Category Archives: law school

Like Water For Spectrum

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You can now download the paper I wrote for a Mass Communications class I took during the fall semester (also with a more practical title): Water Law Principles Applied to Spectrum Opportunities for Wireless Rural Broadband (PDF — 37 pages – with links) (Google Docs – without links).

In the paper, I recommend that the FCC utilize principles from water law to open up radio spectrum to encourage mobile/wireless broadband in rural areas.

From the introduction:

The Federal Communications Commission (FCC) issued an order, [the White Spaces Order], in November 2008 to free up  unused radio spectrum in the television frequency band for unlicensed use by low power devices. A  goal of the order is to help lower the costs of entry to potential wireless broadband providers by making more spectrum available for free to businesses and consumers.

One shortcoming in relation to rural users is the order’s failure to address backhaul between a rural  community and backbone networks. Frequencies in the television spectrum that are the focus of the  White Spaces Order do not lend themselves well to point to point communication necessary for longer  distance backhaul from a community to a backbone connection point. Without access to spectrum for  backhaul, rural communities will be forced to rely on other alternatives such as more expensive fiber cables. As such, the Commission will need to provide spectrum that is better suited for backhaul required for viable and economic high speed Internet services in rural communities. To that end, I suggest that the Commission apply three modified principles of water law that: 1) require spectrum use  be beneficial and reasonable; 2) require the licensee to actually use the spectrum and not hold a license  for speculative purposes; and 3) provide for equivalent replacement of a communications signal.

Applying these principles will free up unused and underutilized spectrum for more productive purposes including point to point backhaul connections.

Continue reading: Water Law Principles Applied to Spectrum Opportunities for Wireless Rural Broadband (PDF — 37 pages – with links) (Google Docs – without links).

May 19, 2009 Special Election

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I am voting NO on all of the propositions in the May 19, 2009 special election. The legislature needs to do the job it was elected to do. If not, then every one of them not willing to compromise in good faith should resign.

What will it take for the California legislature to do its job? Instead of passing a budget, it delayed the hardest decisions and deferred to voters. At what cost? The propositions do not even balance the budget or structurally change how budgets are made or how money is spent. The propositions only move money from one set of pots to to another in a apparently symbolic move. It is like moving deck chairs on the Titantic as cold Atlantic waters stream into a big gash in the side of the boat. Hello, there are structural problems causing California’s budget woes! Worse, these are temporary measures that delay or exacerbate the problems faced by the state government. Really, what do passing these initiatives get us?

via California Legislature: Where cost-cutting plans go to die – Los Angeles Times.

“Republicans pitched most of the plans to help deal with the deficit — which is expected to hit $8 billion by summer — but even some from moderate Democrats were rejected.

…

State officials have projected the midyear budget shortfall as a result of the recession. And if voters reject the budget-related ballot measures in the May 19 special election, the deficit could top $14 billion.”

via State will need to borrow more than $20 billion S.F. Chronicle.

“California will have to borrow more than $20 billion unless state leaders close another multibillion-dollar deficit that will deepen if voters reject budget-related ballot measures on May 19, according to a report Thursday by the nonpartisan Legislative Analyst’s Office.

…

In addition, California may have to pay hundreds of millions of dollars in additional borrowing costs as a result of the banking crisis. In previous years, the state was able to secure lower interest rates by purchasing loan guarantees from commercial banks.

But banks have told state finance officials that they can at best back about $1 billion in loans, far short of the state’s borrowing needs, said Tom Dresslar, a spokesman for state Treasurer Bill Lockyer.”

The articles say so much more than what I flash here. Really, they are worth reading to educate yourself. Really, these propositions do little to help the situation.

via Californiaâ??s Cash Flow Crisis: May 2009 Update.

Without significant budget-balancing and cash management actions by the Legislature or unprecedented borrowing from the short-term credit markets, the state will not be able to pay many of its bills on time for much of 2009-10.

  • $23 billion: Amount in loans from private investors needed in the fiscal year beginning July 1 if voters reject the May 19 ballot measures and the Legislature does not act;
  • $17 billion: Amount in loans from private investors needed if voters approve the ballot measures
  • $14 billion: Budget shortfall if voters reject Propositions 1C, 1D and 1E (i.e. the measures bring in $6 billion to budget).
  • $8 billion: Budget shortfall if voters approve Props. 1C, 1D and 1E

And here are highlights from the Official Voter Information Guide distributed by the Secretary of State followed by my commentary, labeled [DFB]. Highlights are mine.

Proposition 1A:

  • “Possible greater state spending on repaying budgetary borrowing and debt, infrastructure projects, and temporary tax relief. In some cases, this would mean less money available for ongoing spending.”
  • [DFB] In other words, we will borrow money now but we will be required to pay more for debt servicing and paying interest on that debt in future budgets. Moreover, we will need to cut spending in future years to pay for our budget woes now. Where will that money come from?

Proposition 1B: Fiscal Impact:

  • “Potential state savings of up to several billion dollars in 2009â??10 and 2010â??11.””Potential state costs of billions of dollars annually thereafter. “
  • [DFB] There are no estimates attached to this future cost. The voter guide says “it is difficult to know how this measure would change the state’s finances.” Voter Guide, page 21.

Proposition 1C:

  • “Impact on 2009â??10 State Budget: Allows $5 billion of borrowing from future lottery profits to help balance the 2009â??10 state budget.”
  • “Impact on Future State Budgets: Debt-service payments on the lottery borrowing and higher payments to education would likely make it more difficult to balance future state budgets. This impact would be lessened by potentially higher lottery profits. Additional lottery borrowing would be allowed. “
  • [DFB] Get this part: “would likely make it more difficult to balance future state budgets”? Yes, the authors of this measure are trying to address a difficult to pass budget by hamstringing future legislators by making it difficult to balance/pass future budgets. Isn’t that how we got into this mess? It infuriates me to no end to see this level of misfeasance. [bleeped out so I do not make a statement against my penal interests – sorry, I had a Criminal Procedure exam earlier this evening ;)]

Proposition 1D:

  • “Redirects existing tobacco tax money to protect health and human services for children, including services for at-risk families, services for children with disabilities, and services for foster children. “
  • [DFB]: This is an example of moving money from one pot to another. It is temporary and lasts five years. What happens in five years? This whole mess begins anew.

Proposition 1E:

  • “Amends Mental Health Services Act (Proposition 63 of 2004) to transfer funds, for a two-year period, from mental health programs under that act to pay for mental health services for children and young adults provided through the Early and Periodic Screening, Diagnosis, and Treatment Program.”
  • “The proposed temporary redirection in Proposition 63 funding would make less money available for mental health programs. To the extent that such programs are reduced, state and local governments could incur added costs for homeless shelters, social services programs, medical care, law enforcement, and county jail and state prison operations. The extent of these potential costs is unknown and would depend upon the specific programmatic changes that resulted from the redirection of Proposition 63 funding.”
  • [DFB] This is another temporary measure lasting two years that moves money from one pot to another. As the analysis shows, there is a big budget gap that will be left for cities and counties to make up, perhaps from thin air.

Proposition 1F:

  • “Encourages balanced state budgets by preventing elected Members of the Legislature and statewide constitutional officers, including the Governor, from receiving pay raises in years when the state is running a deficit.”
  • “Minor state savings related to elected state officialsâ?? salaries in some cases when the state is expected to end the year with a budget deficit.”
  • [DFB] This is like being bitten by a minnow. A Delta smelt, perhaps? It lacks teeth big enough to pierce the skin. Worse, it will have a negligible effect on the budget. I’d rather see a sliding scale that forces the legislature to deliver a structurally balanced budget by July 1. Every week after would see a 10% reduction in pay for that period. If a legislator was paid $100,000 per year they would be paid based on $90,000/year the following week and $81,000/year the following week. At week 29, they would be paid based on $5,233/year salary. See the chart below. Now that ought to get their attention in contrast to the slap with the pinkie finger the legislature has given itself.

graph

Of course I only cherry picked the items that caught my eye or that I should call attention to. Read the propositions yourself.

To be fair, voters are part of the problem. We have tied the hands of the legislature with proposition after proposition to support our pet projects, idealogical views, and pocket books. What we have collectively done is force legislators to do the equivalent of cloud seeding. Fortunately, we’ve had a prosperous enough time where money came easily in coincidental alignment with those revenue seeding experiments. Now, the magic is gone and we need to fess up to reality. Money does not grow on trees or fall from the sky. Debt is not cheap. And California’s budget is a briar patch that needs to be dethorned.

There should be no “third rail” to this debate. That overused political colloquism should go out the window in this conversation. There is nothing that should be held too sacred in conversations about how to fix – how to truly fix – the state budget. Prop 13, Prop 98, Prop XX, all need to be considered without reservations. It may take a vote of the people to undo some of the mess we created but at least put something valuable and constructive for us to debate and vote on instead of something from a sewage plant, spit-shined and treated like Cinderella’s glass slipper. At the end of the day, the conversation must be about the balance sheet: revenue versus expenditures; and how to make each more stable and controlled.

Catholic Bishops Lack Bark

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I think the Catholic bishops are wrong to complain about Notre Dame University inviting President Obama to speak at its commencement ceremonies and honoring him for his achievements. Unlike a church, a university is intended to be an open environment that is tolerant of many different viewpoints. Notre Dame and the dozens of other Catholic universities in the U.S. have built well earned reputations as just such open environments.

Refusing to invite a diverse set of speakers based on a singular issue is clueless, as one bishop characterized Notre Dame’s decision. Do the bishops intend to expel all faculty, students, and staff who disagree with their position on abortion? Will they insist Notre Dame hold back degrees of students who voted for Obama, have had an abortion, supported a friend who had an abortion, or are supportive of a woman’s right to choose? Until they are ready to do either or both, then the bishops should let Catholic universities remain open academic environments, confer honorary degrees based on objective standards, and invite any speakers chosen by the school. God forbid the bishops should take any affirmative steps toward either action because we might just see an outright revolt by university trustees in addition to students choosing other universities. I, for one, would then not qualify to earn a law degree from Santa Clara Law School as I hold similar views to Mr. Obama with regard to a woman’s right to choose and stem cell research.

Need I even go so far as to point out that the bishops are not speaking from a very good spiritual position and the church is already struggling for relevance. This is, after all, the same set of bishops who played active roles in the still-fresh sexual abuse scandals.

AP, Y! News: Notre Dame’s Obama invite riles Catholic bishops.

This coming week, Bishop Thomas Wenski of the Roman Catholic Diocese of Orlando, Fla., will take the unusual step of celebrating a Mass of Reparation, to make amends for sins against God.

The motivation: to provide an outlet for Catholics upset with what Wenski calls the University of Notre Dame’s “clueless” decision to invite President Barack Obama to speak at its commencement and receive an honorary doctorate May 17.

The nation’s flagship Catholic university’s honoring of a politician whose abortion rights record clashes with a fundamental church teaching has triggered a reaction among the nation’s Catholic bishops that is remarkable in scope and tone, church observers say.

At least 55 bishops have publicly denounced or questioned Notre Dame in recent weeks, employing an arsenal of terms ranging from “travesty” and “debacle” to “extreme embarrassment.”

The bishops’ response is part of a decades-long march to make abortion the paramount issue for their activism, a marker of the kind of bishops Rome has sent to the U.S. and the latest front in a struggle over Catholic identity that has exposed rifts between hierarchy and flock.

Bishops who have spoken out so far account for 20 percent of the roughly 265 active U.S. bishops â?? a minority, but more than double the number who suggested five years ago that then-Democratic presidential hopeful and Catholic John Kerry should either be refused Communion or refrain from it because of his abortion stance.

My draft opinion holding up FCC v. Fox

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My Administrative Law take-home midterm asked that I step into the shoes of a Supreme Court clerk and draft an opinion for FCC v. Fox, the fleeting expletives case. Naturally, because it is for Admin Law, it does not address the First Amendment issues that I think the Court should address. I liked the assignment since it made me think long and hard about the legal issues involved.

I. Draft decision upholding Fox, 489 F.3d 444 (2nd Cir. 2008), with regard to A.P.A. issues.

A. Statutory Interpretation

We find that the FCC impermissibly changed its interpretation of the term ‘indecent’ as used in the governing statute, 18 U.S.C. § 1464, which bars indecent content from broadcast radio and television.

In the order at issue, the FCC changed not only its policy toward indecent content but its interpretation of the term ‘indecent’ provided in the statute, 18 U.S.C. § 1464. As such, the Chevron v. Natural Res. Defense Council, Inc., 467 U.S. 837 (1984) framework governs our review of the Commission’s construction. Congress has delegated to the Commission the authority to â??execute and enforceâ? the Communications Act, 47 U.S.C. § 151, which provides the FCC with power to regulate indecent content on broadcast radio and television. The Commission has the power to deliver administrative sanctions, such as sending cease and desist orders or revoking licenses, 47 U.S.C. § 312, and also to assess criminal forfeiture penalties, 47 U.S.C. §503(b)(1)(D).

Chevron established a familiar two-step procedure for evaluating whether an agency’s interpretation of a statute is lawful. Nat’l Cable and Telecommunications Assoc. v. Brand X Internet Svc., 545 U.S. 967, 986 (2005). As a first step we ask whether the statute’s plain terms â??directly address the precise question at issue.â? Brand X at 986. If the statute is ambiguous on the point, we defer, at step two, to the agency’s interpretation so long as the construction is a â??reasonable policy choice for the agency to make.â? Id.

In the first step of the Chevron analysis, we look at whether the statute directly defines the term ‘indecent’ or if the term, as used, is ambiguous. The statute, 18 U.S.C. § 1464, states in full: “Whoever utters any obscene, indecent, or profane language by means of radio communication shall be fined under this title or imprisoned not more than two years, or both.” It is clear that Congress intended that no indecent language be used in radio communication but we find that indecent is not clearly defined thus leaving this portion of the statute ambiguous.1 The ambiguous nature of the term can be seen in FCC v. Pacifica Foundation, 438 U.S. 726 (1978), in which the plurality opinion and concurrence had two different ideas about what qualified as indecent. Both felt the term meant â??patently offensiveâ? but differed in opinion about what qualified as such. The plurality opinion identified the plain meaning of indecent as â??merely referring to nonconformance with accepted standards of moralityâ? Pacifica at 741 and merely accepted that it was equivalent to patently offensive. The concurrence felt the term was more narrow, finding that the George Carlin monologue could be classified as “indecent” only because “the language employed is vulgar and offensive… [and] was repeated over and over as a sort of verbal shock treatment.” 438 U.S. At 757. (Powell, J., concurring). It is also through the ambiguous nature of the term indecent that the Commission’s rules operate and why it felt it necessary to change its policy as to what qualified.

We next proceed to step two of the Chevron analysis. If the statute is ambiguous on the point, we defer to the agency’s interpretation so long as the construction is a â??reasonable policy choice for the agency to make.â? Chevron’s premise is that it is for agencies, not courts, to fill statutory gaps. Brand X at 972. If Congress has explicitly left a gap for the agency to fill, there is an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation. Brand X at 844. Such legislative regulations are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute. When the legislative delegation to an agency is implicit, a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency. Brand X at 844. This is true, even when the agency is changing rules, policies, and how it interprets a statute. Chevron at 863. Such a change, however, must provide a reasoned analysis to depart from prior precedent.

Here, the Commission has an implicit delegation to fill the statutory gap with regard to what is indecent. Through that delegation, the Commission changed how it interprets the term indecent to have a broader meaning than it had used in the past. Previously, the Commission had held that language was indecent if used to depict or describe sexual or excretory activities. In the order at issue, the Commission broadened the meaning of indecent when it determined that all uses of the words â??fuckâ? (the “F-Word”) and â??shitâ? (the “S-Word”) in all contexts depict or describe such activity. Golden Globes Order, 19 F.C.C.R. 4975, 4978. This is the case, with a single, isolated non-literal utterance of the word. For example, Bono’s statement, â??really, really fucking brilliant,â? in reaction to winning a Golden Globe award is considered indecent, although his use of the word did not involve sexual or excretory functions. Golden Globes Order at 4975. As pointed out by the lower court, prior to the Golden Globes decision the FCC had consistently taken the view that isolated, non-literal, fleeting expletives did not run afoul of its indecency regime. Fox Television Stations, Inc. v. FCC, 489 F.3d 444,455 (2nd Cir. 2007).

We find that the Commission provided very limited reasoning as to its new, broader interpretation of the term indecent.2 Rather, it largely relied on its dismissal of previous interpretations of the term indecent as dicta and staff letters. It did provide some reason why it was changing policy with regard to how it would enforce the rule, however it did not discuss its new interpretation of the statute.3 The Commission simply announced that the “core meaning” of certain expletives is always indecent (Golden Globes at 4978), thus expanding the definition of the term indecent, although it had repeatedly held those same terms not indecent in the past.

B. Substantive Decision

Furthermore, we also find that the Commission failed to provide an adequately reasoned analysis for its change in policies and rules with regard to its its interpretation of the statute.

When an agency undertakes “a reversal of policy,” the APAâ??s mandate of reasoned decision making requires it to “adequately explain the reasons” for the change. Brand X at 981. Moreover, “[a]n agencyâ??s failure to come to grips with conflicting precedent constitutes an inexcusable departure from the essential requirement of reasoned decision making.” Ramaprakash v. FAA, 346 F.3d 1121, 1125 (D.C. Cir. 2003) (Roberts, J.).

Here, the Commission failed to provide a rational connection to between the â??first blowâ? theory its policies regarding fleeting expletives or provide adequate reasoning to explain away the conflict between its current policy to consider a fleeting expletive a harmful â??first blowâ? and the prior 30 years when it did not. As pointed out in the court below, there is no identifiable or judicially manageable standard provided by the Commission for the first blow theory underlying its policy change. The Commission held that it had changed the definition of what it considers indecent to include all uses of the F-Word and S-Word to protect viewers (including children) from taking the first blow when an expletive is used. It then provided exemptions for some uses of expletives but not others. For example, it provided exemptions for expletive used during the Early Show and the movie Saving Private Ryan but not for the same expletives used during the Billboard Music Award programs. In which case, the Commission’s justifications relying upon the â??first blowâ? theory were undermined. Viewers to each program still took the â??first blowâ? and were subjected to the offending word(s). In each case, the Commission subjectively determined whether that particular instance was more deserving of an exemption than the others. It is unclear what standards the Commission used for each determination.

The decision by the lower court is affirmed and this matter remanded to the Commission.

1We intentionally do not address any constitutionality in this portion of our opinion. We assume, for sake of argument that this statute and the Commission’s rules with regard to indecent content are are Constitutional.

2 This Court cannot substitute a reasoned basis for the agency action if the agency did not proffer it first. Courts confine evaluations of agency action to reasons articulated by the agency itself. State Farm at 50. See also Chenery (“the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. The reviewing court should not attempt itself to make up for such deficiencies; we may not supply a reasoned basis for the agency’s action that the agency itself has not given.”).

3 The dissent argues that the Commission did not change its interpretation of the statute and merely changed its enforcement policies based on how it had always defined the term indecent. The issue in this case is whether the FCC has adequately explained its decision to broaden the definition of “indecent” when it abandoned a standard limited to “verbal shock treatment” based on sexual or excretory function in favor of a presumption of indecency that must be rebutted with specific mitigating circumstances.

*Update:* The real Supreme Court disagrees with me. Justice Scalia, joined by 4 other justices, said that the FCC adequately followed the Administrative Procedures Act (A.P.A.) and declined to rule on the First Amendment issues. The matter was remanded to the appellate court, which can then reconsider the First Amendment issues.

Revenue Code Section 382: in the face of a financial crisis (pt. 2)

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This follows up my earlier post regarding a presentation I gave to my tax policy class. I have since completed a final draft of my paper (PDF). I turned it in last night. There is much more that can be said about the subject but I realized part way through semester that it would be helpful to have had a background in economics. I checked out several books about economics and even sequestered myself in the libraries more than once but barely skim the top of the subject in the paper. I wish I’d studied economics in college, even if just a class or two. Fascinating stuff.

Since I gave the presentation, Senator Chuck Grassley sent a letter on November 14, 2008 to Inspector General Eric M. Thompson of the United States Treasury requesting a formal investigation into the origins of Notice 2008-83 and conflicts of interest in the Treasury leadership and their relations with bankers who will benefit from the guidance. The investigation is ongoing. http://finance.senate.gov/press/Gpress/2008/prg111408c.pdf

In addition, Senator Bernie Sanders introduced a bill to rescind Notice 2008-83. His web site has more information about the bill – Closing Corporate Loopholes news release, November 18 2008.

I agree with Sen. Sanders that it should be rescinded. It does not make sense, Treasury clearly lacks authority (in my view at least) to waive application of Section 382(h), and the banks should know better than to rely on it. This maxim comes to mind: “If it sounds too good to be true, it is.” If Treasury had wanted to really waive the rule, I think a better choice would have been to apply the waiver temporarily to all corporations that can show the purpose was not to traffic in NOLs and require the ownership change to involve an operating business and a substantial level of business continuity. Such a change in the program will accomplish a few things. It will limit macroeconomic distortions by encouraging investment and recapitalization of all business types. It will ensure that the original intent of Congress, to prevent or limit trafficking in NOLs, is met. And it will be more administrable than ad hoc regulation directed to correct market failures in one industry or group of corporations However, it might not be politically acceptable because it will limit Federal revenues and will increase an already large tab for the bailout of the financial system.

As for fixing the financial system (not my paper topic), the bailout is a failure. It is not targeted to the root causes of the chaos: trust. Or, I should say lack of trust. The Madoff ponzi scheme is just one more nail in the coffin of the bubble that the market is. The real issue is that nobody knows the true value of the assets held by banks, companies, or individuals. Those fancy securities with acronymns for names (CDO, MBS, etc.) are not transparent and escape any real valuation until everyone knows what they contain (not just dud grenades or sour grapes). In addition, the bailouts have come without two necessary components – revenge and accountability. Revenge is not just necessary from the tax payers vantage point but to lessen the moral hazard and prevent this from ever happening again.  If I were in Treasury, and I came very close to applying on change.gov, I would set up a separate unit/corporation of government that would take all of the bundled securities from banks and other entities that needed bailouts, enter bankruptcy protection, etc. and have that government entity sort out all the securities, insert transparency and then sell them off. The government would keep a share (say 50%) and give the rest back to the original holder. Such a plan would: 1) allow everyone to trust those securities again; 2) enact some modicum of revenge that lessens the moral hazard and makes it more acceptable to tax payers; and 3) through the first two create some accountability.

Revenue Code Section 382: in the face of a financial crisis

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I gave a presentation in my tax policy seminar today, scratchy throat and all, based on the topic of a paper I am writing for the class. The U.S. Treasury Department intrigued and scared me with some of the moves it made in September and October so I ended up writing my paper on the actions it is taking. In particular, I focus on one notice of guidance issued by the I.R.S. that essentially waives application of a section of the code – 26 U.S.C. 382(h) – for banks only. This waiver is credited with Wells Fargo snatching up Wachovia, which had already agreed to a sale to Citibank. The drama of it all. I estimate Wells Fargo will save about $26 billion in taxes and enlarge itself to boot.

The slides below are followed by my notes, including for the missing slide. Keep in mind that this presentation greatly simplifies one of the most complex sections of the code. Comments are welcome. Enjoy!

  • I am interested in how the tax code is being used to help combat the current financial crises.
  • one place Treasury started was 382, which limits the use of losses and gains by a new loss corporation

We will quickly cover …

The treasury department has been active in identifying trouble spots and issing guidance to corporations to help deflect some of the market turmoil.

  • it started with the rescue of Fannie Mae and Freddi Mac, which remain publicly traded corporations
  • then it was confronted with AIG
  • then it decided to help recapitalize corporations so it gave a safe harbor from the law
  • The last one is the topic of my paper
    • treasury excuses banks from 382(h) which restricts trafficking in built-in losses
    • we’ll come back to this, but first …382

NOL:

  • Occurs when tax-deductible expenses exceed taxable revenues
  • carry back: to offset income during the previous two tax years;
    • OR
  • carry over for a 20 years before they expire.
  • considered a tax asset under GAAP accounting standard and shows as an asset on balance sheets
    • Good example: GM took a $39 billion write-down in September 2007 to realize losses on tax assets that were expiring or it did not expect to redeem.  GM lists â??Other current assets and deferred income taxesâ? in its 10Q. In the August 2008 10Q, it is  $3.58 Billion.Key terminology:

Loss Corporation is entitled to use the loss

  • Old loss corporation is the one that generated the loss before the change date
  • New loss corporation is the one that can use the NOL after the change date

382(b) â?? places annual limits on NOLs after ownership change

Change in ownership is complex

  • Just know it can be triggered by a number of things:
  • sale of the corporation, reorganizations, recapitalization, capital injection, stock transfer, IPO.The old and new loss corp can be the same
  • Assumption here: corporation acquired all at once

Annual limit

  • equal to, or less than, the value of the old loss corporation times the long-term federal tax-exempt bond rate – set by the IRS monthly 4.65%
  • Carryforward allowed, carry back prohibited.
  • Wachovia example: 24.5 Billion * 4.65% = 1.14 Bill.
  • GM example: 3.64 Billion * 4.65% = 169 million

NOLs expire after 20 years.

  • If the annual limit is $5 million dollars due to 382, the maximum deductible amount is $100 million dollars.
  • Wachovia ex: 1.14 Billion * 20 years = $22.79 Bill.
  • GM example: 169 million * 20 years = $3.4 billion – based on market cap on Y! Finance
  • These are the  NOLs that can be utilized by the new loss corporation over the 20 year carry forward term.
  • 382(h): Limits new loss corporations from using net unrealized built-in gains or losse (I’ll cover losses only)
  • Without 382(h), a loss corporation could speed up or slow down recognition of gains or losses.

NUBIL: net unrealized built-in losses

  • includes depreciation, amortization, and depletion.
  • When built-in loss is recognized, that loss is then added to the pre-change NOL carryovers and limited as such.
  • limits are only placed on losses recognized during the five years after the change date.
  • Elements
    • must be accrued at the time of the ownership changes
    • the amount must be substantial (>=15% fmv of the assets or $10mill) â?? de minimis rule
    • recognized within a limited period (five years).
    • After year 5, the built-in losses are carried over without limitation.

Burden on the new loss corp. to establish that a loss recognized during the recognition period is not a RBIL.

IRS Notice 2008-83

  • Waives application 382(h) for banks
  • Applies only to banks
  • Has no termination date

Immediately after the merger is complete

  • Wells can recognize NUBILs it owns through its acquisition of Wachovia
  • apply those losses through carry back mechanism to offset income during the past two tax years.
  • gets a refund check from the I.R.S.

Wells expects to eventually write down $74 Billion in value from Wachovia’s loan portfolio – NUBIL.

  • once recognized, those $74 billion in losses would be attributed to Wells Fargo, rather than Wachovia.
  • immediately be used to offset income
  • Any remaining amount can then be carried over as NOL to subsequent tax years, to offset future gains, either as NOLs that are carried forward or that offset income during a given tax year.

Possible scenario for carryback:

  • Taxable income â?? 2007: $11.6 Billion
    • annual report: 3.57Bill. tax paid / 30.7% effective tax rate
  • Taxable income â?? 2006: $12.7 Billion
    • annual report: $4.23 Billion tax paid / 33.4% effective tax rate
  • Unequal treatment creates macroeconomic distortions.
  • Generally, similarly situated taxpayers should be treated similarly.
  • Others w/ large NUBIL: insurance companies, investment banks, manufacutures, real estate developers or holding companies, and

Similarly situated taxpayers can include both small and large corporations and span across different industries because the corporations follow the same tax laws and regulations. It can also be used more narrowly to only apply to companies large or small or only companies within a particular industry. I think it should apply broadly and inclusively.

argument for providing the banks (under 581) a bypass around 382(h).

  • perhaps saving the financial system could trump economic efficiency arguments.
  • Counter: Citibank bid for Wachovia without this provision.
    • Citi had the gov’t assume certain risks. Here Wells assumed the risk and paid a premium for Wachovia, versus Citi.
  • Counter what about all the other companies part of the finanical system not covered? And other important industries?

distortions are pushing non-bank financial servicers to become banks or bank holding companies

  • take advantage of tax breaks and other government assistance that is being provided to banks.
  • take advantage of 2008-83.
  • GMAC announced on Nov. 5
  • Amex on Monday
  • Investment banks Goldman Sachs and Morgan Stanley have already received permission to become bank holding companies.
  • Will insurance companies be next?

Moral Hazard â?? taxpayer behavior distorted by removing some risk of failure

Missing slide:

Start by asking what is this regulation intended to correct? Does it actually accomplish that goal or are there other intended or unintended consequences

  • Seems this guidance is intended to help recapitalize banks.
  • If so, compare to other methods to recapitalize banks. Are there better ways? Direct capitalization? Bankruptcy?

Direct capitalization

  • Wells: $74 billion write off – Assume 35% tax rate â?? expect $25.9 billion in taxes lost
  • Is $25.9 billion in lost tax revenue better used recapitalizing Wachovia?

Bankruptcy or receivership?

  • 382 includes a bankruptcy exception that provides what amounts to a waiver of 382.

Creates super bank

  • Is Wells taking risks it would not otherwise take (moral hazard)?
  • What if Wells Fargo is mistaken about the risks inherent in the bank it acquires or their own portfolios?
  • Is it worth the risks to have two banks fail rather than one if there are bigger losses than anticipated in the new loss corporation as a result of the acquisition?

[no notes]

  • Notice 2008-83 has received public attention of Senators from both parties
    Charles Schumer (democrat)
    Charles Grassley (republican)
    Both are upset because Congress was not consulted, yet this will cost hundreds of billions of dollars.

Poor tax policy to give only one industry a waiver to 382(h) requirements.

Better choice?

  • Apply waiver temporarily to all corps that can show the purpose was not to traffic in NOLs
    • require sale of an operating business & business continuity
  • Limits macroeconomic distortions by encouraging investment and recapitalization of all business types
  • Ensures the original intent of Congress, to prevent or limit trafficking in NOLs
  • More administrable than ad hoc regulation directed to correct market failures in one industry or group of corporations
  • Might not be politically acceptable because it will limit Federal revenues and it will

I think it would have also been better for Treasury to insert this into the discussions of the big bailout package since Notice 2008-83 came out while Congress was debating the bailout.

… now for me to finish writing the paper.

Update (12/18/08): I finished the paper. Sources for the information given above is identified in the paper. 🙂

Book closed

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The book for the fall semester is now closed. It was brutal but I’m finally done with it.

I turned in my Mass Communications paper at 4:55 p.m. Thursday (Jan. 10), with five minutes to spare. I had intended to finish it a few days earlier but was knocked out with the flu last weekend. Who am I kidding? I would have still turned it in Thursday afternoon, regardless. 😉

My paper argues for Congress and federal regulators to scrap the current communications regulatory regime.

Traditionally, the federal government has taken a silo approach to communications regulation. In other words, each mode of communication is considered and regulated differently.

Think of grain silos rising above the plains like a row of overseers. Each silo holds and isolates a specific type of grain, protects it from the elements, and prevents mixing with the other grains. Similarly, traditional communications regulatory silos isolate individual forms of communication â?? as well as their respective sets of regulations â?? from each other. There are silos for broadcast television and radio, cable television, satellite television, cable Internet access, digital subscriber line (DSL) Internet access over a copper telephone line, telephone service over a copper line, and so forth.

As a result of the silo approach, each mode of communication is controlled by a separate set of regulations, even those that carry the same, exact content. For example, broadcast television and cable television both show audio/visual content on a television set, yet each is governed by different content regulations. Those content regulations in turn receive different standards of review by courts, which allow the government to continue its disparate treatment of the two. That’s why swearing is more allowable on cable television but not on broadcast television.

In the same way, the current regulatory approach also isolates and provides differential treatment of communications services using the same physical conduit. For example, one set of regulations govern cable television while a separate set of regulations govern cable Internet access, even though both media forms utilize the same physical cables.

In contrast to the silo approach to regulations, a layered regulatory framework would raze distinctions between the types of communication and instead focus on the functional portions of a communications network used to transfer content. Such a layered regulatory approach would treat similar content similarly, independent of source, service type, and destination. The model that works best contains four layers: content, application, logical, and physical. If you need a visual analogy, think of the layers stacked like pancakes.

By creating regulatory layers based on functions of a network, the regulatory process would better take into consideration the similarities and differences between the different modes of communication and the technology platforms that underlie each and thus eliminate the disparate â??siloâ? regulations that arbitrarily govern identical content differently.

The argument is very wonkish. If you’re geek enough and wish to read all 39 pages, including footnotes, please do. Razing the Silos: An Argument For A Layered Communications Regulatory Framework (PDF). It is just a term paper, but I intend to keep working on it over the next several years and eventually submit it to law journals for publication.