are popular. As of Q4 2009, financial services companies in the S&P 500 had stashed $5.5 trillion, and $1.6 trillion, respectively, in variable-interest entities (VIEs) and the now-defunct qualified special-purporse entities (QSPEs). That left a mere $110 billion in assets spread among the QSPEs and VIEs associated with companies in nine other industries.
Assets are returning to balance sheets for several reasons, most notably the Financial Accounting Standards Board's elimination if QSPEs, or "Qs," in 2008, when it became apparent that the structures were being abused. Indeed, Qs were permitted to remain off bank balance sheets if they took a "passive" role in managing the structures' finances. But when the subprime crisis hit, and the mortgages being held in Qs began to fail, banks — with the blessing of regulators — took a more active role, reworking the terms of the entities' mortgage investments. At the time, FASB Chairman Robert Herz called Qs "ticking time bombs" that started to "explode" during the credit crunch.
VIEs, on the other hand, are still used. These vehicles are thinly capitalized business structures in which investors can hold controlling interests without having to hold voting majorities. As of the fourth quarter last year, S&P 500 companies parked $1.7 trillion worth of assets in VIEs.
The revised standards were supposed to wreak havoc on bank balance sheets because, among other things, the rules for keeping loan-related assets off the books would be rewritten. At the time, bankers expected the rewrite would force them to consolidate big swaths of assets that were being held in VIEs and QSPEs. And consolidating the assets from the entities would have required them to increase the amount of regulatory capital they kept on hand — a charge to cash — and thereby reduce the amount of lending they could do. Dampening lending during a credit crisis, argued bankers, would hurt the recovery.
Since their enactment, the accounting rules have affected their industry big-time. Of the companies reporting an impact, nine purely financial-sector outfits plus General Electric account for 96% of the $515 billion being consolidated during the first quarter, says Credit Suisse. Of that group, which includes Bank of America, JP Morgan Chase, and Capital One, Citigroup tops the list with an estimated $129 billion in assets being brought back on the books in the first quarter — which represents 7% of its existing total assets. The newly-consolidated assets come in all shapes and sizes, says the report: $86.3 billion in credit card loans, $28.3 billion in asset-backed commercial paper, $13.6 billion in student loans, and $4.4 billion in consumer mortgages, for example. ($5 trillion or the $ $5.7 trillion held in VIEs and QSPEs are mortgage related.) Citigroup also disclosed a $13.4 billion charge for setting up additional loan loss reserves and eliminating interest lost from consolidating the assets.
Of the companies that disclosed the financial-statement impact, only eight estimated the increase to be more than 5% of total assets, says Credit Suisse. Invesco was the hardest hit, reporting the highest percentage at 55%, bringing back $6 billion worth of assets during the first quarter. Invesco's assets are parked in collateralized loan obligations and collateralized debt obligations.
Non-financial companies, like Harley-Davidson and Marriott International also reported relatively big percentage jumps compared to existing assets. Harley's additional assets represent 18% of existing assets, or $1.6 billion. Meanwhile, Marriott's consolidation represents 13% of its assets, or $1 billion.
Jensen Comment
It's about time. Bank financial statements have been "fiction" for way to long.
But the accounting and auditing rules have a long way to go for banks. A huge problem is the way auditing firms have allowed banks to underestimate loan loss reserves. A more recent problem with FAS 140 was uncovered by Lehman's use of Repo 105 contracts for debt masking.
Fighting the Battle Against Off-Balance-Sheet Financing" Winning a Battle Does Not Mean Winning a War
But it's better than losing the battle
Frank Partnoy and Lynn Turner contend that Wall Street bank accounting is an exercise in writing fiction:
Watch the video! (a bit slow loading)
Lynn Turner is Partnoy's co-author of the white paper."Make Markets Be Markets"
"Bring Transparency to Off-Balance Sheet Accounting," by Frank Partnoy, Roosevelt Institute, March 2010 ---
http://www.rooseveltinstitute.org/policy-and-ideas/ideas-database/bring-transparency-balance-sheet-accounting
Watch the video!
Bob Jensen's threads on SPEs, VIEs, SPVs, and synthetic leasing are at
http://www.trinity.edu/rjensen//theory/00overview/speOverview.htm
Bob Jensen's threads on off-balance-sheet financing are at
http://www.trinity.edu/rjensen/theory01.htm#OBSF2
The IFRS Version of Unconsolidated Special Purpose Entities (SPEs, SPVs, VIEs)
"Investment Entities proposals could have far-reaching impacts," Australian Accounting Standards Board, October 4, 2011 ---
http://www.aasb.gov.au/News/Media-releases.aspx?newsID=58270
In September 2011 the Australian Accounting Standards Board (AASB) issued ED 220, which incorporates International Accounting Standards Board (IASB) ED/2011/4 Investment Entities.
ED/2011/4 proposes that investment entities meeting particular criteria should be required to account for investments in their controlled entities at fair value through profit or loss, rather than by consolidating them. ED/2011/4 also proposes changing the availability of the fair value option for investments in associates and joint ventures by limiting the measurement of associates and joint ventures at fair value through profit or loss to investment entities only.
The AASB Chairman, Kevin Stevenson expressed a number of concerns about the proposals.
It is unusual for a member of the AASB such as myself to express concerns about an exposure draft before submissions are received. But I do so on this occasion because this draft raises fundamental questions about existing requirements. In my view it could lead to increased use of off-balance-sheet accounting, see us depart from the concept of control and lead to unjustified changes in requirements accounting for associates and joint ventures. The exposure draft seeks to include in IFRS accounting practices previously used in North America and would be a step back from the universal consolidation model that we have followed. In this regard, I note that three IASB members have expressed alternative views on ED/2011/4.
Until now our stance has been that if an entity controls one or more entities, it should present consolidated financial statements because they are most likely to provide useful information about the economic entity to the greatest number of users. The exposure draft would replace that information with the fair value for the investment in a certain type of subsidiary. Will that be an improvement in Australian reporting? If fair value of the investment provides information, would not a better answer be disclosure of the fair value of the investment as well as consolidation? Even if the proposals have merit, is the definition of an investment entity robust enough to avoid exploitation?
Some might find the proposals superficially appealing because they might reduce the task of financial reporting for a group, but respondents need to be aware that the proposals would, as well as raising the spectre of creative structuring, also change the exemptions from applying equity accounting. Some entities that presently elect to fair value their investments in associates and joint ventures would find they can no longer do so, and this would potentially include, for example, insurers with assets held to back investment-linked insurance contracts.
The AASB needs to hear very clearly from constituents whether this proposed standard is in the interest of Australian reporting and if it is not considered to be, we need to respond strongly to the IASB. I would encourage very active consideration of the proposals.
Comments are due to the AASB by 30 November 2011 and to the IASB by 5 January 2012 and Australian constituents are strongly encouraged to carefully review the proposals and make their views known to the AASB and the IASB.
Background
ED/2011/4 proposes ‘investment entities’ be required to measure investments in controlled entities at fair value through profit or loss (rather than consolidate them). However, a non-investment entity parent of an investment entity would be required to consolidate the investment entity subsidiary and its controlled entities.
Continued in article
At the 2011 AAA Annual Meetings in Denver, former FASB Chairman Bob Herz claims that unconsolidated Qualified SPEs was a good idea that became mired down in atrocious implementations that included errors and fraud, thereby ruining the concept of having such entities remain unconsolidated as long as fair values of assets exceeded the fair values of the debts in the QSPEs. CFO Andy Fastow set up over 3,000 unconsolidated SPEs and committed fraud by claiming Enron's own equity shares were assets in those SPEs.
AAA members may view the Bob Herz video
Robert H. Herz—Video --- http://commons.aaahq.org/posts/4217ebd350
"FASB Issues New Standards for Securitizations and Special Purpose Entities," SmartPros, June 15, 2009 --- http://accounting.smartpros.com/x66815.xml
The FASB has published Financial Accounting Statements No. 166, Accounting for Transfers of Financial Assets, and No. 167, Amendments to FASB Interpretation No. 46(R), which change the way entities account for securitizations and special-purpose entities.
The new standards will impact financial institution balance sheets beginning in 2010. The impact of both new standards has been taken into account by regulators in the recent “stress tests.”
These projects were initiated at the request of investors, the SEC, and The President’s Working Group on Financial Markets. Copies of the new standards are available at the FASB’s website, along with a concise briefing document.
Statement 166 is a revision to Statement No. 140, Accounting for Transfers and Servicing of Financial Assets and Extinguishments of Liabilities, and will require more information about transfers of financial assets, including securitization transactions, and where companies have continuing exposure to the risks related to transferred financial assets. It eliminates the concept of a “qualifying special-purpose entity,” changes the requirements for derecognizing financial assets, and requires additional disclosures.
Statement 167 is a revision to FASB Interpretation No. 46(R), Consolidation of Variable Interest Entities, and changes how a company determines when an entity that is insufficiently capitalized or is not controlled through voting (or similar rights) should be consolidated. The determination of whether a company is required to consolidate an entity is based on, among other things, an entity’s purpose and design and a company’s ability to direct the activities of the entity that most significantly impact the entity’s economic performance.
Robert Herz, chairman of the FASB, said:
“These changes were proposed and considered to improve existing standards and to address concerns about companies who were stretching the use of off-balance sheet entities to the detriment of investors. The new standards eliminate existing exceptions, strengthen the standards relating to securitizations and special-purpose entities, and enhance disclosure requirements. They’ll provide better transparency for investors about a company’s activities and risks in these areas.”
Both new standards will require a number of new disclosures. Statement 167 will require a company to provide additional disclosures about its involvement with variable interest entities and any significant changes in risk exposure due to that involvement. A company will be required to disclose how its involvement with a variable interest entity affects the company’s financial statements. Statement 166 enhances information reported to users of financial statements by providing greater transparency about transfers of financial assets and a company’s continuing involvement in transferred financial assets.
Both Statements 166 and 167 will be effective at the start of a company’s first fiscal year beginning after November 15, 2009, or January 1, 2010 for companies reporting earnings on a calendar-year basis.
FASB Statement 167: Consolidation of Variable Interest Entities
FASB significantly revamped its consolidation standards for variable interest entities when it released Statement No. 167 in June 2009. Those standards rework existing rules under FIN 46R for when a company must include a VIE on its books with a potentially huge impact on corporate balance sheets. The criteria for determining an entity's VIE status have shifted, based now more on a company's "obligations" and "power" over an entity than on ownership percentage or absorption of losses. Complicating matters further are new disclosure requirements to explain consolidation decisions. New standards cover fiscal years after Nov. 15, 2009, so they affect financials published as soon as March or April 2010. Advisors must prepare now for the standards, which require reevaluation of existing entity relationships, regardless of whether VIEs were previously consolidated. How Will This Statement Change Current Practice?
This Statement amends Interpretation 46(R) to require an enterprise to perform an analysis to determine whether the enterprise’s variable interest or interests give it a controlling financial interest in a variable interest entity. This analysis identifies the primary beneficiary of a variable interest entity as the enterprise that has both of the following characteristics: a. The power to direct the activities of a variable interest entity that most significantly impact the entity’s economic performance b. The obligation to absorb losses of the entity that could potentially be significant to the variable interest entity or the right to receive benefits from the entity that could potentially be significant to the variable interest entity. Additionally, an enterprise is required to assess whether it has an implicit financial responsibility to ensure that a variable interest entity operates as designed when determining whether it has the power to direct the activities of the variable interest entity that most significantly impact the entity’s economic performance.
This Statement amends Interpretation 46(R) to require ongoing reassessments of whether an enterprise is the primary beneficiary of a variable interest entity. Before this Statement, Interpretation 46(R) required reconsideration of whether an enterprise is the primary beneficiary of a variable interest entity only when specific events occurred. This Statement amends Interpretation 46(R) to eliminate the quantitative approach previously required for determining the primary beneficiary of a variable interest entity, which was based on determining which enterprise absorbs the majority of the entity’s expected losses, receives a majority of the entity’s expected residual returns, or both. This Statement amends certain guidance in Interpretation 46(R) for determining whether an entity is a variable interest entity. It is possible that application of this revised guidance will change an enterprise’s assessment of which entities with which it is involved are variable interest entities. This Statement amends Interpretation 46(R) to add an additional reconsideration event for determining whether an entity is a variable interest entity when any changes in facts and circumstances occur such that the holders of the equity investment at risk, as a group, lose the power from voting rights or similar rights of those investments to direct the activities of the entity that most significantly impact the entity’s economic performance. Under Interpretation 46(R), a troubled debt restructuring as defined in paragraph 2 of FASB Statement No. 15, Accounting by Debtors and Creditors for Troubled Debt Restructurings, was not an event that required reconsideration of whether an entity is a variable interest entity and whether an enterprise is the primary beneficiary of a variable interest entity. This Statement eliminates that exception. This Statement amends Interpretation 46(R) to require enhanced disclosures that will provide users of financial statements with more transparent information about an enterprise’s involvement in a variable interest entity. The enhanced disclosures are required for any enterprise that holds a variable interest in a variable interest entity. This Statement nullifies FASB Staff Position FAS 140-4 and FIN 46(R)-8, Disclosures by Public Entities (Enterprises) about Transfers of Financial Assets and Interests in Variable Interest Entities. However, the content of the enhanced disclosures required by this Statement is generally consistent with that previously required by the FSP. How Will This Statement Improve Financial Reporting?]
This Statement amends Interpretation 46(R) to replace the quantitative-based risks and rewards calculation for determining which enterprise, if any, has a controlling financial interest in a variable interest entity with an approach focused on identifying which enterprise has the power to direct the activities of a variable interest entity that most significantly impact the entity’s economic performance and (1) the obligation to absorb losses of the entity or (2) the right to receive benefits from the entity. An approach that is expected to be primarily qualitative will be more effective for identifying which enterprise has a controlling financial interest in a variable interest entity. This Statement requires an additional reconsideration event when determining whether an entity is a variable interest entity when any changes in facts and circumstances occur such that the holders of the equity investment at risk, as a group, lose the power from voting rights or similar rights of those investments to direct the activities of the entity that most significantly impact the entity’s economic performance. It also requires ongoing assessments of whether an enterprise is the primary beneficiary of a variable interest entity. These requirements will provide more relevant and timely information to users of financial statements. This Statement amends Interpretation 46(R) to require additional disclosures about an enterprise’s involvement in variable interest entities, which will enhance the information provided to users of financial statements. What Is the Effect of This Statement on Convergence with International Financial Reporting Standards?
The International Accounting Standards Board (IASB) has a project on its agenda to reconsider its consolidation guidance. The IASB issued two related Exposure Drafts, Consolidation and Derecognition, in December 2008 and March 2009, respectively. The IASB project on consolidation is a broader reconsideration of all consolidation guidance (not just the guidance for variable interest entities). Although this Statement was not developed as part of a joint project with the IASB, the FASB and IASB continue to work together to issue guidance that yields similar consolidation and disclosure results for special-purpose entities. The ultimate goal of both Boards is to provide timely, transparent information about interests in specialp purpose entities. However, the timeline and anticipated effective date of the IASB project is different from the effective date of this Statement. This Statement addresses the potential impacts on the provisions and application of Interpretation 46(R) as a result of the elimination of the qualifying special-purpose entity concept in Statement 166. Ultimately, the two Boards will seek to issue a converged standard that addresses consolidation of all entities.
Infectious Greed: How Deceit and Risk Corrupted the Financial Markets (Henry Holt and Company, 2003, Page 351, ISBN 0-8050-7510-0)
The range of financial malfeasance and manipulation was fast. Energy companies, such as Dynegy, El Paso, and Williams, did the same complex financial deals (particularly using SPEs) Andy Fastow engineered at Enron. Telecommunication s firms, such as Global Crossing and WorldCom, fell into bankruptcy after it became clear they, too, had been cooking their books. Financial firms were victims as well as aiders-and-abettors. PNC Financial, a major bank, settled SEC charges that it abused off-balance-sheet deals and recklessly overstated its 2001 earnings by more than half. A rogue trader at Allfirst Financial, a large Irish bank, lost $750 million in a flurry of derivatives trading that put Nick Leeson of Barings to shame. And so on, and so on.
Question
Would you like to see (AIG) Special Purpose Vehicles pull away from the loading ($25 billion) dock?
"AIG Sells Shares to Fed: Papa's Little Dividend? The New York Fed has agreed to get involved in the life insurance business by investing $25 billion in two special-purpose vehicles," by David M. Katz, CFO.com, June 25, 2009 --- http://www.cfo.com/article.cfm/13932672/c_2984368/?f=archives
In a move aimed at cutting American International Group's $40 billion debt to the Federal Reserve Bank of New York by $25 billion and setting up two AIG life insurance giants as initial public offerings, the N.Y. Fed has agreed to a debt-for-equity swap done via special-purpose vehicles.
Under the agreement announced today, AIG will place the equity of American International Assurance Company and American Life Insurance Company in separate SPVs in exchange for preferred and common shares of the vehicles. The New York Fed will get all the preferred shares in the two SPVs, amounting to $16 billion in the AIA unit and $9 billion in the ALICO vehicle.
The New York Fed will be paid a 5 percent dividend on its shares, which it will get at a fairly hefty discount, until September 2013. For shares that aren't redeemed by that date, the SPVs would start paying a 9 percent dividend.
The face value of the preferred shares represents a percentage of the estimated fair-market value of AIA and ALICO. With the IPOs looming, the parties aren't saying what that value is. But the New York Fed, which will hold all the preferred shares, will get a majority stake in the economic value of the companies.
For its part, AIG will hold all the common equity in the two SPVs and "will benefit from the fair market value of AIA and ALICO in excess of the value of the preferred interests as the SPVs monetize their stakes in these companies in the future," AIG said in a release issued today.
The dates of the closing of the deal and the IPOs aren't tied to each other. The AIG-New York Fed transaction is expected to close late in the third quarter of this year. AIA, which has already launched its IPO process, is expected to start the offering in 2010. While ALICO hasn't started the process of its offering just yet, it has announced its attention to do so.
As for the SPVs, they will structured as limited-liability companies in Delaware. Until they're spun off, AIA and ALICO will remain wholly owned subsidiaries of AIG, consolidated in the company's reported financial statements.
"Placing AIA and ALICO into SPVs represents a major step toward repaying taxpayers and preserving the value of AIA and ALICO, two terrific life insurance businesses with great futures," said Edward Liddy, AIG's chairman and chief executive officer said in the release. "Operating AIA's and ALICO's successful business models in the SPV format will enhance the value of these franchises as we move forward with our global restructuring."
Asked why the company chose to structure the arrangement by means of the much stigmatized method of setting up SPVs, AIG spokesperson Christina Pretto told CFO that since the vehicles were on-balance-sheet entities they wouldn't be the target of disapproval.
AIA has one of the biggest books of life insurance in Asia, and ALICO has a large presence in Japan. While both are profitable, AIG has found it impossible to achieve its goal of selling the companies-at least partly because they are so large.
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Accounting for CDOs (Securitizations) ---
http://www.trinity.edu/rjensen/theory01.htm#CDO
Bob Jensen's threads on Off-Balance-Sheet Financing (OBSF) are at
http://www.trinity.edu/rjensen/theory01.htm#OBSF2
How CDO's led to the collapse of Wall Street in 2008 ---
http://www.trinity.edu/rjensen/2008Bailout.htm#Bailout Bob Jensen's threads on Off-Balance-Sheet Financing (OBSF) are at
http://www.trinity.edu/rjensen/theory01.htm#OBSF2
Before I dig into this, I want to note a very important slide show for SPE and QSPE accounting under FAS 140, FIN 46R, and IAS 39 --- http://snipurl.com/fdicqspe [sec_edgar-online_com]
"FASB Votes To Remove QSPE Concept From FAS 140, FIN 46R," FEI Blog, April 2, 2008 ---
http://www2.financialexecutives.org/blog/permanent.cfm?post_id=473
Yesterday (April 2, 2008), FASB voted to remove the Qualified Special Purpose Entity (QSPE) concept (used for some securitizations) from FAS 140, Accounting for Transfers and Servicing of Financial Assets and Extinguishments of Liabilities, and to remove the related scope exception from FIN 46R, Consolidation of Variable Interest Entities (VIEs). In addition to removing the QSPE concept, the board also approved amendments to the derecognition criteria in paragraph 9 of FAS 140 (changes shown in redline form on pages 1-2 of the board handout), and agreed to provide guidance on the ‘unit of account’ as relates to when a ‘portion’ of an asset can be derecognized - by requiring essentially the same characteristics as proposed in FASB’s 2005 Exposure Draft of proposed amendments to FAS 140 with respect to the definition of ‘participating interest,’ (definition appears on pages 3-4 of the board handout). FASB's project page currently states an amended Exposure Draft (ED) is expected to be released in the second quarter of 2008; in my estimation, the proposed changes decided yesterday are likely to be included in that ED or in a separate proposal document.
Brief Background
The QSPE concept specified in FAS 140 had been criticized, particularly in light of recent market turmoil tied largely to origination (and related issues involving securitization) of subprime mortgages. To obtain ‘sale treatment’ or off-balance sheet treatment for assets transferred or sold to a QSPE, (and for asset transfers generally) the transferor (e.g. a bank or other originator of mortgages) must give up control over the assets, otherwise the assets would have to remain on the transferors balance sheet (and gain on sale would be limited). The QSPE concept as defined in FAS 140 provided a means to demonstrate control was given up by the transferor, however, the restrictions specified in FAS 140 prohibiting a QSPE from managing the underlying assets, unless pre-specified in the original documents of the securitization trust, or agreed to subsequently by a majority of the investors in the trust, was viewed by some as threatening the ability of lenders and servicers to modify the terms of mortgages to help borrowers avoid foreclosure in the recent credit crunch.
Expedited Action In Light Of Credit Crunch Responds To SEC, PWG Request
FASB has had a longer term project to amend FAS 140, dating back to its 2005 Exposure Draft. The expedited nature of dealing with the QSPE issue as a short-term project was in response to a request from the SEC that FASB address this issue by year-end (noted on page 4 of this letter to the AICPA and FEI), and in response to a recommendation of the President’s Working Group (PWG) - in its March 13 report - calling on ‘authorities’ to encourage FASB to ‘evaluate the role of accounting standards in the current market turmoil… includ[ing] an assessment of the need for further modifications to accounting standards related to consolidation and securitization.’
FASB Project Manager Pat Donoghue told the FASB board that requests had come from ‘preparers and others’ to deal with the QSPE issue expeditiously. She explained, “We have significant issues in practice; constituents cannot consistently apply the guidance to products we have today.”
FASB board member Don Young asked if the objective of the short-term project on QSPEs was solely to provide preparer relief, or if it would improve financial reporting for investors. FASB staff responded there are two objectives to the project, one is short-term to respond to issues in practice that have been exacerbated by the current market turmoil and developments in securitization since FAS 140 was written, but the longer-term objective of broader amendments to improve FAS 140 remained.
FASB staff also recommended that their long-term project to amend FAS 140 be tackled as a joint project with the IASB, and could include a broad look at derecognition (e.g, off-balance sheet or ‘sale’ treatment of securitizations and asset transfers.) Among the issues FASB previously deliberated at board meetings last year was whether to move to a ‘linked presentation’ model, aimed at providing more transparency to investors by linking assets transferred with a related liability, so investors could determine for themselves the implications of net vs. gross treatment, vs. the current model allowing off-balance sheet treatment.
In voting to support the FASB staff’s proposal to remove the QSPE concept from the accounting literature, a number of board members mentioned there were longstanding difficulties with the QSPE concept that were exacerbated in the credit crunch relating in particular to subprime mortgage securitizations.
“For five years now we’ve struggled with application of [FAS] 140 [and] the fundamental question related to servicer discretion,” said board member Larry Smith. “We said, it’s almost impossible to structure a vehicle with the objectives the board had in mind when they created QSPEs: that is, an entity that has no decision making whatsoever relative to the run-out of these assets.”
He added, “I think the staff is appropriate in recommending that we do away with QSPE’s; there are no assets short of US treasury assets that somebody doesn’t make decisions over during the life of [those] assets.”
“We have a concept that really isn’t working, and we need to come up with some other way to help investors evaluate what these transactions are,” said Smith. “At the end of the day, I don’t think the current application of 140 is what the board that approved 140 had in mind, therefore I think we should just stop pretending, and eliminate QSPE’s from our literature, and rely on other aspects of the consolidation model to give [us an] answer that is appropriate.”
Recap of Accounting Developments Relating to Subprime Securitizations
Last summer we started covering developments in the subprime crisis, particularly as relate to accounting issues, including governmental requests for clarification of the accounting rules for securitization as they may impact lenders, servicers, investors and others abilities and desire to modify the terms of mortgages that are at risk of going into default. See, e.g. “Those Curious QSPEs,” “FASB … To ‘Get Out of the Way’ on Debate Over Subprime Accounting,” “Schumer Asks Big Four to Share SEC Guidance on Loan Modifications,” and “Policy Paper of Multi-State Task Force of Ten State Attorneys General Calls for Modification of Subprime Mortgages.”
Among the items noted was a letter from SEC Chairman Christopher Cox to House Financial Services Chairman Barney Frank on July 24, 2007. Although the letter concluded that loan modifications when default is reasonably foreseeable “would not result in a requirement for entities to account for those securitized assets on their balance sheets,” the letter also included a detailed attachment from the Chief Accountant to the SEC Chairman, which included a discussion about permissible activities of QSPEs as set forth in FAS 140, which said, “Many mortgage loans are securitized using QSPE structures. The FASB intended for QSPEs to be entities that would not be actively managed and instead would be on ‘auto pilot.’”
As we noted in this blog last year, in trying to interpret the guidance on QSPEs set forth in FAS 140 and expressly described in the detailed attachment to SEC’s July 24, 2007 questions were raised in some minds as to whether the general guidance in the cover letter from SEC Chairman Cox to Rep. Frank was ‘unequivocal,’ as it had been so described in an August 23, 2007 letter from Sen. Charles Schumer to the CEOs of the ‘Big Four’ audit firms, as cited in this Alert published August 24, 2007 by the Center for Audit Quality (CAQ).
Further guidance appeared in an SEC letter dated Jan. 8, 2008 addressed to the AICPA and FEI, in which the SEC Chief Accountant said, “The Office of the Chief Accountant(“OCA") has been asked by preparers, auditors, ASF [American Securitization Forum], the U.S. Department of the Treasury, and others whether modifications of Segment 2 subprime ARM loans that occur pursuant to the ASF Framework would result in a change in the status of a transferee as a qualifying special-purpose-entity ("QSPE") under paragraph 55 of FASB Statement No. 140, Accounting for Transfers and Servicing of Financial Assets and Extinguishments of Liabilities ("Statement 140").”
“OCA has read the ASF framework and has concluded that it will not object to continued status as a QSPE if Segment 2 subprime ARM loans are modified pursuant to the specific screening criteria in the ASF Framework,” stated the SEC’s January 8 letter to the AICPA and FEI. “Additionally, given the unique nature of the contemplated modifications and other loss mitigation activities that are recommended in the ASF Framework, OCA expects registrants to provide sufficient disclosures in filings with the Commission regarding the impact that the ASF Framework has had on QSPEs that hold subprime ARM loans.”
The SEC also stated in its January 8 letter that its “represent[t] an interim step in addressing one practice issue that exists in the application of paragraphs 9(b) and 35-55 of Statement 140,” and that, “Concurrent with the issuance of this letter, OCA has requested the FASB to immediately address the issues that have arisen in the application of the QSPE guidance in Statement 140. OCA has requested that the FASB complete its project addressing the guidance in paragraphs 9(b) and 35-55 of Statement 140 in order to be effective no later than years beginning after December 31, 2008.”
Herz on Hindsight and Foresight
Rolling forward to yesterday’s board meeting, FASB Chairman Robert Herz observed, “I think the [QSPE] concept has been stretched and stretched and stretched and stretched and stretched over the years, and the crescendo has been with the latest round of very problematic assets that were securitized with this approach.”
He noted that although there are some very simple structures that would qualify for QSPE treatment, “the majority of what’s been an issue have been much larger things with assets that turned out to be quite problematic and require a lot of attention.”
“Maybe with the benefit of hindsight we understand that, although I think even with the benefit of foresight it could have been maybe understood.”
Herz’ observation about hindsight and foresight is interesting when read in conjunction with paragraphs 190 and 191 in the Basis for Conclusions section of FAS 140.
Para. 190 noted that constituents told FASB they believed QSPEs and their servicers should be able to exercise a “commercially reasonable and customary amount of discretion in deciding whether to dispose of assets in the specified circumstances,” and that “allowing a QSPE only to have provisions that require disposal without choice raises the risks of forcing a disposal at a bad time or that allowing no discretion conflicts with the fiduciary duties of the SPE’s trustee or servicer.”
“The Board acknowledged the concerns that underlie those views but did not change that provision,” continues para. 190, “reasoning that a qualifying SPE with that flexibility should not be considered to be a passive conduit through which its BIHs [Beneficial Interest Holders] own portions of its assets, as opposed to owning shares or obligations in an ordinary business enterprise.
Para. 191 noted, “The Board considered but rejected a general condition that would permit a qualifying SPE to sell assets as long as the sales were made “to avoid losses.” Such a condition would have allowed an SPE to have powers to sell as long as the primary objective was not to realize gains or maximize return, a concept introduced in Topic D-66. The Board rejected it because it would have given the trustee, servicer, or transferor considerable discretion in choosing whether or not the SPE should sell if a loss was threatened. Such discretion is more in keeping with being an ordinary business that manages its own assets than with being a passive repository of assets on behalf of others.”
It is always easier to look back with 20-20 hindsight, but it is interesting to observe the emphasis noted in FAS 140 as cited above on precluding QSPEs from operating like an ‘ordinary business,’ including the ability to use discretion and manage assets to avoid or minimize losses. In light of the current credit crisis, it is encouraging to see the FASB responding rapidly to concerns that have been raised.
Companies, auditors and others will need to holistically examine the package of changes being proposed to remove the QSPE concept and the related amendments to paragraph 9 of FAS 140, to determine the net effect on how they account for securitization transactions, as well as the impact on how they are structured and any accounting ramifications from modification of underlying assets.
From The Wall Street Journal Accounting Weekly Review on May 9, 2008
FASB Signals Stricter Rules For Banks' Loan Vehicles
by David Reilly
The Wall Street Journal
May 02, 2008
Page: C1
Click here to view the full article on WSJ.com ---
http://online.wsj.com/article/SB120969084241961495.html?mod=djem_jiewr_AC
TOPICS: Advanced Financial Accounting, FASB, Financial Accounting, Financial Accounting Standards Board, International Accounting Standards Board, SEC, Securities and Exchange Commission, Securitization SUMMARY: The Securities and Exchange Commission has asked the FASB to create rules for banks' securitization vehicles, variable interest entities (VIEs) or special purpose entities (SPEs) by the end of this year. On April 2, 2008, the FASB tentatively voted to do away with the special securitization vehicles and to undertake a joint project with the IASB on derecognition in general. The author writes that the FASB "...didn't signal how banks would have to account for..." SPEs. The actual implication of the FASB's vote would be to do away with the qualifying SPE exemptions from FASB Statement 140 and Interpretation No. 46, Consolidation of Variable Interest Entities--an Interpretation of ARB No. 51. CLASSROOM APPLICATION: Advanced Accounting courses at the Master's level. Though some questions in this review are listed as introductory, they are introductory to the issues of accounting for securitization transactions, an advanced topic for any accounting student. QUESTIONS:
1. (Introductory) What is a "qualifying special purpose entity?" What accounting standards and/or interpretations define this term? Identify the names of the standards and summarize their general requirements.
2. (Introductory) What did the FASB decide at its April 2, 2008, meeting with regard to qualifying special purpose entities and to derecognizing items from balance sheets in general? In your answer, define the term "derecognition." (Hint: You may access information about FASB meetings and decisions through the Action Alert on their web site. The Action Alert covering Board actions on April 2, 2008, was published on April 10, 2008 and is available at http://www.fasb.org/action/aa041008.shtml
3. (Advanced) What will happen on banks' consolidated financial statements if the special purposes entities that they set up to own securitized assets can no longer be excluded from the requirements of Statement of Financial Accounting Standards No. 140, "Accounting for Transfers and Servicing of Financial Assets and Extinguishments of Liabilities--a replacement of FASB Statement No. 125"?
4. (Advanced) Given your answer to question #3 above, do you agree with the author's statement in the article that, when the FASB voted to eliminate the qualifying SPEs, "it didn't signal how banks would have to account for them"?
5. (Advanced) In the article, the author notes that FASB Chairman Bob Herz did not indicate that banks would be allowed to make a net presentation of securitized assets and liabilities on their balance sheets. How would that possibility lead to "ballooning" of bank balance sheets? Why might banks particularly want a net basis of presentation for securitized assets?
6. (Introductory) In introducing this FASB decision, the author states that changing accounting standards in this area "could make borrowing more expensive...but [also could] prevent the abuses that led to billions in losses over the past year." Are accounting standards designed to elicit particular economic responses such as limiting abuses by financial statement preparers or losses such as those experienced after last year's credit market failures? Support your answer.
Reviewed By: Judy Beckman, University of Rhode Island
|
"FASB Signals Stricter Rules For Banks' Loan Vehicles," by David Reilly, The Wall Street Journal, May 2, 2008; Page C1 --- http://online.wsj.com/article/SB120969084241961495.html?mod=djem_jiewr_AC
Possible accounting rule changes spurred by the subprime-mortgage crisis would make it harder and costlier for banks to package and sell off loans. That could make borrowing more expensive for consumers and companies but prevent the abuses that led to billions in losses over the past year.
The changes come at a time of scrutiny of how financial institutions packaged mortgages and other loans into securities, shifting the risk of bad loans from their own balance sheets to investors. The changes will "be a little bit like taking the punch bowl away," said Robert Herz, chairman of the Financial Accounting Standards Board, which sets U.S. accounting rules.
Outlining the possible shape of these new rules during an accounting conference Thursday, Mr. Herz indicated that banks might have to keep on their books loans they previously packaged and sold off, or securitized.
Under current rules banks create securitization vehicles that hold the loans off their balance sheets. The Securities and Exchange Commission earlier this year asked the accounting board to create rules for these vehicles by year's end.
The FASB last month tentatively voted to do away with the special securitization vehicles, although it didn't signal how banks would have to account for them. In his remarks, Mr. Herz indicated banks will have to use other rules governing off-balance-sheet vehicles. These rules are likely to be tightened as well.
Any change in the rules surrounding securitization vehicles and other off-balance-sheet entities could have widespread implications for banks. At the end of 2007, J.P. Morgan Chase & Co. and Citigroup Inc. had nearly $1 trillion in assets held off their books in special securitization vehicles. J.P. Morgan generated nearly $3.5 billion in revenue, or about 6% of total 2007 net revenue, from administering special securitization vehicles.
In a statement, Citigroup said, "We are actively engaged in industrywide discussions on the development of the proposal." J.P. Morgan declined to comment.
Mr. Herz didn't push the possibility that banks would be allowed to show the combined effect of these vehicles' assets and liabilities on their books. Such a linked presentation could prevent a ballooning of bank balance sheets. He also said banks likely will face stiffer tests overall for what can stay off their books and may have to take into account emergency-funding arrangements they often offer to off-balance-sheet vehicles.
"Holding back the banks: Predatory banking practices are likely to continue while political parties are too close to corporations and regulators lack teeth," by Prem Sikka, The Guardian (in the U.K.), February 15, 2008 ---
http://commentisfree.guardian.co.uk/prem_sikka_/2008/02/holding_back_the_banks.html
Politicians and regulators have been slow to wake up to the destructive impact of banks on the rest of society. Their lust for profits and financial engineering has brought us the sub-prime crisis and possibly a recession. Billions of pounds have been wiped off the value of people's savings, pensions and investments. Despite this, banks are set to make record profits (in the U.K.) and their executives will be collecting bumper salaries and bonuses. These profits are boosted by preying on customers in debt, making exorbitant charges and failing to pass on the benefit of cuts in interest rates. Banks indulge in insider trading, exploit charity laws and have sold suspect payment protection insurance policies. As usual, the annual financial reports published by banks will be opaque and will provide no clues to their antisocial practices.
Some governments are now also waking up to the involvement of banks in organised tax avoidance and evasion. Banks have long been at the heart of the tax avoidance industry. In 2003, the US Senate Permanent Subcommittee on Investigations concluded (pdf) that the development and sale of potentially abusive and illegal tax shelters have become a lucrative business for accounting firms, banks, investment advisory firms and law firms. Banks use clever avoidance schemes, transfer pricing schemes and offshore (pdf) entities, not only to avoid their own taxes but also to help their rich clients do the same.
The role of banks in enabling Enron, the disgraced US energy giant, to avoid taxes worldwide, is well documented (pdf) by the US Senate joint committee on taxation. Enron used complex corporate structures and transactions to avoid taxes in the US and many other countries. The Senate Committee noted (see pages 10 and 107) that some of the complex schemes were devised by Bankers Trust, Chase Manhattan and Deutsche Bank, among others. Another Senate report (pdf) found that resources were also provided by the Salomon Smith Barney unit of Citigroup and JP Morgan Chase & Co.
The involvement of banks is essential as they can front corporate structures and have the resources - actually our savings and pension contributions - to provide finance for the complex layering of transactions. After examining the scale of tax evasion schemes by KPMG, the US Senate committee concluded (pdf) that complex tax avoidance schemes could not have been executed without the active and willing participation of banks. It noted (page 9) that "major banks, such as Deutsche Bank, HVB, UBS, and NatWest, provided purported loans for tens of millions of dollars essential to the orchestrated transactions," and a subsequent report (pdf) (page111) added "which the banks knew were tax motivated, involved little or no credit risk, and facilitated potentially abusive or illegal tax shelters".
The Senate report (pdf) noted (page 112) that Deutsche Bank provided some $10.8bn of credit lines, HVB Bank $2.5bn and UBS provided several billion Swiss francs, to operationalise complex avoidance schemes. NatWest was also a key player and provided about $1bn (see page 72 [pdf]) of credit lines.
Deutsche Bank has been the subject of a US criminal investigation and in 2007 it reached an out-of-court settlement with several wealthy investors, who had been sold aggressive US tax shelters.
Some predatory practices have also been identified in other countries. In 2004, after a six-year investigation, the National Irish Bank was fined £42m for tax evasion. The bank's personnel promoted offshore investment policies as a secure destination for funds that had not been declared to the revenue commissioners. A government report found that almost the entire former senior management at the bank played some role in tax evasion scams. The external auditors, KPMG, and the bank's own audit committee were also found to have played a role in allowing tax evasion.
In the UK, successive governments have shown little interest in mounting an investigation into the role of banks in tax avoidance though some banks have been persuaded to inform authorities of the offshore accounts held by private individuals. No questions have been asked about how banks avoid their taxes and how they lubricate the giant and destructive tax avoidance industry. When asked "if he will commission research on the levels of use of offshore tax havens by UK banks and the economic effects of that use," the chancellor of the exchequer replied: "There are no plans to commission research on the levels of use of offshore tax havens by UK banks and the economic effects of that use."
Continued in article
Jensen Comment
Prem Sikka has written a rather brief but comprehensive summary of many of the bad things banks have been caught doing and in many cases still getting away with. Accounting standards have be complicit in many of these frauds, especially FAS 140 (R) which allowed banks to sell bundles of "securitized" mortgage notes from SPE's (now called VIEs) using borrowed funds that are kept off balance sheet in these entities called SPEs/VIEs. The FASB had in mind that responsible companies (read that banks) would not issue debt in excess of the value of the collateral (e.g., mortgage properties). But FAS 140 (R) fails to allow for the fact that collateral values such as real estate values may be expanding in a huge bubble about to burst and leave the bank customers and possibly the banks themselves owing more than the values of the securities bundles of notes. Add to this the frauds that typically take place in valuing collateral in the first place, and you have FAS 140 (R) allowing companies, notably banks, incurring huge losses on debt that was never booked due to FAS 140 (R).
Also banks are complicit in the "dirty secrets" of credit cards and credit reporting --- http://www.trinity.edu/rjensen/FraudReporting.htm#FICO
Then there are the many illegal temptations which lure in banks such as profitable money laundering and the various departures from ethics discussed above by Prem Sikka.
Bob Jensen's "Rotten to the Core" threads are at http://www.trinity.edu/rjensen/FraudRotten.htm
Lessons Not Learned from Enron
Bad SPE Accounting Rules are Still Dogging Us
From The Wall Street Journal Accounting Weekly Review on October 19, 2007
Call to Brave for $100 Billion Rescue
by David Reilly
The Wall Street Journal
Oct 16, 2007
Page: C1
Click here to view the full article on WSJ.com
TOPICS: Advanced Financial Accounting, Securitization SUMMARY: This article addresses a proposed bailout plan for $100 billion of commercial paper to maintain liquidity in credit markets that have faced turmoil since July 2007, and the fact that this bailout "...raises two crucial questions: Why didn't investors see the problems coming? And how could they have happened in the first place?" The author emphasizes that post-Enron accounting rules "...were supposed to prevent companies from burying risks in off-balance sheet vehicles." He argues that the new rules still allow for some off-balance sheet entities and that "...the new rules in some ways made it even harder for investors to figure out what was going on." CLASSROOM APPLICATION: The bailout plan is a response to risks and losses associated with special purpose entities (SPEs) that qualified for non-consolidation under Statement of Financial Accounting Standards 140, Accounting for Transfers and Servicing of financial Assets and Extinguishments of Liabilities, and Financial Interpretation (FIN) 46(R), Consolidation of Variable Interest Entities. QUESTIONS:
1.) Summarize the plan to guarantee liquidity in commercial paper markets as described in the related article. In your answer, define the term structured investment vehicles (SIVs).
2.) The author writes that SIVs "...don't get recorded on banks books...." What does this mean? Present your answer in terms of treatment of qualifying special purpose entities (SPEs) under Statement of Financial Accounting Standards 140, Accounting for Transfers and Servicing Financial Assets and Extinguishments of Liabilities.
3.) The author argues that current accounting standards make it difficult for investors to figure out what was going on in markets that now need bailing out. Explain this argument. In your answer, comment on the quotations from Citigroup's financial statements as provided in the article.
4.) How might reliance on "principles-based" versus "rules-based" accounting standards contribute to solving the reporting dilemmas described in this article?
5.) How might the use of more "principles-based standards" potentially add more "fuel to the fire" of problems associated with these special purpose entities?
Reviewed By: Judy Beckman, University of Rhode Island
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Bob Jensen's threads on accounting theory are at http://www.trinity.edu/rjensen/theory01.htm
"The Accounting Cycle: FASB Needs to Change Accounting for SPEs," by: J. Edward Ketz, SmartPros, January 2008 --- http://accounting.smartpros.com/x60543.xml
The CDO imbroglio that has enveloped the financial sector created quite a stir in 2007. Mortgage foreclosures have led to losses for the banks, and investors in CDOs have been surprised by the degree of their risk exposure. "Super seniors" have not been super or senior.
Amid this disarray, a simple question has to be asked: why are the activities and transactions of special purpose entities (SPEs), legal entities that run collateralized debt obligations (CDOs) and similar financial vehicles, not displayed on the financial reports of corporate America? These SPEs remain hidden from view and corporate disclosures about them mist like a Chicago fog.
Recall that Enron's episodes were sprinkled with many an SPE shenanigan. The old accounting rule said that if the SPE had at least 3 percent of its total capital from some outside source, then the business enterprise did not have to consolidate the SPE with its own affairs. While EITF 90-15 originally applied to certain leasing activities, business managers quickly applied it to all sorts of SPEs, and the Financial Accounting Standards Board and the Securities and Exchange Commission allowed them to do so. The threshold was so low that managers found it easy to keep SPE debt off the balance sheet and to make few disclosures.
Because of Enron, FASB finally updated the rules to require consolidation unless outsiders contributed at least 10 percent of the capital to the SPE and this capital is at risk. Funny, FASB sat on its collective backside for over a decade before it took action. It seems the board members are incapable of taking proactive steps in any area.
One of the criticisms was that 3 percent equity does not really put the equity at risk. While the 10 percent cutoff remains arbitrary, it clarifies the situation -- until the board muddied this clarity with some mystical, principles-based goobledy-gook. Many managers complained because they perceived that billions of dollars would be added to the corporate balance sheet. Apparently the appeals had some effect, for FASB modified the final rule. Interpretation No. 46R now states:
9. An equity investment at risk of less than 10 percent of the entity's total assets shall not be considered sufficient to permit the entity to finance its activities without subordinated financial support in addition to the equity investment unless the equity investment can be demonstrated to be sufficient. The demonstration that equity is sufficient may be based on either qualitative analysis or quantitative analysis or a combination of both. Qualitative assessments, including but not limited to the qualitative assessments described in paragraphs 9(a) and 9(b), will in some cases be conclusive in determining that the entity's equity at risk is sufficient. If, after diligent effort, a reasonable conclusion about the sufficiency of the entity's equity at risk cannot be reached based solely on qualitative considerations, the quantitative analyses implied by paragraph 9(c) should be made. In instances in which neither a qualitative assessment nor a quantitative assessment, taken alone, is conclusive, the determination of whether the equity at risk is sufficient shall be based on a combination of qualitative and quantitative analyses.
a. The entity has demonstrated that it can finance its activities without additional subordinated financial support.
b. The entity has at least as much equity invested as other entities that hold only similar assets of similar quality in similar amounts and operate with no additional subordinated financial support.
c. The amount of equity invested in the entity exceeds the estimate of the entity's expected losses based on reasonable quantitative evidence.
Note that the 10 percent threshold can be ignored under several scenarios using either quantitative or qualitative excuses. As I said in 2003, this rule or standard is suspect and board members are spineless. The debt of an SPE is similar to the debt of a subsidiary. If FASB thinks that SPE debt does not have to be consolidated, it might as well announce that parent companies no longer have to show the liabilities of their subsidiaries.
We can forget substance over form. While we are at it, we might as well toss out decision usefulness and relevance because FASB really doesn't promote these ideals, despite the rhetoric in the so-called conceptual framework.
Given the ethical failures of both managers and auditors, I predicted in Hidden Financial Risk (2003) that many SPEs would remain unconsolidated. Indeed the majority of SPEs not only remain unconsolidated, but also the sponsoring organizations provide precious little disclosures about them. With the help of investment bankers, corporate managers have been highly creative in finding rhetoric that skirts principled accounting. When the corporate executives are managers of the investment banks, well, the creativity is off the charts.
Years ago FASB and the SEC should have required the consolidation of SPEs. The last six months or so have clearly displayed the need for improved corporate reporting. This directive applies to the sponsors of CDOs including Citicorp and Merrill Lynch: they should consolidate their special purpose vehicles.
How many more debacles in the market place will occur before FASB and the SEC get it right? When will they have men and women of courage?
Bob Jensen's threads on CDO failed accounting (as unbooked debt that won't go away) are at http://www.trinity.edu/rjensen/Theory01.htm#CDO
UNEQUAL TREATMENT: Rotten to the Core
"Playing Favorites: Why Alan Greenspan's Fed lets banks off easy on corporate fraud," by Ronald Fink, CFO Magazine, April 2004, pp. 46-54 --- http://www.cfo.com/article/1,5309,12866||M|886,00.html
The module below is not in the above online version of the above article. However, it is on Page 51 of the printed version.
UNEQUAL TREATMENT
IF THE FEDERAL RESERVE BOARD AND THE SECURITIES AND EXCHANGE Commission pursue the same agenda, why were Merrill Lynch & Co. and the Canadian Imperial Bank of Commerce (CIBC) treated so differently by the Corporate Fraud Task Force--a team with representatives from the SEC, the FBI, and the Department of Justice (DoJ) set up to prosecute perpetrators of Enron's fraud--than were Citigroup and J. P. Morgan Chase & Co.? After all, all four banks did much the same thing.
Under settlements signed with the SEC last July, Citigroup and Chase were fined a mere $101 million (including $19 million for its actions relating to a similar fraud involving Dynegy) and $135 million, respectively, which amounts to no more than a week of either's most recent annual earnings. And they agreed, in effect, to cease and desist from doing other structured-finance deals that mislead investors. That contrasts sharply with the punishment meted out by the DoJ to Merrill and CIBC, each of which not only paid $80 million in fines, but also agreed to have their activities monitored by a supervising committee that reports to the DoJ. Even more striking, CIBC agreed to exit not only the structured-finance business but also the plain-vanilla commercial--paper conduit trade for three years. No regulatory agency involved in the settlements would comment on the cases, though the SEC's settlement with Citigroup took note of the bank's cooperation in the investigation.
But Brad S. Karp, an attorney with the New York firm Paul, Weiss, Rifkind, Wharton & Garrison LLP, suggested recently that the terms of the SEC settlement with its client, Citigroup, reflected a lack of knowledge or intent on the bank's part. As Karp noted more than once at a February conference on legal issues and compliance facing bond-market participants, the SEC's settlement with Citigroup was ex scienter, a Latin legal phrase meaning "without knowledge."
However, the SEC's administrative order to Citigroup cited at least 13 instances where the bank was anything but in the dark about its involvement in Enron's fraud.
As Richard H. Walker, former director of the SEC's enforcement division and now general counsel of Deutsche Bank's Corporate and Investment Bank, puts it, all the banks involved in Enron's fraud "had knowledge" of it. Yet Walker isn't surprised by their disparate treatment at the hands of regulators. "The SEC does things its way," he says, "and the Fed does them another." *Ronald Fink and Tim Reason
Bob Jensen's threads on "Rotten to the Core" are at http://www.trinity.edu/rjensen/FraudRotten.htm
The FED versus the SEC: Yet Another Example of Where Accounting Standards Are Not Neutral
"Playing Favorites: Why Alan Greenspan's Fed lets banks off easy on corporate fraud," by Ronald Fink, CFO Magazine, April 2004, pp. 46-54 --- http://www.cfo.com/article/1,5309,12866||M|886,00.html
When the Financial Accounting Standards Board released its exposure draft of new accounting rules for special-purpose entities (SPEs), in late 2002, the nation's financial regulators sent FASB chairman Robert H. Herz decidedly mixed signals. On the one hand, the Securities and Exchange Commission wanted Herz to make the rules effective as soon as possible. SPEs were the prime vehicle for the fraud that brought Enron down, and were widely used by other companies to take liabilities off their balance sheets, obscure their financial condition, and obtain lower-cost financing than they deserved. Not surprisingly, the SEC was anxious to head off other financial fiascos resulting from such abuse.
At the same time, however, the Federal Reserve Board pressed Herz to slow down. That's because the new rules threatened to complicate the lives of the Fed's most important charges: large, multibusiness bank holding companies that happen to earn sizable fees by arranging deals involving SPEs. Stuck between this regulatory rock and hard place, Herz told the Fed and the SEC to get together and work out a timetable that satisfied both constituencies.
And they did. But the rules, known as FIN 46 (FASB Interpretation No. 46), have only recently taken effect in some cases, and have yet to do so in others. While the delay in the rules' effective date may reflect the complexity of the transactions covered by FIN 46 as much as the controversy generated by the rules themselves, the conflict between the Fed and the SEC over the matter stems from a deeper problem: the Fed and the SEC have very different regulatory missions that can sometimes come into serious conflict.
The problem surfaced in December 2002 during congressional hearings on the extensive role that certain banks—including Citigroup, J.P. Morgan Chase & Co., and Merrill Lynch & Co.—played in deceptive transactions involving Enron SPEs. Those hearings by the Senate Permanent Subcommittee on Investigations, led by Sen. Carl Levin (D-Mich.), identified what he and then ranking minority member Sen. Susan M. Collins (R-Maine) termed "a current gap in federal oversight" of the banks that helped them aid and abet Enron's fraud. "The SEC does not generally regulate banks, and bank regulators do not generally regulate accounting practices overseen by the SEC," notes the report, which went on to say that this "is a major problem and needs immediate correction."
That correction has yet to be made. The onus of doing so is on the Fed, as the chief regulator of the nation's financial system. Yet Fed chairman Alan Greenspan shows little inclination to do much about the problem.
Yes, the markets have recovered from Enron, at least for the time being. But the penalties and other punishment that regulators meted out to the banks for their role in the fraud display at best a worrisome inconsistency. And that suggests that problems arising from the regulatory gap identified by senators Levin and Collins could recur. Unless the gap is closed, it could undermine other regulatory efforts aimed at improving corporate governance. That, in turn, might have a short-term impact on investor confidence, still fragile some two years after Enron's failure. And in the long term, future Enrons could slip through the gap undetected.
If nothing else, the question of what should be done about it deserves a place on the agenda when the Senate considers Greenspan's nomination for a fifth term, as is expected after his current four-year stint ends in June.
No Firewalls
To be sure, both Citigroup and Chase agreed, after their role at Enron was exposed, to avoid new financing arrangements that pose similar legal and reputational risk. And under FIN 46, all deals involving SPEs must be disclosed on the balance sheet of either the bank, the borrower, or a third party. But it remains to be seen how effective the new rules will be in preventing future off-balance-sheet frauds (see "Longer Paper Routes").
Complicating matters is the combination of commercial and investment banking and insurance blessed by the Gramm-Leach-Bliley Act of 1999, which ended the last vestiges of separation enacted by the Glass-Steagall Act and made the Fed the financial system's primary regulator. But while the central bank supervises private banks involved in these lines of business, including Citigroup and Chase, the Fed's primary interest isn't stopping financial fraud, but making sure the U.S. banking system remains safe and sound. "The Fed doesn't even believe in firewalls," says Dimitri B. Papadimitriou, president of the Levy Economics Institute at Bard College.
Continued in the article
Bob Jensen's threads on "Rotten to the Core" are at http://www.trinity.edu/rjensen/FraudRotten.htm
Bob Jensen's threads on SPEs, VIEs, and FIN 46 are below.
Introduction (Definitions and Simple Examples)
Warning: In quotations you will sometimes find the 3% outsider minimum investment requirement in an SPE. In Year 2002 following the Enron/Andersen scandals, the FASB raised this to 10%. See FIN 46 below. But FAS 167 in 2009 greatly altered the revised FIN 46 such that the 10% rule has been changed.
Bob Jensen's threads on the Enron/Andersen scandals are at http://www.trinity.edu/rjensen/fraud.htm
EITF = Emerging Issue Task Force of the Financial Accounting Standards Board (FASB). The EITF evaluates emerging issues in financial reporting and makes recommendations to the FASB regarding whether new or modified accounting standards are needed do to emerging issues. For example, the issuance of FAS 13 resulted in emerging issues raised by banks and leasing companies regarding the heavy-handed impact of FAS 13 on certain types of leases. The EITF is a large body that is comprised of many constituents, notably representatives from industry who often raise the issues. The EITF issues pronouncements that are accounting guides prior to ultimate resolution of the FASB.
There is no comprehensive FASB standard on SPE accounting. Most of the guidelines for this accounting lies in various EITF guidelines. The EITF guidelines are not standards, but they have a significant impact since auditing firms often insist that these guidelines be followed by their clients. The clients such as General Electric, General Motors, and other large financing companies often play a key role in setting EITF guidelines and concerns about conflicts of interest in EITF guidelines are matters of concern. A February 12, 2002 message from Eckman, Mark S, CFCTR [url=mailto:[meckman@att.com][meckman@att.com[/url]] reads as follows:
The SPE module (Bob Jensen's SPE Overview) is very good. I would like to add a couple of notes on the composition of the EITF to understand how we arrived at this point.
Since the inception of the EITF, 11 participants represent a 'Who's Who' of financial services and companies that have major stakes in financial services.
Name | Firm | John R. Edman | General Motors Corporation | Bernard R. Doyle | General Electric Company | Philip D. Ameen | General Electric Company | Susan S. Bies | First Tennessee National Corporation | Peter E. Jokiel | CNA Insurance Companies | Thomas E. Jones | Citicorp | Paul B. Lukens | CIGNA Corporation | Kathy F. Zirolli | Aetna, Inc. | Marc D. Oken | NationsBank Corporation | David H. Sidwell | J.P. MorganChase | Gaylen N. Larson | Household International, Inc. |
Also, three previous members of the EITF have moved to positions on the FASB, including the current Chair. Considering a total population of only 85 participants, these are rather significant representations.
While the profession has begun to address the independence of the auditor and auditee on a serious basis, vested interests abound that have not been discussed.
SPE = Special Purpose Entity that allows "sponsor/originator" companies bearing as much as 90% of the SPE's debt risk to keep that debt off the consolidated balance sheet under U.S. Generally Accepted Accounting Principles. Enron's double dealing former CFO Andy Fastow and former CEO Jeff Skilling changed the definition of SPE to S _ _ t Piled Everywhere! But the majority of SPEs in the world are perfectly legitimate. Special SPE accounting arose largely due to pressures from banks and leasing companies to provide a way to avoid capitalization (booking) of special types of leases following the FAS 13 change in leasing rules that stiffened the requirements for booking of "capital" leases. There are some financing and tax benefits of SPEs, although the primary motivation is often to achieve off-balance sheet financing (OBSF). Not all SPEs involve lease financing, but the motivation usually is to achieve some form of OBSF accounting.
In the simplest of terms a SPE is an entity that operates like its own separate fund or business apart from its main beneficiary like Enron that created it. Unlike typical subsidiary corporations, SPEs do not have to be consolidated in the financial statements of the beneficiary. The SEC is the accounting standard setter that first allowed SPE accounting off the books. The main reason is that this allows certain types of ventures that might not otherwise be entered into in cases where the ventures make economic sense. The key theoretical condition of an SPE is that the current liquidation value of its assets should exceed its debt. The idea is that nobody gets hurt badly if the SPE is liquidated. A very confusing requirement was imposed that an outside investor (independent of the beneficiary) must put up at least 3% of the value of the SPE, thereby cushioning the blow if an SPE is liquidated somewhat below its debt obligations.After the Enron fiasco, the FASB accounting standard setter raised this limit to 10% but did not go so far as to ban off-book SPE entities. Entire industries were formed because the SEC allowed SPEs to keep debt off the books, especially the entire industry of synthetic leasing. Harsher actions by the SEC or the FASB would destroy these entire industries. The abuse of SPEs arises when the assets of the SPE are not genuine assets, not sufficiently liquid, and/or are overvalued relative to debt obligations. Having volatile financial instruments and/or derivative financial instruments may be problematic as assets if they are subject to huge value fluctuations in the markets. Andy Fastow violated the SPE rules by having Enron (in a complicated way) becoming its own sham "outside" investor and in having Enron's own common stock as the main asset of Enron's SPEs hedging its own stock value.
Enron's very complex, actually unfathomable, SPEs are summarized at http://news.findlaw.com/hdocs/docs/enron/sicreport/chapter1.pdf
FASB Issues FAS 147, Holds Roundtable on SPEs
| AccountingWEB US - Oct-2-2002 - The Financial Accounting Standards Board (FASB) issued Statement No. 147 on "Acquisitions of Certain Financial Institutions" and held a roundtable discussion on accounting for special purpose entities (SPEs).
- FAS 147. Statement 147 fills in one of the gaps left when FASB issued Statements No. 141, "Business Combinations," and No. 142, "Goodwill and Other Intangible Assets." The new standard revises portions of Statement 72, which was developed as a "practical solution" to avoid creating reported earnings from purchase accounting in times when interest rates were at historical highs and many financial institutions were reporting losses. An article written by FASB practice fellow Brian Degano answers frequently asked questions about the project.
- SPEs. Separately, on September 30, FASB held a roundtable discussion on accounting for special purpose entities. According to press accounts, opinion was divided on the need for a speedy resolution of the matter versus the need for a thorough review of the issues. Securities and Exchange Commission (SEC) Deputy Chief Accountant Jackson Day stressed the need for speed. But Stephen Brookshire, managing principal of Atlantic Financial Group, likened the standard-setting initiative to "taking a bazooka to bird-hunting." Other concerns focused on the proposed effective date of March 15, 2003, which coincides with SEC filing deadlines for calendar-year companies, along with the potential need to consolidate an SPE, then later deconsolidate it due to a change in investors. ("SEC: Imperative to finalize new SPE accounting rules by year-end," Wall Street Journal, September 30, 2002.)
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SPV = Special Purpose Vehicle that will be viewed as a synonym for SPE in this document.
VIE = Variable Interest Entity. VIE is now the term now used by the FASB in place of the older term SPE. Since the crash of Enron, SPE has had a negative connotation. The FASB now prefers the term VIE to depict a special entity in which the developing sponsor may have a varying interest in the financial risk.
QSPE = Qualified Special Purpose Entity under the FAS 140 Standard. QSPEs enjoy special privileges under FAS 140, but must meet a number of qualification criteria. One of these is that QSPEs may not exercise an impermissible degree of discretion in managing the assets which they hold, which are the principal source of cash flows supporting payments on the related securities. Aside from OBSF motivations, there are real economic incentives that may arise due to the following possibilities that make SPEs and SPVs "special":: - The financial risk of the sponsor of may be limited to its investment or explicit recourse obligation in the SPE or SPV. In many instances, creditors of a bankrupt SPE or SPV cannot seek additional assets from the sponsor beyond what was invested or contracted for by that sponsor. In other words, the sponsor may not become the deep pockets for damages exceeding the assets of the SPE or SPV. The verb "may be" is not as strong as "cannot be." The reason is that the contracts between the sponsor and the SPE or SPV may be quite complex and obtain conditional clauses that obligate the sponsor to provide additional assets or its own stock when certain "trigger events" take place that require early liquidation or other actions to protect creditors of the SPE or SPV.
The net assets of the SPE or SPV may be protected from creditors of its sponsors such that the SPE or SPV is not the deep pockets in the event that any sponsor goes bankrupt. This protection sometimes allows the SPE or SPV to obtain financing at a lower cost than the sponsor can obtain financing. "Jurors Were Divided Over Morgans Lawsuit," BLOOMBERG NEWS, January 4, 2003
Jurors who were about to weigh J. P. Morgan Chase's $965 million claim against 11 insurers over Enron oil and gas trades said yesterday that they had been split before the opponents in the lawsuit reached a settlement. The insurers agreed on Thursday to a settlement that allowed them to pay $503 million to $579 million on six surety bonds, ending a monthlong trial in federal court in Manhattan just as jury deliberations were to begin. Four of the six jurors said in a group interview that they had been divided on whether the insurers should pay and had expected to spend days deciding the outcome. The trial showed that the insurers and J. P. Morgan Chase, whose shares rose 6 percent after the settlement, failed to do enough research about the risks of the oil and gas transactions, the jurors said. The dispute was part of the fallout from the accounting scandal that led to Enron's collapse and bankruptcy more than a year ago.
"These are big boys and they both should have settled it instead of wasting everybody's time," Gary Tannenbaum, a juror who works in real estate management, said of the J. P. Morgan Chase suit. "It's sort of embarrassing to me that big business is conducting business the way that they did." Under the settlement, the insurers could pay the bank as much as $579 million in cash, or they could pay $503 million and assign their Enron bankruptcy claims to the bank. Ten of 11 insurers opted for the lower payments. A spokesman for the Fireman's Fund Insurance Company, a unit of Allianz, could not immediately provide details of the company's plans.
The bank's shares rose 50 cents, to $25.94. J. P. Morgan Chase sued to force the insurers to pay the bonds. The insurers claimed they were tricked into backing disguised loans between the bank and Enron that looked like commodity trades. The trades involved Mahonia Ltd., a bank-sponsored "special purpose vehicle" in the Channel Island
Credit Enhancements = contractual terms in the SPE contract that provide a sponsor's guaranteed minimum net asset value of the SPE. Because of credit enhancements needed to either obtain SPE loans or reduce the cost of these loans, the sponsor's assets are not generally totally shielded from SPE default litigation. The terms of the enhancements themselves determine what the ultimate sponsor's risk is in a worst-case scenario.
Synthetic Lease = a financing structured to be treated as a lease for accounting purposes and a loan for tax purposes. The structure is used by corporations that are seeking OBSF reporting of their asset based financing, and that can efficiently use the tax benefits of owning the financed asset.
Structured Financing/Transaction = the isolation of assets and obligations in a "structure" apart from the main operations of sponsors. The structure is typically called a SPE or SPV. It's cost of capital may differ from that of the sponsors, and the sponsors' control over the structure is generally much more limited than in the case of unstructured financings. Often the management of the SPE or SPV is contracted to a trustee who must be independent of the sponsors. The trustee's discretion, in turn, is limited to certain types of transactions such a mortgage investing, project construction, project leasing, etc. The following types of structures are most common in practice: - Cash Flow Structure (Sponsors Receive Cash for Asset Sales to the SPE)
- Each sponsor factors (sells) ownership of actual assets (e.g., receivables "factoring") to the structure. Assets are deleted from the sponsor's balance sheet. Multiple sponsors may use the same SPE such as when banks sell mortgage investments to a "mortgage pool" SPE. Initially, SPE cash used to purchase the assets generally comes from the 3% (now 10%) invested by the SPE's independent, up-front investor who is totally independent of the SPE sponsors/originators. Cash used to purchase more assets later on from a sponsor may come from cash flows (e.g., interest income) generated from the SPE's assets, sales of its assets, or borrowing by the SPE. Contractual limits may be placed upon SPE asset sales, borrowing, and securitization. A drawback of cash flow structures is that gains reported on asset sales are taxable.
- The sponsors record the transfer of the assets as a sales under FAS 140 or other GAAP rules. Gains and losses are based upon estimated fair value at the time of the transfer. This is an area of great concern to auditors since some sponsors like Enron corporation estimate fair values well above realistic fair values and, thereby, beef up their own earnings per share with questionable levels of recorded sales to SPEs. This is one of the alleged abuses of SPEs by Enron and other energy traders who revised previous financial reports following the media publicity of questionable fair value estimates.
- The transferred assets are protected from lawsuits against the sponsor, although the sponsors may have to add more "assets" based upon contractual trigger events. Trigger events such as the severe declines in the net value of an SPE may require that sponsors add more assets and/or their own equity shares to the SPE.
- The transferred assets may serve as security (securitization) for borrowing by the SPE, and the cash flows from the assets and borrowings may be used to purchase additional assets from the sponsors.
- Some SPEs may purchase equity shares of the sponsor for cash, or equity shares may be directly transferred to cover trigger event declines in an SPE's net asset value. Transferred sponsors' equity shares become "assets" of the SPE that in turn have their own contractual triggers. As long as equity shares can be sold for immediate cash in the stock market at prices exceeding callable SPE debt, no crisis arises from holding equity shares of sponsors.
For example, it is alleged that the collapse of Enron would not have arisen in late 2001 had Enron share prices not fallen below $80 per share. Plunging share prices hit SPE trigger points below $80 per share that allowed the SPEs' creditors to demand early collections on an SPEs' debt. The Enron shares held by some SPEs could not be sold for sufficient cash to cover the early terminations.
Enron was strapped for cash and could not cover the triggered obligations with its own corporate cash. Enron SPEs became a house of stacked cards based upon Enron share prices. Enron SPEs did not have sufficient assets aside from Enron shares to cover the called-in debt. This problem was exacerbated by Enron's inflated sales values for transferred receivables and by collection (bad debt) difficulties in many of the transferred receivables.
Since the only thing available to cover the decline in SPE asset values was Enron share values, this created what the infamous Enron whistle blower (Ms Watkins) called not having real "skin" to keep the SPEs from failing when creditors called in the debt under contracted trigger events.
- This is an example of a case where there is economic benefit (because of achieving fixed rate debt at a lower rate than would otherwise be available without the SPE) and the cosmetic benefit (of not having the long-term, fixed rate debt ever be booked as a liability on the sponsor's balance sheet.)
- Derivatives Financial Instrument Structure in Lieu of an Asset Transfer
- As an example, suppose that a sponsor enters into forward sales contracts for product from a plant such as Enron's forward energy sales contracts in India for an enormous new power plant built by Enron. Suppose the plant is originally financed with floating rate, short-term debt until the plant begins to generate electricity.
- Once the plant is operational, the sponsor's forward contracts (one type of derivative instrument) can be transferred to an SPE that in turn uses these forward contracts as collateral to borrow an enormous amount of cash on fixed rate notes at having a lower rates than the sponsor could otherwise obtain on its own (because the sponsor's other debt raises the cost of capital, whereas the SPE is shielded from the sponsor's other creditors). After using the sale proceeds to pay off construction loan, the sponsor (e.g., Enron) no longer has floating rate interest risk and retains title to the plant, although the plant itself may have to serve as additional collateral to obtain the fixed rate debt. For example, Enron's forward sales contracts in India were reneged upon (not necessarily without good reason given the questionable way they were obtained), and Enron itself declared bankruptcy leaving the recovery of the construction loans by banks in doubt until the courts in the U.S. and India decide how to reimburse creditors for the construction loans.
- If the Enron's venture had proceeded according to plan, SPE's sponsor (Enron) would receive cash from the sale of the forward contracts, and then pay off its short-term, floating rate construction debt with this cash. The sponsor, thereby, has achieved OBSF financing of its enormous power plant through the use of forward sales contract derivative financial instruments. When the SPE's long-term, fixed-rate debt is paid off, the SPE goes out of business and energy sales revenue not needed to service debt or pay off the outside SPE investor reverts back to the sponsor. The entire venture, thereby, if financed off balance sheet once the power plant commences producing electricity.
- When the forward sales contracts mature over time, those energy sales at forward prices are used to service the SPE fixed rate debt. In Enron's case, India ultimately objected to the high forward prices negotiated by an official who received many valuable personal perks from Enron.
- Various other types of derivative instruments such as swaps might be used to obtain similar objectives.
- This is an example of a case where there is economic benefit (because of achieving fixed rate debt at a lower rate than would otherwise be available without the SPE) and the cosmetic benefit (of not having the long-term, fixed rate debt ever be booked as a liability on the sponsor's balance sheet. Risk and returns are probably not a whole lot different than if the power plant had been sold to the SPE (as illustrated above for a cash flow structure instead of a derivative financial instruments structure).
- A diamond structure arises when three or more sponsors form an SPE where no one sponsor has control over the SPE. This type of SPE is common when the sponsors can provide securitization with long-term throughput or take--or-pay contracts. Diamond structures may be separate corporations that not even meet the definition of a SPE and yet function exactly like an SPE.
- For example, suppose three major oil companies (sponsors) want to build a pipeline. A pipeline corporation is formed with each sponsor owning a third of the voting shares. The sponsors invest little if any cash in the pipeline company. However, the pipeline company can borrow millions or even billions based upon long-term throughput contracts signed by the partners to purchase millions of gallons of fuel carried each year in the completed pipeline.
- The throughput contracts are essentially forward contracts to purchase throughput, revenues from which go to service the pipeline's debt and to operate the pipeline. Similar contracts can arise with take-or-pay contracts such as long-term purchasing contracts from a new oil refinery.
- Defeasance (In Substance Defeasance)
- Defeasance OBSF was invented over 20 years ago in order to report a $132 million gain on $515 million in bond debt. An SPE was formed in a bank's trust department (although the term SPE was not used in those days). The bond debt was transferred to the SPE and the trustee purchased risk-free government bonds that, at the future maturity date of the bonds, would exactly pay off the balance due on the bonds as well as pay the periodic interest payments over the life of the bonds.
- At the time of the bond transfer, Exxon captured the $132 million gain that arose because the bond interest rate on the debt was lower than current market interest rates. The economic wisdom of defeasance is open to question, but its cosmetic impact on balance sheets became popular in some companies until defeasance rules were changed first by FAS 76 and later by FAS 125.
- Exxon removed the $515 million in debt from its consolidated balance sheet even though it was technically still the primary obligor of the debt placed in the hands of the SPE trustee. Although there should be no further risk when the in substance defeasance is accomplished with risk-free government bond investments, FAS 125 in 1996 ended this approach to debt extinguishment. FASB Statement No. 125 requires derecognition of a liability if and only if either (a) the debtor pays the creditor and is relieved of its obligation for the liability or (b) the debtor is legally released from being the primary obligor under the liability. Thus, a liability is not considered extinguished by an in-substance defeasance.
In-Substance Defeasance Controversy Arises Once Again From The Wall Street Journal Accounting Educators' Reviews on January 16, 2004
TITLE: Investors Missed Red Flags, Debt at Parmalat
REPORTER: Henny Sender, David Reilly, and Michael Schroeder
DATE: Jan 08, 2004
PAGE: C1
LINK: http://online.wsj.com/article/0,,SB107348886029654700,00.html
TOPICS: Auditing, Debt, Financial Accounting, Financial Analysis, Fraudulent Financial Reporting
SUMMARY: The article describes several points apparent from Parmalat's financial statements that, in hindsight, give reason to have questioned the company's actions. Discussion questions relate to appropriate audit steps that should have been taken in relation to these items. As well, financial reporting for in-substance defeasance of debt is apparently referred to in the article and is discussed in two questions.
QUESTIONS:
1.) Describe the signals that investors are purported to have missed according to the article's three authors.
2.) Suppose you were the principal auditor on the Parmalat account for Deloitte & Touche. Would you have noted some of the factors you listed as answers to question #1 above? If so, how would you have made that assessment?
3.) Why do the authors argue that it should have been seen as strange that the company kept issuing new debt given the cash balances that were shown on the financial statements?
4.) Define the term "in-substance defeasance" of debt. Compare that definition to the debt purportedly repurchased by Parmalat and described in this article. How did reducing the total amount of debt shown on its balance sheet help Parmalat's management in committing this alleged fraud?
5.) Is it acceptable to remove defeased debt from a balance sheet under USGAAP? If not, then how could the authors write that, "at the time, accountants and S&P said that [the accounting for Parmalat's debt] was strange, but that technically there was nothing wrong with it"? (Hint: in your answer, consider what basis of accounting Parmalat is using.)
Reviewed By: Judy Beckman, University of Rhode Island
Reviewed By: Benson Wier, Virginia Commonwealth University
Reviewed By: Kimberly Dunn, Florida Atlantic University
--- RELATED ARTICLES ---
TITLE: A Peek at the Frenzied Final Days of Parmalat
REPORTER: Alessandra Galloni
ISSUE: Jan 02, 2004
LINK: http://online.wsj.com/article/0,,SB10730013852501700,00.html
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- Synthetic Lease Structure (Sponsors Sell the Asset to the SPE and Then Lease It Back)
- A common approach is for the sponsor to sell the asset to the SPE and then lease it back from the SPE via what is known as synthetic leasing. A synthetic lease is structured under FAS 140 rules such that a sale/leaseback transaction takes place where the fair value of the assets "sold" can be reported by the sponsor as "revenue" for financial reporting. In a synthetic lease, this "revenue" does not have to be reported up-front for tax purposes even though it is reported up-front for financial reporting purposes.
- Proceeds from the sale to an SPE in this instance are generally long-term receivables rather than cash (which is the primary reason the sale revenues are not taxed up-front).
- The synthetic leaseback terms are generally such that the sponsor does not have to book the leased asset or the lease liability under FAS 13 as a capital lease (i.e., some clause in the lease contract allows the asset to be kept off balance sheet as an operating lease). Hence the financing of the lease asset remains off balance sheet. This is one ploy used by airlines and oil companies to keep assets and "debt" off the balance sheet as well as deferring taxes.
- If the SPE actually manages the transferred assets (e.g., a pipeline or a refinery), then throughput or take-or-pay contracts may take the place of leasing.
SEC Staff Report on Off-Balance Sheet Arrangements, Special Purpose Entities, and Related Issues
From IASPlus, February 16, 2006 --- http://www.iasplus.com/index.htm
The US Financial Accounting Standards Board has submitted its response to the SEC Staff Report on Off-Balance Sheet Arrangements, Special Purpose Entities, and Related Issues released by the US Securities and Exchange Commission in June 2005. The SEC report was prepared pursuant to the Sarbanes-Oxley Act of 2002 and was submitted to the President and several Congressional committees. The SEC staff report includes an analysis of the filings of issuers as well as an analysis of pertinent US generally accepted accounting principles and Commission disclosure rules. The report contains several recommendations for potentially sweeping changes in current accounting and reporting requirements for pensions, leases, financial instruments, and consolidation:
- Pensions: The staff recommends the accounting guidance for defined-benefit pension plans and other post-retirement benefit plans be reconsidered. The trusts that administer these plans are currently exempt from consolidation by the issuers that sponsor them, effectively resulting in the netting of assets and liabilities in the balance sheet. In addition, issuers have the option to delay recognition of certain gains and losses related to the retirement obligations and the assets used to fund these obligations.
- Leases: The staff recommends that the accounting guidance for leases be reconsidered. The current accounting for leases takes an 'all or nothing' approach to recognizing leases on the balance sheet. This results in a clustering of lease arrangements such that their terms approach, but do not cross, the 'bright lines' in the accounting guidance that would require a liability to be recognized. As a consequence, arrangements with similar economic outcomes are accounted for very differently.
- Financial instruments: The staff recommends the continued exploration of the feasibility of reporting all financial instruments at fair value.
- Consolidation: The staff recommends that the Financial Accounting Standards Board continue its work on the accounting guidance that determines whether an issuer would consolidate other entities – including SPEs – in which the issuer has an ownership or other interest.
- Disclosures: The staff believes that, in general, certain disclosures in the filings of issuers could be better organized and integrated.
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FASB's response discusses a number of "fundamental structural, institutional, cultural, and behavioral forces" that it believes cause complexity and impede transparent financial reporting. FASB provides an update on its activities and projects intended to address and improve outdated, overly complex accounting standards. These areas include accounting for leases; accounting for pensions and other post employment benefits; consolidation policies; accounting for financial instruments; accounting for intangible assets; and conceptual and disclosure frameworks. The FASB also identifies several other initiatives aimed at improving the understandability, consistency, and overall usability of existing accounting literature, through codification, by attempting to stem the proliferation of new pronouncements emanating from multiple sources, and by developing new standards in a 'principles-based' or 'objectives-oriented' approach. Click to download: Bob Jensen's threads on off-balance sheet financing are at
http://www.trinity.edu/rjensen//theory/00overview/theory01.htm
FIN 46 Update on the Infamous Special Purpose Entities (remember Andy Fastow's 3,000+ offshore SPEs for Enron)
FIN 46 made companies admit paternity of SPEs (now called Variable Interest Entities by the FASB). But it also resulted in some surprise adoptions of SPEs/VIEs.
FASB Statement 167: Consolidation of Variable Interest Entities
FASB significantly revamped its consolidation standards for variable interest entities when it released Statement No. 167 in June 2009. Those standards rework existing rules under FIN 46R for when a company must include a VIE on its books with a potentially huge impact on corporate balance sheets. The criteria for determining an entity's VIE status have shifted, based now more on a company's "obligations" and "power" over an entity than on ownership percentage or absorption of losses. Complicating matters further are new disclosure requirements to explain consolidation decisions. New standards cover fiscal years after Nov. 15, 2009, so they affect financials published as soon as March or April 2010. Advisors must prepare now for the standards, which require reevaluation of existing entity relationships, regardless of whether VIEs were previously consolidated. How Will This Statement Change Current Practice?
This Statement amends Interpretation 46(R) to require an enterprise to perform an analysis to determine whether the enterprise’s variable interest or interests give it a controlling financial interest in a variable interest entity. This analysis identifies the primary beneficiary of a variable interest entity as the enterprise that has both of the following characteristics: a. The power to direct the activities of a variable interest entity that most significantly impact the entity’s economic performance b. The obligation to absorb losses of the entity that could potentially be significant to the variable interest entity or the right to receive benefits from the entity that could potentially be significant to the variable interest entity. Additionally, an enterprise is required to assess whether it has an implicit financial responsibility to ensure that a variable interest entity operates as designed when determining whether it has the power to direct the activities of the variable interest entity that most significantly impact the entity’s economic performance.
This Statement amends Interpretation 46(R) to require ongoing reassessments of whether an enterprise is the primary beneficiary of a variable interest entity. Before this Statement, Interpretation 46(R) required reconsideration of whether an enterprise is the primary beneficiary of a variable interest entity only when specific events occurred. This Statement amends Interpretation 46(R) to eliminate the quantitative approach previously required for determining the primary beneficiary of a variable interest entity, which was based on determining which enterprise absorbs the majority of the entity’s expected losses, receives a majority of the entity’s expected residual returns, or both. This Statement amends certain guidance in Interpretation 46(R) for determining whether an entity is a variable interest entity. It is possible that application of this revised guidance will change an enterprise’s assessment of which entities with which it is involved are variable interest entities. This Statement amends Interpretation 46(R) to add an additional reconsideration event for determining whether an entity is a variable interest entity when any changes in facts and circumstances occur such that the holders of the equity investment at risk, as a group, lose the power from voting rights or similar rights of those investments to direct the activities of the entity that most significantly impact the entity’s economic performance. Under Interpretation 46(R), a troubled debt restructuring as defined in paragraph 2 of FASB Statement No. 15, Accounting by Debtors and Creditors for Troubled Debt Restructurings, was not an event that required reconsideration of whether an entity is a variable interest entity and whether an enterprise is the primary beneficiary of a variable interest entity. This Statement eliminates that exception. This Statement amends Interpretation 46(R) to require enhanced disclosures that will provide users of financial statements with more transparent information about an enterprise’s involvement in a variable interest entity. The enhanced disclosures are required for any enterprise that holds a variable interest in a variable interest entity. This Statement nullifies FASB Staff Position FAS 140-4 and FIN 46(R)-8, Disclosures by Public Entities (Enterprises) about Transfers of Financial Assets and Interests in Variable Interest Entities. However, the content of the enhanced disclosures required by this Statement is generally consistent with that previously required by the FSP. How Will This Statement Improve Financial Reporting?]
This Statement amends Interpretation 46(R) to replace the quantitative-based risks and rewards calculation for determining which enterprise, if any, has a controlling financial interest in a variable interest entity with an approach focused on identifying which enterprise has the power to direct the activities of a variable interest entity that most significantly impact the entity’s economic performance and (1) the obligation to absorb losses of the entity or (2) the right to receive benefits from the entity. An approach that is expected to be primarily qualitative will be more effective for identifying which enterprise has a controlling financial interest in a variable interest entity. This Statement requires an additional reconsideration event when determining whether an entity is a variable interest entity when any changes in facts and circumstances occur such that the holders of the equity investment at risk, as a group, lose the power from voting rights or similar rights of those investments to direct the activities of the entity that most significantly impact the entity’s economic performance. It also requires ongoing assessments of whether an enterprise is the primary beneficiary of a variable interest entity. These requirements will provide more relevant and timely information to users of financial statements. This Statement amends Interpretation 46(R) to require additional disclosures about an enterprise’s involvement in variable interest entities, which will enhance the information provided to users of financial statements. What Is the Effect of This Statement on Convergence with International Financial Reporting Standards?
The International Accounting Standards Board (IASB) has a project on its agenda to reconsider its consolidation guidance. The IASB issued two related Exposure Drafts, Consolidation and Derecognition, in December 2008 and March 2009, respectively. The IASB project on consolidation is a broader reconsideration of all consolidation guidance (not just the guidance for variable interest entities). Although this Statement was not developed as part of a joint project with the IASB, the FASB and IASB continue to work together to issue guidance that yields similar consolidation and disclosure results for special-purpose entities. The ultimate goal of both Boards is to provide timely, transparent information about interests in specialp purpose entities. However, the timeline and anticipated effective date of the IASB project is different from the effective date of this Statement. This Statement addresses the potential impacts on the provisions and application of Interpretation 46(R) as a result of the elimination of the qualifying special-purpose entity concept in Statement 166. Ultimately, the two Boards will seek to issue a converged standard that addresses consolidation of all entities.
Lessons Not Learned from Enron
Bad SPE Accounting Rules are Still Dogging Us
From The Wall Street Journal Accounting Weekly Review on October 19, 2007
Call to Brave for $100 Billion Rescue
by David Reilly
The Wall Street Journal
Oct 16, 2007
Page: C1
Click here to view the full article on WSJ.com
TOPICS: Advanced Financial Accounting, Securitization SUMMARY: This article addresses a proposed bailout plan for $100 billion of commercial paper to maintain liquidity in credit markets that have faced turmoil since July 2007, and the fact that this bailout "...raises two crucial questions: Why didn't investors see the problems coming? And how could they have happened in the first place?" The author emphasizes that post-Enron accounting rules "...were supposed to prevent companies from burying risks in off-balance sheet vehicles." He argues that the new rules still allow for some off-balance sheet entities and that "...the new rules in some ways made it even harder for investors to figure out what was going on." CLASSROOM APPLICATION: The bailout plan is a response to risks and losses associated with special purpose entities (SPEs) that qualified for non-consolidation under Statement of Financial Accounting Standards 140, Accounting for Transfers and Servicing of financial Assets and Extinguishments of Liabilities, and Financial Interpretation (FIN) 46(R), Consolidation of Variable Interest Entities. QUESTIONS:
1.) Summarize the plan to guarantee liquidity in commercial paper markets as described in the related article. In your answer, define the term structured investment vehicles (SIVs).
2.) The author writes that SIVs "...don't get recorded on banks books...." What does this mean? Present your answer in terms of treatment of qualifying special purpose entities (SPEs) under Statement of Financial Accounting Standards 140, Accounting for Transfers and Servicing Financial Assets and Extinguishments of Liabilities.
3.) The author argues that current accounting standards make it difficult for investors to figure out what was going on in markets that now need bailing out. Explain this argument. In your answer, comment on the quotations from Citigroup's financial statements as provided in the article.
4.) How might reliance on "principles-based" versus "rules-based" accounting standards contribute to solving the reporting dilemmas described in this article?
5.) How might the use of more "principles-based standards" potentially add more "fuel to the fire" of problems associated with these special purpose entities?
Reviewed By: Judy Beckman, University of Rhode Island
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Bob Jensen's threads on accounting theory are at http://www.trinity.edu/rjensen/theory01.htm
Early in his tenure as chairman of the Financial Accounting Standards Board, while the Enron scandal was raging, Robert Herz was confronted on Capitol Hill by a senator from the South. As Herz tells it, imitating the lawmaker's distinctive drawl, the senator demanded to know when FASB was going to "outlaw the use of these dummy co-poh-ray-shuns."
Clearly, the senator had no use for Wall Street's preferred term, special purpose entities (SPEs). And he had a point: Corporate America was indeed lousy with paper companies that no one seemed to own. Enron, it had just been discovered, had used SPEs to avoid taxes and hide mountains of debt. But how could regulators distinguish those from the vehicles routinely used on Wall Street?
Herz's solution was FASB Interpretation No. 46 (FIN 46), an economic test designed to fill in when legal definitions of ownership fail. The crux of the test: who stands to gain or lose the most from an SPE whose ownership is otherwise unclear? (Such SPEs are now dubbed variable interest entities, or VIEs.) Whichever company proves to be the VIE's "primary beneficiary," said FASB, must consolidate the entity's financial data in its own statements.
Since it was first issued in January 2003, FIN 46 has dramatically reduced the number of orphaned entities. But recently it has also resulted in a few adoptions that FASB never saw coming — at least officially. As a result, some CFOs have found themselves saddled with unwelcome new responsibilities of corporate parenthood.
No More Make-Believe Before FIN 46, the orphan status of SPEs was a large part of what made them so useful. Generally speaking, SPEs are dummy corporations, created to own assets that a company doesn't want on its own books for any of a variety of reasons. For example, for securitization purposes, an SPE increases the value of the assets as collateral by sheltering them from the company's creditors. As long as their "sponsor" company didn't have voting control or too large an equity stake, SPEs were considered independent.
As it turned out, Enron broke even those rules. But in the post-Enron environment, even SPEs long considered legitimate smelled bad to investors. Whatever the stated reason for doing so, keeping assets and liabilities off the balance sheet was hardly transparent.
Today, FIN 46 seems to be having the desired effect. Although no comprehensive impact study has been done, a sample of 300 quarterly reports reviewed by CFO shows that companies are now claiming ownership of many assets and liabilities that common sense has long said belong to them. And apart from the banking industry, which went through a torturous restructuring rather than put billions in securitized assets on bank balance sheets, most companies have quietly accepted the change.
Still, it's no easy task to define when one company controls another, as evidenced by the uproar in fast-food chains when the new standard was issued. "When FIN 46 first came out, people started thinking that franchisers might have to consolidate many of their franchisees," says David Thrope, a partner at Ernst & Young. But FASB's December 2003 revision of the rule, FIN 46R, put the franchisers at ease by stating that it did not apply to "businesses" that met certain standards as defined by FASB. (Still, a substantial debt or equity stake in another business can result in consolidation, as seen in the recent consolidations of franchisees by 7-Eleven and others.)
Power Struggles Nonetheless, FIN 46 has resulted in some cases in which companies are understandably surprised to find themselves "owning" another business. Take Sempra Energy, the parent of California utility San Diego Gas and Electric. For the most part, the effects of the standard on Sempra were routine — the company put a $630 million synthetic lease back on its balance sheet and took a $26 million hit to income when it consolidated a money-losing company in the United Kingdom.
Continued in the article
Implicit Variable Interests
" Statement by SEC Staff: Remarks before the 2005 AICPA National Conference on Current SEC and PCAOB Developments," by Mark Northan U.S. Securities and Exchange Commission Washington, DC December 5, 2005 --- http://www.sec.gov/news/speech/spch120505mn.htm Implicit Variable Interests Changing topics now, another area that I would like to highlight is the identification of implicit variable interests when applying FIN 46(R).
At this conference last year, Jane Poulin briefly mentioned the need to consider "activities around the entity when applying FIN 46(R) and that certain types of activities could impact both the determination of whether an entity is a variable interest entity as well as identification of the primary beneficiary.7
The FASB staff addressed some of these issues earlier this year when they issued a staff position on implicit variable interests.8 This FSP provides guidance for determining when activities around the entity would cause a reporting enterprise to have a variable interest. The FSP describes an implicit variable interest as an interest that absorbs or receives the variability of an entity indirectly rather than through contractual interests in the entity.9 The guidance does not however provide a "bright-line for determining when an implicit variable interest exists. Instead, the FSP indicates that such determinations are a matter of judgment and will depend on the relevant facts and circumstances.10
At the end of the FSP, the FASB staff provides one comprehensive example of the how the FSP should be applied. In that example a company leases an asset from an entity that is entirely owned by a related party. Under the FSP, the lessee company would hold an implicit interest in the lessor company if it effectively guaranteed the related party's investment.
The guidance on implicit variable interests is important for a number of reasons. In particular, it helps meet the objective in FIN 46(R) that variable interest entities should be consolidated by a company that has a majority of the risks and rewards.11 It also prevents registrants from circumventing the provisions of FIN 46(R) by absorbing variability indirectly such as through an arrangement with another interest holder rather than directly from the entity.
With these thoughts in mind, I would like to highlight a few things about implicit variable interests. First, while much of the discussion in the FSP focuses on the example of a noncontractual interest in a leasing transaction between related parties, it is important to note that implicit interests can also result from contractual arrangements with unrelated variable interest holders. For instance, we recently evaluated a registrant's conclusion that it was not the primary beneficiary of a variable interest entity because it did not have any interest in the entity whatsoever. However, following several inquiries from the staff it became clear that the registrant had entered into contractual agreements with several of the variable interest holders that effectively protected those holders from absorbing a significant amount of the entity's variability. In this circumstance, we concluded that the contractual agreements with the variable interest holders were implicit interests in the variable interest entity. The registrant was, in fact, absorbing a majority of the expected losses through those implicit interests and was therefore the primary beneficiary despite having no direct contractual interest in the variable interest entity.
Consistent with the FASB staff's guidance, we believe that identification of implicit variable interests is a matter of judgment that depends on individual facts and circumstances. Again, there are no "bright-line tests that can be applied to easily identify these arrangements. However, with this in mind, registrants should consider the following questions in evaluating whether or not a contractual arrangement with a variable interest holder is an interest in the entity:
Was the arrangement entered into in contemplation of the entity's formation?
Was the arrangement entered into contemporaneously with the issuance of a variable interest?
Why was the arrangement entered into with a variable interest holder instead of with the entity?
And lastly, did the arrangement reference specified assets of the variable interest entity?
While answers to these questions might not provide definitive conclusions for every circumstance, we believe that they will provide a good starting point for evaluating whether an implicit variable interest exists.
"Part 1: Anatomy Of a 'VIE'," May 5, 2003 --- http://www.fas133.com/search/search_article.cfm?page=21&areaid=1291
Part 1 of a series of articles explains the new VIE model in FIN 46.
FIN 46, the new consolidation guidance, is as broad as it is complex (see TRAS, 4/21/03). One of its biggest challenges is that it introduced a new “variable-interest entity” (VIE) consolidation model, a departure even from earlier versions of the standard.
Audit partners say the standard is hard to apply and difficult to understand (specifically paragraph 5).
FASB Senior Project Manager Ron Lott replies that the Board continues to work with the accounting profession for clarification. Indeed, the Staff has just posted seven proposed Staff positions on FIN 46 (see, FASB site), with comments due back May 26.
Going through the FIN 46 litmus tests
The VIE model is set up to help companies filter in/out which entities come under FIN 46’s scope. SPEs are only a subsection, according to Mike Joseph, a partner with Ernst & Young.
Other possible “scoped-in” entities include: investment partnerships, joint ventures, CP conduits, leasing arrangements, venture capital funds, insurance and reinsurance entities, R&D ventures and product financing arrangements.
Almost anything can be a “variable interest,” including management fees, derivatives and debt investments.
To decide whether or not a company is a variable-interest entity, an investor needs to follow the following set of litmus tests:
Step 1: Is it a voting rights entity? (If yes, existing GAAP applies; if no, FIN 46 applies). Entities that are not VIEs are voting-rights entities. So if an entity is a “legitimate” voting-rights entity, it’s not a VIE, and hence outside the scope of FIN 46.
Step 2: Is the equity right for “real?” (If yes, apply current accounting. If no, FIN 46 kicks in). Anything that US GAAP “catalogues” as equity—regardless of voting rights—counts as equity under FIN 46. (Note that this will change with Phase 1 of equity/liabilities.) Just because the “interest” is equity-like, however, does not scope the holder out of FIN 46. To qualify as “legit” the equity investment at risk:
• Has to be sufficient (so that the business can fund itself without additional subordinated debt); and
• Has to bestow substantial decisionmaking powers on its holder.
There are three ways to prove that there’s sufficient equity at risk:
(1) Show that the entity has outstanding only senior debt;
(2) Compare its capital structure to like entities; or
(3) Run a probabilistic calculation of expected loss/gain and demonstrate that the equity is sufficient to absorb possible losses. (Of the three above, experts say that the third is likely to be most commonly used.)
Interestingly, there’s no longer a bright line (a 3-percent rule) to demonstrate sufficiency. While a 10-percent rule had been rumored, and is even mentioned in the rule, regardless of the percentage companies still must pass one of the three tests above. “Hence that 10-percent line ends up being rather superfluous,” says Mr. Joseph.
To qualify as a “decisionmaker,” the equity holder must be able to affect substantive decisions, for example buy or sell assets or affect the revenue and losses of the business. Being able to vote on trivial matters won’t cut it.
Next, who’s the primary beneficiary?
Having flunked the test above (the equity is not in a voting-rights entity), the investor concludes by default that it’s holding a variable interest.
The actual investment vehicle can vary. “In essence anything that represents a cash call or an obligation to absorb risk in an entity, be it a loan, derivative contract, management agreement, equity, debt, etc., can be a variable interest,” Mr. Joseph notes. What matters for consolidation purposes, however, is whether the variable-interest holder is the primary beneficiary (or PB). If, after going through the test below, the investor concludes that it’s not the PB, then it will account for the interest under current GAAP rules, depending on the “type” of instrument that it’s holding.
The definition of PB is a unique FIN 46 concept. Basically, it means the party that has to consolidate the entity. To figure out who’s the PB, investors have to determine:
• Who has over 50 percent of the potential loss; or
• Who has over 50 percent of the potential residual value; or
• Who has both.
Not every VIE will have a PB. Potential gains may be allocated to multiple investors, keeping each under the 50 percent mark (which for practical purposes defines majority).
Ironically, if a loss is shared among several investors, but a single investor stands to gain more than 50 percent, that investor is the PB. (For the purpose of calculating the gain/loss, holders must also include any fixed and variable management fees.)
What’s potentially confusing is that FIN 46 does not apply traditional “financial” concepts of gain and loss to make that determination. Rather, loss/gain are measured as probable outcomes above or below the probable expected return on the investment.
So, to figure out who stands to gain/lose and by how much, investors would start out with an assumption about the most likely return, and then calculate probable outcomes above or below that line. The one that has over 50 percent “wins.”
One more thing to keep in mind: Just because one investor in a VIE has concluded it’s the PB does not automatically exempt others from consolidation. The analysis has to happen for every single investor—separately.
"Part 1: Anatomy Of a 'VIE'," May 5, 2003 --- http://www.fas133.com/search/search_article.cfm?page=11&areaid=1305
Where accountants see uncertainty, lawyers may spot room for discretion/flexibility. Such is the case with the FASB’s recently published consolidation guidelines, Financial Interpretation No. 46, or FIN 46.
Accounting pros say that the new guidelines are complex and further reaching than many treasurers had anticipated (see TRAS, 5/5/03). While this is true, there may be a silver lining: The conceptual rather than “bright-line” approach may allow companies some room for discretion.
Understanding the model
At the heart of FIN 46 is a model that helps companies determine which entities come under its scope (variable-interest entities, or VIEs), and under what set of circumstances an investor has to consolidate a previously off-balance-sheet item.
Under FIN 46, investors holding a stake in a VIE need to determine (each independently) whether or not they are the primary beneficiary (i.e., stand to absorb more than 50 percent of the loss or gain, or both). The primary beneficiary has to consolidate the entity.
An interesting issue raised by recent analysis published by NY law firm, Clifford Chance, concerns the legal status of FIN 46, as an “interpretation” rather than a financial standard.
As such, the law firm notes, “it’s drafted more as a conceptual statement than a rule.” This means there may well be substantial uncertainty pre-implementation. But, by the same token, “as an interpretation, it probably will be applied more flexibly than a rule would be.”
One area of possible flexibility (read: discretion) is the calculation of expected losses and returns in order to determine the primary beneficiary.
This loss/gain concept is based on present-valued cash flows under various possible scenarios; it also requires that investors begin by deciding on the “most likely” outcome, using some probabilistic analysis. All this, obviously, is beyond the typical accounting analysis. “Thus, we can expect much discussion and negotiation over expected losses and expected residual returns.”
"IASB Follows FASB on SPEs But Not Options," July 29, 2002 --- http://www.fas133.com/search/search_article.cfm?page=31&areaid=1091
International accounting standards, currently vague on the issue of SPE accounting (see story), won’t be so for much longer. At its mid-July meeting, the IASB discussed consolidation accounting and how it applies to Special Purpose Entities, in light of the FASB’s new draft interpretation (see TRAS, 7/15/02).
The IASB wants to see a comprehensive standard that would cover consolidation of both SPEs and non-SPEs.
And, in general, it agrees with the direction of the FASB’s path, in defining variable interests and primary beneficiaries as guides to consolidation, when the existence of control is not obvious using traditional methods.
The IASB plans to meet with the FASB and other rule makers in late July to discuss consolidation issues and plans to issue a a project plan at a subsequent Board meeting.
Moving forward on options
Meanwhile, as the US Congress struggles with whether or not corporate reform bills should include a change in how companies account for employee stock options (unlikely, since the subject, a perennial hot potato, is way too hot in today’s market environment), the IASB has instructed its staff to draft a standard that basically takes up the expensing approach.
The IASB has concluded that companies should not have the option, as they do under US GAAP, to avoid immediate expensing. The expected effective date for the new rule is fiscal years beginning after January, 2004.
If Congress fails to act, the emergence of a new IASB rule may give the FASB the impetus it needs to affect change in US rules as well (see story).
Some US MNCs (e.g., Coke) recently announced they will voluntarily begin to expense employee stock options in their income statements. “None have the same share price volatility that we do, however,” notes the treasurer of a high-tech company. Valuation issues, meanwhile, are still murky.
Some investment banks, however, are reportedly working on creative equity hedging structures that would help mitigate the impact expensing might have on a company’s P&L.
Under censure from the SEC for compromising its independence AIG accounting fraud, Ernst & Young agreed to pay up $1.5 million to clients of AIG in 2007.
From The Wall Street Journal Accounting Weekly Review on March 30, 2007TOPICS: Accounting, Advanced Financial Accounting, Auditing, Auditing Services, Auditor Independence, Financial Accounting, Sarbanes-Oxley Act, Securities and Exchange Commission
SUMMARY: Ernst & Young (E&Y) "was censured by the Securities and Exchange Commission (SEC) and will pay $1.5 million to settle charges that it compromised its independence through work it did in 2001 for clients American International Group Inc. and PNC Financial Services Group. "Regulators claimed AIG hired E&Y to develop and promote an accounting-driven financial product to help public companies shift troubled or volatile assets off their books using special-purpose entities created by AIG." PNC accounted incorrectly for its special purpose entities according to the SEC, who also said that "PNC's accounting errors weren't detected because E&Y auditors didn't scrutinize important corporate transactions, relying on advice given by other E&Y partners.
QUESTIONS:
1.) What are "special purpose entities" or "variable interest entities"? For what business purposes may they be developed?
2.) What new interpretation addresses issues in accounting for variable interest entities?
3.) What issues led to the development of the new accounting requirements in this area? What business failure is associated with improper accounting for and disclosures about variable interest entities?
4.) For what invalid business purposes do regulators claim that AIG used special purpose entities (now called variable interest entities)? Why would Ernst & Young be asked to develop these entities?
5.) What audit services issue arose because of the combination of consulting work and auditing work done by one public accounting firm (E&Y)? What laws are now in place to prohibit the relationships giving rise to this conflict of interest?
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"SPEs of Old vs. VIEs and Changes to FIN 46," December 18, 2003 --- http://www.fas133.com/search/search_article.cfm?page=1&areaid=1419
Recent moves by the FASB in response to negative comment on FIN 46 follow a familiar pattern.
Scope creep is often a problem when accounting guidance attempts to tackle complex problems like off-balance sheet entities or derivatives. Just like when FAS 133 was first introduced to put all derivatives on the balance sheet almost everything came to be viewed as a potential derivative (or something with a potential derivative embedded in it); so too has FIN 46’s effort to put off-balance sheet entities (SPEs) on someone’s balance sheet ended up casting a wide net. The FASB’s initial attempts to define SPEs as Variable Interest Entities (VIEs), subject to consolidation tests that would put such structures on the balance sheets of their primary beneficiaries, similarly and, arguably, purposefully cast a wide net with a tight mesh, so as to not let any sought after fish get away.
After considerable push back from firms who did think they had anything resembling SPEs (including many franchise operations), like with FAS 133's derivatives, the scope of entities subject to FIN 46 is being refined. In particular, those so-called VIEs that are established for a business purposes, e.g., JVs and franchises, and not as financial structures, distinguishing them from what the SEC’s Chief Accountant calls “the SPEs of old,” have been reconsidered and the non-SPEs will now be scoped out for the most part. Further, constinuents will have more time to make sense of the changes, but only for non-SPE VIEs (see deferral of effective date below).
SPEs or “SPEs of old” have now been "defined" by the FASB as those entities to which enterprises would have previously applied the relevant accounting literature for pre FIN 46 SPEs, which would include EITF Issue No.’s 90-15, 96-20, 97-1, and Topic No. D-14.
This is an important and instructive outcome, showing how the FASB allows comment (and other forms of constituent input) to come up with logical counterarguments to its tentative guidance, which tends to narrow and loosen the wide and tight nets it casts in response to calls to improve financial reporting. All the more reason that due process is important and comment by knowledgeable constituents is critical.
The scope change and other modifications to FIN 46 will be issued shortly in a new FIN 46-R. To help everyone involved make sense of these changes, and the FSP that continue to be issued, the effective date for FIN 46-R has been delayed, until the end of Q1/04 for most firms (see below). However, and it is an important one, the application of FIN 46 to “SPE’s of old” has not been delayed--much to the dismay of the Bond Market Association/American Securization Forum and others. The effectiveness of comment and the ability to change the FASB's collective mind does have its limits.
Major scope change
At the December 10 board meeting, the FASB came to the significant decision to scope out many of the business-oriented VIEs from FIN 46. Per the FASB’s release, the Board decided to:
Provide that an enterprise need not apply Interpretation 46 to an entity that is a business as to be defined in the final Interpretation, unless one of more of the following conditions exist, (Other generally accepted accounting principles would apply to such entities):
The reporting enterprise and its related parties* were involved in the formation of the entity. However, this condition would not apply if the entity is an operating joint venture under joint control of the reporting enterprise and one or more independent parties [franchises will be included as well in this exception, per the December 17 meeting]. Substantially all of the activities of the entity involve or are conducted on behalf of the reporting enterprise or its related parties. The reporting enterprise and its related parties provide more than half of the equity, subordinated debt or other forms of subordinated financial support to the entity. The activities of the entity primarily relate to securitizations, leasing arrangements, or other forms of asset-backed financing.
*The term related parties as used in this list of conditions refers to all parties identified in paragraph 16, except de facto agents under item 16 (d)(i).
Deferral of effective date
In conjunction with the scope out and other revisions to FIN 46 in FIN 46-R, the FASB agreed to Board Member Ed Trott’s proposal to establish three buckets of firms--public entities, public small business entities and non-public entities, with different deferrals.
As a result most firms will have roughly a quarter to digest, implement and have audited their application of the revised, FIN 46-R. Since for most SPE’s of old the changes in FIN 46-R are negligible, the FASB sees this as a realistic proposition. [Leslie Seidman and George Batavick, however, continue to hold dissenting views, suggesting that the FIN 46-R changes are far from trivial and believe the effective date for SPEs should be deferred as well. Ms. Seidman points to changes in guidance touching on derivatives, service contracts and equity investment treatment that may take a significant amount of time for constituents to digest. She is also concerned, for example, that divergence in market practice for expected return/loss calculations may cause different conclusions on VIE consolidation tests to be reached across firms.]
Non-small business public entities will still have to apply FIN 46, or early adopt FIN 46-R, for all SPEs created prior to February 1, 2003 at the end of the first interim or annual reporting period ending after December 15, 2003. Unless the entity decides to early adopt FIN 46-R, its provisions must be applied as of the end of the first interim or annual reporting period ending after March 15, 2004. For all other VIEs that still fall within the scope of FIN 46-R and were created prior to February 1, 2003, non-small business public entities must adopt FIN 46-R at the end of the first interim or annual reporting period ending after March 15, 2004 (they may also elect to early adopt the revised guidance at year end). The same holds true for all entities (SPEs of old or not) created after January 31, 2003 that were required to be accounted for under FIN 46: FIN 46 will continue to apply, unless they choose to early adopt FIN 46-R, until periods after March 15, 2004, when FIN 46-R applies to all entities.
Public small business entities will have until the end of the first interim or annual period after December 15, 2004, an additional year, to adopt FIN 46-R for SPEs created after January 31, 2003, though they are free to early adopt. Like larger firms, however, they must adopt pre-revision FIN 46 provisions for SPEs created prior to February 1, 2003, but they have until periods after December 15, 2004 to adjust for the FIN 46-R change.
Deloitte and Touche provides a nice summary of FIN 46. The new interpretation was prompted in large measure by the fraudulent use of offshore special purpose entities (now called variable interest entities).
The link for your friends and family is at http://www.deloitte.com/dtt/newsletter/0,2307,sid%253D2002%2526cid%253D35660,00.html
Revised FIN 46 Interpretation of Accounting Research Bulletin No. 51, Consolidated Financial Statements,
From the January 17, 2003 FEI Express Those FEI members whose companies have November 30 or December 31 fiscal year-ends need to take a close look at FASB Interpretation No. 46, Consolidation of Variable Interest Entities, as soon as possible for two reasons: (1) FIN 46 has disclosure requirements that become effective for financial statements issued after January 31, 2003; (2) FIN 46 applies to all types of unconsolidated entities (e.g., joint ventures, partnerships, cost basis investments, etc.). For those who have not followed this project closely, FIN 46 could affect your company's financial statements even if it has no involvement with so-called "special purpose entities" (SPEs). The following is a brief synopsis of the rule. The complete document is available now at the FASB's web site at: http://www.fasb.org/interp46.pdf.
Transactions that will come under FIN 46 scrutiny include the following: off-balance-sheet R&D ventures, synthetic leases, asset-backed commercial paper, collateralized debt obligation, and exploration ventures, others.
A summary of the new interpretation is as follows: This Interpretation of Accounting Research Bulletin No. 51, Consolidated Financial Statements, addresses consolidation by business enterprises of variable interest entities, * which have one or both of the following characteristics: 1. The equity investment at risk is not sufficient to permit the entity to finance its activities without additional subordinated financial support from other parties, which is provided through other interests that will absorb some or all of the expected losses of the entity. 2. The equity investors lack one or more of the following essential characteristics of a controlling financial interest: a. The direct or indirect ability to make decisions about the entity’s activities through voting rights or similar rights b. The obligation to absorb the expected losses of the entity if they occur, which makes it possible for the entity to finance its activities c. The right to receive the expected residual returns of the entity if they occur, which is the compensation for the risk of absorbing the expected losses.
The following are exceptions to the scope of this Interpretation: 1. Not-for-profit organizations are not subject to this Interpretation unless they are used by business enterprises in an attempt to circumvent the provisions of this Interpretation. 2. Employee benefit plans subject to specific accounting requirements in existing FASB Statements are not subject to this Interpretation. 3. Registered investment companies are not required to consolidate a variable interest entity unless the variable interest entity is a registered investment company. 4. Transferors to qualifying special-purpose entities and “grandfathered” qualifying special-purpose entities subject to the reporting requirements of FASB Statement No. 140, Accounting for Transfers and Servicing of Financial Assets and Extinguishments of Liabilities, do not consolidate those entities. 5. No other enterprise consolidates a qualifying special-purpose entity or a “grandfa-thered” qualifying special-purpose entity unless the enterprise has the unilateral ability to cause the entity to liquidate or to change the entity in such a way that it no longer meets the requirements to be a qualifying special-purpose entity or “grandfathered” qualifying special-purpose entity. 6. Separate accounts of life insurance enterprises as described in AICPA Auditing and Accounting Guide, Life and Health Insurance Entities, are not subject to this Interpretation.
Reason for Issuing This Interpretation Transactions involving variable interest entities have become increasingly common, and the relevant accounting literature is fragmented and incomplete. ARB 51 requires that an enterprise’s consolidated financial statements include subsidiaries in which the enterprise has a controlling financial interest. That requirement usually has been applied to subsidiaries in which an enterprise has a majority voting interest, but in many circumstances the enterprise’s consolidated financial statements do not include variable interest entities with which it has similar relationships. The voting interest approach is not effective in identifying controlling financial interests in entities that are not controllable through voting interests or in which the equity investors do not bear the residual economic risks. The objective of this Interpretation is not to restrict the use of variable interest entities but to improve financial reporting by enterprises involved with variable interest entities. The Board believes that if a business enterprise has a controlling financial interest in a variable interest entity, the assets, liabilities, and results of the activities of the variable interest entity should be included in consolidated financial statements with those of the business enterprise. Differences between This Interpretation and Current Practice Under current practice, two enterprises generally have been included in consolidated financial statements because one enterprise controls the other through voting interests. This Interpretation explains how to identify variable interest entities and how an enterprise assesses its interests in a variable interest entity to decide whether to consolidate that entity. This Interpretation requires existing unconsolidated variable interest entities to be consolidated by their primary beneficiaries if the entities do not effectively disperse risks among parties involved. Variable interest entities that effectively disperse risks will not be consolidated unless a single party holds an interest or combination of interests that effectively recombines risks that were previously dispersed. An enterprise that consolidates a variable interest entity is the primary beneficiary of the variable interest entity. The primary beneficiary of a variable interest entity is the party that absorbs a majority of the entity’s expected losses, receives a majority of its expected residual returns, or both, as a result of holding variable interests, which are the ownership, contractual, or other pecuniary interests in an entity. The ability to make decisions is not a variable interest, but it is an indication that the decision maker should carefully consider whether it holds sufficient variable interests to be the primary beneficiary. An enterprise with a variable interest in a variable interest entity must consider variable interests of related parties and de facto agents as its own in determining whether it is the primary beneficiary of the entity. Assets, liabilities, and noncontrolling interests of newly consolidated variable interest entities generally will be initially measured at their fair values except for assets and liabilities transferred to a variable interest entity by its primary beneficiary, which will continue to be measured as if they had not been transferred. If recognizing those assets, liabilities, and noncontrolling interests at their fair values results in a loss to the consolidated enterprise, that loss will be reported immediately as an extraordinary item. If recognizing those assets, liabilities, and noncontrolling interests at their fair values would result in a gain to the consolidated enterprise, that amount will be allocated to reduce the amounts assigned to assets in the same manner as if consolidation resulted from a business combination. However, assets, liabilities, and noncontrolling interests of newly consolidated variable interest entities that are under common control with the primary beneficiary are measured at the amounts at which they are carried in the consolidated financial statements of the enterprise that controls them (or would be carried if the controlling entity prepared financial statements) at the date the enterprise becomes the primary beneficiary. After initial measurement, the assets, liabilities, and noncontrolling interests of a consolidated variable interest entity will be accounted for as if the entity were consolidated based on voting interests. In some circumstances, earnings of the variable interest entity attributed to the primary beneficiary arise from sources other than investments in equity of the entity. An enterprise that holds significant variable interests in a variable interest entity but is not the primary beneficiary is required to disclose (1) the nature, purpose, size, and activities of the variable interest entity, (2) its exposure to loss as a result of the variable interest holder’s involvement with the entity, and (3) the nature of its involvement with the entity and date when the involvement began. The primary beneficiary of a variable interest entity is required to disclose (a) the nature, purpose, size, and activities of the variable interest entity, (b) the carrying amount and classification of consolidated assets that are collateral for the variable interest entity’s obligations, and (c) any lack of recourse by creditors (or beneficial interest holders) of a consolidated variable interest entity to the general credit of the primary beneficiary. How This Interpretation Will Improve Financial Reporting This Interpretation is intended to achieve more consistent application of consolidation policies to variable interest entities and, thus, to improve comparability between enterprises engaged in similar activities even if some of those activities are conducted through variable interest entities. Including the assets, liabilities, and results of activities of variable interest entities in the consolidated financial statements of their primary beneficiaries will provide more complete information about the resources, obligations, risks, and opportunities of the consolidated enterprise. Disclosures about variable interest entities in which an enterprise has a significant variable interest but does not consolidate will help financial statement users assess the enterprise’s risks. How the Conclusions in This Interpretation Relate to the Conceptual Framework FASB Concepts Statement No. 1, Objectives of Financial Reporting by Business Enterprises, states that financial reporting should provide information that is useful in making business and economic decisions. Including variable interest entities in consolidated financial statements with the primary beneficiary will help achieve that objective by providing information that helps in assessing the amounts, timing, and uncertainty of prospective net cash flows of the consolidated entity. Completeness is identified in FASB Concepts Statement No. 2, Qualitative Characteristics of Accounting Information, as an essential element of representational faithfulness and relevance. Thus, to faithfully represent the total assets that an enterprise controls and liabilities for which an enterprise is responsible, assets and liabilities of variable interest entities for which the enterprise is the primary beneficiary must be included in the enterprise’s consolidated financial statements. FASB Concepts Statement No. 6, Elements of Financial Statements, defines assets, in part, as probable future economic benefits obtained or controlled by a particular entity and defines liabilities, in part, as obligations of a particular entity to make probable future sacrifices of economic benefits. The relationship between a variable interest entity and its primary beneficiary results in control by the primary beneficiary of future benefits from the assets of the variable interest entity even though the primary beneficiary may not have the direct ability to make decisions about the uses of the assets. Because the liabilities of the variable interest entity will require sacrificing consolidated assets, those liabilities are obligations of the primary beneficiary even though the creditors of the variable interest entity may have no recourse to the general credit of the primary beneficiary.
At its September 17, 2003 Board Meeting, the Board will consider:
Whether to provide a limited-scope exception for a reporting entity's interest in a variable interest entity, or potential variable interest entity, when: - The variable interest entity or potential variable interest entity existed as of the Interpretation's issuance and effective dates, and
- The reporting entity, after making exhaustive efforts, is unable to obtain information necessary to determine if the entity is a variable interest entity or to determine whether the reporting entity is the primary beneficiary of the variable interest entity.
The Board also will consider whether to direct the staff to issue a proposed FASB Staff Position (FSP) to defer the effective date of Interpretation 46 until the end of the first interim or annual period ending after December 15, 2003, for an interest held by a public entity in a variable interest entity that (a) was not previously considered to be a special-purpose entity and (b) has assets that are predominately nonfinancial. Examples of the types of interest to be considered by the Board are franchise arrangements, supplier arrangements, and troubled debt restructurings.
FASB Statement 167: Consolidation of Variable Interest Entities
FASB significantly revamped its consolidation standards for variable interest entities when it released Statement No. 167 in June 2009. Those standards rework existing rules under FIN 46R for when a company must include a VIE on its books with a potentially huge impact on corporate balance sheets. The criteria for determining an entity's VIE status have shifted, based now more on a company's "obligations" and "power" over an entity than on ownership percentage or absorption of losses. Complicating matters further are new disclosure requirements to explain consolidation decisions. New standards cover fiscal years after Nov. 15, 2009, so they affect financials published as soon as March or April 2010. Advisors must prepare now for the standards, which require reevaluation of existing entity relationships, regardless of whether VIEs were previously consolidated. How Will This Statement Change Current Practice?
This Statement amends Interpretation 46(R) to require an enterprise to perform an analysis to determine whether the enterprise’s variable interest or interests give it a controlling financial interest in a variable interest entity. This analysis identifies the primary beneficiary of a variable interest entity as the enterprise that has both of the following characteristics: a. The power to direct the activities of a variable interest entity that most significantly impact the entity’s economic performance b. The obligation to absorb losses of the entity that could potentially be significant to the variable interest entity or the right to receive benefits from the entity that could potentially be significant to the variable interest entity. Additionally, an enterprise is required to assess whether it has an implicit financial responsibility to ensure that a variable interest entity operates as designed when determining whether it has the power to direct the activities of the variable interest entity that most significantly impact the entity’s economic performance.
This Statement amends Interpretation 46(R) to require ongoing reassessments of whether an enterprise is the primary beneficiary of a variable interest entity. Before this Statement, Interpretation 46(R) required reconsideration of whether an enterprise is the primary beneficiary of a variable interest entity only when specific events occurred. This Statement amends Interpretation 46(R) to eliminate the quantitative approach previously required for determining the primary beneficiary of a variable interest entity, which was based on determining which enterprise absorbs the majority of the entity’s expected losses, receives a majority of the entity’s expected residual returns, or both. This Statement amends certain guidance in Interpretation 46(R) for determining whether an entity is a variable interest entity. It is possible that application of this revised guidance will change an enterprise’s assessment of which entities with which it is involved are variable interest entities. This Statement amends Interpretation 46(R) to add an additional reconsideration event for determining whether an entity is a variable interest entity when any changes in facts and circumstances occur such that the holders of the equity investment at risk, as a group, lose the power from voting rights or similar rights of those investments to direct the activities of the entity that most significantly impact the entity’s economic performance. Under Interpretation 46(R), a troubled debt restructuring as defined in paragraph 2 of FASB Statement No. 15, Accounting by Debtors and Creditors for Troubled Debt Restructurings, was not an event that required reconsideration of whether an entity is a variable interest entity and whether an enterprise is the primary beneficiary of a variable interest entity. This Statement eliminates that exception. This Statement amends Interpretation 46(R) to require enhanced disclosures that will provide users of financial statements with more transparent information about an enterprise’s involvement in a variable interest entity. The enhanced disclosures are required for any enterprise that holds a variable interest in a variable interest entity. This Statement nullifies FASB Staff Position FAS 140-4 and FIN 46(R)-8, Disclosures by Public Entities (Enterprises) about Transfers of Financial Assets and Interests in Variable Interest Entities. However, the content of the enhanced disclosures required by this Statement is generally consistent with that previously required by the FSP. How Will This Statement Improve Financial Reporting?]
This Statement amends Interpretation 46(R) to replace the quantitative-based risks and rewards calculation for determining which enterprise, if any, has a controlling financial interest in a variable interest entity with an approach focused on identifying which enterprise has the power to direct the activities of a variable interest entity that most significantly impact the entity’s economic performance and (1) the obligation to absorb losses of the entity or (2) the right to receive benefits from the entity. An approach that is expected to be primarily qualitative will be more effective for identifying which enterprise has a controlling financial interest in a variable interest entity. This Statement requires an additional reconsideration event when determining whether an entity is a variable interest entity when any changes in facts and circumstances occur such that the holders of the equity investment at risk, as a group, lose the power from voting rights or similar rights of those investments to direct the activities of the entity that most significantly impact the entity’s economic performance. It also requires ongoing assessments of whether an enterprise is the primary beneficiary of a variable interest entity. These requirements will provide more relevant and timely information to users of financial statements. This Statement amends Interpretation 46(R) to require additional disclosures about an enterprise’s involvement in variable interest entities, which will enhance the information provided to users of financial statements. What Is the Effect of This Statement on Convergence with International Financial Reporting Standards?
The International Accounting Standards Board (IASB) has a project on its agenda to reconsider its consolidation guidance. The IASB issued two related Exposure Drafts, Consolidation and Derecognition, in December 2008 and March 2009, respectively. The IASB project on consolidation is a broader reconsideration of all consolidation guidance (not just the guidance for variable interest entities). Although this Statement was not developed as part of a joint project with the IASB, the FASB and IASB continue to work together to issue guidance that yields similar consolidation and disclosure results for special-purpose entities. The ultimate goal of both Boards is to provide timely, transparent information about interests in specialp purpose entities. However, the timeline and anticipated effective date of the IASB project is different from the effective date of this Statement. This Statement addresses the potential impacts on the provisions and application of Interpretation 46(R) as a result of the elimination of the qualifying special-purpose entity concept in Statement 166. Ultimately, the two Boards will seek to issue a converged standard that addresses consolidation of all entities.
Hi Erin,
I don't really have much more to help you. You should be aware that the FASB postponed FIN 46 and put three new Proposed Staff Positions FIN 46a, FIN 46b, and FIN 46c out for discussion. These are on the current first page of http://www.fasb.org/
You might take a look at the following documents:
http://www.grantthornton.com/content/81782.asp?bhjs=1&bhsw=800&bhsh=600&bhswi=771&bhshi=423&bhflver=5&bhdir=0&bhje=1&bhcold=32&bhrl=-1&bhqt=-1&bhmp=-1&bhab=-1&bhmpex=&bhflex=6,0,79,0&bhdirex=&bhcont=lan
I shortened that horrible URL to http://snipurl.com/GrantThorntonFAS46
"FIN 46 may build up business' balance sheet," Grant Thornton, June 24, 2003
http://www.vinodkothari.com/fin46vk.htm
"FIN 46: consolidation of variable interest entities under US GAAPs," by Vinod Kothari
A Deloitte and Touche Slide Show on FIN 46 --- [url=http://www.cbe.uidaho.edu/Acct592/CourseMaterials/Lecture%20Notes/Deloitte%20&%20Touche_fin46_012903[1].ppt]http://www.cbe.uidaho.edu/Acct592/CourseMaterials/Lecture%20Notes/Deloitte%20&%20Touche_fin46_012903%5B1%5D.ppt[/url]
I shortened the above URL to http://snurl.com/DTSlideShowFIN46
Bob Jensen
-----Original Message----- From: XXXXX
Sent: Monday, September 15, 2003 9:12 PM
To: Jensen, Robert
Subject: SPE help
Dr. Jensen, My name is Erin XXXXX an I am an undergraduate Accounting student at The University of YYYYY. I have been doing some research on Special Purpose Entities for an Accounting Thesis that I am writing this semester and I came across your page titled "Bob Jensen's Overview of Special Purpose Entities." I found some very helpful information, but I was wondering if you had any links to information on the current FASB exposure draft, "Qualifying Special-Purpose Entities and Isolation of Transferred Assets." I am trying to decipher it, but it is difficult for me to understand because I do not have a good background in Finance and this is my first assignment involving reading actual FASB statements. I have found the topic to be interesting although very complex, but unfortunately I am far from an expert in this field and need some clarification on some of the terms in the draft. I would greatly appreciate any information you may have.
Thank you,
Erin
On December 24, 2003, the FASB published a revision to Interpretation 46 as a Christmas present to clarify and expand on accounting guidance for variable interest entities. The additional guidance is in response to comments received from constituents. The complete revised Interpretation 46 is available on the FASB's website --- http://www.fasb.org/fin46r.pdf
Summary This Interpretation of Accounting Research Bulletin No. 51, Consolidated Financial Statements, which replaces FASB Interpretation No. 46, Consolidation of Variable Interest Entities, addresses consolidation by business enterprises of variable interest entities, which have one or more of the following characteristics: The equity investment at risk is not sufficient to permit the entity to finance its activities without additional subordinated financial support provided by any parties, including the equity holders. The equity investors lack one or more of the following essential characteristics of a controlling financial interest:
a. The direct or indirect ability to make decisions about the entity's activities through voting rights or similar rights.
b. The obligation to absorb the expected losses of the entity.
c. The right to receive the expected residual returns of the entity. The equity investors have voting rights that are not proportionate to their economic interests, and the activities of the entity involve or are conducted on behalf of an investor with a disproportionately small voting interest.
The following are exceptions to the scope of the Interpretation: Not-for-profit organizations are not subject to this Interpretation unless they are used by business enterprises in an attempt to circumvent the provisions of this Interpretation. Employee benefit plans subject to specific accounting requirements in existing FASB Statements are not subject to this Interpretation. Registered investment companies are not required to consolidate a variable interest entity unless the variable interest entity is a registered investment company. Transferors to qualifying special-purpose entities and "grandfathered" qualifying special-purpose entities subject to the reporting requirements of FASB Statement No. 140, Accounting for Transfers and Servicing of Financial Assets and Extinguishments of Liabilities, do not consolidate those entities. No other enterprise consolidates a qualifying special-purpose entity or a "grandfathered" qualifying special-purpose entity unless the enterprise has the unilateral ability to cause the entity to liquidate or to change the entity in such a way that it no longer meets the requirements to be a qualifying special-purpose entity or "grandfathered" qualifying special-purpose entity. Separate accounts of life insurance enterprises as described in the AICPA Auditing and Accounting Guide, Life and Health Insurance Entities, are not subject to this Interpretation. An enterprise with an interest in a variable interest entity or potential variable interest entity created before December 31, 2003, is not required to apply this Interpretation to that entity if the enterprise, after making an exhaustive effort, is unable to obtain the necessary information. An entity that is deemed to be a business (as defined in this Interpretation) need not be evaluated to determine if it is a variable interest entity unless one of the following conditions exists:
a. The reporting enterprise, its related parties, or both participated significantly in the design or redesign of the entity, and the entity is neither a joint venture nor a franchisee.
b. The entity is designed so that substantially all of its activities either involve or are conducted on behalf of the reporting enterprise and its related parties.
c. The reporting enterprise and its related parties provide more than half of the total of the equity, subordinated debt, and other forms of subordinated financial support to the entity based on an analysis of the fair values of the interests in the entity.
d. The activities of the entity are primarily related to securitizations, other forms of asset-backed financings, or single-lessee leasing arrangements. An enterprise is not required to consolidate a governmental organization and is not required to consolidate a financing entity established by a governmental organization unless the financing entity (a) is not a governmental organization and (b) is used by the business enterprise in a manner similar to a variable interest entity in an effort to circumvent the provisions of this Interpretation.
Reason for Issuing This Interpretation Transactions involving variable interest entities have become increasingly common, and the relevant accounting literature is fragmented and incomplete. ARB 51 requires that an enterprise's consolidated financial statements include subsidiaries in which the enterprise has a controlling financial interest. That requirement usually has been applied to subsidiaries in which an enterprise has a majority voting interest, but in many circumstances the enterprise's consolidated financial statements do not include variable interest entities with which it has similar relationships. The voting interest approach is not effective in identifying controlling financial interests in entities that are not controllable through voting interests or in which the equity investors do not bear the residual economic risks. The objective of this Interpretation is not to restrict the use of variable interest entities but to improve financial reporting by enterprises involved with variable interest entities. The Board believes that if a business enterprise has a controlling financial interest in a variable interest entity, the assets, liabilities, and results of the activities of the variable interest entity should be included in consolidated financial statements with those of the business enterprise. Differences between This Interpretation and Current Practice Under current practice, two enterprises generally have been included in consolidated financial statements because one enterprise controls the other through voting interests. This Interpretation explains how to identify variable interest entities and how an enterprise assesses its interests in a variable interest entity to decide whether to consolidate that entity. This Interpretation requires existing unconsolidated variable interest entities to be consolidated by their primary beneficiaries if the entities do not effectively disperse risks among parties involved. Variable interest entities that effectively disperse risks will not be consolidated unless a single party holds an interest or combination of interests that effectively recombines risks that were previously dispersed. An enterprise that consolidates a variable interest entity is the primary beneficiary of the variable interest entity. The primary beneficiary of a variable interest entity is the party that absorbs a majority of the entity's expected losses, receives a majority of its expected residual returns, or both, as a result of holding variable interests, which are the ownership, contractual, or other pecuniary interests in an entity that change with changes in the fair value of the entity's net assets excluding variable interests. An enterprise with a variable interest in a variable interest entity must consider variable interests of related parties and de facto agents as its own in determining whether it is the primary beneficiary of the entity. Assets, liabilities, and noncontrolling interests of newly consolidated variable interest entities generally will be initially measured at their fair values except for assets and liabilities transferred to a variable interest entity by its primary beneficiary, which will continue to be measured as if they had not been transferred. However, assets, liabilities, and noncontrolling interests of newly consolidated variable interest entities that are under common control with the primary beneficiary are measured at the amounts at which they are carried in the consolidated financial statements of the enterprise that controls them (or would be carried if the controlling entity prepared financial statements) at the date of the enterprise becomes the primary beneficiary. Goodwill is recognized only if the variable interest entity is a business as defined in this Interpretation. Otherwise, the reporting enterprise will report an extraordinary loss for that amount. After initial measurement, the assets, liabilities, and noncontrolling interests of a consolidated variable interest entity will be accounted for as if the entity was consolidated based on voting interests. In some circumstances, earnings of the variable interest entity attributed to the primary beneficiary arise from sources other than investments in equity of the entity. An enterprise that holds significant variable interests in a variable interest entity but is not the primary beneficiary is required to disclose (1) the nature, purpose, size, and activities of the variable interest entity, (2) its exposure to loss as a result of the variable interest holder's involvement with the entity, and (3) the nature of its involvement with the entity and date when the involvement began. The primary beneficiary of a variable interest entity is required to disclose (a) the nature, purpose, size, and activities of the variable interest entity, (b) the carrying amount and classification of consolidated assets that are collateral for the variable interest entity's obligations, and (c) any lack of recourse by creditors (or beneficial interest holders) of a consolidated variable interest entity to the general credit of the primary beneficiary. How This Interpretation Will Improve Financial Reporting This Interpretation is intended to achieve more consistent application of consolidation policies to variable interest entities and, thus, to improve comparability between enterprises engaged in similar activities even if some of those activities are conducted through variable interest entities. Including the assets, liabilities, and results of activities of variable interest entities in the consolidated financial statements of their primary beneficiaries will provide more complete information about the resources, obligations, risks, and opportunities of the consolidated enterprise. Disclosure about variable interest entities in which an enterprise has a significant variable interest but does not consolidate will help financial statement users assess the enterprise's risk.
In June 2003, the American Accounting Association's Financial Accounting Standards Committee issued the following: "Comments on the FASB’s Proposals on Consolidating Special-Purpose Entities and Related Standard-Setting Issues," Accounting Horizons, June 2003, pp. 191-174 --- http://aaahq.org/ic/browse.htm The June 28, 2002 Financial Accounting Standards Board Exposure Draft (ED), Proposed Interpretation: Consolidation of Certain Special-Purpose Entities—an interpretation of ARB No. 51, addresses the consolidation of special-purpose entities (SPEs). Accounting Research Bulletin (ARB) No. 51 (AICPA 1959), Consolidated Financial Statements, does not apply to SPEs because they have no voting interests nor are they subject to control by means other than voting shares. This Accounting Horizons commentary presents the views of the American Accounting Association’s Financial Accounting Standards Committee (hereafter, the Committee) with respect to the ED. An excerpt is shown below. Application of a Principles-Based Consolidation Standard to SPEs
To illustrate the application of a principles-based consolidation standard to a situation contemplated by the ED, consider the case of a synthetic lease. A company sets up an SPE to purchase and finance assets on its behalf, and the assets are then leased to the company via an operating lease. The company-lessee typically does not have an equity position in the SPE, but effectively bears the risk and benefits of ownership of the leased assets through residual value guarantees. Moreover, the company's use of the assets and the residual value guarantees provide direct evidence of the company's effective economic control over the SPE. Accordingly, the company should consolidate the SPE under the Committee's approach to consolidation.
Another example involves a bank that creates an SPE to purchase receivables or debt instruments such as car loans or lease payments in the marketplace. The assets are not top grade and require active management. The SPE funds its purchases by issuing various tranches of debt and 10 percent equity. As the asset manager, the bank receives a "market-based" fee and can be terminated after one year and annually thereafter by a majority vote of the debt holders. The bank also provides a liquidity backstop that protects the debt holders against delayed payments, up to some limit. The backstop does not protect the equity holders.
In this example, the bank does not control the assets; it is merely acting as an asset manager for the benefit of other stakeholders in the structure. The presence of the guarantee, while exposing the bank to some risk, is no different than the types of guarantees that banks issue to other companies. Thus, the Committee believes that the bank does not retain effective economic control over the SPE. That is, it has not retained the risks and benefits of ownership, and should not consolidate the SPE. Here, the objective should be to provide high-quality disclosure about the risks accepted by the bank. (See, for example, the Committee's letter to the FASB on the Exposure Draft, Guarantor's Accounting and Disclosure Requirements, Including Indirect Guarantees of Indebtedness of Others, available at http://www.aaa-edu.org, or the related article published in Accounting Horizons [AAA FASC 2003a]).
HOW DOES THE ED COMPARE WITH OUR PERSPECTIVE ON A
PRINCIPLES-BASED CONSOLIDATION STANDARD? This section outlines specific strengths and weaknesses of the ED relative to the Committee's view on a principles-based consolidation standard. Strengths The Committee believes that the ED moves accounting for SPEs from a rules-based standard toward a principles-based standard. This is consistent with our preferred approach for a general consolidation standard and with our July 2002 letter commenting on conceptual standards, available at http://www.aaa-edu.org, or the related article published in Accounting Horizons (AAA FASC 2003b). If approved, the ED would likely result in more SPEs being consolidated by the entities that have effective control over their operations, consistent with our general approach to consolidation. The Committee favors moving the basis for consolidation from an emphasis on legal control to a notion of effective economic control, based on the concepts of variable interests and primary beneficiary. This move toward an economic definition of control should improve financial reporting by enhancing the representational faithfulness of financial statements in those circumstances where the risks and benefits of ownership are retained. Weaknesses The Committee believes the ED has five potential weaknesses, which we discuss in turn: its limitation to specific transactions and its scope exceptions, a lack of clarity in the variable interests constructs, the inclusion of a bright-line rule for defining sufficient equity investment, the limited implementation guidance, and the absence of enhanced disclosure requirements.
The Hartgraves and Benston Papers COMMENTARY
"The Evolving Accounting Standards for Special Purpose Entities and Consolidations," by Al L. Hartgraves and George J. Benston, Accounting Horizons, September 2002, pp. 245-258.
The following are only selected excerpts. This paper reviews the major actions taken by the accounting standard setters--the Financial Accounting Standards Board (FASB) and its Emerging Issues Task Force (EITF)--in connection with special purpose entities (SPEs) and traces the evolution of related authoritative guidance. Accounting for SPEs entered public and professional prominence as a result of the Enron Corporation's failure. The primary accounting issues regarding these entities are (1) whether they should be consolidated into the sponsor's1 (or primary beneficiary's) financial statements or left "off-balance sheet," and (2) whether the sponsor should be able to treat gains and losses resulting from transactions with SPEs as independent, arm's-length transactions. Critics harshly criticized Enron's auditor, Arthur Andersen, for allowing Enron to exclude from its financial statements the SPEs it sponsored, thereby keeping a substantial amount of debt off its balance sheet and recognizing substantially higher profits from transactions with SPEs. We believe it is useful, therefore, to review both the authoritative guidance for the general area of consolidation of financial statements as well as guidance specific to SPEs. This review also provides insight into how standard setting leading to changes in GAAP responds to changes in business practice, and how it might have been more effective in helping to prevent abuses in accounting for SPEs, such as those that ostensibly led to or exacerbated the downfall of Enron (Powers et al. 2002).
1 The term "sponsor" is sometimes used to refer to the organization that legally creates the SPE, which may or may not be the primary beneficiary of the SPE. At other times, and in this paper, it is used to refer to the company for whose primary benefit the SPE has been created.
WHAT ARE SPECIAL PURPOSE ENTITIES? Until recently, many people in the accounting profession, including accounting educators, never heard of SPEs. Some who heard of these esoteric financing vehicles knew little about how they operated or the accounting standards that guide the accounting and financial reporting by companies who sponsor SPEs. Reports in the popular press that preceded Enron's Chapter 11 filing in December 2001 introduced many accountants for the first time to the topic of SPEs and sent many CPAs scrambling to understand the generally accepted accounting principles (GAAP) dealing with these entities. Even though SPE financing vehicles have been around for about two decades, they failed to capture the attention of many participants in the mainstream of accounting discourse. A search for references to SPEs in financial accounting textbooks yields virtually no results, and a search of the academic and professional accounting literature provides, at best, a limited explanation of this area of accounting.
Also called special purpose vehicles, SPEs typically are defined as entities created for a limited purpose, with a limited life and limited activities, and designed to benefit a single company. They may take the legal form of a partnership, corporation, trust, or joint venture. SPEs began appearing in the portfolio of financing vehicles that investment banks and financial institutions offered their business customers in the late 1970s to early 1980s, primarily to help banks and other companies monetize, through off-balance-sheet securitizations, the substantial amounts of consumer receivables on their balance sheets. A newly created SPE would acquire capital by issuing equity and debt securities, and use the proceeds to purchase receivables from the sponsoring company, which often guaranteed the debt issued by the SPE. Because the receivables have limited and reliably measured risk of nonrepayment, a relatively small amount of equity usually was sufficient to absorb all expected losses, thus making it unlikely that the sponsoring company would have to fulfill its guarantee. In this way the sponsoring company could convert receivables into cash while paying a lower rate of interest than the alternative of debt or factoring, as the debt holder could be repaid from the collection of the receivables or the sponsor. SPEs also allow the sponsors to remove receivables from their balance sheets, and avoid recognizing debt incurred in the securitization.
Other Uses of SPEs
Another major application in the early years of SPEs related to transactions involving the acquisition of plant and equipment under long-term lease contracts. Companies could sponsor an SPE to acquire long-term assets with newly acquired debt and/or equity and enter into a contract to lease the assets from the SPE. This often enabled companies to treat the contract as an operating lease for accounting purposes, thereby placing the asset and related debt on the SPE's balance sheet instead of that of the sponsoring company.
Other SPEs, typically organized as limited partnerships, also have been employed for more than 20 years to fund research and development (R&D) activities. The sponsor often has only a contractual interest in the SPE, not an equity interest. The crucial accounting issue for these SPEs, addressed in FASB Statement No. 68 (FASB 1982), is whether the sponsor has directly or indirectly agreed to repay the funds provided by the outside parties. If such an obligation exists, then the sponsor recognizes it as a liability, and the sponsor records the R&D costs incurred by the SPE as an expense. To avoid recognizing the liability and expense, the sponsor must demonstrate that the financial risks involved with the R&D activities are transferred from the sponsor to the outside parties.
SPE's and Off-Balance-Sheet Financing
Before discussing the evolution of authoritative guidance for SPEs, we examine the broader issue of off-balance-sheet financing, the context within which the guidance has been developed. SPEs are just one of the vehicles that companies use to structure financing that avoids recognizing assets and liabilities on their financial statements. Other vehicles include operating leases, take-or-pay contracts, and throughput arrangements2 that enable a company to use something in its future operations in exchange for agreed upon payments. In these situations the accounting problem is to determine whether an asset or liability exists, and when to report such items on the balance sheet. GAAP already requires arrangements such as capital leases and certain SPEs to be included on the balance sheet of the primary beneficiary of the contracts. For some specified arrangements where assets and liabilities are not reported on the balance sheet, particularly operating leases, information about future obligations under the contracts must be disclosed in the notes to the financial statements.
Consider unconsolidated equity investments in which an investor owns less than 50 percent, SPEs created for the primary benefit of a company, or other off-balance-sheet entities. Here the challenge to the accounting profession is to focus on whether consolidation of such entities actually improves users' understanding of a company's financial position and results of operations. For most equity method investments, consolidation does not change net income or net assets, causing only offsetting changes in the components of those measures. Consolidating equity method investments currently not consolidated could reduce disclosures about those investments in the notes to the financial statements. As a broad objective, the FASB and the SEC should guide the profession in requiring on-balance-sheet treatment where it enhances the financial statements, but allowing off-balance-sheet treatment where it provides better information to investors.
2 Typical take-or-pay contracts obligate the purchaser to take and pay for any product that is offered to it or pay a specified amount if it refuses to take the product. A throughput arrangement involves an agreement to put a specified amount of product per period through a particular facility; for example, an agreement to ship a specified amount of crude oil per period through a particular pipeline (New York Times 2002).
Sources of Authoritative Guidance for Accounting for SPEs
When the idea of SPEs was first conceived in the minds of some bright financial engineers, no definitive accounting guidance existed. Although specific accounting guidance for innovative business methods of necessity must lag actual practice, the conceptual framework and other general guidelines should help accountants treat innovative practices. When SPEs began to appear, corporate accountants, auditors, and the SEC could look only to general principles in the authoritative accounting literature regarding the recognition and de-recognition of assets and liabilities, criteria for recognizing asset sales, consolidation of related entities, and more generally to the "entity concept" literature.
From the early 1980s until the mid-1990s, SPEs proliferated in business practice without any specific official guidance from the Financial Accounting Standards Board (FASB). Until 1996, all specific guidance regarding SPEs came from the FASB's surrogate body, the Emerging Issues Task Force (EITF), formed by the FASB in 1984 to provide timely financial-reporting guidance on matters that the Board may not have addressed or issued authoritative guidance. As stated on the FASB's web site (FASB 2002a), the composition of the EITF is designed to include persons in a position to be aware of emerging issues before they become widespread and before divergent practices regarding them become entrenched. Therefore, when the EITF reaches a consensus on an issue, signified by the support of 11 of the 13 voting members, the FASB usually takes that as an indication that no Board action is needed. Consensus positions of the EITF are considered part of GAAP. However, lack of consensus is often viewed as an indication that action by the FASB is necessary.
Nine of the 13 voting members of the EITF are affiliated with public accounting firms, with one member from each of the Big 5 firms, and four members from large companies.3 The Chief Accountant of the Securities and Exchange Commission attends EITF meetings regularly as an observer with the right to participate in discussions and present the SEC's views on topics of discussion. Although the FASB's Director of Research and Technical Activities is the non-voting Chairman of the EITF, there is no overlap between the members of the FASB and the EITF. Note that the influence of the public accounting sector of the accounting profession is much greater on the EITF (nine of 13 members are currently public accounting practitioners) than it is on the FASB (three of seven full-time members were public accounting practitioners prior to joining the Board). One might conclude that authoritative guidance provided by the EITF is likely to have more of a public accounting tilt than if it is provided by the FASB.
The first FASB statement that included any direct reference to SPE's was Statement No. 125 (FASB 1996), later replaced by Statement No. 140 (FASB 2000b). Both of these Statements focus narrowly on issues involving the transfer (sale) of financial assets, primarily securitization and servicing of receivables. Authoritative guidance for other SPEs has been developed in a rather piecemeal fashion by the EITF. Exhibit 1 lists in chronological order the major FASB and EITF pronouncements addressing consolidations and SPEs. The next section of the paper discusses this authoritative guidance.
AUTHORITATIVE GUIDANCE ON CONSOLIDATIONS Accounting Research Bulletin No. 51 Over the past 40 to 50 years, the accounting profession gradually developed general policies governing the consolidation of financial statements of companies and their controlled subsidiaries and affiliates. Accounting Research Bulletin (ARB) No. 51 (AICPA 1959) established broad requirements for companies to fully consolidate majority-owned subsidiaries into their financial statements and show the equity of minority-interest shareholders in the consolidated financial statements. ARB No. 51 also requires the elimination of intercompany balances and transactions between the two entities so that the consolidated statements represent the financial position and results of operations of a single reporting entity. An important exception in ARB No. 51 that allowed companies to avoid consolidation for "nonhomogeneous" majority-owned subsidiaries was removed in 1987. EXHIBIT 1
Chronology of Major Accounting Pronouncements
Related to Consolidations and SPEs1959Accounting Research Bulletin (ARB) No. 51, Consolidated Financial Statements
1971Accounting Principles Board (APB) Opinion No. 18, The Equity Method of Accounting for Investments in Common Stock
1983FASB Statement No. 76, Extinguishment of Debt
1983FASB Statement No. 77, Reporting by Transferors for Transfers of Receivables with Recourse
1984Emerging Issues Task Force (EITF) Issue No. 84-30, Sales of Loans to Special-Purpose Entities
1987FASB Statement No. 94, Consolidation of All Majority-Owned Subsidiaries--An Amendment of ARB No. 51, with Related Amendments of APB Opinion No. 18 and ARB No. 43, Chapter 12
1989EITF Topic No. D-14, Transactions Involving Special-Purpose Entities
1990EITF Issue No. 90-15, Impact of Nonsubstantive Lessors, Residual Value Guarantees, and Other Provisions in Leasing Transactions
1996FASB Statement No. 125, Accounting for Transfers and Servicing of Financial Assets and Extinguishments of Liabilities
1996EITF Issue No. 96-20, Impact of FASB Statement No. 125 on Consolidations of Special-Purpose Entities
1996EITF Issue No. 96-21, Implementation Issues in Accounting for Leasing Transactions Involving Special-Purpose Entities
2000Statement No. 140, Accounting for Transfers and Servicing of Financial Assets and Extinguishments of Liabilities--A Replacement of FASB Statement No. 125 SUMMARY AND CONCLUSIONS After more than 20 years since SPEs appeared on the business scene, there remains a confusing, if not convoluted, set of guidelines regarding the consolidation of SPEs. Two streams of reasonably understandable guidance exist for leasing transactions (EITF Issue No. 90-15) and for transfers of financial assets through securitizations (FASB Statement No. 140). Until now, the only authoritative guidance for other types of SPEs, including many of those used by Enron, is the indication by the EITF and SEC that the guidance outlined in EITF Issue No. 90-15 and Topic D-14, which deals specifically with leasing transactions, is "appropriate" for other non-lease-related SPEs. The bankruptcy of the Enron Corporation associated with its use of sponsored un-consolidated SPEs has brought these financial innovations to the attention of the public and accounting profession. From our review of the slowly evolving authoritative guidance on the proper GAAP accounting for SPEs, we draw the following conclusions. Initially, although thinly capitalizated, SPEs designed to monetize assets such as accounts receivable were properly accounted for by applying the traditional definitions of assets, liabilities, and unrelated entities. These SPEs engage in FASB Statement No. 140-type transactions. Cash is usually received for the receivables sold to the SPEs, so there is no problem with establishing the value and, hence, the gain or loss on the assets sold. Although the sponsoring corporation often guarantees the SPEs' debt, the probability of this becoming a liability is small, because the equity capital provided by unrelated investors is sufficient to absorb the losses, which could be measured objectively. Nonconsolidation is generally appropriate. Then, SPEs were used for the acquisition or sale and leaseback of plant and equipment. However, the arrangements companies must make with their lessor SPEs to avoid consolidation under EITF Issue No. 90-15 are not substantially different from arrangements typically made when leasing properties from established financial institutions in terms of the risks assumed by the lessee. The problem at Enron, as it expanded the role of SPEs, was that even though its SPEs were thinly capitalized and held assets that posed considerable risks, Enron took the limited authoritative pronouncements literally, allowing them to not consolidate the SPEs, even in situations where Enron assumed virtually all of the risks. See Benston and Hartgraves (2002) for a description and analysis of what Enron did and did not do.
Amerco Inc., the parent company of U-Haul International, itself hauled Big Four accounting firm PricewaterhouseCoopers into federal court in Arizona last week charging that the Big Four accounting firm was to blame for Amerco's dire financial situation. http://www.accountingweb.com/item/97460
Bob Jensen's threads on PwC lawsuits can be found at http://www.trinity.edu/rjensen/fraud.htm#PwC
Enron's very complex, actually unfathomable, SPEs are summarized at http://news.findlaw.com/hdocs/docs/enron/sicreport/chapter1.pdf
SPEs and Off Balance Sheet Financing Advice from PwC
"U Haul's Parent Citing Faulty Advice Sues Its Old Auditor," Reuters, REUTERS April 22, 2003
Amerco Inc., the parent of U-Haul International, said yesterday that it had sued its former auditor PricewaterhouseCoopers for more than $2.5 billion in damages.
In the suit, Amerco accused PricewaterhouseCoopers of providing financial advice that it said was flawed and led it to the brink of bankruptcy.
The suit, filed on Friday in the Federal District Court for Arizona , contends PricewaterhouseCoopers's advice, coupled with delays in disclosing an error once it was discovered, caused events that put Amerco in "serious jeopardy."
Amerco said the delay forced it to postpone filing financial statements with regulators and put it in danger of being delisted from the Nasdaq stock market. Amerco, which named a new finance chief last week, avoided bankruptcy by reaching an agreement with lenders last month.
"They gave us bad advice for seven straight years," Amerco's general counsel, Gary Klinefelter, said in an interview yesterday. "We're in the business of renting out trucks and trailers, and they're in the business of giving out accounting advice."
A spokesman for PricewaterhouseCoopers, David Nestor, said the lawsuit appeared to be an effort by Amerco's management to shift blame away from itself.
"The primary responsibility for the accuracy of financial statements lies with the company," Mr. Nestor said. "Once it became apparent that there was an error in Amerco's, we worked with them to get their financial statements correct, which is, of course, the important thing."
The dispute centers on financing arrangements known as special purpose entities that Amerco set up in the mid-1990's. These were created to help expand the company's self-storage business without weighing down its balance sheet with debt.
Mr. Klinefelter said the idea for the special purpose entities, a term that has gained notoriety since they played a crucial role in Enron's collapse, came from PricewaterhouseCoopers, which guided the deals.
Amerco said in the lawsuit that it had been assured by PricewaterhouseCoopers that the special purpose entities could be excluded from its financial statements under federal accounting rules. But last year, after the Enron debacle put the spotlight on these arrangements, PricewaterhouseCoopers re-examined the accounting and realized that Amerco's financial statements had to be restated to include those entities, Amerco said.
"ENRON: what happened and what we can learn from it," by George J. Benston and Al L. Hartgraves, Journal of Accounting and Public Policy, 2002, pp. 125-127
The following are excerpts only. Abstract
Enron's accounting for its non-consolidated special-purpose entities (SPEs), sales of its own stock and other assets to the SPEs, and mark-ups of investments to fair value substantially inflated its reported revenue, net income, and stockholders' equity, and possibly understated its liabilities. We delineate six accounting and auditing issues, for which we describe, analyze, and indicate the effect on Enron's financial statements of their complicated structures and transactions. We next consider the role of Enron's board of directors, audit committee, and outside attorneys and auditors. From the foregoing, we evaluate the extent to which Enron and Andersen followed the requirements of GAAP and GAAS, from which we draw lessons and conclusions.
The accounting issues
The transactions involving SPEs at Enron, and the related accounting issues are, indeed, very complex. This section summarizes some of the key transactions and their related accounting effects. The Powers Report, a 218-page document, provides in great detail a discussion of a selected group of Enron SPEs that have been the central focus of the Enron investigations. While very much less detailed than the Powers Report, the discussion in the following section (which may seem laborious at times), supplemented with additional material that became available after publication of the Report, should provide the reader with insight into how Enron sought to bend the accounting rules to their advantage. However, even a cursory review of this section will give the reader a sense of the complex financing structures that Enron used in an attempt to create various financing, tax, and accounting advantages.
Six accounting and auditing issues are of primary importance, since they were used extensively by Enron to manipulate its reported figures: (1) The accounting policy of not consolidating SPEs that appear to have permitted Enron to hide losses and debt from investors. (2) The accounting treatment of sales of Enron's merchant investments to unconsolidated (though actually controlled) SPEs as if these were arm's length transactions. (3) Enron's income recognition practice of recording as current income fees for services rendered in future periods and recording revenue from sales of forward contracts, which were, in effect, disguised loans. (4) Fair-value accounting resulting in restatements of merchant investments that were not based on trustworthy numbers. (5) Enron's accounting for its stock that was issued to and held by SPEs. (6) Inadequate disclosure of related party transactions and conflicts of interest, and their costs to stockholders.
2.1.5 Subsequent actions and accounting changes as Enron's stock prices declined
By November 2000, Enron had entered into derivative contracts with the Raptors I, II, and III with a notional value of $1.5 billion on which it had a gain of $500 million. However, the Raptors' principal asset from which it could pay this amount consisted of Enron stock or obligations, or TNPC stock. By late March 2001, as the price of Enron's shares declined, the Raptors' credit capacity also declined. To avoid having to report a $500 million pre-tax charge against earnings, Enron executed a cross-collateralization among the Raptors, "invested" additional Enron stock contracts, and engaged in a series of complex and questionable hedges and swaps with the Raptors. Based on these moves (which Andersen apparently approved), it was determined that a loss of only $36.6 million had to be recorded for the first quarter of 2001.
In September 2001 Enron terminated the Raptors by buying out LJM2 for approximately $35 million, even though they estimated that their combined assets were approximately $2.5 billion and combined liabilities $3.2 billion. This resulted in a charge of approximately $710 million after taxes on Enron's third quarter 2001 financial statements. In all, Enron's not consolidating these SPEs increased its reported earnings as follows ($millions):
Thus, at a very considerable cost to shareholders, Enron's managers temporarily were able to hide substantial loses.
Summary and conclusions
We believe that US GAAP, as structured and administered by the SEC, the FASB, and the AICPA, are substantially responsible for the Enron accounting debacle. Enron and its outside counsel and auditor felt comfortable in following the specified accounting requirements for consolidation of SPEs. The SEC had the responsibility and opportunity to change these rules to reflect the known fact that corporations were using this vehicle to keep liabilities off their balance sheets, although the sponsoring corporations were substantially (often almost entirely) liable for the SPEs' obligations.
We also believe that the UK GAAP, which requires auditors to report a "true and fair view" of an enterprises' financial condition is preferable to the highly specified US model. The US model allows--even encourages--corporate officers to view accounting requirements as if they were specified in a tax code. For taxes, avoidance of a tax liability by any legally permissible means not only is acceptable, but is an obligation of corporations acting in the interests of their shareholders. Enron appears to have taken the same approach to accounting (except that what was done was detrimental to its shareholders). The gatekeepers (Vinson & Elkins and Andersen) seem to have gone along and possibly even participated in this approach to accounting.
The most important lesson with respect to GAAS is that Andersen's partners and staff do not appear to have exercised the requisite skepticism that auditors should adopt. Rather, they appear to have accepted too readily management's valuations and determinations with respect to valuations and related-party transactions. It is possible that this presumed lack of skepticism and distance is simply a failing of the particular auditors-in-charge. Or, it may be a consequence of auditors having been associated with Enron for many years. (Familiarity may breed over-involvement with and empathy for managements' worldview, rather than contempt.) Or, the auditors in charge of the Enron audit may have overlooked or supported their client's overly "aggressive" accounting, misleading, and possibly fraudulent accounting practices in order to protect their very salaries and bonuses.13 Or, as many critics have charged, the gatekeepers may have been corrupted by the sizeable audit and possibly the non-audit fees paid by Enron.
Andersen's audit personnel also might have been incapable of understanding the complex financial entities and instruments structured by Enron's chief financial officer, Andrew Fastow. These auditors dealt with Enron when it was an oil and gas producer and distributor. In recent years, it became primarily a dealer in financial instruments and a developer of new ventures. For reasons that have yet to be explained, Andersen did not replace these auditors or (apparently) provide them with the requisite expertise. Another lesson, then, is that CPA firms should ascertain that their personnel are capable of dealing with the presently existing activities of their clients.
Enron's very complex, actually unfathomable, SPEs are summarized at http://news.findlaw.com/hdocs/docs/enron/sicreport/chapter1.pdf
Synthetic Leasing Synthetic Lease = a financing structured to be treated as a lease for accounting purposes and a loan for tax purposes. The structure is used by corporations that are seeking OBSF reporting of their asset based financing, and that can efficiently use the tax benefits of owning the financed asset. A common approach is for the sponsor to sell the asset to the SPE and then lease it back from the SPE via what is known as synthetic leasing. A synthetic lease is structured under FAS 140 rules such that a sale/leaseback transaction takes place where the fair value of the assets "sold" can be reported by the sponsor as "revenue" for financial reporting. In a synthetic lease, this "revenue" does not have to be reported up-front for tax purposes even though it is reported up-front for financial reporting purposes.
Proceeds from the sale to an SPE in this instance are generally long-term receivables rather than cash (which is the primary reason the sale revenues are not taxed up-front).
The synthetic leaseback terms are generally such that the sponsor does not have to book the leased asset or the lease liability under FAS 13 as a capital lease (i.e., some clause in the lease contract allows the asset to be kept off balance sheet as an operating lease). Hence the financing of the lease asset remains off balance sheet. This is one ploy used by airlines and oil companies to keep assets and "debt" off the balance sheet as well as deferring taxes.
If the SPE actually manages the transferred assets (e.g., a pipeline or a refinery), then throughput or take-or-pay contracts may take the place of leasing.
Jensen Comment
The history of some accounting standards is that they are not neutral in the economy. Exhibit A is FAS 123R that virtually ended employee stock options as a means of compensation. Exhibit B is comprised of FAS 141, 142, and 147 that virtually ended the synthetic leasing industry ---
http://en.wikipedia.org/wiki/Synthetic_lease
In June 2003, the American Accounting Association's Financial Accounting Standards Committee issued the following: "Comments on the FASB’s Proposals on Consolidating Special-Purpose Entities and Related Standard-Setting Issues," Accounting Horizons, June 2003, pp. 191-174 --- http://aaahq.org/ic/browse.htm The June 28, 2002 Financial Accounting Standards Board Exposure Draft (ED), Proposed Interpretation: Consolidation of Certain Special-Purpose Entities—an interpretation of ARB No. 51, addresses the consolidation of special-purpose entities (SPEs). Accounting Research Bulletin (ARB) No. 51 (AICPA 1959), Consolidated Financial Statements, does not apply to SPEs because they have no voting interests nor are they subject to control by means other than voting shares. This Accounting Horizons commentary presents the views of the American Accounting Association’s Financial Accounting Standards Committee (hereafter, the Committee) with respect to the ED. An excerpt is shown below. Application of a Principles-Based Consolidation Standard to SPEs To illustrate the application of a principles-based consolidation standard to a situation contemplated by the ED, consider the case of a synthetic lease. A company sets up an SPE to purchase and finance assets on its behalf, and the assets are then leased to the company via an operating lease. The company-lessee typically does not have an equity position in the SPE, but effectively bears the risk and benefits of ownership of the leased assets through residual value guarantees. Moreover, the company's use of the assets and the residual value guarantees provide direct evidence of the company's effective economic control over the SPE. Accordingly, the company should consolidate the SPE under the Committee's approach to consolidation. Another example involves a bank that creates an SPE to purchase receivables or debt instruments such as car loans or lease payments in the marketplace. The assets are not top grade and require active management. The SPE funds its purchases by issuing various tranches of debt and 10 percent equity. As the asset manager, the bank receives a "market-based" fee and can be terminated after one year and annually thereafter by a majority vote of the debt holders. The bank also provides a liquidity backstop that protects the debt holders against delayed payments, up to some limit. The backstop does not protect the equity holders. In this example, the bank does not control the assets; it is merely acting as an asset manager for the benefit of other stakeholders in the structure. The presence of the guarantee, while exposing the bank to some risk, is no different than the types of guarantees that banks issue to other companies. Thus, the Committee believes that the bank does not retain effective economic control over the SPE. That is, it has not retained the risks and benefits of ownership, and should not consolidate the SPE. Here, the objective should be to provide high-quality disclosure about the risks accepted by the bank. (See, for example, the Committee's letter to the FASB on the Exposure Draft, Guarantor's Accounting and Disclosure Requirements, Including Indirect Guarantees of Indebtedness of Others, available at http://www.aaa-edu.org, or the related article published in Accounting Horizons [AAA FASC 2003a]). HOW DOES THE ED COMPARE WITH OUR PERSPECTIVE ON A
PRINCIPLES-BASED CONSOLIDATION STANDARD? This section outlines specific strengths and weaknesses of the ED relative to the Committee's view on a principles-based consolidation standard. Strengths The Committee believes that the ED moves accounting for SPEs from a rules-based standard toward a principles-based standard. This is consistent with our preferred approach for a general consolidation standard and with our July 2002 letter commenting on conceptual standards, available at http://www.aaa-edu.org, or the related article published in Accounting Horizons (AAA FASC 2003b). If approved, the ED would likely result in more SPEs being consolidated by the entities that have effective control over their operations, consistent with our general approach to consolidation. The Committee favors moving the basis for consolidation from an emphasis on legal control to a notion of effective economic control, based on the concepts of variable interests and primary beneficiary. This move toward an economic definition of control should improve financial reporting by enhancing the representational faithfulness of financial statements in those circumstances where the risks and benefits of ownership are retained. Weaknesses The Committee believes the ED has five potential weaknesses, which we discuss in turn: its limitation to specific transactions and its scope exceptions, a lack of clarity in the variable interests constructs, the inclusion of a bright-line rule for defining sufficient equity investment, the limited implementation guidance, and the absence of enhanced disclosure requirements.
From The Wall Street Journal's Accounting Educators' Reviews on February February 22, 2002 TOPICS: Accounting, Creative Accounting, Disclosure, Financial Accounting, Financial Statement Analysis, Lease Accounting SUMMARY: The article includes a discussion of the features of synthetic leases and the reasons that they are attractive alternatives to purchases and normal lease agreements. QUESTIONS:
1.) List the properties of synthetic leases. How are synthetic leases different from "normal" lease agreements? How are synthetic leases different from purchasing assets? 2.) Are synthetic leases accounted for as capital leases or operating leases? Support your answer. In what situations is a lease transaction accounted for as a capital lease? How are the financial statements different if a transaction is accounted for as a capital lease versus an operating lease? In substance, does it appear that a synthetic lease is more similar to a purchase or an operating lease? Support your answer. 3.) What is meant by DuGan when he said, "but synthetic leases have a hidden balloon payment."? Should a balloon payment be recorded on the financial statements? Support your answer. 4.) Should companies be prohibited or discouraged from engaging in synthetic leases? Support your answer. Is better disclosure of synthetic lease transactions needed in financial reporting? What changes in financial reporting are needed to provide better disclosure of synthetic lease transactions? Reviewed By: Judy Beckman, University of Rhode Island
Reviewed By: Benson Wier, Virginia Commonwealth University
Reviewed By: Kimberly Dunn, Florida Atlantic University Synthetic leasing is intertwined with special purpose entity ploys to keep debt off the balance sheet.
The widespread use of so-called synthetic leases by companies to purchase and build everything from new campuses to retail stores is coming under increased scrutiny. But that's not stopping a handful of firms from plowing ahead with the controversial financing method. A synthetic-lease arrangement allows a company to get the tax benefits associated with owning real estate, while keeping the debt associated with it off its balance sheet. Critics say that such leases are an accounting maneuver that hides potential liabilities and can be used to boost earnings per share. AOL Time Warner Inc., for one, remains committed to financing the construction of its new Manhattan headquarters at the site of the old New York Coliseum and a new production facility in Atlanta with a $1 billion synthetic lease with Bank of America Corp., according to Michael Colacino of real-estate services firm Julien J. Studley Inc., who worked on the deal for the media giant. Enron Corp.'s use of off-balance sheet subsidiaries were allegedly used "to conceal lots and lots of debt" and "misdirect people away from understanding" its core business, says Mr. Colacino. In contrast, synthetic leases are "used to finance real estate and equipment that aren't part of the core business of a company." For AOL Time Warner, the synthetic lease is "not a material issue." A spokeswoman for AOL says a synthetic lease "continues to provide a diversified source of tax advantaged, cost-efficient financing ... our synthetic leases are disclosed in our financial statements, and we believe they are in the best interest of our shareholders." Cheaper Alternative In a synthetic-lease deal, a financial institution typically sets up a special-purpose entity that essentially borrows money from the institution to build a facility or purchase an existing one for a company. The special-purpose entity holds the title to the property and leases the property to the respective company. In many cases, the company gets a lower interest rate, which is a floating rate based on the firm's creditworthiness rather than on the value of the real estate, although there are up-front legal and accounting costs. Companies have used synthetic leases to finance equipment purchases as well. They see them as a cheaper alternative to leasing, purchasing or developing property with traditional loans. For accounting purposes, a company is considered a tenant leasing the property under a synthetic-lease structure. As such, the transaction is treated like a simple operating lease, and the company doesn't have to carry the asset on its balance sheet -- though many companies mention their use in a footnote. That means the company avoids taking depreciation charges against earnings. For tax purposes, the company is considered the owner of the asset. As such, it is entitled to deduct the interest payments and the depreciation of the value of the property. What's more, typically these lease deals run from three to seven years with options to renew. And that's where potential problems can arise. Because the leases are short-term, if a company can't renew a synthetic lease because its credit rating has fallen, it may all of a sudden be faced with getting new financing and putting it on its books -- a rude surprise for investors. This might be particularly problematic for companies that are short on cash or have properties whose values have fallen. "There's nothing wrong with them as a concept," says Gordon DuGan, president of W. P. Carey & Co., a New York-based real-estate investment firm that helps companies get out of synthetic deals, "but synthetic leases have a hidden balloon payment." Given these economic times and the drop in real-estate values in some markets, "you don't want to have to make a payment like that," he says. Often, these deals lack transparency because the liability a company may have isn't fully divulged. Concern about disclosure prompted an about-face last week by Krispy Kreme Doughnuts Inc., whose previous plan to finance the construction of $35 million manufacturing and distribution plant with a synthetic lease came under fire, touched off by a Forbes magazine story. The Winston-Salem, N.C., company now says it will finance the facility with a traditional mortgage that will be reflected in its financial statements. Not Dettered Other companies, meanwhile, plan to proceed with their plans. In a filing with the Securities and Exchange Commission, Idec Pharmaceuticals Inc. says it plans to develop a new $100 million headquarters campus in the San Diego area and a $300 million to $400 million manufacturing facility in nearby Oceanside, Calif., using "off-balance-sheet lease" arrangements. Idec Pharmaceuticals Chief Financial Officer Phillip Schneider says that while accountants and lawyers at the San Diego-based biotech company have become "less comfortable" with synthetic leases, "we're still looking at that as an option." What's more, Mr. Schneider says, "synthetic leases are much lower in cost to the company than a normal lease by about 4%." Chiron Corp., another biotech company, is proceeding with financing a more than $200 million expansion of its Emeryville, Calif., headquarters, although the deal isn't yet completed, says John Gallagher, a company spokesman. Mr. Gallagher wouldn't comment on Chiron's reasons for continuing with the synthetic lease deal, but he says the company is "monitoring" reaction to synthetic leases "in light of recent events" involving Enron's off-balance-sheet activity.
Bob,
I interested in your comment on synthetic leases. Anecdotal evidence from my contacts in the Minneapolis/St. Paul area suggests that few synthetic leases are done any more and some companies made big fees unwinding existing ones. What did we miss?
K
April 13, 2006 reply from Bob Jensen It is my understanding that the synthetic leasing industry brought pressures to bear, along with some other industries, to continue to allow off-balance sheet accounting in SPEs (now VIEs) when the FASB and the SEC began to consider the future of this entire off-balance sheet ploy after the Enron fiasco. Perhaps some of the synthetic leasing SPEs are unwinding now because of the despised 10% outside investor rule used to be a 3% rule. This complicates but does not eliminate off-balance sheet accounting with VIEs. Bob Jensen
Bob, The industry folks are consistent with you on the significance of the increase from 3% to 10% equity investment as an important reason for the demise of the synthetic lease. Interestingly, according to the property guys who arranged these things, public companies were reluctant to retain the arrangement, even if consolidation wasn't a problem, because of the negativity associated with SPEs/VIEs after Enron. The public companies maintained to the property guys that analysts had enough info in the notes to capitalize the leases, so consolidation didn't matter, it was that SPEs/VIEs gave the impression of bad financial reporting and that did matter. K
2009 Update FASB Statement 167: Consolidation of Variable Interest Entities
FASB significantly revamped its consolidation standards for variable interest entities when it released Statement No. 167 in June 2009. Those standards rework existing rules under FIN 46R for when a company must include a VIE on its books with a potentially huge impact on corporate balance sheets. The criteria for determining an entity's VIE status have shifted, based now more on a company's "obligations" and "power" over an entity than on ownership percentage or absorption of losses. Complicating matters further are new disclosure requirements to explain consolidation decisions. New standards cover fiscal years after Nov. 15, 2009, so they affect financials published as soon as March or April 2010. Advisors must prepare now for the standards, which require reevaluation of existing entity relationships, regardless of whether VIEs were previously consolidated. How Will This Statement Change Current Practice?
This Statement amends Interpretation 46(R) to require an enterprise to perform an analysis to determine whether the enterprise’s variable interest or interests give it a controlling financial interest in a variable interest entity. This analysis identifies the primary beneficiary of a variable interest entity as the enterprise that has both of the following characteristics: a. The power to direct the activities of a variable interest entity that most significantly impact the entity’s economic performance b. The obligation to absorb losses of the entity that could potentially be significant to the variable interest entity or the right to receive benefits from the entity that could potentially be significant to the variable interest entity. Additionally, an enterprise is required to assess whether it has an implicit financial responsibility to ensure that a variable interest entity operates as designed when determining whether it has the power to direct the activities of the variable interest entity that most significantly impact the entity’s economic performance.
This Statement amends Interpretation 46(R) to require ongoing reassessments of whether an enterprise is the primary beneficiary of a variable interest entity. Before this Statement, Interpretation 46(R) required reconsideration of whether an enterprise is the primary beneficiary of a variable interest entity only when specific events occurred. This Statement amends Interpretation 46(R) to eliminate the quantitative approach previously required for determining the primary beneficiary of a variable interest entity, which was based on determining which enterprise absorbs the majority of the entity’s expected losses, receives a majority of the entity’s expected residual returns, or both. This Statement amends certain guidance in Interpretation 46(R) for determining whether an entity is a variable interest entity. It is possible that application of this revised guidance will change an enterprise’s assessment of which entities with which it is involved are variable interest entities. This Statement amends Interpretation 46(R) to add an additional reconsideration event for determining whether an entity is a variable interest entity when any changes in facts and circumstances occur such that the holders of the equity investment at risk, as a group, lose the power from voting rights or similar rights of those investments to direct the activities of the entity that most significantly impact the entity’s economic performance. Under Interpretation 46(R), a troubled debt restructuring as defined in paragraph 2 of FASB Statement No. 15, Accounting by Debtors and Creditors for Troubled Debt Restructurings, was not an event that required reconsideration of whether an entity is a variable interest entity and whether an enterprise is the primary beneficiary of a variable interest entity. This Statement eliminates that exception. This Statement amends Interpretation 46(R) to require enhanced disclosures that will provide users of financial statements with more transparent information about an enterprise’s involvement in a variable interest entity. The enhanced disclosures are required for any enterprise that holds a variable interest in a variable interest entity. This Statement nullifies FASB Staff Position FAS 140-4 and FIN 46(R)-8, Disclosures by Public Entities (Enterprises) about Transfers of Financial Assets and Interests in Variable Interest Entities. However, the content of the enhanced disclosures required by this Statement is generally consistent with that previously required by the FSP. How Will This Statement Improve Financial Reporting?]
This Statement amends Interpretation 46(R) to replace the quantitative-based risks and rewards calculation for determining which enterprise, if any, has a controlling financial interest in a variable interest entity with an approach focused on identifying which enterprise has the power to direct the activities of a variable interest entity that most significantly impact the entity’s economic performance and (1) the obligation to absorb losses of the entity or (2) the right to receive benefits from the entity. An approach that is expected to be primarily qualitative will be more effective for identifying which enterprise has a controlling financial interest in a variable interest entity. This Statement requires an additional reconsideration event when determining whether an entity is a variable interest entity when any changes in facts and circumstances occur such that the holders of the equity investment at risk, as a group, lose the power from voting rights or similar rights of those investments to direct the activities of the entity that most significantly impact the entity’s economic performance. It also requires ongoing assessments of whether an enterprise is the primary beneficiary of a variable interest entity. These requirements will provide more relevant and timely information to users of financial statements. This Statement amends Interpretation 46(R) to require additional disclosures about an enterprise’s involvement in variable interest entities, which will enhance the information provided to users of financial statements. What Is the Effect of This Statement on Convergence with International Financial Reporting Standards?
The International Accounting Standards Board (IASB) has a project on its agenda to reconsider its consolidation guidance. The IASB issued two related Exposure Drafts, Consolidation and Derecognition, in December 2008 and March 2009, respectively. The IASB project on consolidation is a broader reconsideration of all consolidation guidance (not just the guidance for variable interest entities). Although this Statement was not developed as part of a joint project with the IASB, the FASB and IASB continue to work together to issue guidance that yields similar consolidation and disclosure results for special-purpose entities. The ultimate goal of both Boards is to provide timely, transparent information about interests in specialp purpose entities. However, the timeline and anticipated effective date of the IASB project is different from the effective date of this Statement. This Statement addresses the potential impacts on the provisions and application of Interpretation 46(R) as a result of the elimination of the qualifying special-purpose entity concept in Statement 166. Ultimately, the two Boards will seek to issue a converged standard that addresses consolidation of all entities.
The First American Corporation's Jack Murray Reference Library --- http://www.firstam.com/faf/html/cust/jm-entities-outline.html
Use of Special Purpose Entities in Synthetic Leasing Transactions- Bankruptcy-remote special purpose entity ("SPE") is commonly used as ownership vehicle of choice in structured-financing transactions
- Rating agencies require SPE for securitization, access to capital markets and lower financing rates
- Meets requirement for "tax neutral," "pass through" vehicle; not taxed at entity level and treated as conduit for tax purposes
- Structurally isolates assets of borrowing entity; reduces risk of bankruptcy of lessee/borrower and consolidation with other debtors or affiliates
- Minimizes both credit risk and risk of recovery of real estate
- Covenants normally required by lenders/rating agencies in SPE organizational and loan documents to discourage bankruptcy filing:
- Prohibition against any business activity other than operation of the property and against owning any other property
- Prohibition against any merger with another entity or acquisition of any subsidiary
- Prohibition of any other debt other than the lease financing, except for ordinary trade debt (fully subordinate financing may be permitted if credit rating not impaired)
- Separate SPE books and records, stationery, bank accounts, tax returns, and office
- Prohibition against contracts with affiliates, unless arms-length
- Prohibition against commingling of assets with affiliates
- Prohibition against guarantee of (or pledge of SPE assets to secure) debt of affiliate
- "Independent director" requirement (approval of bankruptcy filing, change in SPE governing documents, and transactions with affiliates)
- Disclosure (of transfer of assets from borrower to new SPE) to transferor’s other creditors
- Requirement of lockbox arrangement to monitor cash disbursements
- In lieu of SPE in synthetic leasing transaction, "substantive lessor" may be lessor, e.g., bank leasing subsidiary or "conduit lessor," to avoid Financial Accounting Standards Board ("FASB") restrictions on SPEs
- Business trust, grantor trust, nominee trust, single-purpose corporation, limited partnership, or LLC may serve as SPE
- In-state trustee or co-trustee (national bank or state-chartered trust company) may be required by local law
- Accounting rules require consolidation if "control" or "alter ego" of subsidiary or other entity
- SPE cannot lack "economic substance"
- Risk of consolidation of SPE’s assets, liabilities, operation results and cash flows in lessee’s statements
- Disclosure of all relevant off-balance-sheet information to investors is concern
- FASB Emerging Issues Task Force ("EITF") Bulletin 90-15 requires consolidation if:
- substantially all assets leased to single entity
- risks and rewards and debt obligation reside with lessee including purchase option or residual guarantee
- lessee has fixed-price purchase option at lease inception or right to excess sales proceeds
- SPE owner has not made "substantive" equity investment at risk for entire lease term
- FASB EITF Bulletin 90-15 requires financial statement disclosure of:
- general description of terms of lease
- renewal or purchase options
- escalation clauses
- obligation to refinance lessor’s debt
- lease default penalties
- residual guarantees
- Three percent (now 10%) is minimum "substantive" equity investment in a synthetic leasing transaction involving an SPE as lessor
- May be contributed by trust beneficiary, controlling partner, LLC member, or by recourse loan to SPE
- Can be in form of equity certificate to debt holders or from third parties
- Can’t be note payable to SPE, or secured by letter of credit, insurance, or guarantee; because investment is not "at risk"
- More than 3% (now 10% after FASB Interpretation 46 in January 2003) may be required, depending on credit risk or market risk (cost of funds)
- Can be secured by recourse debt and subordinate assignment of lease or mortgage, and/or pledge of interest in SPE
- Debt used to finance equity investment must be recourse to assets of borrower other than its interest in SPE
- FASB EITF Bulletin 96-21
- Multiple properties in SPE (non-recourse, no cross collateralization)
- Multi-tiered SPEs - apply at lowest level
- Lessee payments prior to lease commencement date - part of 90% FASB No. 13 limit
- Payments of SPE earnings - return of equity v. return on equity
- Structuring fees paid by lessee prior to lease commencement - subject to 90% limit; return of equity
- "Construction in progress" treatment if any hard costs, or more than 10% of soft costs, incurred by lessee prior to lease commencement
- Interest-only lease payments expensed by lessee on straight-line basis; any expected deficiency payment in accrued expense
- Bankruptcy court consolidation of SPE?
- Equitable consolidation with other debtors or affiliates
- For benefit of creditors without knowledge of relationships
- "Reasoned" attorney’s opinion on non-consolidation?
- Bankruptcy-remote or "bankruptcy proof" SPE?
- Structurally isolate assets of SPE, independent of SPE owners/affiliates
- "Independent" director, partner, or member (but see In re Kingston Square Associates, 214 B.R. 713 (Bankr. S.D. N.Y. 1997))
- Is "business trust" a "person" under Bankruptcy Code?
- Business Trust may be a bankruptcy proof entity if it is truly a non-profit "pass through" entity (see In re Secured Equipment Trust of Eastern Airlines, Inc., 38 F.3d 86 (2nd Cir. 1994))
- Case-by-case determination by courts
- Use of land trust, Massachusetts business trust, grantor trust, or limited liability company as SPE
- Can’t convert non-business trust to business trust in order to file bankruptcy
- The Financial Contract Netting Improvement Act ("FCNIA"), H.R. 4393, reported out of committee on August 21, 1998, would amend Section 541 of the Bankruptcy Code.
- The FCNIA would (among other things):
exclude from the estate of the debtor eligible assets transferred by the debtor to an SPE with the intent of removing them from the debtor’s estate in the event of a subsequent bankruptcy.
- The fate of the FCNIA is uncertain, as it must be reconciled with any revisions suggested by the Senate and signed into law by the president.
- FASB Position on SPE Consolidation:
- Exposure Draft 154-D (October 1995).
- A "controlling" entity must consolidate all entities that it "controls."
- Control is "power to use or direct use of SPE assets in same manner as the sponsor’s own assets."
- SPE can’t "primarily or exclusively" serve economic or business interests of sponsor.
- Can’t exercise operational and decisional control, including "ultimate residual risks, benefits and disposition of property."
- Irrelevant if sponsor does not choose board or have any involvement with SPE, if SPE has no discretion as to its activities and operations.
- Applies specifically to synthetic lease transactions.
- "Conduit" SPEs may be authorized and utilized, so long as they are presently conducting activities for other sponsors.
- Clarification and passage of Exposure Draft 154-D, in a modified form, is expected in late 1998.
- FASB Board believes there may be a presumption of control if creator of SPE sets its policies and limits its purposes.
- FASB plans to develop criteria for the purpose of identifying a "qualifying special-purpose entity" and defining "control" in circumstances involving SPEs.
- Exposure Draft 194-B (Revised) (February 23, 1999).
- Revision of EITF 154-D.
- It states that "[f]or purposes of consolidated financial statements, control involves decision-making ability that is not shared with others."
- Applies specifically to the creation of an SPE to acquire, construct and use property where the creating entity has the nonshared ability to guide the SPE’s functions and the ability to increase the benefits it can derive and limit the losses it can incur as the result of the way its directs those activities.
- Example 7 contains a description of a synthetic-lease transaction, involving the creation of an SPE, that would require consolidation.
- Example 7 also describes a scenario under which three financial institutions form the SPE and none of them individually has the ability to dominate the board of the SPE or control it; such an arrangement would not require consolidation.
- Deadline for comments on EITF 194-B is May 24, 1999.
On March 1, 2002 in the wake of the Enron scandal and the FASB wrote a summary report of SPE accounting at http://www.fei.org/download/FASB_SPE.pdf
Often these structures are used to finance specific assets or a revolving asset base transferred to the SPE. The transfer of trade receivables, loans, or investment securities to the SPE would generally be followed by the SPE’s issuance of debt to investors secured by the transferred assets. The borrower/transferor gains access to a source of funds less expensive than would otherwise be available. This advantage derives from isolating the assets in an entity prohibited from undertaking any other business activity or taking on any additional debt, thereby creating a better security interest in the assets for the lender/investor. SPE financing structures issue many forms of asset-backed securities, including collateralized bond, debt, and loan obligations; and trade receivable commercial paper conduits.
An SPE might be the lessor of a property built for the specific needs of an identified lessee, such as a power plant or a production facility. These transactions are often referred to as synthetic leases and provide tax-advantaged financing lower than traditional mortgage loans. Another form of tax-advantaged SPE transaction is the sale to an SPE of an asset that qualifies as a financing under tax regulations, with any gain on sale deferred for tax purposes. These are known as debt-for-tax transactions.
May 2002 SPE Document from the FASB (It is free in draft form)
Topic:
Questions and Answers Related to Derivative Financial Instruments Held or Entered into by a Qualifying Special-Purpose Entity (SPE) --- http://accounting.rutgers.edu/raw/fasb/draft/q&a140_supplement.pdf
In September 2000, the Financial Accounting Standards Board (FASB) issued FASB Statement No. 140, Accounting for Transfers and Servicing of Financial Assets and Extinguishments of Liabilities. The FASB staff determined that the following questions and answers should be issued as an aid to understanding and implementing Statement 140 because of certain inquiries received on specific aspects of that Statement.
The Board reviewed the following questions and answers in a public meeting and did not object to their issuance. The questions and answers will be included in a future edition of the FASB Staff Implementation
Bob Jensen's threads on derivative financial instruments are at http://www.trinity.edu/rjensen/caseans/000index.htm
The following SEC quotation is taken from http://www.sec.gov/info/accountants/speechoutline.htm#ragone00
I. Consolidation of Special Purpose Entities
A. Factors to consider in determining sponsor of SPE (Ragone, 2000)
The staff has received several inquiries relating to the consolidation of special-purpose entities ("SPEs"). As I discussed at this conference last year, when analyzing these transactions, the staff looks to the guidance contained in EITF Issue 90-15, Impact of Nonsubstantive Lessors, Residual Value Guarantees, and Other Provisions in Leasing Transactions, EITF Topic D-14, Transactions involving Special-Purpose Entities, and EITF Issue 96-21, Implementation Issues in Accounting for Leasing Transactions involving Special-Purpose Entities. The guidance in these EITF Issues discusses when a sponsor or transferor should consolidate an SPE. In many SPE transactions, there are several parties involved, and it may not be clear which party is the sponsor. Recently, the staff was asked for its views on how a registrant should determine who is the sponsor of an SPE.
The staff believes that registrants should not apply any one specific factor to determine the sponsor of an SPE, and believes that all of the facts and circumstances of each transaction should be considered carefully. In this regard, the staff believes registrants should consider the following qualitative and quantitative factors in evaluating who the sponsor is of an SPE:
Qualitative Factors
Purpose. What is the business purpose of the SPE? Name. What is the name of the SPE?
Name. What is the name of the SPE?
Nature. What are the types of operations being performed (for example, lending or financing operations, asset management, and insurance or reinsurance operations)?
Referral Rights. Who has, and what is the nature of, the relationships with third parties that transfer assets to or from the SPE?
Asset Acquisition. Who has the ability to control whether or not asset acquisitions are from the open market or from specific entities?
Continuing Involvement. Who is providing the services necessary for the entity to perform the nature of its operations, and who has the ability to change the service provider (for example, asset management services, liquidity facilities, trust services, financing arrangements)?
Placement of Debt Obligations. Who is the primary arranger of the debt placement, and who performs supporting roles associated with debt placement?
Quantitative Factors
Residual Economics. Who receives the residual economics of the SPE including all fee arrangements?
Fee Arrangements. Who receives fees for asset management, debt placement, trustee services, referral services, and liquidity/credit enhancement services? How are the fee arrangements structured?
Credit Facilities. Who holds the subordinated interests in the SPE? In summary, the determination of who the sponsor is in SPE transactions requires one to exercise sound professional judgment. The qualitative and quantitative factors discussed above are not intended to be all-inclusive. In analyzing these transactions, registrants should consider and weigh all the factors noted above, among other items particular to the arrangement, before concluding on any given set of facts and circumstances.
You can read the following at http://www.saul.com/services/lease_acc.htm
EITF 90-15. The Emerging Issues Task Force ("EITF") of FASB has addressed circumstances under which the lessor and the lessee are "consolidated" for financial accounting purposes. Under EITF 90-15, the lessee will not receive off-balance sheet accounting treatment if all of the following tests are met:
Substantially all of the activities of the lessor involve assets that are leased to the lessee.
The lessee bears substantially all of the residual risks and enjoys substantially all of the residual benefits of the leased assets.
The lessor has not made any substantive investment that is at risk during the term of the lease.
The first test of EITF 90-15 is met in a synthetic lease if the transaction is structured using an SPE as the lessor. In addition, the triple-net lease meets the second test. With respect to the third test, however, EITF 90-15 proposes three (3) percent as the minimum equity (now 10% after FASB Interpretation 46 in January 2003) that qualifies as a "substantive" investment with the result that the typical synthetic lease SPE is structured with a three percent equity contribution. When using a special purpose entity, lessee will also be concerned that the transaction is structured to comply with the February 23, 1999 FASB Exposure Draft on Consolidated Financial Statements which suggests very clearly that under certain circumstances a three (3) percent equity contribution may no longer be sufficient by itself to avoid consolidation.
SPEs are focused upon in other FASB Emerging Issues Task Force (EITF) pronouncements. These are a part of a much larger mosaic of off-balance sheet financing. Note the following from http://accounting.rutgers.edu/raw/fasb/eitf/bytype.pdf
Off-balance-sheet financing
84-11 Offsetting installment note receivables and bank debt ("note monetization")
84-15 Grantor trusts consolidation
84-23 Leveraged buyout holding company debt
84-25 Offsetting nonrecourse debt with sales-type or direct financing lease receivables
84-26 Defeasance of special-purpose borrowings
84-30 Sales of loans to special-purpose entities
84-41 Consolidation of subsidiary after instantaneous in-substance defeasance
84-42 Push-down of parent company debt to a subsidiary
85-11 Use of an employee stock ownership plan in a leveraged buyout
85-16 Leveraged leases
86-36 Invasion of a defeasance trust
87-7 Sale of an asset subject to a lease and nonrecourse financing: "wrap lease transactions"
91-10 Accounting for tax increment financing entities and special assessments
01-5 Application of FASB Statement No. 52, Foreign Currency Translation, to an Investment Being Evaluated for Impairment That Will Be Disposed Of
Inventory/fixed assets/leases
96-20 The Impact of FASB Statement No. 125, Accounting for Transfers and Servicing of Financial Assets and Extinguishments of Liabilities, on Consolidation of Special-Purpose Entities
96-21 Implementation Issues in Accounting for Leasing Transactions Involving Special-Purpose Entities
97-1 Implementation Issues in Accounting for Lease Transactions, Including Those involving Special-Purpose Entities
97-6 Application of EITF Issue No. 96-20, "Impact of FASB Statement No. 125, Accounting for Transfers and Servicing of Financial Assets and Extinguishments of Liabilities, on Consolidation of Special Purpose Entities," to Qualifying SPEs Receiving Transferred Financial Assets Prior to the Effective Date of Statement 125
"Securitization and Structured Finance: Legitimate Business Management Tools," by Barbara T. Kavanagh, Hosted by the Financial Management Association (FMA) --- http://www.fma.org/FMAOnline/Securitization.pdf
Introduction
The events and controversy surrounding the bankruptcy of Enron have led many to believe that securitization and structured finance serve no other purpose than deceit and deception. In reality, these are modern business tools that, when properly deployed, allow corporate treasurers to transfer risk, access alternative funding sources and capital markets, and maximally leverage a corporation’s own expertise despite an inevitably limited capital base.
This article explains the basic components of structured finance transactions and the sound reasons for their undertaking from both an investor and originator perspective, and will also provide the reader with examples of different common structures. Section II of this document describes the basic mechanics and players inherent in nearly all securitizations and structured transactions; the remaining sections of this document will discuss examples of different types of structures. Section III discusses asset backed commercial paper (ABCPs) vehicles and the important reasons for their evolution. Section IV will dissect a project finance securitization, generally undertaken to specifically fund the project(s) in question. Section V will discuss catastrophe linked bonds , or “cats”, as an example of a means of shifting a risk concentration away from the originator and towards investors in need of portfolio diversification.
Fundamental Components of Securitization and Structured Transactions
Certain structural features are common across all structured transactions. In each case, a separate entity is created in which a population of assets or cash flows can be isolated. Commonly called a special purpose vehicle or entity (“SPV or SPE”), the SPV then issues debt and/or equity instruments to investors representing claims on the cash flows or assets isolated in the SPV. The SPV is often a trust or corporation whose establishment is in the best interests of both originator and investor.
A structure can be a “cash flow” or “synthetic” securitization vehicle. In a cash flow-based securitization, the ownership of the assets whose cash flows are to be securitized are actually transferred to the SPV. In a “synthetic” securitization, by contrast, the cash flows and/or economic exposure is transferred to the SPV through the use of a total return swap or some other derivatives transaction. The two are equivalent from a risk and return standpoint, but synthetic SPVs do not assume actual ownership of any assets.
From the perspective of the originator of a cash flow securitization, isolating the assets or cash flows in question in an SPV is often a necessary step to achieve sales accounting treatment under GAAP and thereby remove the assets in question from its balance sheet. From the investor perspective, isolating the assets/cash flows serves to insulate the transaction from the potential bankruptcy of the originator as well as its overall credit risk profile. In doing so, it allows the investor to take on the isolated risk in the transaction in question rather than the wider populations of risk that are probably inherent in direct equity or debt investments of the originator. In addition, if the obligations of the cash flow-backed SPV are to be more highly rated than the direct obligations of the originator, complete isolation from the risk profile of the originator will be requisite.
Two additional players are almost always present in each structured transactions, one to insure strict adherence to the prescribed terms of the deal, the other to manage funds movement and cash flows. These are the trustee and servicer, respectively. The trustee is an independent third party paid a fee and retained from the onset of the transaction to essentially act as an advocate for the SPVs security holders. The trustee monitors systematic reports by the servicer tracking asset or pool performance, takes in cash flows collected by the servicer, and acts to monitor the entire transaction on behalf of the security holder and in relation to underlying legal indentures. Many structured finance transactions contain prescribed “trigger events”- specifically identified events or performance measurements that, when realized, may cause early liquidation or other actions to preserve the interests of the security holder. It is the obligation of the trustee to track deal performance, based on data provided monthly from the servicer, and take such actions as legal covenants in the structure require to preserve the interests of the SPV’s security holders. Similarly, the trustee will take in cash flows collected and forwarded by the servicer and pass them through to security holders, also as prescribed by terms of the underlying structure and supporting legal documents.
The servicer in structured transactions is often the originator of the assets in question. By way of example, assume a bank bundles a population of residential mortgages it has originated, conveys them to an SPV, and the SPV then issues securities representing the beneficial interests in the cash flows eminating from those mortgages. Most commonly the originator is also the servicer- in this case a bank. It allows the originator to enjoy fee income over the life of the transaction, and in this case also keeps the bank customer from realizing some party other than the bank has met its credit needs. That is, the mortgage obligor continues making payments to the bank monthly as required; the bank, however, passes them through to the trustee who, in turn, passes them along to the investor holding a security interest in the cash flow stemming from that pool of mortgages. Notably, should the servicer fail to perform as required in the legal documents, the trustee will be required to substitute another servicer so as to preserve the security holder’s interests in the deal.
Finally, credit enhancements are often indigenous to structured transactions and securitizations (and in many cases, liquidity enhancement as well). Enhancements can be either externally provided by a third party- such as a monoline insurer providing a credit default guarantee- or may be “internal” to the deal. In the latter case, some mechanism(s) is established in the deal design/engineering process to protect security holders from defaults in excess of anticipated levels.
Continued at http://www.fma.org/FMAOnline/Securitization.pdf
From FEI Express on March 21, 2002
ENRON: AN ACCOUNTING ANALYSIS OF HOW SPEs WERE USED TO CONCEAL DEBT AND AVOID LOSSES (This research report is not free.)
In this special executive report, Gordon Yale, a forensic accounting expert, examines what not to do with SPEs. His analysis, which looks at elements of the Powers Report, analyzes Enron's use of SPEs, traces the short history of SPE misuse and focuses on controversial gain-on-sale accounting common to many securitizations. Available at the FEI Research Bookstore: http://www.fei.org/rfbookstore/default.cfm
Enron Auditor Carl Bass Disclosures in 1999
Enron's very complex, actually unfathomable, SPEs are summarized at http://news.findlaw.com/hdocs/docs/enron/sicreport/chapter1.pdf
"Andersen auditor questioned Enron: Carl Bass raised accounting issues with Enron in 1999, documents show." CNNMoney, April 2, 2002 --- http://money.cnn.com/2002/04/02/news/companies/andersen_bass/
Arthur Andersen auditor Carl Bass questioned Enron Corp.'s accounting practices as far back as December 1999, documents released Tuesday by congressional investigators show.
Bass expressed his discomfort in December 18, 1999, with Enron's aggressive hedging strategy for derivatives. In a message to John Stewart, an Andersen partner in Chicago, Bass said he told colleague David Duncan that he objected to using one derivative to hedge another derivative. Duncan was the lead audit partner on the Enron account.
Derivatives cannot hedge derivatives for accounting purposes -- now or under FASB 133," Bass said. "Does Dave [Duncan] think his accounting works even under FASB 133? No way."
Both Bass and Duncan reportedly are in talks with federal prosecutors and their testimony could be used in the obstruction case against Andersen.
Andersen in January fired Duncan for instigating the destruction of Enron Corp. documents. Houston-based Enron allegedly used off-the-book transactions to hide $1 billion in debt and to inflate profits. Enron, once the nation's seventh-largest company, filed the largest bankruptcy in U.S. history last December.
Arthur Andersen, Enron's auditor for 16 years, was hit with a federal indictment March 14 for allegedly obstructing justice when it destroyed Enron documents. Andersen is now near collapse and called off merger negotiations Tuesday with KPMG International. The proposed Andersen-KPMG transaction would have combined the two firms's non-U.S. partnerships.
In a February 1, 2000 e-mail to Stewart, Bass laid out issues he had with a "complicated series of Enron derivatives." Three days later, Bass sent another message stating he was "still bothered" with a partnership, SPE, and believed it to be non-substantive.
Because of such complaints, a senior Enron executive asked Duncan to remove Bass from any review responsibility for the Enron account, the Wall Street Journal reported Tuesday. Bass was removed in 2000, the WSJ said.
Enron's Misuse of SPEs: The Powers Report
Enron: Bankruptcy Court Link http://www.nysb.uscourts.gov/
The 208 Page February 2, 2002 Special Investigative Committee of the Board of Directors (Power's) Report---
Alternative 1: http://nytimes.com/images/2002/02/03/business/03powers.pdf Alternative 2: http://i.cnn.net/cnn/2002/LAW/02/02/enron.report/powers.report.pdf Alternative 3: Part One | Part Two | Part Three | Part Four
Trinity University students may access this report at J:\courses\acct5341\readings\enron\powers.pdf
Introduction to the Powers ReportREPORT OF INVESTIGATION BY THE SPECIAL INVESTIGATIVE COMMITTEE OF THE BOARD OF DIRECTORS OF ENRON CORP. William C. Powers, Jr., Chair Raymond S. Troubh Herbert S. Winokur, Jr. TABLE OF CONTENTS
EXECUTIVE SUMMARY AND CONCLUSIONS ........................................................................ 1
INTRODUCTION ..................................... .................................................................................... 29
I BACKGROUND: ENRON AND SPECIAL PURPOSE ENTITIES ........................................... 36
II. CHEWCO ...: .............................................................................................................................. 41
A. Formation of Chewco .............................................................................................................. 43
B. Limited Board Approval .......................................................................................................... 46
C. SPE Non-Consolidation "Control" Requirement ....................................................................... 47
D. SPE Non-Consolidation "Equity" Requirement ......................................................................... 49
E. Fees Paid to Chewco/Kopper ................................................................................................. 54
F. Enron Revenue Recognition Issues ........................................................................................... 56
1. Enron Guaranty Fee ........................................................................................................... 56
2. "Required Payments" to Enron ............................................................................................ 57
3. Recognition of Revenue from Enron Stock .......................................................................... 58
G. Enron's Repurchase of Chewco's Limited Partnership Interest ................................................. 60
1. Negotiations ...................................................................................................................... 60
2. Buyout Transaction ............................................................................................................ 62
3. Returns to Kopper/Dodson ............................................................................................... 64
4. Tax Indemnity Payment ..................................................................................................... 64
H. Decision to Restate ............................................................................................................... 66
III. LJM HISTORY AND GOVERNANCE .................................................................................. 68
A. Formation and Authorization of LJM Cayman, L.P. andLJM2 Co-Inves ................................ 68
B. LJM Governance Issues ....................................................................................................... 75
IV. RHYTHMS NETCONNECTIONS ...................................................................................... 77
A. Origin of the Transaction ...................................................................................................... 77
B. Structure of the Transaction .................................................................................................. 79
C. Structure and Pricing Issues .................................................................................................. 82
1. Nature of the Rhythms "Hedge". ....................................................................................... 82
2. SPE Equity Requirement .................................................................................................. 83
3. Pricing and Credit Capacity ............................................................................................. 84
D. Adjustment of the "Hedge" and Repayment of the Note ........................................................ 85
E. Unwinding the Transaction ................................................................................................... 87
1. Negotiations ................................................................................................................... 87
2. Terms ............................................................................................................................ 89
3. Financial Results ............................................................................................................ 89
F. Financial Participation of Enron Employees in the Unwind ................................................... 92
V. THE RAPTORS .................................................................................................................. 97
A. Raptor I ............................................................................................................................ 99
1. Formation and Structure ............................................................................................... 99
2. Enron's Approval of Raptor I ...................................................................................... 105
3. Early Activity in Raptor I ..............................................................................................107
4. Credit Capacity Concerns in the Fall of 2000 .............................................................. 110
B. Raptors II and IV ................................................................................................................. 111
C. Raptor III ........................................................................................................................ 114
1. The New Power Company ................................................................................... ...... 115
2. The Creation of Raptor III ........................................................................................... 115
3. Decline in Raptor III's Credit Capacity ........................................................................ 118
D. Raptor Restructuring ....................................................................................................... 119
1. Fourth Quarter 2000 Temporary Fix .......................................................................... 119
2. First Quarter 2001 Restructuring ................................................................................ 121
a. The Search for a Solution ................................................................................. 121
b. The Restructuring Transaction ......................................................................... 122
E. Unwind of the Raptors ................................................................................................... 125
F. Conclusions on the Raptors ........................................................................................... 128
VI. OTHER TRANSACTIONS WITH LJM ........................................................................ 134
A. Illustrative Transactions with LJM ................................................................................. 135
1. Cuiaba ..................................................................................................................... 135
2. ENA CLO ............................................................................................................... 138
3. Nowa Sarzyna (Poland Power Plant) ........................................................................ 140
4. MEGS ..................................................................................................................... 141
5. Yosemite ................................................................................................................. 142
6. Backbone ................................................................................................................ 143
B. Other Transactions with LJM ........................................................................................ 145
VII. OVERSIGHT BY THE BOARD OF DIRECTORS AND MANAGEMENT ................ 148
A. Oversight by the Board of Directors .............................................................................. 148
1. The Chewco Transaction ................................... :..................................................... 149
2. Creation of LJM1 and LJM2 .................................................................................... 150
3. Creation of the Raptor Vehicles ................................................................................ 156
4. Board Oversight of the Ongoing Relationship with LJM ............................................. 158
B. Oversight by Management ............................................................................................. 165
C. The Watkins Letter ....................................................................................................... 172
VIII. RELATED-PARTY DISCLOSURE ISSUES ................................................................ 178
A. Standards for Disclosure of Related-Party Transactions ................................................. 178
B. Enron's Disclosure Process ............................................................................................ 181
C. Proxy Statement Disclosures ......................................................................................... 184
1. Enron's Disclosures ................................................................................................... 184
2. Adequacy of Disclosures .......................................................................................... 187
D. Financial Statement Footnote Disclosures ..................................................................... 192
1. Euron's Disclosures ................................................................................................. 192
2. Adequacy of Disclosures ......................................................................................... 197
E. Conclusions on Disclosure ........................................................................................... 200
EXECUTIVE SUMMARY AND CONCLUSIONS The Special Investigative Committee of the Board of Directors of Enron Corp. submits this Report of Investigation to the Board of Directors. In accordance with our mandate, the Report addresses transactions between Enron and investment partnerships created and managed by Andrew S. Fastow, Enron's former Executive Vice President and Chief Financial Officer, and by other Enron employees who worked with Fastow.
The Committee has done its best, given the available time and resources, to conduct a careful and impartial investigation. We have prepared a Report that explains the substance of the most significant transactions and highlights their most important accounting, corporate governance, management oversight, and public disclosure issues. An exhaustive investigation of these related-party transactions would require time and resources beyond those available to the Committee. We were not asked, and we have not attempted, to investigate the causes of Enron's bankruptcy or the numerous business judgments and external factors that contributed it. Many questions currently part of public discussion--such as questions relating to Enron's international business and commercial electricity ventures, broadband communications activities, transactions in Enron securities by insiders, or management of employee 401(k) plans--are beyond the scope of the authority we were given by the Board.
There were some practical limitations on the information available to the Committee in preparing this Report. We had no power to compel third parties to submit to interviews, produce documents, or otherwise provide information. Certain former Enron employees who (we were told) played substantial roles in one or more of the transactions under investigation--including Fastow, Michael J. Kopper, Ben F. Glisan, Jr. declined to be interviewed either entirely or with respect to most issues. We have had only limited access to certain workpapers of Arthur Andersen LLP ("Andersen"), Enron's outside auditors, and no access to materials in the possession of the Fastow partnerships or their limited partners. Information from these sources could affect our conclusions. This Executive Summary and Conclusions highlights important parts of the Report and summarizes our conclusions. It is based on the complete set of facts, explanations and limitations described in the Report, and should be read with the Report itself. Standing alone, it does not, and cannot, provide a full understanding of the facts and analysis underlying our conclusions.
BACKGROUND On October 16, 2001, Enron announced that it was taking a $544 million alter-tax charge against earnings related to transactions with LJM2 Co-Investment, L.P. ("LJM2"), a partnership created and managed by Fastow. It also announced a reduction of shareholders' equity of $1.2 billion related to transactions with that same entity.
Less than one month later, Enron announced that it was restating its financial statements for the period from 1997 through 2001 because of accounting errors relating to transactions with a different Fastow partnership, LJM Cayman, L.P. ("LJMI"), and an additional related-party entity, Chewco Investments, L.P. ("Chewco"). Chewco was managed by an Enron Global Finance employee, Kopper, who reported to Fastow.
The LJM1- and Chewco-related restatement, like the earlier charge against earnings and reduction of shareholders' equity, was very large. It reduced Enron's reported net income by $28 million in 1997 (of $105 million total), by $133 million in 1998 (of $703 million total), by $248 million in 1999 (of $893 million total), and by $99 million in 2000 (of $979 million total). The restatement reduced reported shareholders' equity by $258 million in 1997, by $391 million in 1998, by $710 million in 1999, and by $754 million in 2000. It increased reported debt by $711 million in 1997, by $561 million in 1998, by $685 million in 1999, and by $628 million in 2000. Enron also revealed, for the first time, that it had learned that Fastow received more than $30 million from LJM1 and LJM2. These announcements destroyed market confidence and investor trust in Enron. Less than one month later, Enron filed for bankruptcy.
SUMMARY AND FINDINGS This Committee was established on October 28, 2001, to conduct an investigation of the related-party transactions. We have examined the specific transactions that led to the third-quarter 2001 earnings charge and the restatement. We also have attempted to examine all of the approximately two dozen other transactions between Enron and these related-party entities: what these transactions were, why they took place, what went wrong, and who was responsible.
Our investigation identified significant problems beyond those Enron has already disclosed. Enron employees involved in the partnerships were enriched, in the aggregate, by tens of millions of dollars they should never have received--Fastow by at least $30 million, Kopper by at least $10 million, two others by $1 million each, and still two more by amounts we believe were at least in the hundreds of thousands of dollars. We have seen no evidence that any of these employees, except Fastow, obtained the permission required by Enron's Code of Conduct of Business Affairs to own interests in the partnerships. Moreover, the extent of Fastow's ownership and financial windfall was inconsistent with his representations to Enron's Board of Directors.
This personal enrichment of Enron employees, however, was merely one aspect of a deeper and more serious problem. These partnerships---Chewco, LJM1, and LJM2--were used by Enron Management to enter into transactions that it could not, or would not, do with unrelated commercial entities. Many of the most significant transactions apparently were designed to accomplish favorable financial statement results, not to achieve bonafide economic objectives or to transfer risk. Some transactions were designed so that, had they followed applicable accounting rules, Enron could have kept assets and liabilities (especially debt) off of its balance sheet; but the transactions did not follow those rules.
Other transactions were implemented--improperly, we are informed by our accounting advisors--to offset losses. They allowed Enron to conceal from the market very large losses resulting from Enron's merchant investments by creating an appearance that those investments were hedged--that is, that a third party was obligated to pay Enron the amount of those losses---when in fact that third party was simply an entity in which only Enron had a substantial economic stake. We believe these transactions resulted in Enron reporting earnings from the third quarter of 2000 through the third quarter of 2001 that were almost $1 billion higher than should have been reported.
Enron's original accounting treatment of the Chewco and LJM1 transactions that led to Enron's November 2001 restatement was clearly wrong, apparently the result of mistakes either in structuring the transactions or in basic accounting. In other cases, the accounting treatment was likely wrong, notwithstanding creative efforts to circumvent accounting principles through the complex structuring of transactions that lacked fundamental economic substance. In virtually all of the transactions, Enron's accounting treatment was determined with extensive participation and structuring advice from Andersen, which Management reported to the Board. Enron's records show that Andersen billed Enron $5.7 million for advice in connection with the LJM and Chewco transactions alone, above and beyond its regular audit fees.
Many of the transactions involve an accounting structure known as a "special purpose entity" or "special purpose vehicle" (referred to as an "SPE" in this Summary and in the Report). A company that does business with an SPE may treat that SPE as if it were an independent, outside entity for accounting purposes if two conditions are met: (1) an owner independent of the company must make a substantive equity investment of at least 3% of the SPE's assets, and that 3% must remain at risk throughout the transaction; and (2) the independent owner must exercise control of the SPE. In those circumstances, the company may record gains and losses on transactions with the SPE, and the assets and liabilities of the SPE are not included in the company's balance sheet, even though the company and the SPE are closely related. It was the technical failure of some of the structures with which Enron did business to satisfy these requirements that led to Enron's restatement.
Continued at http://nytimes.com/images/2002/02/03/business/03powers.pdf
The Watkins Letter In light of considerable public attention to what has been described as a "whistleblower" letter to Lay by an Enron employee, Sherron Watkins, we set out the facts as we know them here. However, we were not asked to, and we have not, conducted an inquiry into the resulting investigation.
Shortly after Enron announced Skilling's unexpected resignation on August 14, 2001, Watkins sent a one-page anonymous letter to Lay sl/ The letter stated that "Enron has been very aggressive in its accounting--most notably the Raptor transactions." The letter raised serious questions concerning the accounting treatment and economic substance of the Raptor transactions (and transactions between Enron and Condor Trust, a subsidiary of Whitewing Associates), identifying several of the matters discussed in this Report. It concluded that "I am incredibly nervous that we will implode in a wave of accounting scandals." Lay told us that he viewed the letter as thoughtfully written and alarming.
Lay gave a copy of the letter to James V. Derrick, Jr., Enron's General Counsel. Lay and Derrick agreed that Enron should retain an outside law firm to conduct an investigation. Derrick told us he believed that Vinson & Elkins ("V&E") was the logical choice because, among other things, it was familiar with Enron and LJM matters. Both Lay and Derrick believed that V&E would be able to conduct an investigation more quickly than another firm, and would be able to follow the road map Watkins had provided. Derrick says that he and Lay both recognized there was a downside to retaining V&E because it had been involved in the Raptor and other LJM transactions. (Watkins subsequently made this point to Lay during the meeting described below and in a supplemental letter she gave to him.) But they concluded that the investigation should be a preliminary one, designed to determine whether there were new facts indicating that a full investigation--involving independent lawyers and accountants--should be performed.
Derrick contacted V&E to determine whether it could, under the legal ethics rules, handle the investigation. He says that V&E considered the issue, and told him that it could take on the matter. Two V&E partners, including the Enron relationship partner and a litigation partner who had not done any prior work for Enron, were assigned to handle the investigation. Derrick and V&E agreed that V&E's review would not include questioning the accounting treatment and advice from Andersen, or a detailed review of individual LJM transactions. Instead, V&E would conduct a "preliminary investigation," which was defined as determining whether the facts raised by Watkins warranted further independent legal or accounting review.
Watkins subsequently identified herself as the author of the letter. On August 22, one week after she sent her letter, she met with Lay in his office for approximately one hour. She brought with her an expanded version of the letter and some supporting documents. Lay recalls that her major focus was Raptor, and she explained her concerns about the transaction to him. Lay believed that she was serious about her views and did not have any ulterior motives. He told her that Enron would investigate the issues she raised,
V&E began its investigation on August 23 or 24. Over the next two weeks, V&E reviewed documents and conducted interviews. V&E obtained the documents primarily from the General Counsel of Enron Global Finance. We were told that V&E, not Enron, selected the documents that were reviewed. V&E interviewed eight Enron officers, six of whom were at the Executive Vice President level or higher, and two Andersen partners. V&E also had informal discussions with lawyers in the firm who had worked on some of the LJM transactions, as well as in-house counsel at Enron. No former Enron officers or employees were interviewed. We were told that V&E selected the interviewees.
After completing this initial review, on September 10, V&E interviewed Watkins. In addition, V&E provided copies of Watkins' letters (both the original one-page letter and the supplemental letter that she gave to Lay at the meeting) to Andersen, and had a follow-up meeting with the Andersen partners to discuss their reactions. V&E also conducted follow-up interviews with Fastow and Causey.
On September 21, the V&E partners met with Lay and Derrick and made an oral presentation of their findings. That presentation closely tracked the substance of what V&E later reported in its October 15, 2001 letter to Derrick. At Lay's and Derrick's request, the V&E lawyers also briefed Robert Jaedicke, the Chairman of the Audit and Compliance Committee, on their findings. The lawyers made a similar presentation to the full Audit and Compliance Committee in early October 2001.
V&E reported in writing on its investigation in a letter to Derrick dated October 15, 2001. The letter described the scope of the undertaking and identified the documents reviewed and the witnesses interviewed. It then identified four primary areas of concern raised by Watkins: (1) the "apparent" conflict of interest due to Fastow's role in LJM; (2) the accounting treatment for the Raptor transactions; (3) the adequacy of the public disclosures of the transactions; and (4) the potential impact on Enron's financial statements. On these issues, V&E observed that Enron's procedures for monitoring LJM transactions "were generally adhered to," and the transactions ''were uniformly approved by legal, technical and commercial professionals as well as the Chief Accounting and Risk Officers." V&E also noted the workplace "awkwardness" of having Enron employees working for LJM sitting next to Enron employees.
on the conflict issues, V&E described McMahon's concerns and his discussions with Fastow and Skilling (described above), but noted that McMahon was unable to identify a specific transaction where Enron suffered economic harm. V&E concluded that "none of the individuals interviewed could identify any transaction between Enron and LJM that was not reasonable from Enron's standpoint or that was contrary to Enron's best interests." on the accounting issues, V&E said that both Enron and Andersen acknowledge "that the accounting treatment on the Condor/Whitewing and Raptor transactions is creative and aggressive, but no one has reason to believe that it is inappropriate from a technical standpoint." V&E concluded that the facts revealed in its preliminary investigation did not warrant a "further widespread investigation by independent counsel or auditors," although they did note that the "bad cosmetics" of the Raptor related-party transactions, coupled with the poor performance of the assets placed in the Raptor vehicles, created "a serious risk of adverse publicity and litigation."
V&E provided a copy of its report to Andersen. V&E also met with Watkins to describe the investigation and go over the report. The lawyers asked Watkins whether she had any additional factual information to pass along, and were told that she did not.
With the benefit of hindsight, and the information set out in this Report, Watkins was right about several of the important concerns she raised. On certain points, she was right about the problem, but had the underlying facts wrong. In other areas, particularly her views about the public perception of the transactions, her predictions were strikingly accurate. Overall, her letter provided a road map to a number of the troubling issues presented by the Raptors.
The result of the V&E review was largely predetermined by the scope and nature of the investigation and the process employed. We identified the most serious problems in the Raptor transactions only after a detailed examination of the relevant transactions and, most importantly, discussions with our accounting advisors--both steps that Enron determined (and V&E accepted) would not be part of V&E's investigation. With the exception of Watkins, V&E spoke only with very senior people at Enron and Andersen. Those people, with few exceptions, had substantial professional and personal stakes in the matters under review. The scope and process of the investigation appear to have been structured with less skepticism than was needed to see through these particularly complex transactions.
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Frank Partnoy's Testimony on Enron's Derivative Financial Instruments Frauds
I am submitting testimony in response to this Committee’s request that I address potential problems associated with the unregulated status of derivatives used by Enron Corporation. . . . In short, Enron makes Long-Term Capital Management look like a lemonade stand.
Testimony of Frank Partnoy Professor of Law, University of San Diego School of Law Hearings before the United States Senate Committee on Governmental Affairs, January 24, 2002 --- http://www.senate.gov/~gov_affairs/012402partnoy.htm
I am a law professor at the University of San Diego School of Law. I teach and research in the areas of financial market regulation, derivatives, and structured finance. During the mid-1990s, I worked on Wall Street structuring and selling financial instruments and investment vehicles similar to those used by Enron. As a lawyer, I have represented clients with problems similar to Enron’s, but on a much smaller scale. I have never received any payment from Enron or from any Enron officer or employee.
Enron has been compared to Long-Term Capital Management, the Greenwich, Connecticut, hedge fund that lost $4.6 billion on more than $1 trillion of derivatives and was rescued in September 1998 in a private bailout engineered by the New York Federal Reserve. For the past several weeks, I have conducted my own investigation into Enron, and I believe the comparison is inapt. Yes, there are similarities in both firms’ use and abuse of financial derivatives. But the scope of Enron’s problems and their effects on its investors and employees are far more sweeping.
According to Enron’s most recent annual report, the firm made more money trading derivatives in the year 2000 alone than Long-Term Capital Management made in its entire history. Long-Term Capital Management generated losses of a few billion dollars; by contrast, Enron not only wiped out $70 billion of shareholder value, but also defaulted on tens of billions of dollars of debts. Long-Term Capital Management employed only 200 people worldwide, many of whom simply started a new hedge fund after the bailout, while Enron employed 20,000 people, more than 4,000 of whom have been fired, and many more of whom lost their life savings as Enron’s stock plummeted last fall.
In short, Enron makes Long-Term Capital Management look like a lemonade stand.
It will surprise many investors to learn that Enron was, at its core, a derivatives trading firm. Nothing made this more clear than the layout of Enron’s extravagant new building – still not completed today, but mostly occupied – where the top executives’ offices on the seventh floor were designed to overlook the crown jewel of Enron’s empire: a cavernous derivatives trading pit on the sixth floor.
I believe there are two answers to the question of why Enron collapsed, and both involve derivatives. One relates to the use of derivatives “outside” Enron, in transactions with some now-infamous special purpose entities. The other – which has not been publicized at all – relates to the use of derivatives “inside” Enron.
Derivatives are complex financial instruments whose value is based on one or more underlying variables, such as the price of a stock or the cost of natural gas. Derivatives can be traded in two ways: on regulated exchanges or in unregulated over-the-counter (OTC) markets. My testimony – and Enron’s activities – involve the OTC derivatives markets.
Sometimes OTC derivatives can seem too esoteric to be relevant to average investors. Even the well-publicized OTC derivatives fiascos of a few years ago – Procter & Gamble or Orange County, for example – seem ages away.
But the OTC derivatives markets are too important to ignore, and are critical to understanding Enron. The size of derivatives markets typically is measured in terms of the notional values of contracts. Recent estimates of the size of the exchange-traded derivatives market, which includes all contracts traded on the major options and futures exchanges, are in the range of $13 to $14 trillion in notional amount. By contrast, the estimated notional amount of outstanding OTC derivatives as of year-end 2000 was $95.2 trillion. And that estimate most likely is an understatement.
In other words, OTC derivatives markets, which for the most part did not exist twenty (or, in some cases, even ten) years ago, now comprise about 90 percent of the aggregate derivatives market, with trillions of dollars at risk every day. By those measures, OTC derivatives markets are bigger than the markets for U.S. stocks.
Enron may have been just an energy company when it was created in 1985, but by the end it had become a full-blown OTC derivatives trading firm. Its OTC derivatives-related assets and liabilities increased more than five-fold during 2000 alone.
And, let me repeat, the OTC derivatives markets are largely unregulated. Enron’s trading operations were not regulated, or even recently audited, by U.S. securities regulators, and the OTC derivatives it traded are not deemed securities. OTC derivatives trading is beyond the purview of organized, regulated exchanges. Thus, Enron – like many firms that trade OTC derivatives – fell into a regulatory black hole.
After 360 customers lost $11.4 billion on derivatives during the decade ending in March 1997, the Commodity Futures Trading Commission began considering whether to regulate OTC derivatives. But its proposals were rejected, and in December 2000 Congress made the deregulated status of derivatives clear when it passed the Commodity Futures Modernization Act. As a result, the OTC derivatives markets have become a ticking time bomb, which Congress thus far has chosen not to defuse.
Many parties are to blame for Enron’s collapse. But as this Committee and others take a hard look at Enron and its officers, directors, accountants, lawyers, bankers, and analysts, Congress also should take a hard look at the current state of OTC derivatives regulation. (In the remainder of this testimony, when I refer generally to “derivatives,” I am referring to these OTC derivatives markets.)
Much, much more at http://www.senate.gov/~gov_affairs/012402partnoy.htm
Frank Partnoy is best known as a whistle blower at Goldman Sachs who blew the lid on the financial graft and sexual degeneracy of derivatives instruments traders and analysts who ripped the public off for billions of dollars and contributed to mind-boggling worldwide frauds. He is a Yale University Law School graduate who shocked the world with various books include the following:
- FIASCO: The Inside Story of a Wall Street Trader
- FIASCO: Blood in the Water on Wall Street
- FIASCO: Blut an den weißen Westen der Wall Street Broker.
- FIASCO: Guns, Booze and Bloodlust: the Truth About High Finance
- Infectious Greed : How Deceit and Risk Corrupted the Financial Markets
- Codicia Contagiosa
His other publications include the following highlight:
"The Siskel and Ebert of Financial Matters: Two Thumbs Down for the Credit Reporting Agencies" (Washington University Law Quarterly)
News Reports and Miscellaneous Items
"Web of Details Did Enron In as Warnings Went Unheeded," by Kurt Eichenwald and Diana Henriques," The New York Times, February 10, 2002
The article by Eichenwald and Henriques is the best summary of the 200+ page Powers report that I have seen to dateAndersen's negative response to the above report ---
Statement of C. E. Andrews, Global Managing Partner, in response to Enron special committee report February 2, 2002 — The report issued today by Enron’s special committee is troubling on many levels. Nothing more than a self-review, it does not reflect an independently credible assessment of the situation, but instead represents an attempt to insulate the company’s leadership and the Board of Directors from criticism by shifting blame to others. http://www.andersen.com/website.nsf/content/MediaCenterEnronResources!OpenDocument
Under pressure to set accounting standards for the kinds of special purpose entities that kept debt off Enron's balance sheet, the Financial Accounting Standards Board, in February 2002, has tentatively decided on an approach and directed its staff to begin writing an exposure draft. http://www.accountingweb.com/item/72237
DIRTY NUMBERS Off Balance Sheet--And Out Of Control
SPEs are ripe for abuse, but few went as far as Enron's Fastow. FORTUNE Monday, February 18, 2002
By Jeremy Kahn --- http://www.fortune.com/indexw.jhtml?channel=artcol.jhtml&doc_id=206335 The press calls them "off-balance-sheet partnerships"--those hundreds of Enron entities that were used to hide its debt and book illusory profits. On Wall Street, though, they're known as special purpose entities, or SPEs, and you'd be hard-pressed to find a FORTUNE 500 company that doesn't use one. Are they all as bad as Enron's? Thankfully, no. But they offer plenty of temptation for companies looking for legal ways to cook the books.
Like many complex instruments, SPEs were created to perform a straightforward, necessary task--isolating and containing financial risk. Businesses that wanted to perform a specialized task--an airline buying a fleet of airplanes; a company building a big construction project--would set up an SPE and offload the financing to the new entity. For example, a company looking to build a gas pipeline but not wanting to assume all the debt load would set up an SPE--essentially, a joint venture with other investors--to build it. The SPE would own the pipeline and use it as collateral to issue the bonds to finance it. The sponsoring company would still operate the pipeline, with the revenues being used to pay back the bondholders.
In theory, SPEs protected both sides of the transaction if something went awry. If the project went bust, the company was responsible only for what it had put into the SPE; conversely, if the company went bankrupt, its creditors couldn't go after the SPE's assets.
Over time, SPEs became essential components of modern finance. Their uses expanded wildly--and legitimately. For example, virtually every bank uses SPEs to issue debt secured by pools of mortgages. And companies as diverse as Target and Xerox use SPEs for factoring--the centuries-old practice of generating cash by selling off receivables.
But SPEs also evolved into an effective scalpel for CFOs looking to perform cosmetic surgery on their balance sheets. That's because the accounting rules say that as long as a company owns less than 50% of an SPE's voting stock, the SPE's assets and debt don't have to be consolidated on its books. In fact, due to a particularly egregious accounting reg, the SPE's nominal owner--usually some friendly outside investor--needs to put up only 3% (now 10%) of the SPE's equity. The company establishing it can contribute the remaining 97%, and it still qualifies for off-balance-sheet treatment.
Today many transactions between companies and their SPEs do not isolate risk at all; their primary purpose is to hide pertinent information from investors. Take factoring again. The sponsoring company usually provides the SPE's bondholders with guarantees called credit enhancements, which are promises to maintain the value of the SPE's assets at some minimal level. In more complicated SPEs, such as some of Enron's, options or derivatives are used to guarantee the bondholders' returns. Amazingly, this practice is technically allowable.
SPEs are also a good way to keep money away from Uncle Sam. Most tax-avoidance techniques using SPEs cleverly exploit discrepancies between accounting rules and tax laws. Synthetic leases are a good example. These are transactions in which a company sells an asset to an SPE and then leases it back. The company gets to move the asset off its balance sheet--yet for tax purposes it retains the ability to depreciate the asset as if it were still the owner.
Enron employed all these tactics and then some. It even sold dubious assets to its SPEs at inflated prices to produce bogus income. And it had almost 900 off-balance-sheet partnerships located in international tax havens, a fact that mystifies most experts. "If a company has four or five of these things, that would be a lot," says Allen Tucci, a partner at Tucci & Tannenbaum, a Philadelphia law firm that helps set up SPEs.
Enron also appears to have stretched the rules well past the breaking point. It used side agreements to set up SPEs that didn't even clear the 3% (now 10%) hurdle. And many of its partnerships were designed to create the appearance that the SPE's investors and bondholders were assuming risks when, in fact, Enron retained most--and in some cases all--of them.
The full story of what Enron did with its SPEs will undoubtedly emerge in the coming months. In the meantime, the Feds are finally cracking down. Late last month, PNC Bank took a $155 million hit to its earnings. Why? Because the SEC and the Federal Reserve forced it to reinclude three SPEs on its balance sheet.
I asked a former Chairman of the Financial Accounting Standards Board to provide me with his off-the-wall remembrances of the history of SPEs in the United States. His reply is shown below.
Reflections of SPE History by Dennis BeresfordBob, I'm not really an expert in this area but I'll share some of my limited knowledge. The 3% (now 10%) rule came about as a result of EITF deliberations a few years ago regarding special purpose leasing entities. These involved things like major power plants and the like. The sponsor enters into an operating lease with the SPE that falls just short of meeting the capitalization rules. Most of the financing for the SPE is non-recourse (to the sponsor) debt but the EITF insisted that some unrelated party put some of its own capital at risk - hence the 3% (now 10%). That may not sound like much but it can be a large dollar investment because many of these projects are huge.
Of course, you and others might ask why the sponsor shouldn't capitalize the lease because it is in substance a purchase. That debate may occur again in the future but for now we live with FASB Statement 13 that requires that such leasing arrangements be well disclosed but not recorded as assets and liabilities if all of the tests in 13 are met. Some of the rating agencies and other users of financial statements do their own capitalization procedures to figure out an effective debt-equity ratio assuming that the leases were capitalized.
Another large segment of the SPE universe involves what are known as take or pay contracts. Again, the SPE is a separate legal entity with substantial non-recourse financing and at least 3% (now 10%) independent equity. In these cases, the sponsor agrees to purchase a certain level of the output of the plant at agreed upon prices. These would represent fixed purchase orders that again should be disclosed in the financial statements (I forget the specific accounting standard that requires this).
The Enron SPE's, based on my very limited understanding, were quite different than the two types mentioned above. First, at least some of them involved Enron selling assets to the SPE and recording significant profits. That's apparently why income statements had to be restated when the SPE's were consolidated by Enron. Normally, SPE's are a form of off-balance sheet financing but they don't cause differences in reported income. A second difference in Enron's case involves the guarantees that Enron made to issue its own stock if things didn't go well for the SPE's. I don't really understand these particulars yet, but they certainly seem to be quite different than the more typical types of SPE's mentioned earlier.
Of course, a third major difference between Enron and most others involves the related parties who were principals of the SPE's, particularly the former CFO.
I'm not aware of any good articles about the benefits of using SPE's. I suspect that the Big 5 firms and the investment bankers have such materials but many of them involve proprietary products perhaps similar to what got Enron in trouble.
I hope this helps a little. This is a fascinating subject and we will all be learning more as matters unfold.
Denny
Reflections of Consolidations History by Dennis BeresfordBob, Some of the postings on AECM and some of the articles in the press suggest that the Enron mess could have been avoided if only the FASB had come up with better consolidation rules some time ago. Those comments caused me to want to describe, at least briefly, some of the problems faced in this area and the history of the consolidation project. Feel free to share this in your Bookmarks or otherwise if you want.
First, it is interesting to note that the 20th anniversary of the FASB's consolidations project occurs this month. I don't remember the specific day, but it was sometime in January 1982 when the Board voted to add a project to its agenda to improve consolidation accounting. Much of the impetuous for that project came from a series of AICPA Issues Papers that pointed out certain practice problems associated with consolidation, such as whether income should be recognized when a subsidiary sells a portion of its equity to independent investors and how to best account for intercompany transactions. I was a member of the AICPA committee that developed those position papers and I was in favor of the Board looking into consolidation. I should add, however, that these were mainly consolidation procedures matters and not the basic consolidation policy matter - on what basis should consolidation take place.
One of the most controversial issues at that time was the non-consolidation of finance and leasing subsidiaries on the basis that their operations were so different from the manufacturing or other operations of the parent that consolidation would not be meaningful. Examples were GMAC and GE Capital. During my first year at the FASB (1987), we finalized Statement 94, which required consolidation of all majority-owned subsidiaries such as those just mentioned. In that Statement the Board said that it felt that consolidation based on control was the most appropriate approach but it hadn't yet been able to agree on what that meant so Statement 94 was intended to be an interim step while the Board worked to refine the notion of control.
I should back up a step at this point to observe that before I joined the Board there had been a lot of research done on the conceptual basis for consolidation. That resulted in a never published research report that concluded there were two basic approaches: the parent company approach and the reporting entity approach. Depending on which of these approaches you prefer, you will get different answers on what entities should be included in consolidated financial statements. You'll also get dramatically different reported results for such things as intercompany gains and losses and minority interest. Most Board members (not me) preferred the reporting entity approach while most constituents have continued to believe that the parent company approach is the only logical one.
In any event, after Statement 94 was issued, the Board continued to debate consolidation and did so for the rest of my ten years as Chairman. An exposure draft was eventually issued that would have required consolidation based on control and would have adopted the reporting entity concept so that consolidation procedures would have been dramatically revised. I dissented to that ED. Nearly all constituents strongly opposed the ED and the Board was not able to reach agreement on either a final statement or a revised ED before I left. Keep in mind that the project was always dealing with all aspects of consolidation and even back then a number of constituents were telling the Board that it should leave well enough alone with respect to general consolidation but it should do something about the developing matter of special purpose entities.
After I left the Board members continued to debate these matters. A decision was made to limit the scope of the project to consolidation policy (what to consolidate) and leave the consolidation procedures (minority interest, etc.) for later consideration. That ED was also generally rejected by constituents. To give you and other interested parties an idea of the continuing problems, I've attached a copy of the comment letter I wrote to the Board on the most recent exposure draft. Yes, former Board members are entitled to express their views, and, yes, the Board is free to ignore them!
I should digress for a moment here and point out that almost no academics ever comment on FASB proposals. Similar to exchanges on AECM and newspaper articles, it is relatively easy to bat out a short criticism about a topic. However, it's much more challenging to study the matter in question in depth and to develop a thoughtful and persuasive commentary.
The FASB has continued to debate the consolidation issues from its latest ED and several months ago it announced that it didn't have enough support (at least 5 members in favor) to be able to issue a final statement. Then there was a turnover of three (of 7) Board members in July and September and the Board said it will begin talking about these matters again given the presence of three individuals with no previous position on the matter. The Board also said it would look first at special purpose entities and similar practice problems to see if interim guidance on those problems could be issued before getting back into the more general matters.
All of the above is not intended to apologize for the FASB's activities on this project or to criticize them. Neither do I feel a need to excuse my own positions. However, I think the above does point out that this is an extremely difficult topic and reasonable people can disagree. In fact, one of my principal reservations about the control approach to consolidation is that two parties can read the same "guidance" and reach the opposite conclusion as to whether consolidation is required. While I believe strongly that judgment should play an important role in applying accounting standards, I think a standard that can't be applied with any sort of reasonable consistency is much worse than a relatively bright line (e.g., 50% ownership) that is applied rigidly even if it leaves out some entities that arguably could have been consolidated.
I apologize for getting a little carried away with this message but I hope it may be helpful to you or others. I guess that one of the things I like about being an academic is that I'm pretty much free to spend my time on things like this - as long as I do it at 6:30 in the morning!
Denny
Reply from Robert Walker in New ZealandThank you for sharing Mr Beresford's letter. As a person operating in a jurisdiction long used to an 'in-substance' approach to consolidation, I have little sympahty with the narrow notion of a reporting group based on the parent entity - though I know it is favoured in North America. The notion of control is built not only into our accounting rules (which have the force of law) but also directly into corporate law itself. That is a group is defined not only by ownership arrangement but also by a control relationship. Unfortunately there is no consideration, to my knowledge, in the courts as to what this might mean.
Our derivative of the conceptual framework (which in my view forms part of legally binding GAAP) goes much further even that the notion of control. It defines the reporting entity as follows:
'A reporting entity exists where it is reasonable to expect the existence of users dependent on general purpose financial reports for information which will be useful to them in terms of the objectives [of financial reporting].'
For a commercial perspective, the problems of operationalising this definition are formidable and, frankly, the consolidation standards don't really deal with it properly. Nevertheless the definition does make some sense in the public sector context. In saying this what needs to be borne in mind is that the genealogy of the NZ definition can be traced directly to the work of Dr Ian Ball - a public sector accounting specialist and a man who is extremely influential in our standard setting establishment as he is (or was) in IFAC's public sector standard setting. He wrote an interesting monograph for the AARB (from memory) entitled The Reporting Entity.
Dr Ball ultimately was attempting to equip our government with what is known as sectoral accounting. His theory is basically that a government should be informed about each sector within its broad jurisdiction - that is health, education or whatever. This is has never been properly developed though it does exist in part. The NZ Public Finance Act 1989 does require a sectoral report to be prepared for all NZ schools. This necessitates that all 3,000 odd schools, even though they are semi-autonomous, have to prepare a financial report to a uniform standard (they are subject to legally imposed and defined GAAP). This is then consoldiated by the central Ministry.
In essence what I shall call the user theory goes on step further than the entity theory. In the latter there is a single axis around which the reporting entity coalesces - generally this will be the central controlling authority like a company board. In the former the reporting entity is multi-axis. There is no central controlling authority.
I myself tested the limits of Dr Ball's user theory in one of the few places I would be allowed to be let loose with some of my more arcane theoretical perspectives. I tried it in my own local school whose baord I was on. NZ schools have a dual fund raising capacity - there is the mainstream funding from government and then there is local fund raising, generally under the control of a semi-autonomous group of parents. Because of the extreme difficulties of auditing uncontrolled local fund raising, the schools financial reports are invariably prepared only on the basis of the government funding.
I decided that the definition included in our GAAP required application of the user theory. I prepared the report to display all resources available to the school not just those from government. The government's auditor refused to accept it and forced me to prepare a report of the narrower entity. I then has a four column report for a tiny school. The effort was unsustainable as the government's auditor well knew. In short, the government auditor let expediency over-ride what is legally binding for a simpler life. Who can blame them.
It does, of course, prove that the practical world of accounting does not like to subject to the logical extensions of theory even if it is written directly into the canon.
One final thought - it has always occurred to me that our banks, being subject to the wider control criterion for consolidation, should consolidate all those advances where they are in effective control rather than account for them as pure advances. Of course this doesn't happen. Funny that.
Robert B Walker [url=mailto:[walkerrb@ACTRIX.CO.NZ][walkerrb@ACTRIX.CO.NZ[/url]]
April 3, 2002 message from Dennis Beresford [url=mailto:[dberesfo@TERRY.UGA.EDU][dberesfo@TERRY.UGA.EDU[/url]]
One of the things that I find most fascinating about the Enron/Andersen saga is how much inside information is being made public (thanks to our electronic age). Yesterday the House Energy and Commerce Committee released a series of internal Andersen memos showing the dialogue between the executive office accounting experts and the Houston office client service people. While I haven't had a chance to read all 94 pages yet, the memos are reported to show that the executive office experts raised significant questions about Enron's accounting. But the Houston people were able to ignore that advice because Andersen's internal policies required the engagement people to consult but not necessarily to follow the advice they received. As far as I know, all other major accounting firms would require that consultation advice be followed.
You can view and download the 94 pages at: http://energycommerce.house.gov/107/news/04022002_527.htm#docs
Denny Beresford
April 8 Reply from Kobelsky, Kevin [url=mailto:[kobelsky@MARSHALL.USC.EDU][kobelsky@MARSHALL.USC.EDU[/url]]
Denny,
Thank you for I'm not sure how far you got through the material, but to help others find their way, I suggest the most salient pages explaining how the SPEs work and the decisions that were made be read in the following order: 1. Enron transaction by Bass 2/1/00 (p.4 of all 95 pages if you download them all-about 2 megs) 2. Enron option by Bass 12/18/99 (p.1,2 of 95) 3. Enron by Bass 3/4/01 #3 "raptor" (p.11-12 of 95) which documents that $100 million in losses was hidden in one transaction. 4. Re: Enron Derivative Transaction by Bass 2/4/00 (p.7 of 95)
Please let me know of other items in there I've missed.
Kevin Kobelsky PhD CA*CISA
Assistant Professor Leventhal School of Accounting,
Marshall School of Business
University of Southern California Accounting Building 125 Los Angeles, CA 90089-0441
Voice: (213) 740-0657 Fax: (213) 747-2815
April 11, 2002 from Heidemarie Lundblad [url=mailto:[lundblad@GTE.NET][lundblad@GTE.NET[/url]]
The problem with these specific SPEs was that they were not truly independent in the sense that even the minimal amount of outside investment required under GAAP was not actually there. Some of it had already been repaid before any transactions took place, some if it was under the control of an Enron related party (Fastow and/or Kopper). Finally, the problem with some of the raptors was that Enron was pretending to hedge fluctuations in its New Power with an SPE that had as its only asset New Power stock.. Tricky to do.
HL
April 11, 2002 reply from Kobelsky, Kevin [url=mailto:[kobelsky@MARSHALL.USC.EDU][kobelsky@MARSHALL.USC.EDU[/url]]
Heidemarie,
Re: independence, had there been 10% rather than 3% (now 10%), would that have made the transactions OK from a GAAP point of view? It wouldn't have made a bit of difference in terms of what actually happened, since once you accept the hedge as unrelated (whatever the criteria), the only issue left is what level of assets in total are available to cover the derivative liability. Thus, while important, I don't think independence at the heart of the problem, which leads to your second point, and my question, concerning the nature of the assets in the SPE. The fact that it was Enron stock is the issue. While I can reason out from first principles why changes in the value of one's stock shouldn't lead to changes in income and expense, there are exceptions. A current example is the push for the cost of executive stock options to be treated as an expense rather than a capital. So it is not entirely clear. And given the US's emphasis on official pronouncements, they become particularly salient, hence my question to Bob and the list.
Another question: what if Enron had done the same deals using the stock of another firm in the same industry, rather than Enron's stock? Then it would be acceptable? But we would have had the same outcome-the losses would be covered until the other firm's stock tanked, with similar measurement and disclosure, and again, a big disaster.
If we don't identify and address the real problems, we can be sure they will recur.
Best regards,
Kevin
FEI's Document of Understanding SPEs
The Financial Executives Institute issued its own explanatory report on SPEs in January 2002 in the wake of the Enron scandal. It attempts to explain why they are used, how they are used, and the background of standards literature on this topic. Go to http://www.fei.org/download/SPEIssuesAlert.pdf
Two excerpts are quoted below:
SPE Usage
To illustrate how an SPE is commonly used in the financial marketplace, consider the following example of a financial asset securitization. Typically, in these types of transactions the SPE is formed to facilitate the sale of specific financial assets belonging to the sponsor company. The assets are sold to the SPE and could include trade accounts receivable, equity securities, notes receivable, etc. A minimum 3% (now 10%) investment from an independent third-party investor is contributed, representing a legal equity ownership interest in the SPE. The 3% (now 10%) is based on the fair value of the financial assets to be sold.
In exchange for its investment, the third-party equity investor controls the SPE activities and retains the substantial risks and rewards of its ownership in the SPE assets. For an SPE to be an arms length entity, not consolidated into the sponsor’s financial statement, the third-party investor must bear the risk of its investment. If an investor contributes equity as a note payable to the SPE or secures the investment by a letter of credit, insurance or guarantee, the investment would not be considered ‘at risk’. Once the 3% (now 10%) is established, the SPE then finances the remaining funds to acquire the financial assets from the sponsoring company by issuing debt and/or additional equity to institutional investors or public shareholders.
As long as the specific qualifications are met, the assets and the corresponding debt and equity of the SPE achieve off-balance sheet treatment with respect to the sponsor’s financial statements. Further, if the SPE has no indebtedness other than the asset-secured loan and routine trade payables, the SPE is unlikely to become insolvent as a result of its activities being limited. Therefore, in financial asset securitizations, SPEs provide the sponsor the ability to legally isolate a group of assets from the sponsor’s bankruptcy risk and to reflect the transfer of financial assets as a sale in its financial statements.
When SPE assets are protected, SPE credit quality is enhanced. Thus financing costs on debt incurred by the SPE are reduced. For an even lower interest rate paid on the debt, the SPE will obtain credit enhancements in the form of recourse debt, subordinate assignments or guarantees, either from the transferor or other third parties. The reduction of credit risk and the marketability of the SPE equity generally diminishes the cost of the capital to a level below that the sponsor would have achieved on its own. Again, it should be noted that such credit enhancement features typically should not be extended to the 3% (now 10%) equity investor as this investment must be ‘at risk’ in order for the SPE to be eligible for deconsolidation by the transferor. The prior example is one of the many types of transactions that use an SPE. The form of the SPE and the structure of the transaction can be vastly different for SPEs used in off-balance sheet activities and leasing arrangements.
The First American Title Insurance Company and Commercial Mortgage Insight offer specifics with regard to the synthetic-leasing and commercial-mortgage-backed securities area. With these particular industries, loan underwriters and/or credit rating agencies require borrowing entities to be SPEs. Lenders and agencies often demand that the SPE appoint at least one independent controlling person who is not affiliated with the sponsor company. The SPE's organizational documents provide for a unanimous or significant majority vote or consent of the SPE members to approve any bankruptcy filing or any disposition of assets. Loan documents may have other restrictions regarding M&A activity and commingling assets or contracting with affiliates.
SPEs can create tax advantages for the transferor. As a pass-through entity, the SPE is not taxed at the entity level. The initial documentation alone could make the SPE an expensive conduit. But given the typical size of the SPE transactions and the benefits of the interest rate reduction plus tax savings, the benefits are likely to outweigh the maintenance costs.
Existing Accounting Guidance for SPEs
Accounting for SPEs involves a two-step approach. The first is identification of the SPE sponsor. Owing to the number of parties involved in some SPEs, the sponsor may not be easily determined. In this regard, the staff of the SEC Office of the Chief Accountant refers to following Emerging Issues Task Force (EITF) guidance:
· EITF Issue 90-15, Impact of Nonsubstantive Lessors, Residual Value Guarantees, and Other Provisions in Leasing Transactions
· EITF Topic D-14, Transactions involving Special-Purpose Entities
· EITF Issue 96-21, Implementation Issues in Accounting for Leasing Transactions involving Special-Purpose Entities.
The staff also recommends consideration of the following factors:
· Name and Purpose . What is the name and business purpose of the SPE?
· Nature. What are the types of operations performed (for example, lending or financing operations, asset management, and insurance or reinsurance operations)?
· Referral Rights. Who has, and what is the nature of, the relationships with third parties that transfer assets to or from the SPE?
· Asset Acquisition. Who has the ability to control whether or not asset acquisitions are from the open market or from specific entities?
· Continuing Involvement. Who is providing the services necessary for the entity to perform its operations and who has the ability to change the service provider (e.g., asset management services, liquidity facilities, trust services, financing arrangements)?
· Placement of Debt Obligations. Who is the primary arranger of the debt placement and who performs supporting roles associated with debt placement?
· Residual Economics. Who receives the residual economics of the SPE including all fee arrangements? · Fee Arrangements. Who receives fees for asset management, debt placement, trustee services, referral services, and liquidity/credit enhancement services? How are the fee arrangements structured? · Credit Facilities. Who holds the subordinated interests in the SPE?
The second and more complicated step is deciding when an SPE should be included in the sponsor’s consolidated financial statements. Consolidation results in the sponsor recognizing SPE assets and obligations, and eliminating the effects of any intercompany transactions. Thus, this eliminates one of the key advantages of creating the SPE. The following provides additional guidance on SPE consolidation:
· Financial Accounting Standards Board (FASB) Statement 140, Accounting for Transfers and Servicing of Financial Assets and Extinguishments of Liabilities
· FASB Statement 94, Consolidation of All Majority-Owned Subsidiaries
· EITF Issue 96-16, Investor’s Accounting for an Investee When the Investor Has a Majority of the Voting Interest but the Minority Shareholder or Shareholders Have Certain Approval or Veto Rights
· EITF Issue 97-1, Implementation Issues in Accounting for Lease Transactions, including Those involving Special-Purpose Entities
· EITF Issue 97-2, Application of FASB Statement No. 94 and APB Opinion No. 16 to Physician Practice Management Entities and Certain Other Entities with Contractual Management Arrangements
· EITF Issue 98-6, Investor's Accounting for an Investment in a Limited Partnership When the Investor Is the Sole General Partner and the Limited Partners Have Certain Approval or Veto Rights.
The primary consideration in determining consolidation is identifying who maintains control of the SPE. EITF Topic D-14 states that nonconsolidation of SPEs and sales recognition related to SPE transactions are not appropriate by the sponsor when:
· The majority owner of the SPE makes only a nominal capital investment
· The activities of the SPE are virtually all on the sponsor's or transferor's behalf
· The substantive risks and rewards of the assets or the debt of the SPE rest directly or indirectly with the sponsor.
If the sponsor is the transferor of the financial assets and the SPE meets the ‘qualifying criteria,’ the sponsor can still avoid consolidation, even if the EITF Topic D-14 and related guidelines are not met. Statement of Financial Accounting Standards (SFAS) 140 details these criteria. SFAS 94 provides primary guidance regarding consolidation principles and focuses on control of the entity. Though the remaining guidance is specific to leasing SPEs, it is consistently used in determining consolidation of all SPE types.
The following issues should be considered when evaluating the consolidation of SPEs:
· Is the capitalization of the SPE adequate at all levels, particularly when (1) multi-tiered SPE structures are utilized, (2) assets held by the SPE are volatile, and/or (3) derivatives are used? · Does the owner’s interest represent a residual equity interest in legal form?
· Is the equity holder truly subordinate to the debt holders? · How are profits and losses allocated? Does the equity holder have both upside and downside potential?
· Is the equity investor an independent third party? · Who has actual control over the management and activities of the SPE? · Are the risks and rewards of ownership retained by the third-party equity investor for the entire term of the SPE?
The following issues should be considered when evaluating the consolidation of SPEs:
· Is the capitalization of the SPE adequate at all levels, particularly when (1) multi-tiered SPE structures are utilized, (2) assets held by the SPE are volatile, and/or (3) derivatives are used? · Does the owner’s interest represent a residual equity interest in legal form? · Is the equity holder truly subordinate to the debt holders?
· How are profits and losses allocated? Does the equity holder have both upside and downside potential? · Is the equity investor an independent third party?
· Who has actual control over the management and activities of the SPE?
· Are the risks and rewards of ownership retained by the third-party equity investor for the entire term of the SPE?
The staff of the American Institute of Certified Public Accountants (AICPA) has prepared a toolkit for accountants and auditors, titled “Accounting and Auditing for Related Parties and Related Party Transactions.” Though not authoritative, the publication was reviewed by the AICPA Audit and Attest Standards staff and is intended to provide an overview of selected accounting and auditing literature, SEC requirements and best-practice guidance concerning related parties and related party transactions. Specific sections apply to SPEs.
The has a section on Enron's troubled SPEs at http://www.fei.org/download/SPEIssuesAlert.pdf
The Infamous and Controversial 3 Percent Rule
The decision to set it at 3% 3% (now 10% after FASB Interpretation 46 in January 2003) is arbitrary, but as Denny Beresford pointed out, there is a rationale for setting it small since most SPEs are intended to be enormous projects (such as a pipeline) in which even 3% (now 10%) is a lot of money.
I think that some outsider equity (e.g., 3% (now 10%) is required to cushion value changes of the SPE's assets agains value changes of the SPE's debt. It is my understanding that the SPE should generally have valued assets (let's call it "skin" for reasons explained below) equal to or greater than the value of the debt. The theory is that debt risk is thereby covered, and off-balance-sheet treatment of special projects is thereby covered --- and there can be theoretical and financing reasons for keeping special projects off the consolidated balance sheet.
In theory, the assets of the SPE should have "skin" in the sense that they are also assets that would appear on the consolidated balance sheet if the SPE was consolidated. For example, if General Electric decided to build a pipeline across Africa, GE could co-sign billions in debt/leases of an SPE. The SPE would then borrow the cash and commence to build the pipeline. The SPE's assets would be cash, land, pipes, etc. These have "skin."
The infamous Enron whistle blower (Ms. Watkins), who sent anonymous letters to CEO Ken Lay and Andersen top brass, pointed out that most of the Enron SPEs set up by CFO Fastow "had no skin." By this she meant that the SPE assets were simply Enron stock certificates instead of being cash, land, pipes, and other assets that would be assets if the SPEs were consolidated. Enron, however, could not book its own common stock as an asset. You can read Ms. Watkins wording at http://www.trinity.edu/rjensen/fraud.htm#Hoax
As long as Enron's stock was above $80 per share, the "value" of the stock in the Enron SPEs exceeded the current value of the debt that was secretly being kept off Enron's consolidated balance sheets. However, when Enron's share prices took a nose dive, the current value of the SPEs' debt greatly exceeded the value of the SPEs' Enron shares and everything imploded to Enron's ground zero. Had there be some real "skin" other than Enron's shares to offset the value of the debt, Enron would not have imploded.
Hence, just because a company has SPEs does not mean that there is a high risk of imploding like Enron. The values of the SPEs' "skins" are what you need to investigate to evaluate the real underlying risk.
Enron was just too thin skinned in most of its 3,000+ SPEs.
What may be missing in accounting for an SPE may be the continual monitoring of fair value of real skin that should not fluctuate wildly in value (unlike Enron share values used as skin).
By real skin, I mean hard cash or hard assets like cash, real estate, and construction assets.
You really don't mind if you co-signed your kid's second mortgage on a house as long as the value of the house is much higher than the balance on that note payable. In case of default, you should get most of your money back even if your kid only has 3% (now 10%) invested of his or her own money. This sort of SPE is not so troublesome.
But if you co-sign to pay for your kid's college education, and the kid does poorly and flunks out in the senior year, then you may get nothing in the case of loan default. This sort of SPE should be booked all along as your debt.
Bob (Robert E.) Jensen
Jesse H. Jones Distinguished Professor of Business
Trinity University, San Antonio, TX 78212 Voice: (210) 999-7347 Fax: (210) 999-8134 Email: rjensen@trinity.edu http://www.trinity.edu/rjensen
-----Original Message-----
From: glan@UWINDSOR.CA [url=mailto:[mailto:glan@UWINDSOR.CA][mailto:glan@UWINDSOR.CA[/url] ]
Sent: Wednesday, February 13, 2002 9:15 AM
To: AECM@LISTSERV.LOYOLA.EDU Subject:
What is the rationale for the 3% (now 10%) rule re SPEs?
Maybe this issue has been raised before and I have missed it. Pardon my ignorance, but I am somewhat unclear about the rationale for the 3% (now 10%) rule. In one of the bookmarks in Bob Jensen's library (the one dealing with SPEs), it is mentioned that "according to the accounting regulation, the company establishing the SPE can contribute the remaining 97% and it still qualifies for off- balance sheet treatment." Why 3% (now 10%) and not say 5% or 25%? What is the logic behind the 3% (now 10%) rule? Can consolidation be avoided even though there is control?
George Lan
University of Windsor
Murat's Reply to Kevin's Reply on April 11, 2002
Kevin:
Your questions are excellent and as I read the internal memos of Andersen auditors either they did not dare to ask the question or were mired down in GAAP detail. As I recall, SPEs first started with securitizing receivables (mortgage notes) where an SPE simply buys the receivables and sells to outside investors in bundles then transfers the collections (purchase price) to the transferor. Thus, cash is coming in from an outside entity. In Enron's case there is no cash coming in from outside plus Fastow and company do not have capital to underwrite the risk. Enron is putting the assets their own stock [it would not have mattered if it was some other company's stock or Enron's cash! All Fastow is doing is giving Enron the wiggling room in accounting to get liabilities off balance sheet at a price. When no risk is transferred why is Enron getting into this deal is the question auditors should be asking rather than all the GAAP rules! In my opinion this is fraudulent.
Regards. Murat
Murat N. Tanju Professor of Accounting Phone # 205.934.8822 Fax # 205.975.4429
-----Original Message-----
From: Kobelsky, Kevin [url=mailto:[mailto:kobelsky@MARSHALL.USC.EDU][mailto:kobelsky@MARSHALL.USC.EDU[/url]]
Sent: Thursday, April 11, 2002 12:05 AM
To: AECM@LISTSERV.LOYOLA.EDU
Subject: Was Enron's treatment actually in compliance with GAAP? Clarifica tion re criterion for 'skin' in SPEs
Bob and learned colleagues,
On Bob's excellent web page, http://www.trinity.edu/rjensen/fraud021402.htm he comments, "In theory, the assets of the SPE should have "skin" in the sense that they are also assets that would appear on the consolidated balance sheet if the SPE was consolidated. For example, if General Electric decided to build a pipeline across Africa, GE could co-sign billions in debt/leases of an SPE. The SPE would then borrow the cash and commence to build the pipeline. The SPE's assets would be cash, land, pipes, etc. These have 'skin.' "
This is the only argument I've seen that specifically would indicate that Enron's SPEs were not in compliance with GAAP.
What is the source of this criterion? In the internal Andersen documents, even those written by Bass, this is not mentioned, and I wonder why none of them seemed to be aware of it.
I've been out of financial accounting for a while, but short of this criterion, other arguments that these transactions were not consistent with GAAP from a measurement point of view seem easily contestable (which I'd be glad to discuss), and changes the discussion to a debate about how 'clear' the notes are (e.g., I DO see mention of the $500 million in income impacts in note 16-a big red flag that Watkins mentions on p.7 #6 of her infamous memo to Lay).
Sure, Fastow was a related entity who was enriched to the tune of tens of millions of dollars, but despite the tone of the Board of Directors report, that's small potatoes from a measurement point of view, and a cost of this magnitude certainly would not justify bringing down Andersen, nor would such costs in themselves lead to the failure of Enron. Put another way, Enron would have collapsed just as quickly if an independent party had been doing the deals for huge fees because of the economic structure of the deals.
If the transaction were potentially in compliance with GAAP, we'd be in the unusual situation where the client complied with GAAP in a way that was materially misleading. If this is the case, based on an earlier thread re: the problems auditors have had in withholding opinions in these situations, maybe the profession at large is more culpable than Andersen.
So again, what is the source of this criterion and what basis do we have for holding Andersen to it?
Kevin Kobelsky PhD CA·CISA
Assistant Professor Leventhal School of Accounting,
Marshall School of Business
University of Southern California Accounting Building 125 Los Angeles, CA 90089-0441 Voice: (213) 740-0657 Fax: (213) 747-2815
The source of the now infamous 3 percent asset value rule is EITF 90-15 from the Financial Accounting Standards Board (FASB). You can read the following at http://www.ahca.org/news/provider/pv9805fn.htm
The lease must also meet the requirements of FAS 98 and FASB's Emerging Issues Task Force (EITF) 90-15.
FAS 98 relates to properties owned by a company, then sold and leased back. Such sales-leasebacks cannot be set up with a purchase option at the end of the lease term. Therefore, the synthetic lease must be arranged so that the title of the newly acquired property doesn't pass through the hands of the lessor. Ensuring this will allow the company to avoid having to comply with FAS 98.
EITF 90-15 requires that partnerships, special-purpose corporations, or trusts with assets must have equity capital of at least 3 percent of the asset value.
So, if these and, in certain situations, other accounting rules are followed, the lease will meet the technical requirements for operating leases, and the property can be kept off the company's balance sheet.
But because the lessee controls the appreciation of the property and is liable for depreciation, the IRS sees a synthetic lease as a conditional sale, with the lessee entitled to the tax benefits of ownership. So, for accounting purposes the property is owned by the lessor, and for tax purposes the property is owned by the lessee.
The leases may be "more appropriate for public companies," Berman says, although smaller companies planning to go public are also using the product. "It has the most powerful impact for public companies because one of the advantages of the lease is that it removes the depreciation expense of ownership from the company's income statement, so it's an earnings enhancer."
Synthetic Lease Treatment At A Glance
Book And Tax Accounting
| Book Accounting | Tax Accounting | | Transaction Structure: | Operating lease | Conditional sale | | Owner: | Lessor | Lessee | | Reason for Classification: | Meets FAS 13 | Lessee primarily retains risks and rewards of ownership | | Expense Item for Lessee: | Rent | Interest and depreciation |
Source: Key Global Finance
The FASB is on the defensive in the Wake of Enron
FASB Chairman Edmund L. Jenkins Testifies Before Congressional Committee
(Mr. Jenkins is also a former executive partner in the Andersen accounting firm.) Norwalk, CT, February 14, 2002—In testimony given today before the Subcommittee on Commerce, Trade, and Consumer Protection of the House Energy and Commerce Committee, chaired by Representative Cliff Stearns (R — FL), Financial Accounting Standards Board (FASB) Chairman Edmund L. Jenkins outlined the FASB’s role in setting U.S. accounting and financial reporting standards and how they protect investors.
During his testimony, Mr. Jenkins assured Chairman Stearns that the FASB "is prepared and committed to work with the Subcommittee, the Securities and Exchange Commission (SEC) and all other constituents to proceed expeditiously to resolve any and all financial accounting and reporting issues that may arise as a result of Enron’s bankruptcy."
Mr. Jenkins stated that the FASB, like most others, "does not know many of the facts relating to Enron’s financial accounting and reporting." He added that Enron has publicly acknowledged in filings with the SEC, and the findings confirmed by the Special Investigative Committee of Enron’s board of directors, that Enron did not comply with existing FASB standards in at least two areas. In addition, there may be other possible violations of existing requirements.
The FASB Chairman went on to outline his group’s ongoing work and projects aimed at providing significant improvement to various current requirements, including the accounting for special-purpose entities. Mr. Jenkins stated that the FASB has accelerated work on its consolidations project and plans to issue proposed guidance relating to special-purpose entities in the second quarter of this year. In response to concerns raised by SEC Chairman Harvey L. Pitt and others about the speed of the FASB’s standard-setting activities, he commented that the FASB has undertaken several projects to improve its "efficiency and effectiveness without jeopardizing the openness, thoroughness and effectiveness of our open due process."
Mr. Jenkins pointed out that the FASB has no authority or responsibility with respect to auditing, independence or scope of service matters. As a result, the FASB and its accounting standards "cannot alone sustain the transparency necessary to maintain the vibrancy of our capital markets. Other market participants also must carry out their responsibilities in the public interest. Those participants include reporting entities, auditors and regulators."
In pledging the FASB’s best efforts in that process, Mr. Jenkins concluded that "If anything positive results from the Enron bankruptcy, it may be that this highly publicized investor and employee tragedy serves as an indelible reminder to all of us that transparent financial accounting and reporting do matter and that the lack of transparency imposes significant costs on all who participate in the U.S. capital markets."
A copy of Mr. Jenkins’ remarks is attached. The complete testimony filed with the Subcommittee on Commerce, Trade, and Consumer Protection of the House Energy and Commerce Committee may be accessed from the FASB’s website, www.fasb.org.
About the Financial Accounting Standards Board (FASB)
Since 1973, the Financial Accounting Standards Board has been the designated organization in the private sector for establishing standards of financial accounting and reporting. Those standards govern the preparation of financial reports and are officially recognized as authoritative by the Securities and Exchange Commission and the American Institute of Certified Public Accountants. Such standards are essential to the efficient functioning of the economy because investors, creditors, auditors and others rely heavily on credible, transparent and comparable financial information. For more information about the FASB, visit our website at www.fasb.org
Bob Jensen's threads on proposed reforms in the wake of the Enron scandal are at http://www.trinity.edu/rjensen/FraudProposedReforms.htm
Please Help the Financial Accounting Standards Board
This is a great opportunity for practioners to show that they are interested in responding to FASB calls for comments. For example, do you think the new EDs go far enough? How can we get airlines to book billions of dollars in leased airplanes on the balance sheet? These EDs do not seem to do the job.
As influential House Energy Committee Chairman Billy Tauzin called for a review of accounting rules "across the country and across corporate boards," the Financial Accounting Standards Board continued its relentless drive to strengthen the standards. On February 15, FASB announced the release of a revised limited version of an exposure draft entitled Rescission of FASB Statements No. 4, 44, and 64 and Technical Corrections-Amendment of FASB Statement No. 13. The new ED proposes an important change in lease accounting. http://www.accountingweb.com/item/72443
As influential House Energy Committee Chairman Billy Tauzin called http://quote.bloomberg.com/fgcgi.cgi?ptitle=Securities%20Firms%20News&b1=ad_bottom1&br=blk&tp=ad_topright&T=wealthstory.ht&s=APHASPRYVVGF1emlu for a review of accounting rules “across the country and across corporate boards,” the Financial Accounting Standards Board (FASB) continued its relentless drive to strengthen the standards. On February 15, 2002, FASB announced http://accounting.rutgers.edu/raw/fasb/news/index.html the release of a revised limited version of an exposure draft (ED) entitled Rescission of FASB Statements No. 4, 44, and 64 and Technical Corrections-Amendment of FASB Statement No. 13. The new ED supplements a previous ED dated November 15, 2001 and proposes an important change in lease accounting.
Together, the two EDs propose to amend four Statements of Financial Accounting Standards (FAS):
FAS No. 4 - Reporting Gains and Losses from Extinguishment of Debt FAS No. 13 - Accounting for Leases FAS No. 44 - Accounting for Intangible Assets of Motor Carriers FAS No. 64 - Extinguishments of Debt Made to Satisfy Sinking-Fund Requirements
Specific proposed changes include the following:
As described in the first ED, companies will no longer be required to classify gains and losses from the extinguishment of debt as extraordinary items, but they will still be allowed to use this accounting treatment in certain circumstances.
As described in the new ED, the accounting for certain types of leases will change, (i.e., sale-leaseback transactions and lease modifications with economic effects similar to sale-leaseback transactions).
The reason for two EDs instead of one is because the second has its roots in the comment letters for the first. Commentators suggested changes they felt would improve financial reporting by eliminating inconsistencies in the various standards. FASB agrees in theory. But it also recognizes that some companies might have structured their leases differently, if the proposed accounting changes had been in effect at the time of the transaction. To ensure these substantive changes get a fair hearing, FASB decided to expose them for public comment as part of its “due process.”
Comments on the revised ED http://accounting.rutgers.edu/raw/fasb/draft/rev_ed_rescission.pdf are due by March 18, 2002.
The item below may help you when you send your letter to the FASB. Perhaps you should complain that the EDs do not go far enough to correct abuses of accounting for synthetic leases.
On February 15, 2002, FASB announced http://accounting.rutgers.edu/raw/fasb/news/index.html the release of a revised limited version of an exposure draft (ED) entitled Rescission of FASB Statements No. 4, 44, and 64 and Technical Corrections-Amendment of FASB Statement No. 13. The new ED supplements a previous ED dated November 15, 2001 and proposes an important change in lease accounting. The FASB would like educators and practitioners to respond to these new EDs.
From The Wall Street Journal's Accounting Educator Reviews on January 24, 2002
TITLE: Enron Crisis Puts Spotlight on the FASB
REPORTER: Steve Liesman, Jonathan Weil, Scot Paltrow
DATE: Jan 18, 2002
PAGE: C1
LINK: http://interactive.wsj.com/archive/retrieve.cgi?id=SB1011304091994557880.djm
TOPICS: Consolidation, Advanced Financial Accounting
SUMMARY: This article relates Enron's accounting woes to the FASB's project on consolidation policy. Enron kept off its books by creating separate entities which were excluded from the consolidated financial statements.
QUESTIONS:
1.) In the introductory paragraph to the article, the author states that the FASB is debating the critical question of when, not whether, a company should be allowed to keep its debt off its books. Do you think that is an accurate description of what the FASB might be willing to do?
2.) Later in the article, the author makes it clear that the question referred to above is one of "consolidating off-balance debt and assets into the parent company's books." Go to the FASB web site's index of the status of its technical projects ( http://accounting.rutgers.edu/raw/fasb/tech/index.html ). Describe their project entitled Consolidations-Policy and Procedures. In general, when may an entity be excluded from consolidated financial statements? How must such an entity be accounted for? What is meant by the term "special purpose entities"?
3.) One of the criticisms leveled against the FASB in establishing this standard on consolidation policy is that the process is taking much too long. Describe the FASB's due process in establishing accounting standards. How does corporate America influence that process?
4.) Congress also is criticizing the FASB for not standing up to its corporate constituents in areas in which corporations want to avoid providing full disclosures. Yet Congress has in fact threatened the FASB with legislation designed to slow down that process even further. Name two areas in which Congress has represented corporate interests in dealing with the FASB.
5.) "FASB officials also point out not all of Enron's problems were related to its off-balance-sheet debt. Some of [Enron's] financial reporting violated basic accounting principles...indicating that the problem...isn't so much with current standards as it is with compliance." Who is responsible for maintaining compliance with current reporting standards? In general, describe the current system for maintaining compliance with accounting and reporting standards.
Reviewed By: Judy Beckman, University of Rhode Island
Reviewed By: Benson Wier, Virginia Commonwealth University
Reviewed By: Kimberly Dunn, Florida Atlantic University
Bob Jensen's Threads on Accounting, Business, Economic, and Related History
http://www.trinity.edu/rjensen/history.htm
Please Weep for Captain Harvey Pitt: Under Either Scenario He's Headed for Heartbreak Hotel
Harvey Pitt was Andersen's lawyer before he heeded the call to public service just a few months ago to become Captain of the USS SEC. He took command of the ship at a time when the beleaguered Big Five accounting firms had been terrorized by the former USS SEC Captain Osama Levitt and Osama's Chief Accountant Omar Turner. Before being exiled to Heartbreak Hotel, Osama and Omar inflicted grave damage on the Big Five public accounting firms. Jeremy Kahn puts it this way:
Jeremy Kahn, "One Plus One Makes What?" Fortune, January 7, 2002, Page 90The American Institute of Certified Public Accountants (AICPA), the industry's professional association, points out that accountants examine the books of more than 15,000 public companies every year; they are accused of errors in just 0.1% of those audits. But oh, the price of those few failures. Lynn Turner, former chief accountant of the Securities and Exchange Commission, estimates that investors have lost more than $100 billion because of financial fraud and the accompanying earnings restatements since 1995.Perhaps the most glaring example of self-regulation's deficiency has been accountants' unwillingness to deal with conflicts of interest. Over the years, the major auditing firms have transformed themselves into "professional services" companies that derive an increasing portion of revenues and profits from consulting: selling computer systems, advising clients on tax shelters, and evaluating their business strategies. In 1999, according to the SEC, half of the Big Five's revenues came from consulting fees, vs. 13% (now 10%) in 1981.
...
"I think we had lots of smoking guns," says former chairman Arthur Levitt. Two years ago the accounting industry waged a bitter battle with Levitt over the issue of auditor independence. He had considered asking the firms to curtail consulting, but backed off after encountering stiff resistance from the accountants and their friends in Congress.
Captain Pitt took over for Levitt with promises to heal SEC relations with the Big Five by never challenging their fundamental rights of the Big Five to serve management and investors simultaneously with both independent audits of systems that their consulting family helped design and operate through consulting practices.
Indeed, when it turned south, the USS SEC may have become the Good Ship Lollipop in tropical waters had it not immediately crashed into the Andersen Iceberg following the Enron scandal. For details of the Enron scandal, see http://www.trinity.edu/rjensen/fraud.htm
Suddenly, Captain Pitt is overseeing a zero-sum game of survival in which he must pick a winning side and a losing side. Whatever the decision, powerful forces are going to fling him overboard to join his predecessors in Heartbreak Hotel.
- Scenario 1: Andersen Gets Hammered by the SEC, and the SEC Sinks SPEs
If the SEC investigation finds the auditing firm severely negligent and in violation of conflict of interest professionalism and he vows to put an end to the evil SPEs, Captain Pitt will be an instant media hero, a beloved Captain who plucked Enron employees and investors out of the thrashing sea and resuscitated their lives. But to do so, Captain Pitt must turn on his former Andersen benefactors whom he served so diligently in the past as a lawyer for their firm. Even worse, when he steps down from the SEC he will be branded with a scarlet letter and banned for ever again being counsel to any public accounting firm or corporation. In short, media heroes can still end up on the floor of Heartbreak hotel.
- Scenario 2: Andersen Gets Whitewashed by the SEC, and the SEC Only Rearranges SPE Deck Chairs
If the SEC investigation finds Andersen's auditors to be noble and independent victims, like the investing public and Enron's employees, of the dastardly greed of Enron's pirates (Jeff Skilling, Andy Fastow, and Ken Lay), then Captain Pitt will be true to his word and remain adored as a peach of a Captain by public accounting firms. He might bestow upon them more than they'd hoped for when he took command of the USS SEC. But his commission will be short lived. The powerful Chairman of the House Energy and Commerce Committee, John Dingell (D-Mich.), will have this peach diced and sliced and then toss the Pitt on the floor of Heartbreak Hotel. Former Captain Harvey Pitt will be so maligned in the media that he will be blacklisted and possibly disbarred.
Of course there are other scenarios that are less extreme, but it would seem that passions run too high in the Enron scandal. The Enron collapse ruined the lives of too many people for Harvey Pitt to avoid ending up on the floor of Heartbreak Hotel. Of course this will greatly please Osama Levitt and Omar Turner in the Heartbreak Hotel. If he brings along his own Chief Accountant, Bob Herdman, they will at last have four for games of contract bridge.
Harvey Pitt is in for the fight of his life. In my opinion, SPEs are so important to companies worldwide that the SEC, the FASB, the IASB, and virtually all other standard setters dare not go to battle with industry over SPEs or substitutes, by whatever names, that allow certain types of debt to stay off the balance sheets.
Securities Regulation & Law Report Securities Regulation & Law Report Information
BNA Products Corp Law Center Catalog
Volume 33 Number 47 December 10, 2001 http://corplawcenter.bna.com/corplawcenter/1,1103,2_966,00.html Dingell Takes Pitt to Task in Wake
Of Enron Debacle; Full Investigation Sought Rep. John Dingell (D-Mich.) Dec. 5 strongly questioned the "tenor and tone" of Securities and Exchange Commission Chairman Harvey Pitt's recent remarks that of late, his agency has not "always been a kinder and gentler place for accountants."
"Your choice of words sends the wrong message to auditors, to the SEC staff, and to the investing public," the Michigan Democrat charged. He said that notwithstanding Pitt's prior legal representation "of a substantial segment of the accounting profession," he expects a thorough SEC investigation of the Enron matter--as well as "any and all other matters involving your former clients."
Dingell included with his letter, released Dec. 6, a list of 16 accounting questions related to Enron that he asked Pitt to consider in the course of the SEC's investigation. The questions addressed Enron's "complex web" of off-balance sheet special-purpose entities, as well as "insider" stock sales and Enron's 401(k) retirement plan. Dingell's final inquiry: "Who profited from Enron's complex business structure. Where did all the money go?"
Enron, a Houston-based energy-trading company, filed for Chapter 11 bankruptcy Nov. 30 after its stock price collapsed. In recent weeks Enron acknowledged that between 1997 and the third quarter of 2001, it overstated profits by some $586 million. The scope of regulatory inquiry into the collapse is said to include Big Five accounting firm Andersen LLP's audit work for the troubled company.
Wrong Message
In his letter, Dingell harkened back to Pitt's first address as SEC chairman, in which he heralded a "new era" of cooperation with the American Institute of Certified Public Accountants (33 SRLR 1553, 10/29/01). In that address, Dingell noted, Pitt "observed to an audience of accountants that the SEC 'has not, of late, always been a kinder and gentler place for accountants.' "
"After noting your representation of the AICPA and each of the Big Five accounting firms for the past two decades," Dingell continued, "you lamented that 'somewhere along the way, accountants became afraid to talk to the SEC, and the SEC appeared to be unwilling to listen to the profession,' and you vowed that 'those days are ended.' " "I am deeply troubled by the tone and tenor of your remarks," Dingell, who is ranking member of the House Energy and Commerce Committee, stated. "Your choice of words sends the wrong message to auditors, to the SEC staff, and to the investing public." In particular, the lawmaker said, Pitt's message "appears to be that the rules will not be implemented as vigorously as they should be. I trust that this is not what you meant to convey and that you will correct any misunderstanding at the earliest possible time. This is critical, given the plummeting confidence of investors in the integrity of financial reporting at this time."
High Mark at Agency
In other remarks, Dingell told Pitt that he "may choose to repudiate the legacy of your predecessor, Arthur Levitt. But make no mistake about it," Dingell asserted, Levitt's tenure, "and that of his team on these issues--former Chief Accountant Lynn Turner and former Director of Enforcement Richard Walker--represent a high mark at the SEC in fighting financial fraud, and the standard against which you will be measured. Notwithstanding your prior representation of a substantial segment of the accounting profession," Dingell emphasized, "I expect you and your agency to conduct a vigorous and fair investigation of the Enron matter and of any and all other matters involving your former clients."
In connection with the foregoing, Dingell commented that committee Chairman W.J. "Billy" Tauzin (R-La.). has opened an investigation into the collapse of Enron and the events that led up to it, with a view toward hearings next year. Saying he intends to participate in the bipartisan probe, Dingell asked Pitt to consider a number of questions in connection with the SEC's investigation that he--Dingell--"will seek answers to at an appropriate time."
SEC Response
In a Dec. 6 letter responding to Dingell's concerns, Pitt said he is "at a complete loss" as to why the lawmaker found his remarks "about working with, and listening to, the accounting profession ... troubling." Apologizing "for what must have been a lack of articulateness," Pitt said he did not intend to suggest that securities laws and regulations will not be vigorously enforced.
"Vigilant enforcement, however, is not inconsistent with openness and accessibility," the SEC chief stated. Saying the government, "and the SEC in particular, ... must be a service industry," Pitt said that in the past, those the commission works with, including the regulated community, have found the agency unapproachable--"or even outright hostile." "I am determined to change that course of action and to renew or repair relationships that have been harmed in the past," Pitt told Dingell. He said the commission's "adversarial attitude" toward industry and the profession in recent hears has not yielded positive results. "Indeed," he wrote, "we are seeing evidence of problems with the prior Commission's approach in the matters you cited, which the current Commission is now compelled to investigate." Finally, Pitt thanked Dingell for the questions he posed regarding the committee's inquiry into the Enron situation. "We look forward to responding to your, and the Committee's, questions at an appropriate time," Pitt advised.
Senator Eyes End To Enron-Type Special-Purpose Entities
Click Here for Quicken Linkhttp://www.quicken.com/investments/news_center/article/printer.dcg?story=/news/stories/dj/20011218/on20011218000371.htm Senator Eyes End To Enron-Type Special-Purpose Entities
Updated: Tuesday, December 18, 2001 10:39 AM
WASHINGTON -(Dow Jones)- U.S. Senate Commerce Committee Chairman Fritz Hollings, D-S.C., pledged Tuesday to introduce legislation to eliminate the sorts of financial accounting that led to the financial collapse of Enron Corp. (ENE, news, msgs).
At a committee hearing on the Enron debacle, Hollings called for legislation to eliminate the use of special-purpose entities, which are partnerships or trusts through which companies keep their debt off the books and, in Enron's case, overstate earnings.
Hollings said such off-the-balance-sheet transactions should end in order to protect investors. Hollings also was highly critical of the amount of insider stock selling by top Enron officials. He noted that Enron Chairman Kenneth Lay and former Chief Executive Jeffrey Skilling each sold shares in recent months for more than $60 million, while members of Enron's board sold shares worth more than $160 million.
"The selling of Enron was prolific," Hollings said, calling the insider selling "a screaming red flag."
If Enron officials felt the stock was undervalued, as they publicly attested, "why were they cashing in?" Hollings said.
Hollings also said there was plenty of blame for the "shenanigans" associated with Enron's collapse, which he likened to a "cancer." He cited Enron's role in persuading the Commodity Futures Trading Commission against the Clinton administration's call for regulation of energy derivatives, and subsequent congressional action to exempt from regulation the highly complex energy derivatives Enron's special-purpose entities engaged in.
"We are all guilty for letting it happen," Hollings said of Enron's collapse.
Sen. Byron Dorgan, D-N.D., chairman of the committee's consumer affairs panel, described Tuesday's hearings as the first of several that will delve into the roles in Enron's financial collapse played by: Enron officials; Arthur Andersen, Enron's outside auditor; Wall Street analysts, and regulators.
"This is about an energy company that morphed into a trading company involved in hedge funds and derivatives. It took on substantial risks, created secret off-the-books partnerships and, in effect, cooked the books under the nose of their accountants and investors," Dorgan said.
Dorgan noted that Lay, Enron's chairman and chief executive, has agreed to testify at a future hearing. Dorgan also said the committee will invite Skilling, Enron's former chief executive, and Andrew Fastow, Enron's former chief financial officer, to testify at the same hearing.
"Was this just bad luck, incompetence and greed, or were there some criminal or illegal actions, as has been suggested by the accounting firm that reviewed Enron's books?" Dorgan said.
A Message on January 8, 2002 from Dennis Beresford, former Chairman of the Financial Accounting Standards Board
Bob,
In response to Enron, the major accounting firms have developed some new audit "tools" that can be accessed at: http://www.aicpa.org/news/relpty1.htm
Also, the firms have petitioned the SEC to require some new disclosures relating to special purpose entities and similar matters. The firms' petition is at: http://www.sec.gov/rules/petitions.shtml
I understand the SEC will probably also tell companies that they need to enhance their MD&A disclosures about special purpose entities.
Denny
Joe Beradino is the CEO of the auditing firm (Andersen, Arthur Andersen, AA) that audited Enron for years prior to and during the sudden meltdown of Enron in late 2001. Mr. Beradino tended to blame SPEs for much of the problems in Enron's audited financial statements.
As the rules stand today, sponsoring companies can keep the assets and liabilities of SPEs off their consolidated financial statements, even though they retain a majority of the related risks and rewards. Basing the accounting rules on a risk/reward concept would give investors more information about the consolidated entity's financial position by having more of the assets and liabilities that are at risk on the balance sheet; certainly more information than disclosure alone could ever provide. The profession has been debating how to account for SPEs for many years. It's time to rethink the rules.
Modernizing our broken financial-reporting model. Enron's collapse, like the dot-com meltdown, is a reminder that our financial-reporting model -- with its emphasis on historical information and a single earnings-per-share number -- is out of date and unresponsive to today's new business models, complex financial structures, and associated business risks. Enron disclosed reams of information, including an eight-page Management's Discussion & Analysis and 16 pages of footnotes in its 2000 annual report. Some analysts studied these, sold short and made profits. But other sophisticated analysts and fund managers have said that, although they were confused, they bought and lost money.
Quote From a Chief Accountant of the SEC
(Well Over a Year Before the Extensive Use of SPEs by Enron Became Headline News.)So what does this information tell us? It tells us that average Americans today, more than ever before, are willing to place their hard earned savings and their trust in the U.S. capital markets. They are willing to do so because those markets provide them with greater returns and liquidity than any other markets in the world and because they have confidence in the integrity of those markets. That confidence is derived from a financial reporting and disclosure system that has no peer. A system built by those who have served the public proudly at organizations such as the Financial Accounting Standards Board ("FASB") and its predecessors, the stock exchanges, the auditing firms and the Securities and Exchange Commission ("SEC" or "Commission"). People with names like J.P. Morgan, William O. Douglas, Joseph Kennedy, and in our profession, names like Spacek, Haskins, Touche, Andersen, and Montgomery.
But again, improvements can and should be made. First, it has taken too long for some projects to yield results necessary for high quality transparency for investors. For example, in the mid 1970's the Commission asked the FASB to address the issue of whether certain equity instruments like mandatorily redeemable preferred stock, are a liability or equity? Investors are still waiting today for an answer. In 1982, the FASB undertook a project on consolidation. One of my sons who was born that year has since graduated from high school. In the meantime, investors are still waiting for an answer, especially for structures, such as special purpose entities (SPEs) that have been specifically designed with the aid of the accounting profession to reduce transparency to investors. If we in the public sector and investors are to look first to the private sector we should have the right to expect timely resolution of important issues.
"The State of Financial Reporting Today: An Unfinished Chapter"
Remarks by Lynn E. Turner,
Chief Accountant U.S. Securities & Exchange Commission,
May 31, 2001 --- http://www.sec.gov/news/speech/spch496.htm
Enron's auditor, Andersen, blames most of the misleading reporting regarding risk on unconsolidated special purpose entities (SPEs) that only require an outside equity interest of 3% (now 10%) to justify keeping the SPE's assets and liabilities from being consolidated on the parent's balance sheet. Enron kept entire power plants and millions of debt off the balance sheet with various SPE arrangements.
This begs the question of why SPEs are allowed when the net effect is to possibly mislead investors about risk by keeping huge amounts of debt off the consolidated balance sheet. In my view, they were created as a ploy to keep debt off the balance sheet when the Financial Accounting Standards Board (FASB) started to get serious about preventing other ploys designed to keep debt off the balance sheet. Particularly troublesome to companies wanting to keep debt off the balance sheet was FAS 13 that required all financing leases to be booked on the balance sheet, thereby, no longer allowing most financing leases from remaining off the consolidated balance sheet.
In no way can the above reasoning be published as a justification for SPEs in the official literature. Hence, it is necessary to look to the official literature for justifications due to securitization and tax advantages.
"The Big Five Need to Factor in Investors," Business Week, December 24, 2001, Page 32 --- http://www.businessweek.com/ (not free to download for non-subscribers) At issue are so-called special-purpose entities (SPEs), such as Chewco and JEDI partnerships Enron used to get assets like power plants off its books. Under standard accounting, a company can spin off assets --- an the related debts --- to an SPE if an outside investor puts up capital worth at least 3% (now 10%) of the SPE's total value. Three of Enron's partnerships didn't meet the test --- a fact auditors Arthur Andersen LLP missed. On Dec. 12, Andersen CEO Joseph F. Berardino told the House Financial Services Committee his accountants erred in calculating one partnership's value. On others, he says, Enron withheld information from its auditors: The outside investor put up 3% (now 10%), but Enron cut a side deal to cover half of that with its own cash. Enron denies it withheld any information. Does that absolve Andersen? Hardly. Auditors are supposed to uncover secret deals, not let them slide. Critics fear the New Economy emphasis means auditors will do even less probing. The 3% (now 10%) rule for SPEs is also too lax. To Andersen's credit, it has long advocated a tighter rule. But that would crimp the Big Five's clients --- companies and Wall Street. Accountants have helped stall changes. Enron's collapse may finally break that logjam. Like it or not, the Big Five must accept new rules that give investors a clearer picture of what risks companies run with SPEs. The rest of the article is on Page 38 of the Business Week Article.
"Arthur Andersen: How Bad Will It Get?" Business Week, December 24, 2001, pp. 30-32 --- http://www.businessweek.com/ (not free to download for non-subscribers) QUOTE 1
Berardino, a 51-year-old Andersen lifer, may find the firm's competence in auditing complex financial companies questioned. While Andersen was its auditory, Enron's managers shoveled debt into partnerships with Enron's own ececs to get it off the balance sheet --- a dubious though legal ploy. In one case, says Berardino, hoarse from defending the firm on Capitol Hill, Andersen's auditors made an "error in judgment" and should have consolidated the partnership in Enron's overall results. Regarding another, he says Enron officials did not tell their auditor about a "separate agreement" they had with an outside investor, so the auditor mistakenly let Enron keep the partnership's results separate. (Enron denies that the auditors were not so informed.) QUOTE 2
Enron says a special board committee is investgating why management and the board did not learn about this arrangement until October. Now that Enron has consolidated such set-ups into its financial statements, it had to restate its financial reports from 1997 onward, cutting earnings by nearly $500 million. Damningly, the company says more than four years' worth of audits and statements approved by Andersen "should not be relied upon."
"Let Auditors Be Auditors," Editorial Page, Business Week, December 24, 2001, Page 96 --- http://www.businessweek.com/ (not free to download for non-subscribers) But neither proposal (plans proposed by SEC Commission Chairman Harvey L. Pitt) goes far enough. GAAP, the generally accepted accounting principles, desperately need to be revamped to deal with cash flow and other issues relevant in a fast-moving, high-tech economy. The whole move to off-balance sheet accounting should be reassessed. Opaque partnerships that hide assets and debt do not serve the interests of investors. Under heavy shareholder pressure from the Enron fallout, El Paso Corp. just moved $2 billion in partnership debt onto the balance sheet. Finally, Pitt should consider requiring companies to change their auditors who go easy on them, as we have seen time and time again.
The Big Five Firms Join Hands (in Prayer?)
Facing up to a raft of negative publicity for the accounting profession in light of Big Five firm Andersen's association with failed energy giant Enron, members of all of the Big Five firms joined hands (in prayer?) on December 4, 2001 and vowed to uphold higher standards in the future. http://www.accountingweb.com/item/65518 The American Institute of Certified Public Accountants released a statement by James G. Castellano, AICPA Chair, and Barry Melancon, AICPA President and CEO, in response to a letter published by the Big Five firms last week that insures the public they will "maintain the confidence of investors." --- http://www.smartpros.com/x32053.xml
Summary of Statement FAS No. 140
Accounting for Transfers and Servicing of Financial Assets and Extinguishments of Liabilities—a replacement of FASB Statement No. 125
(Issued 9/00)
http://accounting.rutgers.edu/raw/fasb/public/index.html
Summary
This Statement replaces FASB Statement No. 125, Accounting for Transfers and Servicing of Financial Assets and Extinguishments of Liabilities. It revises the standards for accounting for securitizations and other transfers of financial assets and collateral and requires certain disclosures, but it carries over most of Statement 125’s provisions without reconsideration.
This Statement provides accounting and reporting standards for transfers and servicing of financial assets and extinguishments of liabilities. Those standards are based on consistent application of a financial-components approach that focuses on control. Under that approach, after a transfer of financial assets, an entity recognizes the financial and servicing assets it controls and the liabilities it has incurred, derecognizes financial assets when control has been surrendered, and derecognizes liabilities when extinguished. This Statement provides consistent standards for distinguishing transfers of financial assets that are sales from transfers that are secured borrowings.
A transfer of financial assets in which the transferor surrenders control over those assets is accounted for as a sale to the extent that consideration other than beneficial interests in the transferred assets is received in exchange. The transferor has surrendered control over transferred assets if and only if all of the following conditions are met:- The transferred assets have been isolated from the transferor—put presumptively beyond the reach of the transferor and its creditors, even in bankruptcy or other receivership.
- Each transferee (or, if the transferee is a qualifying special-purpose entity (SPE), each holder of its beneficial interests) has the right to pledge or exchange the assets (or beneficial interests) it received, and no condition both constrains the transferee (or holder) from taking advantage of its right to pledge or exchange and provides more than a trivial benefit to the transferor.
- The transferor does not maintain effective control over the transferred assets through either (1) an agreement that both entitles and obligates the transferor to repurchase or redeem them before their maturity or (2) the ability to unilaterally cause the holder to return specific assets, other than through a cleanup call.
This Statement requires that liabilities and derivatives incurred or obtained by transferors as part of a transfer of financial assets be initially measured at fair value, if practicable. It also requires that servicing assets and other retained interests in the transferred assets be measured by allocating the previous carrying amount between the assets sold, if any, and retained interests, if any, based on their relative fair values at the date of the transfer.
This Statement requires that servicing assets and liabilities be subsequently measured by (a) amortization in proportion to and over the period of estimated net servicing income or loss and (b) assessment for asset impairment or increased obligation based on their fair values.
This Statement requires that a liability be derecognized if and only if either (a) the debtor pays the creditor and is relieved of its obligation for the liability or (b) the debtor is legally released from being the primary obligor under the liability either judicially or by the creditor. Therefore, a liability is not considered extinguished by an in-substance defeasance.
This Statement provides implementation guidance for assessing isolation of transferred assets, conditions that constrain a transferee, conditions for an entity to be a qualifying SPE, accounting for transfers of partial interests, measurement of retained interests, servicing of financial assets, securitizations, transfers of sales-type and direct financing lease receivables, securities lending transactions, repurchase agreements including "dollar rolls," "wash sales," loan syndications and participations, risk participations in banker's acceptances, factoring arrangements, transfers of receivables with recourse, and extinguishments of liabilities. This Statement also provides guidance about whether a transferor has retained effective control over assets transferred to qualifying SPEs through removal-of-accounts provisions, liquidation provisions, or other arrangements.
This Statement requires a debtor to (a) reclassify financial assets pledged as collateral and report those assets in its statement of financial position separately from other assets not so encumbered if the secured party has the right by contract or custom to sell or repledge the collateral and (b) disclose assets pledged as collateral that have not been reclassified and separately reported in the statement of financial position. This Statement also requires a secured party to disclose information about collateral that it has accepted and is permitted by contract or custom to sell or repledge. The required disclosure includes the fair value at the end of the period of that collateral, and of the portion of that collateral that it has sold or repledged, and information about the sources and uses of that collateral.
This Statement requires an entity that has securitized financial assets to disclose information about accounting policies, volume, cash flows, key assumptions made in determining fair values of retained interests, and sensitivity of those fair values to changes in key assumptions. It also requires that entities that securitize assets disclose for the securitized assets and any other financial assets it manages together with them (a) the total principal amount outstanding, the portion that has been derecognized, and the portion that continues to be recognized in each category reported in the statement of financial position, at the end of the period; (b) delinquencies at the end of the period; and (c) credit losses during the period.
In addition to replacing Statement 125 and rescinding FASB Statement No. 127, Deferral of the Effective Date of Certain Provisions of FASB Statement No. 125, this Statement carries forward the actions taken by Statement 125. Statement 125 superseded FASB Statements No. 76, Extinguishment of Debt, and No. 77, Reporting by Transferors for Transfers of Receivables with Recourse. Statement 125 amended FASB Statement No. 115, Accounting for Certain Investments in Debt and Equity Securities, to clarify that a debt security may not be classified as held-to-maturity if it can be prepaid or otherwise settled in such a way that the holder of the security would not recover substantially all of its recorded investment. Statement 125 amended and extended to all servicing assets and liabilities the accounting standards for mortgage servicing rights now in FASB Statement No. 65, Accounting for Certain Mortgage Banking Activities, and superseded FASB Statement No. 122, Accounting for Mortgage Servicing Rights. Statement 125 also superseded FASB Technical Bulletins No. 84-4, In-Substance Defeasance of Debt, and No. 85-2, Accounting for Collateralized Mortgage Obligations (CMOs), and amended FASB Technical Bulletin No. 87-3, Accounting for Mortgage Servicing Fees and Rights.
Statement 125 was effective for transfers and servicing of financial assets and extinguishments of liabilities occurring after December 31, 1996, and on or before March 31, 2001, except for certain provisions. Statement 127 deferred until December 31, 1997, the effective date (a) of paragraph 15 of Statement 125 and (b) for repurchase agreement, dollar-roll, securities lending, and similar transactions, of paragraphs 9–12 and 237(b) of Statement 125.
This Statement is effective for transfers and servicing of financial assets and extinguishments of liabilities occurring after March 31, 2001. This Statement is effective for recognition and reclassification of collateral and for disclosures relating to securitization transactions and collateral for fiscal years ending after December 15, 2000. Disclosures about securitization and collateral accepted need not be reported for periods ending on or before December 15, 2000, for which financial statements are presented for comparative purposes.
This Statement is to be applied prospectively with certain exceptions. Other than those exceptions, earlier or retroactive application of its accounting provisions is not permitted.
|
Position of the International Accounting Standards Board --- http://www.iasplus.com/interps/sic012.htm
| | INTERPRETATIONS: SIC 12
Consolidation - Special Purpose Entities | An Interpretation of IAS 27, Consolidated Financial Statements and Accounting for Investments in Subsidiaries
Effective date: Annual financial periods beginning on or after 1 July 1999
| SIC 12 addresses when a special purpose entity should be consolidated by a reporting enterprise under the consolidation principles in IAS 27. The SIC agreed that an enterprise should consolidate a special purpose entity ("SPE") when, in substance, the enterprise controls the SPE. Examples of SPEs include entities set up to effect a lease, a securitisation of financial assets, or R&D activities. The concept of control used in IAS 27 requires having the ability to direct or dominate decision making accompanied by the objective of obtaining benefits from the SPE's activities. The Interpretation provides example indications of when control may exist in the context of an SPE. The examples involve activities of the SPE on behalf of the reporting enterprise, the reporting enterprise having decision-making powers over the SPE, and the reporting enterprise having rights to the majority of benefits and exposure to significant risks of the SPE.
Some enterprises may also need to separately evaluate the topic of derecognition of assets, for example, related to assets transferred to an SPE. In some circumstances, such a transfer of assets may result in those assets being derecognised and accounted for as a sale. Even if the transfer qualifies as a sale, the provisions of IAS 27 and SIC-12 may mean that the enterprise should consolidate the SPE. SIC-12 does not address the circumstances in which sale treatment should apply for the reporting enterprise or the elimination of the consequences of such a sale upon consolidation.
|
Note especially how companies like to use SPEs in leasing situations.
"Virtual Ownership: Synthetic real estate leases may be ready to move from Wall Street to Main,"
by Ian Springsteel, CFO Magazine, Sep 1997 http://www.cfomagazine.com/Pge_mag_detail_archives/1,4583,%7C83% (now 10%)7C09%7C1997%7C1621,00.html Until recently, off-balance-sheet financing of real estate through so-called synthetic leases was viewed as an escape vehicle from depreciation burdens useful only in isolated conditions. The arrangements were contrived, the legal documents thick, the accounting risky. But several recent developments have conspired to change all that. Dozens of Silicon Valley companies have penned such deals in the past 36 months, and such blue-chip companies as General Motors, General Electric, Eastman Kodak, and AlliedSignal are now said to be testing the waters. And while the Financial Accounting Standards Board may still redefine the accounting for some lease- holding special-purpose entities as part of its consolidations project, banks and lessees are now creating legal structures to limit that risk.
More significant, the $250 million synthetic lease deal signed in December 1996 by Cisco Systems Inc., which brings its total off- balance-sheet leases to $505 million, is not only one of the biggest synthetics done so far, but also shows that such leases can be much more than an accounting sideshow. Indeed, the San Jose, California-based networking- products giant's latest deal is an integral piece of the company's corporate financing strategy.
Filling a Basic Need Cisco turned to synthetic leases because it needed more space but didn't like the traditional options. When the company grew to $382 million (in revenues) back in fiscal 1992, management knew it wouldn't be long before the firm would run out of room. Sure enough, on completion of its most recent fiscal year, ended July 26, Cisco was a $6.4 billion company with almost 11,000 employees.
How much space and where to get it were Cisco's primary concerns. But David Rogan, treasurer of Cisco, found both standard types of financing--a traditional lease or ownership- -unappealing. The first option, leasing existing property or space built to order, carried a price tag of 500 to 600 basis points in annual cash outlays above what the company would pay to own it. Yet ownership--either through a long-term loan or with cash--was also unattractive. Real estate loans were impossible to secure after the collapse of California's market in the early 1990s; Cisco needed cash for acquisitions and research; and the company didn't fancy the hit to reported earnings that would result from depreciation of the property.
Best of Both Worlds Instead, Cisco signed up for three deals in three years for $255 million in lease financing with Sumitomo Bank Leasing and Finance Inc. for several additions on its various sites for a total of about 2 million square feet.
First developed on Wall Street in the late 1980s, the structure allows an investment- grade company like Cisco to obtain 100 percent financing of its property at its corporate borrowing rate and receive the tax benefits of ownership, while avoiding the depreciation associated with straight ownership. Now such leases are widely available from specialized leasing companies.
Synthetic lessees typically reserve the right to buy the property at the end of the lease, extend the lease, or sell the property and take any gain or loss in its value. Minimum deal size is approximately $10 million.
"This is a far better mousetrap than corporations have had in the past, and they are now easier and cheaper to do as the documentation becomes more standardized," says Todd Anson, a managing partner with Bro-beck, Phleger & Harrison LLP, in San Diego, who helped structure Cisco's latest deal. Typical legal and accounting bills on a synthetic lease run about $50,000 to $100,000 now, he adds. That's about half what it was a few years ago.
Accounting For Leases
Authored by Andersen, The Professional Standards Grouphttp://www.stpub.com/pubs/leases.htm Appendix I Use of Special-Purpose Entities in Leasing Transactions
I-1 Effect of Nonsubstantive Lessors in Leasing Transactions ........... Appendix I 1
I-2 Substantive Equity Investment at Risk ............................................ Appendix I 2
I-3 Effect of Payments to Equity Owners of an SPE ............................ Appendix I 5
I-4 Leasing Transactions Involving Multi-Purpose SPEs ................... Appendix I 7
I-5 Lessee Involvement in Asset Construction ..................................... Appendix I 8
I-6 SEC Staff Views on Leasing Transactions Involving SPEs ......... Appendix I 21
Appendix II
Index of Accounting Literature Affecting Leasing Transactions
Accounting Principles Board (APB) ................................................ Appendix II 1
Accounting Standards Executive Committee (AcSEC)................. Appendix II 1
Emerging Issues Task Force (EITF) ................................................. Appendix II 2
Financial Accounting Standards Board (FASB) ............................ Appendix II 4
Securities and Exchange Commission (SEC) ................................. Appendix II 7
Other justifications are alluded to below.
Accounting Rule Caveat May Be Relief for Real Estate
Caveat to FAS 140 will say it's okay for qualified special purpose entity to write a conditional call option.
http://www.cfo.com/archives_internal/archive_detail/1,4608,0%7C1%7C'AD'%7C4203,00.html A clarification to the Financial Accounting Standards Board's Statement 140, brought on by concerns from the real estate market, will be a balm for the U.S. real estate finance industry, which viewed the rule as a threat to one of its major sources of capital, according to a Reuters report. FAS 140 took effect on April 1. The board will issue its clarification of the rule on Thursday, according to a board staff member.
The rule without the clarification was the source of debate within the real estate finance industry because it precluded the use of a special servicing company in a commercial mortgage loan securitization.
Lenders providing money to commercial real estate development and construction resell their loans into bonds via securitizations. The special servicer is needed to cost-effectively resell the loans into bonds because investors buying the bonds want an entity that will actively deal with troubled loans pooled into bonds.
FASB project manager Halsey Bullen told Reuters that special-purpose entities created when real estate loans are resold will not be able to actively manage loans pooled into bonds.
But, he said, ``it is okay for the the QSPE (qualified special purpose entity) to write, at inception of the deal, a conditional call option.''
FASB will introduce guidance Thursday and one aspect of the guidance makes clear that such a call option would allow the special servicer to choose to buy a loan or any asset that has met some pre-arranged standard such as a default at fair value, said Bullen.
FASB has already approved it, Bullen told Reuters. It will present it to the emerging issues task force and ask it to incorporate it into accounting literature.
``The difficulty all along has been that it is clear in FAS 140 an QSPE cannot have a choice of whether it can sell an asset. It is okay for someone else to have that choice, acting for themselves and not as an agent for the QSPE,'' Bullen told Reuters. He added that some new transactions backed by commercial mortgage loans will likely be designed to include this kind of call option.
According to a press release issued by The Real Estate Roundtable, an industry trade group, the ``fair value'' call option would ``permit the sale of defaulted loans in securitization transactions, despite provisions in the April 1 accounting standard (SFAS 140) that limit a special servicer's discretion to dispose of an impaired loan in a CMBS (commercial mortgage-backed security) pool.''
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Online Super Center for Accounting Resources
News in Accounting, December 22, 1998 http://www.mhhe.com/business/accounting/oscar/whatsnew/financial.htm "A Controversy Over Aggressive Accounting Policies Sends Sylvan Learning Systems Stock Plunging, The Wall Street Journal, December 22, 1998. Overview
According to The Wall Street Journal Heard on the Street Column, Sylvan Learning Systems’ market value fell by approximately $200 million after the release of a Bears and Stearns report that criticized some of Sylvan’s accounting practices. The report questioned Sylvan’s activities involving separate not-for-profit and special purpose entities. Sylvan contributed stock and cash to the entities, treated the contributions as deductions which offset break-up fee income the firm received when it retracted its offer to acquire National Education Corporation (NEC).
Discussion Questions
Q1: Why would Sylvan be able to treat the contributions to the not-for-profit entities as expenses?
Q2: Why did Sylvan management structure the transaction in this manner?
Q3: One analyst thought the net effect of this transaction would be to reduce EPS by $0.05 per share. Why did the firm lose so much value?
Suggested Solution
Q1: The contributions are deductible for financial reporting purposes. For more information see footnote 16 at http://www.edgar-online.com/brand/yahoo/gdoc/?doc=A-0000950109-98-002322&nad=0 .
Q2: According to Sylvan’s chief executive, the purpose of the transaction was to reduce taxable income.
Q3: There are several plausible explanations. It is possible that the accounting maneuver signaled greater uncertainty regarding the firm’s future cash flows. Although the short-run loss was $0.05 per share, in the long run, the amount of the loss is possibly much greater.
Embedded Derivatives: Embedded Derivatives in Beneficial Interests Issued by Qualifying Special-Purpose Entities
DIG B12 Statement 133 Implementation Issue  | Derivatives Implementation Group
Statement 133 Implementation Issue
No. B12
| Title: | Embedded Derivatives: Embedded Derivatives in Beneficial Interests Issued by Qualifying Special-Purpose Entities
| | Paragraph references: | 12, 60, 61 | | Date released: | October 1999
(Revised Tentative Guidance Released on October 12, 2001) |
Note: The guidance in this Issue is tentative and may be finalized if an amendment to FASB Statement No. 133, Accounting for Derivative Instruments and Hedging Activities, is issued. The Board intends to issue an Exposure Draft proposing an amendment of Statement 133 in the fourth quarter of 2001.
QUESTION
If a qualifying special-purpose entity (SPE) under FASB Statement No. 140, Accounting for Transfers and Servicing of Financial Assets and Extinguishments of Liabilities, holds a combination of debt or equity securities and derivative instruments, is the investor’s beneficial interest in the qualifying SPE automatically a hybrid instrument that contains an embedded derivative that warrants separate accounting? Specifically, consider the two following examples where the qualifying SPE issues beneficial interests that are accounted for as debt instruments.
Example 1
A qualifying SPE holds fixed-rate corporate bonds (7 percent coupon rate) and a pay-fixed (at 7 percent), receive-variable (LIBOR) interest rate swap. An investor purchases a beneficial interest issued by the qualifying SPE that has an interest rate based on LIBOR.
Example 2
A qualifying SPE holds EURO-denominated variable-rate corporate bonds and a pay-floating-EURO and receive-fixed-U.S. dollar foreign currency interest rate swap. Assume that the notional amount of the swap matches the principal amount of the corporate bonds, that its repricing dates match those of the bonds, and that the index on which the swap’s variable rate is based matches the index on which the bonds’ variable rate is based. An investor purchases a beneficial interest issued by the qualifying SPE that is denominated in U.S. dollars and has a fixed interest rate.
The question of whether a beneficial interest issued by a qualifying SPE is debt or equity is outside the scope of Statement 133. An investor must determine whether the beneficial interest issued by the qualifying SPE that it holds is debt or equity. When the qualifying SPE issues beneficial interests that are accounted for as debt instruments, the following guidance should be applied. For purposes of the above examples, assume that the investor does not consolidate the qualifying SPE.
RESPONSE
No, the investor’s beneficial interest in the qualifying SPE should not automatically be considered a hybrid instrument that contains an embedded derivative that warrants separate accounting. Statement 133 Implementation Issues No. A20, "Application of Paragraph 6(b) regarding Initial Net Investment," and No. D2, "Applying Statement 133 to Beneficial Interests in Securitized Financial Assets," provides that an investor may conclude that the beneficial interest in the qualifying SPE it holds is a derivative in its entirety because it meets the criteria in paragraph 6 and related paragraphs of Statement 133. If those criteria are not met, then a beneficial interest that is issued by a qualifying SPE must be evaluated under paragraph 12 similar to any other security that may contain terms that affect some or all of the cash flows required by the contract in a manner similar to a derivative instrument. When performing this evaluation, an investor should focus on only the terms and conditions of the beneficial interest and not the detailed holdings of the qualifying SPE.
Paragraph 12 requires that an embedded derivative be accounted for separately as a freestanding derivative instrument if the following criteria are met: (a) the economic characteristics of the embedded derivative instrument are not clearly and closely related to the economic characteristics and risks of the host contract, (b) the hybrid instrument is not remeasured at fair value with changes in fair value reported in earnings as they occur, and (c) a separate instrument with the same terms as the embedded derivative instrument would meet the definition of a derivative instrument subject to the requirements of Statement 133.
Paragraphs 60 and 61 provide additional guidance for determining when a hybrid instrument contains an embedded derivative that is not clearly and closely related to the host contract. For example, based on the guidance in paragraph 60, if a beneficial interest is accounted for as a debt instrument that is not measured at fair value with changes in value reported in earnings as they occur and incorporates a return that is based on a risk type other than interest rates (such as an equity-based return), the embedded derivative that incorporates the equity-based return would not be clearly and closely related to the host contract and would be required to be accounted for separately.
In Example 1, the investor holds a beneficial interest with a payoff equal to a variable-rate bond based on LIBOR, which does not contain an embedded derivative that warrants separate accounting under Statement 133. In Example 2, the investor holds a beneficial interest with a payoff equal to a fixed-rate bond, which does not contain an embedded derivative that warrants separate accounting under Statement 133.
If a beneficial interest in a qualifying SPE is not within the scope of Statement 133, the investor should consider the applicability of paragraphs 14 and 362 of Statement 140, which require that retained interests in securitizations in which the holder may not recover substantially all of its recorded investment be subsequently measured like investments in debt securities classified as available-for-sale or trading under FASB Statement No. 115, Accounting for Certain Investments in Debt and Equity Securities.
The above response represents a tentative conclusion. The status of the guidance will remain tentative until it is formally cleared by the FASB and incorporated in an FASB staff implementation guide, which is contingent upon an amendment of Statement 133 being issued. The Board intends to issue an Exposure Draft proposing an amendment of Statement 133 in the fourth quarter of 2001. Constituents should send their comments, if any, to Timothy S. Lucas, Derivatives Implementation Group Chairman, FASB, 401 Merritt 7, P.O. Box 5116, Norwalk, CT 06856-5116 (or by e-mail to derivatives@fasb.org by November 16, 2001.
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South Africa uses SPEs
Interpretations of Generally Accepted Accounting Practice (GAAP) http://www.ey.com/global/vault.nsf/South_Africa/In_Touch_June_2000/$file/June2000.pdf AC 409 Business Combinations –
Classifications either as Acquisitions or Uniting of Interests Effective date: Periods commencing on or after 1 January 2000
This interpretation makes it clear that the criteria that needs to be met to account for a business combination as a uniting of interests are such that they will rarely be met. A business combination should be accounted for as an acquisition, unless an acquirer cannot be identified. A uniting of interest is likely to be a rare occurrence because in virtually all business combinations an acquirer can be identified.
The statement on business combinations describes the essential characteristics of a uniting of interests. An enterprise should classify a business combination as an acquisition, unless all of these characteristics are present. Even if all of the three characteristics are present, an enterprise should classify a business combination as a uniting of interests only if the enterprise can demonstrate that an acquirer cannot be identified.
All business combinations under the statement on business combinations are either an “acquisition” or a “uniting of interests”.
These include the following: - a) in substance, the activities of the SPE are being conducted on behalf of the enterprise according to its specific business needs so that the enterprise obtains benefits from the SPE’s operation,
- b) in substance, the enterprise has the decision-making powers to obtain the majority of the benefits of the activities of the SPE or, by setting up an “autopilot” mechanism, the enterprise has delegated these decision making powers,
- c) in substance, the enterprise has rights to obtain the majority of the benefits of the SPE and therefore may be exposed to risks incident to the activities of the SPE, or
- d) in substance, the enterprise retains the majority of the residual or ownership risks related to the SPE or its assets in order to obtain benefits from its activities.
Predetermination of the ongoing activities of an SPE by an enterprise (the sponsor or other party with a beneficial interest) would not represent the type of restrictions referred to in the statement on consolidated financial statements and accounting for investments in subsidiaries which preclude certain subsidiaries from being consolidated.
Accordingly this Interpretation might require some SPEs to be consolidated which are not presently consolidated.
Japan also uses SPEs.
JICPA Issues Accounting Guidance to Real Estate Securitizations Using SPE http://www2g.biglobe.ne.jp/~ykawamur/n010502c.htm On July 31, 2000, the Japanese Institute of CPAs issued its Accounting Standards Committee Report No. 15, Guidelines to Accounting by Transferors for Liquidations of Real Estate Using Special-Purpose Entities. In Japan, since an act of liquidations of loans and real estates was enacted on September 1, 1998, loans and real estates have been actively liquidated by securitizations using special-purpose entities. Although accounting standard for liquidations of loans is addressed by BADC Accounting Standards for Financial Instruments, accounting standards have been silent for liquidations of real estates.
The JICPA Accounting Standards Committee Report 15 establishes accounting rules for securitizations of real estates. The Report adopts the "risk-and-reward approach" to transfers of real estates, rather than "financial component approach," which was adopted in Accounting Standards for Financial Instruments. Under the "risk-and-reward approach," if transferors transfer almost all risks and rewards of the real estates to transferees, such transfer should be accounted for as a sale of the real estate, otherwise it should be accounted for as a borrowing transaction. For example, if the transferor assumes repurchase obligation of the real estate, it should not derecognize the real estate because almost all risks and rewards are not transferred to the transferee.
Because the bright line should be drawn on the transfer of almost all risks, the Report states that if more than 5 percent of the risks involved with the real estate retains in the transferor, such real estate should not be derecognized from the balance sheet of the transferor. Reportedly, such "5 percent threshold" appears to have significant impact on real estate market.
Other countries have expressed difficulties with the SPE concept.
Canada and the IASB
Canadian Institute of Charted Accountants http://www.cica.ca/cica/cicawebsite.nsf/public/e_Consolidations The AcSB has agreed to harmonize the CICA Handbook - Accounting with the new proposed US standard on consolidations. It is likely the differences between the new US standard and current Canadian standards will be relatively few and insignificant. It would be unfortunate to allow any differences to persist, particularly as the enterprises most concerned about harmonization (i.e., Canadian SEC registrants) are also the most likely to encounter the remaining differences between the standards. The US guidance on special purpose entities (SPEs) would be very useful in Canada in the absence of any Canadian pronouncements on the issue at present and would avoid forcing companies to disclose a GAAP difference that is difficult to explain. Special purpose entities are entities with specific limits on their powers. The AcSB has approved a project proposal to harmonize current Canadian standards for consolidations with new US standards on this subject. The FASB is currently considering how to proceed with its project after having determined in January 2001 that there is not sufficient support from its Board members to proceed with a final standard on consolidation policy or an exposure draft on SPEs.
The IASB is presently gathering information on existing practices with a view to commencing a project on this subject.
Financial Accounting Standards Board No. 217-A. February 2001
Special Report --- http://www.cssacmbs.org/FAS 140/qa140.doc SPECIAL REPORT
A Guide to Implementation of Statement 140 on Accounting for Transfers and Servicing of Financial Assets and Extinguishments of Liabilities Questions and Answers (an update of the Special Report on implementation of Statement 125) Halsey G. Bullen
Victoria A. Lusniak
Stephen J. Young Conditions That Constrain a Transferee
22. Question
Assuming that all of the other requirements of paragraph 9 are met, has a transferor surrendered control over transferred assets if the transferee (that is not a qualifying special-purpose entity (SPE)) is precluded from exchanging the transferred assets but obtains the unconstrained right to pledge them?
22. Answer
The answer depends on the facts and circumstances. In a transfer of financial assets, a transferee's right to both pledge and exchange transferred assets suggests that the transferor has surrendered its control of those assets. However, more careful analysis is warranted if the transferee may only pledge the transferred assets. Paragraph 9(b) requires that the transferee have the right to pledge or exchange the transferred assets. The Board's reasoning for that condition is explained in paragraph 161, which states that the transferee has obtained control over the transferred assets if it can sell or exchange the transferred assets and, thereby, obtain all or most of the cash inflows that are the primary economic benefits of financial assets? As discussed in paragraphs 168 and 169, the Board concluded that the key concept is the ability to obtain all or most of the cash inflows, either by exchanging the transferred asset or by pledging it as collateral (paragraph 169). Also, paragraph 29 explains that transferor-imposed contractual constraints that narrowly limit timing or terms, for example, allowing a transferee to pledge only on the day assets are obtained or only on terms agreed with the transferor, also constrain the transferee and presumptively provide the transferor with more-than-trivial benefits.
25. Question
Assume that the risk inherent in a commercial loan portfolio securitized through a qualifying SPE increases because of adverse changes in an industry for which a concentration of loans exists. Can the servicer, which may be the transferor, use discretion to select which loans to sell back to itself (or to a third party) at fair value in response to that increased risk or concentration? 25. Answer
No. A qualifying SPEs powers are restricted to those in paragraph 35 of Statement 140. A transferors or servicers having discretion to select which loans to remove to reposition a portfolio is beyond those powers set forth in paragraph 35(d)(1) of Statement 140. Sale accounting would also be precluded under the provisions of paragraphs 9(c)(2), 54, and 86(a) of Statement 140 because such a power gives the transferor the unilateral right to reclaim specific assets from the qualifying SPE.
26. Question
Can an SPE enter into certain types of derivative transactions at the time beneficial interests are issued and still be qualifying? 26. Answer
Yes, but only if those transactions (a) result in derivative financial instruments that are passive in nature and pertain10 to beneficial interests issued or sold to entitles other than the transferor, its affiliates, or its agents; (b) do not create conditions that violate the provisions of paragraphs 35(c)(2) and 35(d); and (c) provide in its legal documents the powers of the SPE to enter into derivative transactions. Refer to Questions 27 and 28. To illustrate, a qualifying SPE is precluded from entering into written options that provide the holder with an opportunity to trigger a condition that enables the SPE to sell transferred assets under circumstances inconsistent with the requirements of paragraph 35(d)(2) of Statement 140. If an SPE enters into certain derivative instruments, sale accounting is precluded, not because the SPE is not qualifying, but because other provisions of paragraph 9 have not been met. Examples of those instruments include:
- Derivative instruments that preclude the transferor from achieving legal isolation under paragraph 9(a)
- Derivative instruments through which the transferor retains effective control over the transferred assets under paragraph 9(c).
27. Question
Can an SPE be qualifying if it can enter into certain types of derivative transactions subsequent to the time that beneficial interests are issued? 27 Answer
Generally, no. As discussed in Question 26, a qualifying SPE can enter into derivative transactions at the time beneficial interests are issued under paragraph 35(c)(2) as interpreted by paragraphs 39 and 40. However, a derivative entered into by the qualifying SPE at the time beneficial interests were issued may only be replaced upon occurrence of a pre-specified event or circumstance outside the control of the transferor, its affiliates, or its agents (for example, a default by the derivative counterparty) as specified in the legal documents that established the qualifying SPE.
28. Question
Can an SPE be considered qualifying if it has the power to enter into a derivative contract that, in effect, would result in that SPEs selling assets with the primary objective of realizing a gain or maximizing return? 28. Answer
No. Paragraph 35(d)(1) (as interpreted by paragraphs 42 and 43) limits a qualifying SPEs ability to sell (or otherwise dispose of) noncash financial assets held by it to situations where there is, or is expected to be, a decline by a specified degree below the fair value of those assets when the SPE obtained them. Derivative instruments designed to effectively realize gains would be inconsistent with this provision. Refer to Questions 26 and 27.
29. Question
Can an SPE that is permitted to hold title to nonfinancial assets temporarily as a result of foreclosing on financial assets be considered qualifying? 29. Answer
Yes. Holding servicing rights to financial assets that it holds is a permitted activity for qualifying SPEs under paragraph 35(c)(5) (as interpreted by paragraph 41). Paragraph 61 indicates that servicing includes executing foreclosure if necessary. Therefore, an SPE that holds title to nonfinancial assets temporarily as a result of executing foreclosure on financial assets in connection with servicing can be considered qualifying.
30. Question
Can an SPE that holds an investment accounted for under the equity method be qualifying? 30. Answer
Generally not. Entities account for an investment in accordance with the equity method if they have the ability to exercise significant influence over that investment as described by paragraph 17 of APB Opinion No. 18, The Equity Method of Accounting for Investments in Common Stock. Qualifying SPEs are limited to holding passive investments in financial assets. Paragraph 39 of Statement 140 notes that investments are not passive if through them . . . the SPE or any related entity . . . is able to exercise control or significant influence . . . . However, that limitation does not apply to certain investments that are accounted for (for example, under EITF Topic No. D-46, Accounting for Limited Partnership Investments) in accordance with the equity method, even though the investor does not have the ability to exercise significant influence. Refer to Question 41.
31. Question
Credit card securitizations often include a removal-of-accounts provision (ROAP) that permits the seller, under certain conditions and with trustee approval, to withdraw receivables from the pool of securitized receivables. Does a transferors right to remove receivables from a credit card securitization preclude accounting for a transfer as a sale? 31. Answer
It depends on the rights that the transferor has under the ROAP. A ROAP that does not allow the transferor to unilaterally reclaim specific assets from the qualifying SPE, as described in paragraphs 35(d)(3), 51-54, and 87, does not preclude sale accounting. Paragraph 86 provides examples of ROAPs that would allow the transferor to unilaterally reclaim specific transferred assets and preclude sale accounting. Refer to Question 49.
32. Question
If a transferors retention of beneficial interests in financial assets transferred to a non-qualifying SPE that cannot pledge or exchange its assets permits the transferor to dissolve the SPE and reassume control of the assets at any time, is the transferor precluded from accounting for the transfer as a sale? 32. Question
Yes, for two reasons. First, because the SPE cannot pledge or exchange the assets (it is not a qualifying SPE) and this restriction provides the transferor with the more than trivial benefit of knowing that the assets (which it is entitled to reacquire) must remain in the SPE, sale accounting is precluded under paragraph 9(b). Second, the transferors current ability to dissolve the SPE and reassume control of the assets entitles it to unilaterally cause the return of the transferred assets, which precludes sale accounting under paragraph 9(c)(2).
33. Question
Can a fixed-maturity debt instrument, a commercial paper obligation, or an equity interest be considered a beneficial interest in a qualifying SPE? 33. Answer
Yes. Paragraph 75 states that . . . beneficial interests may comprise either a single class having equity characteristics or multiple classes of interests, some having debt characteristics and others having equity characteristics. Paragraph 173 explains that:
Qualifying SPEs issue beneficial interests of various kindsvariously characterized as debt, participations, residual interests, and otherwiseas required by the provisions of those agreements.
34. Question
Can a qualifying SPE assume the obligations of a transferor or the obligations of some other entity? 34. Answer
While assuming the debt of another entity is not specifically among the permitted activities of a qualifying SPE as described in paragraph 35, an SPE can issue beneficial interests, including those in the form of debt securities or equity securities, and be considered qualifying. Paragraph 364 defines beneficial interests as:
Rights to receive all or portions of specified cash inflows to a trust or other entity, including senior and subordinated shares of interest, principal, or other cash inflows to be "passed-through" or "paid-through," premiums due to guarantors, commercial paper obligations, and residual interests, whether in the form of debt or equity.
If a lender legally releases the transferor from being the primary obligor under a liability assumed by an SPE, the lender is, in fact, accepting a beneficial interest in the assets held by that SPE in exchange for the loan it previously held. Therefore, a qualifying SPE can issue beneficial interests in the transferred financial assets that it holds to a lender and, in effect, assume or incur a debt obligation. An example of such an assumption by a qualifying SPE is found in Question 35.
35. Question
May a debtor derecognize a liability (without having to recognize another, similar liability) if it transfers noncash financial assets to a qualifying SPE that assumes the liability? 35. Answer
Yes, but only if the liability is considered extinguished under paragraph 16 and the transfer of the noncash financial assets is accounted for as a sale under
paragraph 9. A debtor may derecognize a liability if and only if it has been extinguished. Paragraph 16 states that a liability has been extinguished if either of the following two conditions is met:
The debtor pays the creditor and is relieved of its obligation for the liability. The debtor is legally released from being the primary obligor under the liability, either judicially or by the creditor. The transfer of assets to a qualifying SPE would not, in most cases, constitute a payment to the creditor and, therefore, would not meet the condition in paragraph 16(a) of Statement 140. However, the debtor may extinguish its liability if, as a result of transferring the assets to the qualifying SPE, the debtor is legally released from being the primary obligor under the liability according to paragraph 16(b) of Statement 140. If the creditor?s legal release is not obtained, the debtor should continue to recognize the obligation.
A debtor that is legally released from being the primary obligor by the transfer of noncash financial assets may, nevertheless, be required to recognize another, similar liability if it continues to recognize those noncash financial assets that were transferred to the qualifying SPE. According to the provisions of paragraph 12 of Statement 140:
If a transfer of financial assets in exchange for cash or other consideration (other than beneficial interests in the transferred assets) does not meet the criteria for a sale in paragraph 9, the transferor and transferee shall account for the transfer as a secured borrowing with pledge of collateral (paragraph 15).
If all of the conditions of paragraph 9 are not met for the transfer of noncash financial assets to the SPE (for example, because the SPE is not qualifying and the provisions of paragraph 9(b) are not met), the entity will continue to recognize those assets. That also will result in the entity?s recording an obligation to pass through the cash flows from those transferred assets to the qualifying SPE.
36. Question
Can a qualifying SPE simultaneously be a conduit for separate (that is, no commingling or cross-collateralization) securitizations from more than one transferor? In other words, can a ?condominium structure? be a qualifying SPE?
36. Answer
Yes, as long as the restrictive criteria of paragraph 35 are met. That guidance does not prohibit a qualifying SPE from acting as a conduit for more than one securitization transaction, even if the individual ?condominiums? (which are sometimes referred to as ?silos?) hold dissimilar financial assets. If a qualifying SPE serves as a conduit for different transferors, each condominium is effectively a qualifying SPE. Therefore, each transferor applies the consolidation guidance in paragraph 46 of Statement 140 to its condominium. Refer to Question 60.
37. Question
Should a qualifying SPE be consolidated by the transferor or its affiliates?
37. Answer
No. Paragraph 46 states that ?a qualifying SPE shall not be consolidated in the financial statements of a transferor or its affiliates? (emphasis added).
Paragraph 25 of Statement 140 permits a formerly qualifying SPE that fails to meet one or more conditions for being a qualifying SPE to be considered a qualifying SPE if it maintains its qualifying status under previous accounting standards, does not issue new beneficial interests after the effective date, and does not receive assets it was not committed to receive before the effective date. Otherwise, a formerly qualifying SPE and assets transferred to it shall be subject to other consolidation policy standards and guidance, and to all provisions of Statement 140.
Beneficial interest holders, sponsors, servicers, and others involved with a qualifying SPE that are not affiliated with the transferor should apply consolidation policy standards and guidance, including EITF Issue No. 90-15, ?Impact of Nonsubstantive Lessors, Residual Value Guarantees, and Other Provisions in Leasing Transactions,? and EITF Topic No. D-14, ?Transactions involving Special-Purpose Entities,? if appropriate, to determine whether they should consolidate a qualifying SPE.
38. Question
Should a transferor apply Statement 140?s consolidation provisions when determining whether to consolidate a qualifying SPE if some or all of the transfers of financial assets to that SPE are accounted for as secured borrowings under paragraph 9?
38. Answer
Yes. The conditions for sale accounting in paragraph 9 are irrelevant to determining whether a transferee is a qualifying SPE and whether it should be consolidated.
The result of applying Statement 140 if financial assets are transferred to a qualifying SPE in transactions that were accounted for by the transferor as secured borrowings is that the qualifying SPE would not be consolidated by the transferor and the assets transferred to the qualifying SPE would continue to be recognized by the transferor because the conditions for sale accounting have not been met.
39. Question
If a transferor subsequently transfers all the equity interests in a previously unconsolidated qualifying SPE to an unrelated third party, would that third party be able to use Statement 140 as its basis for evaluating consolidation accounting?
39. Answer
No. Paragraph 46 of Statement 140 is limited to consolidation by the ?transferor or its affiliates.? Since the third party is neither the transferor nor one of its affiliates, consolidation policy standards and guidance, including the guidance in Issue 90-15 and Topic D-14, should be used to determine whether consolidation is appropriate.
40. Question
Assume that an entity transfers financial assets to a qualifying SPE in a transaction that meets the criteria for sale accounting. Should the transferor consolidate the qualifying SPE if it retains more than 50 percent of the fair value of the beneficial interests issued by the qualifying SPE?
40. Answer
No. Paragraph 46 provides that ?a qualifying SPE shall not be consolidated in the financial statements of a transferor or its affiliates.? That provision does not make a distinction based on the proportion of the qualifying SPE?s beneficial interests that are retained by the transferor. However, paragraph 36 provides that if the transferor holds more than 90 percent of the fair value of the beneficial interests, that would preclude the SPE from being a qualifying SPE unless the transfer is a guaranteed mortgage securitization.
41. Question
Assume that Company A holds a 30 percent ownership interest in Company B. Company A sells 5 percent of that interest in Company B to an SPE, thereby reducing its interest to 25 percent. Before and after the transfer, Company A accounts for its ownership interest in Company B under the equity method. Use of the equity method under Opinion 18 presumes that Company A has significant influence over Company B. Under Statement 140, Company A cannot be a qualifying SPE if it holds investments that allow it or others to exercise control or significant influence over the investee. Would Company A be precluded from applying the consolidation guidance in Statement 140 to that SPE? Would it make a difference if Company A?s ownership interest in Company B is reduced to a level such that the investment is no longer accounted for under the equity method after the transfer?
41. Answer
Yes and perhaps, respectively.
Yes, Company A is precluded from applying the consolidation guidance in Statement 140 to that SPE because the SPE is not a qualifying SPE. A qualifying SPE may hold only passive instruments. Paragraph 39 explains that
Investments are not passive if through them, either in themselves or in combination with other investments or rights, the SPE or any related entity, such as the transferor, its affiliates, or its agents, is able to exercise control or significant influence . . . over the investee.
However, if as a result of the transfer, the transferor, the SPE, and any other related entities in combination cannot exercise significant influence or control over the investee, and the SPE meets the other requirements of Statement 140 to be a qualifying SPE, the transferor would apply the consolidation provision of paragraph 46. Refer to Question 30.
Effective Control
42. Question
Dollar-roll repurchase agreements (also called dollar rolls) are agreements to sell and repurchase similar but not identical securities. Dollar rolls differ from regular repurchase agreements in that the securities sold and repurchased, which are usually of the same issuer, are represented by different certificates, are collateralized by different but similar mortgage pools (for example, conforming single-family residential mortgages), and generally have different principal amounts. Is a transfer of financial assets under a dollar-roll repurchase agreement within the scope of Statement 140?
42. Answer
A transfer of financial assets under a dollar-roll repurchase agreement is within the scope of Statement 140 if that agreement arises in connection with a transfer of existing securities.11 In contrast, dollar-roll repurchase agreements for which the underlying securities being sold do not yet exist or are to be announced (for example, TBA GNMA rolls) are outside the scope of Statement 140 because those transactions do not arise in connection with a transfer of recognized financial assets. In those cases, other existing literature should be applied. For example, the provisions of Statement 133 or EITF Issue No. 84-20, ?GNMA Dollar Rolls,? may apply to what are considered Type 4 securities by that Issue. Any type of Type 4 contracts that are not subject to Statement 133?s provisions must be marked to market as required by Issue 84-20.
43. Question
Does paragraph 9(c)(1) preclude sale accounting for a dollar-roll transaction that is subject to the provisions of Statement 140?
43. Answer
The answer depends on the facts and circumstances. For paragraph 9(c)(1) to preclude sale accounting, pursuant to paragraph 47(a), ?the assets to be repurchased or redeemed [must be] the same or substantially the same as those transferred.? Paragraph 48 describes six characteristics that must all exist in order for a transfer to meet the substantially-the-same requirement in paragraph 47(a). One of those characteristics is that the same aggregate unpaid principal amount or principal amounts within accepted ?good-delivery? standards for the type of security involved must be met. However, the good-delivery standard is only one of the six characteristics that must exist. Another is that the transferor must be able to repurchase or redeem the transferred assets on substantially the agreed terms, even in default by the transferee. Refer to Question 45.
44. Question
In a transfer of existing securities under a dollar-roll repurchase agreement, if the transferee is committed to return substantially-the-same securities to the transferor but that transferee?s securities were TBA (to be announced) at the time of transfer, would the transferor be precluded from accounting for the transfer as a secured borrowing?
44. Answer
No. For transfers of existing securities under a dollar-roll repurchase agreement, the transferee must be committed to return substantially-the-same securities to the transferor to fail the condition in paragraph 9(c)(1) that would preclude sale accounting. The asset to be returned may be TBA at the time of the transfer because the transferor would have no way of knowing whether the transferee held the security to be returned. That is, the transferor is only required to obtain a commitment from the transferee to return substantially-the-same securities and is not required to determine that the transferee holds the securities that it has committed to return.
45. Question
Paragraph 49 states that ?to be able to repurchase or redeem assets on substantially the agreed terms, even in the event of default by the transferee, a transferor must at all times during the contract term have obtained cash or other collateral sufficient to fund substantially all of the cost of purchasing replacement assets from others.? Would the requirement of paragraph 9(c)(1) preclude sale accounting by the transferor if, under the arrangement, the transferor is substantially overcollateralized at the date of transfer even though the arrangement does not provide for frequent adjustments to the amount of collateral maintained by the transferor?
45. Answer
A mechanism to ensure that adequate collateral is maintained must exist even in transactions that are substantially overcollateralized (for example, ?deep discount? and ?haircut? transactions) for paragraph 9(c)(1) to preclude sale accounting for those transactions. Even if the probability of ever holding inadequate collateral appears remote, as explained in paragraph 49, the requirement of paragraph 9(c)(1) would not be met and sale accounting by the transferor would not be precluded unless the arrangement assures, by contract or custom, that the collateral is sufficient ?at all times . . . to fund substantially all of the cost of purchasing replacement assets from others.?
Statement 140 does not prescribe that a specific contractual term, such as a margining provision, must be present to meet the sufficient collateral requirement. Instead, Statement 140 prescribes, as explained in paragraph 218, what the effect of the arrangement must be?that the transferor "is protected by obtaining collateral sufficient to fund substantially all of the cost of purchasing identical replacement securities during the term of the contract so that it has received the means to replace the assets even if the transferee defaults." Simply excluding a margining provision from a repurchase agreement does not change the accounting that results if the maintenance of sufficient collateral is otherwise assured. For example, a contractual provision that a repurchase agreement is immediately terminated should the value of the collateral become insufficient to fund substantially all of the cost of purchasing replacement assets would satisfy the requirement in paragraph 49.
46. Question
Paragraph 49 requires that ?. . . a transferor must at all times during the contract term have obtained cash or other collateral sufficient to fund substantially all of the cost of purchasing replacement assets from others? (emphasis added). Substantially all is not specifically defined in Statement 140. Should entities analogize to APB Opinion No. 16, Business Combinations, and interpret substantially all to mean 90 percent or more?
46. Answer
No. The Board elected not to define substantially all because, as explained in paragraph 218, ?judgment is needed to interpret the term substantially all and other aspects of the criterion that the terms of a repurchase agreement do not maintain effective control over the transferred asset.? Paragraph 218 further states:
. . . arrangements to repurchase or lend readily obtainable securities, typically with as much as 98 percent collateralization (for entities agreeing to repurchase) or as little as 102 percent overcollateralization (for securities lenders), valued daily and adjusted up or down frequently for changes in the market price of the security transferred and with clear powers to use that collateral quickly in the event of default, typically fall clearly within that guideline. The Board believes that other collateral arrangements typically fall well outside that guideline.
Judgment should be applied based on the facts and circumstances.
47. Question
Does Statement 140 contain special provisions for differences in collateral maintenance requirements that exist in markets outside the United States?
47. Answer
No. The general provisions of Statement 140 apply. Market practices and contracts for repurchase, sale-buy backs, and securities lending transactions can vary significantly from market to market and country to country. However, sale accounting is precluded by paragraph 9(c)(1) only if the transfer involves an agreement that both entitles and obligates the transferor to repurchase or redeem the assets before maturity and all of the requirements of paragraphs 47-49 are met.
For example, in certain markets, it is not customary to provide or maintain collateral in connection with repurchase transactions. In addition, in emerging market repurchase agreements, the amount of cash lent often is limited to an amount substantially less than 100 percent (for example, 80 percent or less) of the value of the securities transferred under the repurchase agreements because of the level of market and credit risk associated with those transactions. Statement 140 does not provide special provisions for those differences in collateral requirements and, as a result, sale accounting would not be precluded by paragraph 9(c)(1) for those transactions.
48. Question
Paragraph 9(c)(1) of Statement 140 states that a transferor has surrendered control over transferred assets if it does not maintain effective control over the transferred assets through ?an agreement that both entitles and obligates the transferor to repurchase or redeem them before their maturity . . .? (emphasis added). What does the term before maturity mean in the context of the transferor maintaining effective control under the provisions of Statement 140?
48. Answer
Statement 140 does not specifically define the term before maturity. However, in describing whether a transferor maintains effective control over transferred assets through a right and obligation to repurchase, paragraph 213 states that ?. . . the Board concluded that the only meaningful distinction based on required repurchase at some proportion of the life of the assets transferred is between a ?repo-to-maturity,? in which the typical settlement is a net cash payment, and a repurchase before maturity, in which the portion of the asset that remains outstanding is indeed reacquired in an exchange.? A transferor?s agreement to repurchase a transferred asset would not be considered a repurchase or redemption before maturity if, because of the timing of the redemption, the transferor would be unable to sell the asset again before its maturity (that is, the period until maturity is so short that the typical settlement is a net cash payment).
49. Question
How do different types of rights of a transferor to reacquire (call) transferred assets affect sale accounting under Statement 140?
49 Answer
Sale accounting is precluded if a right to reacquire (call) a transferred asset12 has any of three effects:
1. A condition both constrains the transferee from taking advantage of its right to pledge or exchange the transferred asset(s) and provides more than a trivial benefit to the transferor (paragraph 9(b)).
2. The transferor maintains effective control through an agreement that both entitles and obligates it to redeem transferred asset(s) before their maturity (paragraph 9(c)(1)).
3. The transferor maintains effective control through the ability to cause, unilaterally, the return of specific transferred assets (paragraph 9(c)(2)).13
A unilateral right to reclaim specific transferred assets precludes sale accounting only for transferred assets that the transferor has the unilateral right to reacquire. Paragraph 52 states that clearly: ?. . . a call on specific assets transferred to a qualifying SPE . . . maintains that transferor?s effective control over the assets subject to that call? (emphasis added). Further, a right to reclaim specific transferred assets precludes sale accounting only if the transferor can exercise the right unilaterally. The following table summarizes Statement 140?s provisions for different types of rights of a transferor to reacquire (call) transferred assets, including references to paragraphs in the Statement that provide more detail.
Continued at Special Report --- http://www.cssacmbs.org/FAS 140/qa140.doc
A February 15, 2002 Message from Barbara Leonard, Loyola University Chicago [url=mailto:[BJBLeonard@AOL.COM][BJBLeonard@AOL.COM[/url]]
Please let me know if I am wrong, but I thought I heard Ms. Watkins say in her testimony that certain contracts to deliver goods or services in the future were sold to the SPEs and then booked the investment in the SPE at fair (market) value, or discounted future cash flows. According to GAAP, Enron would have had to earn, or deliver the product before revenue recognition but simply sidestepped this accounting principle by selling the contract to an investee and then carryied the investee at "fair value." If so, I wonder how many other companies are doing this and why we bother teaching GAAP anyway.
Is it possible to teach this transaction from an IFRS perspective?
Denny Beresford made a helpful suggestion that one way to teach IFRS is to first look at the transaction itself and then reason out how to account for it under IFRS standards and interpretations. So here's a challenge for your advanced-level accounting students: How would you account for this one under IFRS?
What this illustrates is the type of thing that the IASB will have to tackle all alone, without a FASB research staff, when the U.S. depends upon the IASB for its accounting standards. I don't think the IASB fully understands what it is getting into by so desperately wanting to set accounting standards for U.S. companies.
From the financial rounds blog on December 29, 2008
How Do You Use Credit Default Swaps (CDS) To Create "Synthetic Debt"?
There's been a lot of talk in recent months about "synthetic debt". I just read a pretty good explanation of synthetics in Felix Salmon's column, so I thought I'd give a brief summary of what it is, how it's used, and why.
First off, let's start with Credit Default Swaps (CDS). A CDS has a lot of similarities to an insurance policy on a bond (it's different in that the holder of the CDS needn't own the underlying bond or even suffer a loss if the bond goes into default).
The buyer (holder) of a CDS will make yearly payments (called the "premium"), which is stated in terms of basis points (a basis point is 1/100 of one percent of the notional amount of the underlying bond). The holder of the CDS gets paid if the bond underlying the CDS goes into default or if other stated events occur (like bankruptcy or a restructuring).
So, how do you use a CDS to create a synthetic bond? here's the example from Salmon's column:
Let's assume that IBM 5-year bonds were yielding 150 basis points over treasuries. In addition, Let' s assume an individual (or portfolio manager) wanted to get exposure to these bonds, but didn't think it was a feasible to buy the bonds in the open market (either there weren't any available, or the market was so thin that he's have to pay too high a bid-ask spread). Here's how he could use CDS to accomplish the same thing:
- First, buy $100,000 of 5-year treasuries and hold them as collateral
- Next, write a 5-year, $100,000 CDS contract
- he's receive the interest on the treasuries, and would get a 150 basis point annual premium on the CDS
So, what does he get from the Treasury plus writing the CDS? If there's no default, the coupons on the Treasury plus the CDS premium will give him the same yearly amount as he would have gotten if he's bought the 5-year IBM bond, And if the IBM bond goes into default, his portfolio value would be the value of the Treasury less what he would have to pay on the CDS (this amount would be the default losses on the IBM bond). So in either case (default or no default), his payoff from the portfolio would be the same payments as if he owned the IBM bond.
So why go through all this trouble? One reason might be that there's not enough liquidity in the market for the preferred security (and you'd get beaten up on the bid-ask spread). Another is that there might not be any bonds available in the maturity you want. The CDS market, on the other hand, is very flexible and extremely liquid.
One thing that's interesting about CDS is that (as I mentioned above), you don't have to hold the underlying asset to either buy or write a CDS. As a result, the notional value of CDS written on a particular security can be multiple times the actual amount of the security available.
I know of at least one hedge fund group that bought CDS as a way of betting against housing-sector stocks (particularly home builders). From what i know, they made a ton of money. But CDS can also be used to hedge default risk on securities you already hold in a portfolio.
To read Salmon's column, click here, and to read more about CDS, click here Credit Default Swap (CDS)
This is an insurance policy that essentially "guarantees" that if a CDO goes bad due to having turds mixed in with the chocolates, the "counterparty" who purchased the CDO will recover the value fraudulently invested in turds. On September 30, 2008 Gretchen Morgenson of The New York Times aptly explained that the huge CDO underwriter of CDOs was the insurance firm called AIG. She also explained that the first $85 billion given in bailout money by Hank Paulson to AIG was to pay the counterparties to CDS swaps. She also explained that, unlike its casualty insurance operations, AIG had no capital reserves for paying the counterparties for the the turds they purchased from Wall Street investment banks.
"Your Money at Work, Fixing Others’ Mistakes," by Gretchen Morgenson, The New York Times, September 20, 2008 --- http://www.nytimes.com/2008/09/21/business/21gret.html
What Ms. Morgenson failed to explain, when Paulson eventually gave over $100 billion for AIG's obligations to counterparties in CDS contracts, was who were the counterparties who received those bailout funds. It turns out that most of them were wealthy Arabs and some Asians who we were getting bailed out while Paulson was telling shareholders of WaMu, Lehman Brothers, and Merrill Lynch to eat their turds.
You tube has a lot of videos about a CDS. Go to YouTube and read in the phrase "credit default swap" --- http://www.youtube.com/results?search_query=Credit+Default+Swaps&search_type=&aq=f
In particular note this video by Paddy Hirsch --- http://www.youtube.com/watch?v=kaui9e_4vXU
Paddy has some other YouTube videos about the financial crisis.
Bob Jensen’s threads on accounting for credit default swaps are under the C-Terms at
http://www.trinity.edu/rjensen/acct5341/speakers/133glosf.htm#C-Terms
Bob Jensen's threads on CDO accounting are at http://www.trinity.edu/rjensen/theory01.htm#CDO
Bob Jensen's threads on FIN 46 are at http://www.trinity.edu/rjensen//theory/00overview/speOverview.htm
"Understanding Synthetics," by Felix Salman, Portfolio.com, November 28, 2008 ---
http://www.portfolio.com/views/blogs/market-movers/2008/11/28/understanding-synthetics
Over the past few days, two very smart people have asked me about a passage in Michael Lewis's cover story for Portfolio in which he talks about synthetic CDOs without actually using the term. They said that they didn't quite understand it, so I'm going to try to explain what a synthetic bond is. Once I've done that, the Lewis passage should be a lot more comprehensible.
Let's start with a simple single-credit synthetic bond. You're an investor, and looking at the credit markets, you see that IBM debt is trading at attractive levels, especially around the 5-year mark, where they yield about 150bp over Treasuries. You'd really like to buy $100 million of IBM bonds maturing in five years, but IBM isn't returning your calls (they have no desire to borrow money at these spreads), and there aren't any IBM bonds with exactly the maturity you want. What's more, even the bonds with maturities nearby are illiquid, and closely held: there's no way you can just blunder into the market and buy up that many bonds without massively skewing the market, since the overwhelming majority of the bonds are just not for sale.
So you buy a synthetic IBM five-year bond instead, taking advantage of the much more liquid CDS market. Essentially, you take the $100 million that you were going to spend on IBM bonds, and you put it into a special-purpose entity called, say, Fred. (In reality, it'll be called something really boring like Synthetic Technology Invetments Cayman III Limited, but Fred is easier to remember.) First, Fred takes the $100 million and invests it in 5-year Treasury bonds.
Next thing, Fred goes out and sells $100 million of credit protection on IBM in the CDS market, using the $100 million of Treasury bonds as collateral. The buyer of protection will pay $1.5 million per year (150 basis points) to Fred, and in return Fred promises to pay $100 million to the buyer in the event IBM defaults, less the value of IBM's bonds at the time. The buyer knows that Fred is good for the money, because it's already there, tied up in Treasury bonds.
So long as IBM doesn't default, you get not only the $1.5 million per year from the buyer of protection, but also the interest on the Treasury bonds. You wanted to buy IBM bonds yielding 150bp over Treasuries, and that's exactly what you're getting: the 150bp from the CDS counterparty, and the Treasury interest from the Treasury bonds. At maturity, assuming IBM still hasn't defaulted, you get your $100 million back, the CDS contract has expired, and Fred has no contingent liability any more.
The effect is identical to holding an IBM bond -- and you can even sell your interest in Fred, just like you could sell an IBM bond. If IBM defaults, you lose your $100 million, but you get back the value of an IBM bond -- which again is the same outcome as if you'd bought an IBM bond for $100 million and IBM defaulted.
But the key thing to note is that IBM itself is not involved in the transaction at all. It doesn't matter how few bonds IBM has issued, there can be many times that amount in synthetic IBM bonds, just so long as there are enough people out there willing to buy and sell credit protection on IBM.
And just as you can create a synthetic IBM bond, you can create a synthetic bond portfolio, made up of credit default swaps on any number of corporate names or even mortgage-backed securities. The special purpose vehicles in those cases sometimes sell protection on a lot of different names; sometimes they just sell protection on a liquid CDS index. Either way, the returns that those vehicles offer are basically the same as the returns on buying the underlying securities -- if those securities were easily available.
Now that we've understood all that, we can return to Michael Lewis's piece, where he's talking about a chap called Steve Eisman, who was buying protection in the CDS market, and is sat at dinner next to one of his counterparties, who was selling protection.
Whatever rising anger Eisman felt was offset by the man's genial disposition. Not only did he not mind that Eisman took a dim view of his C.D.O.'s; he saw it as a basis for friendship. "Then he said something that blew my mind," Eisman tells me. "He says, 'I love guys like you who short my market. Without you, I don't have anything to buy.'¿"
That's when Eisman finally got it. Here he'd been making these side bets with Goldman Sachs and Deutsche Bank on the fate of the BBB tranche without fully understanding why those firms were so eager to make the bets. Now he saw. There weren't enough Americans with shitty credit taking out loans to satisfy investors' appetite for the end product. The firms used Eisman's bet to synthesize more of them. Here, then, was the difference between fantasy finance and fantasy football: When a fantasy player drafts Peyton Manning, he doesn't create a second Peyton Manning to inflate the league's stats. But when Eisman bought a credit-default swap, he enabled Deutsche Bank to create another bond identical in every respect but one to the original. The only difference was that there was no actual homebuyer or borrower. The only assets backing the bonds were the side bets Eisman and others made with firms like Goldman Sachs. Eisman, in effect, was paying to Goldman the interest on a subprime mortgage. In fact, there was no mortgage at all. "They weren't satisfied getting lots of unqualified borrowers to borrow money to buy a house they couldn't afford," Eisman says. "They were creating them out of whole cloth. One hundred times over! That's why the losses are so much greater than the loans. But that's when I realized they needed us to keep the machine running. I was like, This is allowed?"
What Eisman is saying is that there were mortgage-backed securities, and then there were synthetic mortgage-backed securities; when the banks ran out of actual MBS to sell to investors, they sold them synthetic MBS instead. And yes, that was allowed.
There is some hyperbole here, though. While there were undoubtedly a lot of synthetic MBS issued, they weren't a large multiple of the real MBS issued, as the "one hundred times over" quote would suggest. Which is quite obvious, if you think about it: there weren't a lot of people like Steve Eisman willing to short the MBS market -- and you need them, to take the other side of the trade.
In fact, most of the synthetic MBS issued were issued by banks which kept the underlying mortgages on their own balance sheet. Rather than put the mortgages directly into a CDO and sell that to investors, they kept the mortgages themselves and bought protection from the CDO on them -- creating a synthetic CDO which mirrored (and which they could sell to hedge) their own holdings. Why did they do that? That's the story of the super-senior tranche, and will have to wait for another day.
Bob Jensen's threads on FIN 46 are at http://www.trinity.edu/rjensen//theory/00overview/speOverview.htm
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