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Wall Street seizes opportunity to gut SEC trading surveillance

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After 14 years of debate, the Securities and Exchange Commission is in the final stages of bringing a powerful new surveillance tool fully online. But Wall Street is seizing on the ideal political environment for a last-ditch attempt to kill it.

The Consolidated Audit Trail is a database, one of the largest ever created, that is set to revolutionize how the agency monitors trading activity and spots potential misconduct. By its May 31 industry compliance deadline, it will collect almost all U.S. trading data, as many as 500 billion records a day, and give the SEC a live window into activity across markets. 

Citadel Securities is leading a suit seeking to have the CAT declared illegal, and Wall Street is rallying behind it. Though financial firms have long expressed skepticism about the project, they are now allying with Republicans in Congress to paint it as a dystopian nightmare that would allow the federal government to spy on the investment decisions of every American. The fight also comes as the U.S. Supreme Court has hinted that it’s inclined to rein in the SEC and other federal agencies.

‘Orwellian surveillance’
Ken Griffin’s market-making firm declined to comment for this article but pointed to its Feb. 8 court brief, in which it accused the SEC of trying to “keep the American people in the dark about the adverse impacts of its unprecedented effort to subject the national securities markets to an Orwellian surveillance regime.”

In a Feb. 15 filing, Citadel Securities got the support of the Securities Industry and Financial Markets Association, the Managed Funds Association, the Alternative Investment Management Association and other trade groups representing just about every major US bank, brokerage, hedge fund, private equity and asset management firm — everyone from Goldman Sachs Group Inc. to Robinhood Markets Inc. Rival market maker Virtu Financial Inc. signed on separately in a show of unity against a common threat.

The SEC called the challenge “meritless” in an April 15 court filing and said Citadel Securities had never objected to the CAT before it filed its challenge last fall.

The regulator defended the CAT as a natural progression of its oversight powers and said the previously “cumbersome, time-consuming and frequently unsuccessful” process of tracking orders had become obsolete in today’s faster and more automated markets. The agency also said there were limits on the CAT’s access to and use of personal data and decried the “caricature” of the database being used “to snoop on Americans’ personal financial decisions.”

Wall Street has a specific beef with how the SEC wants to pay for the CAT — by imposing billions of dollars in fees on broker-dealers. The database is actually owned by CAT LLC, which is composed of stock exchanges and the industry-backed Financial Industry Regulatory Authority. The current SEC plan is to allocate two-thirds of the costs of developing and operating CAT to broker-dealers as opposed to the exchanges and Finra.

But David Rosenfeld, a former SEC enforcement official now teaching law at Northern Illinois University, said there’s also clearly concern on Wall Street about enhancing the agency’s ability to examine trading activity. 

“It gives the SEC not exactly real-time but close to real-time insight into what’s going on as far as trading is concerned,” said Rosenfeld. “That can give them a huge advantage in terms of ferreting out certain types of misconduct. There’s lot of things you can figure out just by looking at the data.”

One in a trillion
First proposed in the wake of the 2010 “flash crash,” the CAT’s data collection has proceeded in stages, starting with equity trades and non-complex options trades in 2020 and moving to complex options trades the following year. The May deadline is for market participants to submit client information to the CAT.

In December 2022, the SEC gave its first indication of how it would use CAT data for enforcement, quietly crediting the database with uncovering one of the biggest front-running schemes ever. Nuveen trader Lawrence Billimek was charged with tipping off Oregon retiree Alan Williams about stocks the asset-management giant was planning to buy, netting them $47 million in illegal profits.

Legal experts say the pair’s insider trading probably wouldn’t have been caught without the CAT.

Major insider-trading cases have often focused on single-market events like merger announcements. In the Nuveen case, the SEC used the CAT to track some 1,697 intraday equity trades made by Williams, finding he had a 97% “win rate” over a five-year period. The chances of that occurring randomly were less than one in a trillion, the SEC said. 

Both men pleaded guilty to criminal charges last year, and Billimek is scheduled to be sentenced on May 20. He faces up to 20 years in prison.

“Before the CAT, it was literally like the SEC was in the horse-and-buggy era of the 19th century trying to catch the fastest race car drivers of the 21st century,” said Dennis Kelleher, co-founder of financial reform advocacy group Better Markets. “I mean, it just wasn’t a fair fight. This changes all of that.”

Supreme Court v. agencies
At an October conference in Chicago, SEC enforcement official Rachael Clarke said the agency has built a whole analytic infrastructure to crunch CAT data. She hinted more enforcement cases were in the works.

“Stay tuned. More CAT in the future,” she said.

But that promise of stepped-up enforcement could be in jeopardy.

In November, the conservative Supreme Court majority indicated that it might bar the SEC from using in-house judges to decide enforcement cases, forcing it to litigate all actions in federal court. The same justices in January suggested they might also overturn the court’s landmark 1984 decision in Chevron v. NRDC, which held that federal judges must defer to the expertise of government agencies like the SEC.

Citadel Securities filed its October suit in the federal appeals court in Atlanta, which is regarded as more conservative than its counterpart in Washington. The firm argues in its suit that a project as big and expensive as the CAT, with an estimated price tag of $1 billion to develop and then $200 million a year to maintain, can’t be pushed on the industry by the SEC without explicit congressional approval. 

Congressional brief
David Slovick, a former SEC lawyer now at Barnes & Thornburg, said rulings on agency overreach by the Supreme Court could influence the judges in the CAT case.

“If there’s an avenue for a win here,” he said, “I think it’s the Supreme Court saying, ‘You’re acting outside of the scope of your regulatory authority and you need to go back to the congressional well and get legislative authority to do what you’re trying to do.'”

Citadel Securities’ arguments have already found a receptive audience on Capitol Hill. In February, Congressional Republicans led by Senator Tom Cotton of Arkansas and including Senator Tim Scott of South Carolina, filed a brief in support of the CAT challenge. They said “creating such an elaborate and intrusive structure involved significant policy judgments on questions of individual liberty, personal privacy, national security, and law enforcement” should be a matter for Congress.

‘Core values’
Republicans have expressed a particular fear that CAT data could be used to monitor investors’ political and religious beliefs. 

“Economic transactions offer a window into a person’s deepest thoughts and core values,” SEC Commissioner Hester Peirce, an appointee of former President Donald Trump, wrote in a dissenting May 2020 letter urging the agency to reconsider the project. 

“That some investors undoubtedly are engaged in misconduct in our financial markets cannot justify amassing this information,” she added. A conservative think tank last month filed a suit in Texas federal court challenging the CAT as an unconstitutional invasion of privacy.

But Slovick says the concerns about investor privacy are overblown, since the data was already being collected by the exchanges and Finra. In his view, the finance industry is harnessing the political argument to cloak its true reason for opposing the CAT.

“It makes the SEC’s lift a lot lighter,” said Slovick. “Their cases against Wall Street are going to be more effective and, of course, Wall Street doesn’t like that.”

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Senate unveils plan to fast-track tax cuts, debt limit hike

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Senate Republicans unveiled a budget blueprint designed to fast-track a renewal of President Donald Trump’s tax cuts and an increase to the nation’s borrowing limit, ahead of a planned vote on the resolution later this week. 

The Senate plan will allow for a $4 trillion extension of Trump’s tax cuts and an additional $1.5 trillion in further levy reductions. The House plan called for $4.5 trillion in total cuts.

Republicans say they are assuming that the cost of extending the expiring 2017 Trump tax cuts will cost zero dollars.

The draft is a sign that divisions within the Senate GOP over the size and scope of spending cuts to offset tax reductions are closer to being resolved. 

Lawmakers, however, have yet to face some of the most difficult decisions, including which spending to cut and which tax reductions to prioritize. That will be negotiated in the coming weeks after both chambers approve identical budget resolutions unlocking the process.

The Senate budget plan would also increase the debt ceiling by up to $5 trillion, compared with the $4 trillion hike in the House plan. Senate Republicans say they want to ensure that Congress does not need to vote on the debt ceiling again before the 2026 midterm elections. 

“This budget resolution unlocks the process to permanently extend proven, pro-growth tax policy,” Senate Finance Chairman Mike Crapo, an Idaho Republican, said. 

The blueprint is the latest in a multi-step legislative process for Republicans to pass a renewal of Trump’s tax cuts through Congress. The bill will renew the president’s 2017 reductions set to expire at the end of this year, which include lower rates for households and deductions for privately held businesses. 

Republicans are also hoping to include additional tax measures to the bill, including raising the state and local tax deduction cap and some of Trump’s campaign pledges to eliminate taxes on certain categories of income, including tips and overtime pay.

The plan would allow for the debt ceiling hike to be vote on separately from the rest of the tax and spending package. That gives lawmakers flexibility to move more quickly on the debt ceiling piece if a federal default looms before lawmakers can agree on the tax package.

Political realities

Senate Majority Leader John Thune told reporters on Wednesday, after meeting with Trump at the White House to discuss the tax blueprint, that he’s not sure yet if he has the votes to pass the measure.

Thune in a statement said the budget has been blessed by the top Senate ruleskeeper but Democrats said that it is still vulnerable to being challenged later.

The biggest differences in the Senate budget from the competing House plan are in the directives for spending cuts, a reflection of divisions among lawmakers over reductions to benefit programs, including Medicaid and food stamps. 

The Senate plan pares back a House measure that calls for at least $2 trillion in spending reductions over a decade, a massive reduction that would likely mean curbing popular entitlement programs.

The Senate GOP budget grants significantly more flexibility. It instructs key committees that oversee entitlement programs to come up with at least $4 billion in cuts. Republicans say they expect the final tax package to contain much larger curbs on spending.

The Senate budget would also allow $150 billion in new spending for the military and $175 billion for border and immigration enforcement.

If the minimum spending cuts are achieved along with the maximum tax cuts, the plan would add $5.8 trillion in new deficits over 10 years, according to the Committee for a Responsible Federal Budget.

The Senate is planning a vote on the plan in the coming days. Then it goes to the House for a vote as soon as next week. There, it could face opposition from spending hawks like South Carolina’s Ralph Norman, who are signaling they want more aggressive cuts. 

House Speaker Mike Johnson can likely afford just two or three defections on the budget vote given his slim majority and unified Democratic opposition.

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How asset location decides bond ladder taxes

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Financial advisors and clients worried about stock volatility and inflation can climb bond ladders to safety — but they won’t find any, if those steps lead to a place with higher taxes.

The choice of asset location for bond ladders in a client portfolio can prove so important that some wealthy customers holding them in a taxable brokerage account may wind up losing money in an inflationary period due to the payments to Uncle Sam, according to a new academic study. And those taxes, due to what the author described as the “dead loss” from the so-called original issue discount compared to the value, come with an extra sting if advisors and clients thought the bond ladder had prepared for the rise in inflation.

Bond ladders — whether they are based on Treasury inflation-protected securities like the strategy described in the study or another fixed-income security — provide small but steady returns tied to the regular cadence of maturities in the debt-based products. However, advisors and their clients need to consider where any interest payments, coupon income or principal accretion from the bond ladders could wind up as ordinary income, said Cal Spranger, a fixed income and wealth manager with Seattle-based Badgley + Phelps Wealth Managers.

“Thats going to be the No. 1 concern about, where is the optimal place to hold them,” Spranger said in an interview. “One of our primary objectives for a bond portfolio is to smooth out that volatility. … We’re trying to reduce risk with the bond portfolio, not increase risks.”

READ MORE: Why laddered bond portfolios cover all the bases

The ‘peculiarly bad location’ for a bond ladder

Risk-averse planners, then, could likely predict the conclusion of the working academic paper, which was posted in late February by Edward McQuarrie, a professor emeritus in the Leavey School of Business at Santa Clara University: Tax-deferred retirement accounts such as a 401(k) or a traditional individual retirement account are usually the best location for a Treasury inflation-protected securities ladder. The appreciation attributes available through an after-tax Roth IRA work better for equities than a bond ladder designed for decumulation, and the potential payments to Uncle Sam in brokerage accounts make them an even worse asset location.

“Few planners will be surprised to learn that locating a TIPS ladder in a taxable account leads to phantom income and excess payment of tax, with a consequent reduction in after-tax real spending power,” McQuarrie writes. “Some may be surprised to learn just how baleful that mistake in account location can be, up to and including negative payouts in the early years for high tax brackets and very high rates of inflation. In the worst cases, more is due in tax than the ladder payout provides. And many will be surprised to learn how rapidly the penalty for choosing the wrong asset location increases at higher rates of inflation — precisely the motivation for setting up a TIPS ladder in the first place. Perhaps the most surprising result of all was the discovery that excess tax payments in the early years are never made up. [Original issue discount] causes a dead loss.”

The Roth account may look like a healthy alternative, since the clients wouldn’t owe any further taxes on distributions from them in retirement. But the bond ladder would defeat the whole purpose of that vehicle, McQuarrie writes.

“Planners should recognize that a Roth account is a peculiarly bad location for a bond ladder, whether real or nominal,” he writes. “Ladders are decumulation tools designed to provide a stream of distributions, which the Roth account does not otherwise require. Locating a bond ladder in the Roth thus forfeits what some consider to be one of the most valuable features of the Roth account. If the bond ladder is the only asset in the Roth, then the Roth itself will have been liquidated as the ladder reaches its end.”

READ MORE: How to hedge risk with annuity ladders

RMD advantages

That means that the Treasury inflation-protected securities ladder will add the most value to portfolios in a tax-deferred account (TDA), which McQuarrie acknowledges is not a shocking recommendation to anyone familiar with them. On the other hand, some planners with clients who need to begin required minimum distributions from their traditional IRA may reap further benefits than expected from that location.

“More interesting is the demonstration that the after-tax real income received from a TIPS ladder located in a TDA does not vary with the rate of inflation, in contrast to what happens in a taxable account,” McQuarrie writes. “Also of note was the ability of most TIPS ladders to handle the RMDs due, and, at higher rates of inflation, to shelter other assets from the need to take RMDs.”

The present time of high yields from Treasury inflation-protected securities could represent an ample opportunity to tap into that scenario.

“If TIPS yields are attractive when the ladder is set up, distributions from the ladder will typically satisfy RMDs on the ladder balance throughout the 30 years,” McQuarrie writes. “The higher the inflation experienced, the greater the surplus coverage, allowing other assets in the account to be sheltered in part from RMDs by means of the TIPS ladder payout. However, if TIPS yields are borderline unattractive at ladder set up, and if the ladder proved unnecessary because inflation fell to historically low levels, then there may be a shortfall in RMD coverage in the middle years, requiring either that TIPS bonds be sold prematurely, or that other assets in the TDA be tapped to cover the RMD.”

READ MORE: A primer on the IRA ‘bridge’ to bigger Social Security benefits

The key takeaways on bond ladders

Other caveats to the strategies revolve around any possible state taxes on withdrawals or any number of client circumstances ruling out a universal recommendation. The main message of McQuarrie’s study serves as a warning against putting the ladder in a taxable brokerage account.

“Unsurprisingly, the higher the client’s tax rate, the worse the outcomes from locating a TIPS ladder in taxable when inflation rages,” he writes. “High-bracket taxpayers who accurately foresee a surge in future inflation, and take steps to defend against it, but who make the mistake of locating their TIPS ladder in taxable, can end up paying more in tax to the government than is received from the TIPS ladder during the first year or two.”

For municipal or other types of tax-exempt bonds, though, a taxable account is “the optimal place,” Spranger said. Convertible Treasury or corporate bonds show more similarity with the Treasury inflation-protected securities in that their ideal location is in a tax-deferred account, he noted.

Regardless, bonds act as a crucial core to a client’s portfolio, tamping down on the risk of volatility and sensitivity to interest rates. And the right ladder strategies yield more reliable future rates of returns for clients than a bond ETF or mutual fund, Spranger said.

“We’re strong proponents of using individual bonds, No. 1 so that we can create bond ladders, but, most importantly, for the certainty that individual bonds provide,” he said.

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Why IRS cuts may spare a unit that facilitates mortgages

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Loan applicants and mortgage companies often rely on an Internal Revenue Service that’s dramatically downsizing to help facilitate the lending process, but they may be in luck.

That’s because the division responsible for the main form used to allow consumers to authorize the release of income-tax information to lenders is tied to essential IRS operations.

The Income Verification Express Service could be insulated from what NMN affiliate Accounting Today has described of a series of fluctuating IRS cuts because it’s part of the submission processing unit within wage and investment, a division central to the tax bureau’s purpose.

“It’s unlikely that IVES will be impacted due to association within submission processing,” said Curtis Knuth, president and CEO of NCS, a consumer reporting agency. “Processing tax returns and collecting revenue is the core function and purpose of the IRS.”

Knuth is a member of the IVES participant working group, which is comprised of representatives from companies that facilitate processing of 4506-C forms used to request tax transcripts for mortgages. Those involved represent a range of company sizes and business models.

The IRS has planned to slash thousands of jobs and make billions of dollars of cuts that are still in process, some of which have been successfully challenged in court.

While the current cuts might not be a concern for processing the main form of tax transcript requests this time around, there have been past issues with it in other situations like 2019’s lengthy government shutdown.

President Trump recently signed a continuing funding resolution to avert a shutdown. But it will run out later this year, so the issue could re-emerge if there’s an impasse in Congress at that time. Republicans largely dominate Congress but their lead is thinner in the Senate.

The mortgage industry will likely have an additional option it didn’t have in 2019 if another extended deadlock on the budget emerges and impedes processing of the central tax transcript form.

“It absolutely affected closings, because you couldn’t get the transcripts. You couldn’t get anybody on the phone,” said Phil Crescenzo Jr., vice president of National One Mortgage Corp.’s Southeast division.

There is an automated, free way for consumers to release their transcripts that may still operate when there are issues with the 4506-C process, which has a $4 surcharge. However, the alternative to the 4506-C form is less straightforward and objective as it’s done outside of the mortgage process, requiring a separate logon and actions.

Some of the most recent IRS cuts have targeted technology jobs and could have an impact on systems, so it’s also worth noting that another option lenders have sometimes elected to use is to allow loans temporarily move forward when transcript access is interrupted and verified later. 

There is a risk to waiting for verification or not getting it directly from the IRS, however, as government-related agencies hold mortgage lenders responsible for the accuracy of borrower income information. That risk could increase if loan performance issues become more prevalent.

Currently, tax transcripts primarily come into play for government-related loans made to contract workers, said Crescenzo.

“That’s the only receipt that you have for a self-employed client’s income to know it’s valid,” he said.

The home affordability crunch and rise of gig work like Uber driving has increased interest in these types of mortgages, he said. 

Contract workers can alternatively seek financing from the private non-qualified mortgage market where bank statements could be used to verify self-employment income, but Crescenzo said that has disadvantages related to government-related loans.

“Non QM requires higher downpayments and interest rates than traditional financing,” he said.

In the next couple years, regional demand for loans based on self-employment income could rise given the federal job cuts planned broadly at public agencies, depending on the extent to which court challenges to them go through.

Those potential borrowers will find it difficult to get new mortgages until they can establish more of a track record with their new sources of income, in most cases two years from a tax filing perspective. 

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