Editore"s Note
Tilting at Windmills

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November 10, 2008
By: Hilzoy

Excuse Me?

Here's a disturbing story:

"The financial world was fixated on Capitol Hill as Congress battled over the Bush administration's request for a $700 billion bailout of the banking industry. In the midst of this late-September drama, the Treasury Department issued a five-sentence notice that attracted almost no public attention.

But corporate tax lawyers quickly realized the enormous implications of the document: Administration officials had just given American banks a windfall of as much as $140 billion.

The sweeping change to two decades of tax policy escaped the notice of lawmakers for several days, as they remained consumed with the controversial bailout bill. When they found out, some legislators were furious. Some congressional staff members have privately concluded that the notice was illegal. But they have worried that saying so publicly could unravel several recent bank mergers made possible by the change and send the economy into an even deeper tailspin.

"Did the Treasury Department have the authority to do this? I think almost every tax expert would agree that the answer is no," said George K. Yin, the former chief of staff of the Joint Committee on Taxation, the nonpartisan congressional authority on taxes. "They basically repealed a 22-year-old law that Congress passed as a backdoor way of providing aid to banks." (...)

The change to Section 382 of the tax code -- a provision that limited a kind of tax shelter arising in corporate mergers -- came after a two-decade effort by conservative economists and Republican administration officials to eliminate or overhaul the law, which is so little-known that even influential tax experts sometimes draw a blank at its mention. Until the financial meltdown, its opponents thought it would be nearly impossible to revamp the section because this would look like a corporate giveaway, according to lobbyists.

Andrew C. DeSouza, a Treasury spokesman, said the administration had the legal authority to issue the notice as part of its power to interpret the tax code and provide legal guidance to companies. He described the Sept. 30 notice, which allows some banks to keep more money by lowering their taxes, as a way to help financial institutions during a time of economic crisis. "This is part of our overall effort to provide relief," he said."

The WSJ covered this a few weeks back (h/t publius.)

Here's the relevant section of the Internal Revenue Code. It provides that "The Secretary shall prescribe such regulations as may be necessary or appropriate to carry out the purposes of this section and section 383". I am not a lawyer, still less a tax lawyer, but offhand, I would not have thought that rescinding a law counts as promulgating a regulation necessary or appropriate to carry out its purposes. And if it doesn't, it's not clear where Secretary Paulson gets the authority to give banks a twelve-figure tax break.

Meanwhile, in other news, Treasury seems to be about to shovel around $40 billion more at AIG:

"Under the terms ironed out late Sunday, the government would give AIG more money, including $40 billion from the U.S. Treasury's $700 billion Troubled Asset Relief Program. It would also receive less interest than on the bulk of the original loan, while freeing AIG from exposure to some of the risky financial instruments that nearly caused it to file for bankruptcy protection."

So: they get tens of billions of dollars, they pay less interest, and they get to transfer some of their riskiest assets to -- guess who? -- us!

Yves Smith:

"This is the essence of AIG's latest proposal:

Man walks into pawn broker. He says to the person behind the counter, "You know that watch I brought in two weeks ago? I know you lent me $85, but now I need another $50. And I will tell you why you will give it to me. I have a gun with me. I will blow my brains out here, right now. With your nice carpet, I guarantee it will cost you more than $50 to clean up your store. And that's before we get into the cost of keeping your store closed while you clean my grey matter off your walls and what my suicide might do to your store's reputation."

Oh, and we forgot to mention that the man in the story above pulled the same trick last week and it worked like a charm."

More from Yves here: AIG: The Looting Continues. Felix Salmon is similarly underwhelmed, and Willem Buiter thinks it might be "time to pull the plug on AIG". (Either that or just nationalize and have done with it.)

This is all above my pay grade. However, a few thoughts:

First, when you're spending hundreds of billions of taxpayer dollars, it seems to me to be really important to target them well. In the case of the bailout, that would seem to mean deciding which firms to try to recapitalize and which to let fail. (And it ought to be possible to arrange for this failure to be less cataclysmic than the Lehman failure was, given any kind of advance notice.) One of the things that really worries me about all this is that I can't see any sign at all that we're making these kinds of distinctions, as opposed to just bailing out everyone in sight (except, of course, for homeowners and other non-corporate persons.) This is bad: it's wasteful, and it also produces moral hazard.

Second, on the first story: as I said, I'm not a lawyer, so I can't tell whether Treasury acted illegally. Regardless of whether they had the legal authority to do what they did, though, they should have gone to Congress before rescinding a statute at a cost of over $100 billion. If Congress does not agree with his action, it should undo it. The Post story claims that they're afraid they'll destabilize the market if they say that Paulson's actions were illegal. If so, then they should figure out what a good resolution would be, go to Paulson quietly, and tell him that if he doesn't sign on, they will undo his action publicly. If he cares about market stability, he'll sign on.

Third, giving banks a huge unilateral tax break is the sort of thing that might as well have been designed to deprive the bailout of whatever popular support it might ever have had. We live in a democracy. People's opinions matter. The Treasury should remember that, and act accordingly.

Hilzoy 12:20 AM Permalink | Trackbacks | Comments (23)
 
Comments

This is why i hate tax law. it so damn complex and so vast and changes so often that being current is almost impossible unless your the one changing it. Not to mention that minor changes can reap huge rewards for those in the know.

this is also why i hate the bailout. its such a boondoggle. Do we have any idea if it is working at all? i mean we see the money go out and the market is still tanking. i thought the purpose of the bail out was short term stability and we would do something in the future to fix structural issues so what the hell is going on. cant these people just for once concentrate on fixing the country instead of giving away money to the rich?

Posted by: The Gaucho Politico on November 10, 2008 at 3:29 AM | PERMALINK

How to loot the Treasury, in five easy lessons.

The Bush Kleptocracy will go down in history, as a lesson to be studied closely.

Posted by: SteinL on November 10, 2008 at 3:58 AM | PERMALINK

AIG was in Phoenix this week spending some of our money.

Posted by: bmaz on November 10, 2008 at 6:04 AM | PERMALINK

Gotta agree-- that's it for me. I'm against further bailouts, period. The money does not get to where it's supposed to go, kind of like the LAUSD (school district here).

The money just lines rich people's pockets.

As for the auto companies... they haven't made a decent car in 30 years. They wanted to keep mileage low, fought pollution standards, etc. They are at least l0 years behind the Japanese.

Let them fold. They deserve it.

Get Toyota and Honda to build plants here.

Posted by: clem2 on November 10, 2008 at 6:28 AM | PERMALINK

The new Bush chant:
2 more months! 2 more months!

I don't know if I can wait til January, democracy may be completely dead by then.

Posted by: effluvientOne on November 10, 2008 at 7:50 AM | PERMALINK

As a taxpayer, I want an ownership stake. These people leading AIG seem to want manage their business as usual, despite the enormity of their failures, take the taxpayer bailout as their due, and party on. Why are they getting away with it? Whose is playing their Santa Claus at our expense. I say lumps of coals for AIG management this year!

Posted by: ananke on November 10, 2008 at 8:07 AM | PERMALINK

Another $40 billion for AIG? Gosh, it must be time for them to plan their Christmas party.

Posted by: Smudge on November 10, 2008 at 8:14 AM | PERMALINK

Here are a couple of modest proposals to restore some balance and common sense to the American corporate economy:

1. The Directors and the top three level of executives would forfeit all but $100K in benefits and other compensation for the previous three years if their corporation declares bankruptcy. I'm getting tired of executives granting themselves multi-million dollar salaries and bonuses and then taking the money and running, leaving employees and taxpayers to clean up the mess.

2. Executives and Directors of corporations should not have special devices like insurance trusts that act as pensions but which can't be touched by bankruptcy proceedings. And while it's not a good idea for government to prohibit particular kinds of compensation, the government can discourage them by making them not tax deductible and taxing the proceeds when they're cashed in at 90 percent.

Executives and Directors at a corporation should have to rely on the same pension that the give to their employees, then maybe they would take better care of it. It has become too common for employees' pension funds to simply disappear during a bankruptcy, when it's discovered that it wasn't invested properly. Pensions are contracts with employees, who accepted that benefit in lieu of salary. If a pension fund isn't there when bankruptcy is filed, then the executives and directors have committed fraud and should be prosecuted.

Posted by: SteveT on November 10, 2008 at 8:18 AM | PERMALINK

Who is getting all the money going to AIG? It's not staying with AIG, it's being used to pay off AIG's CDSs. So the money is ending up in the hands of hedge funds and others who made bad bets but are getting paid off anyway (at 100% on the dollar?). The banks aren't being nationalized, the Treasury Department is being privitized.

Posted by: Jose Padilla on November 10, 2008 at 8:28 AM | PERMALINK

That's why I would like to see Warren Buffett as Treasury Secretary, because he would just set up the deals so that the Treasury, not the shareholders and executives of private corporations, made money in the end. Bush has set up welfare for rich Republicans.

Posted by: Bob M on November 10, 2008 at 8:33 AM | PERMALINK

It's the last few weeks at the trough, so expect a feeding frenzy.

Remember the good old days when the $1.5 billion Chrysler bail-out seemed uncomfortably large? (That would be around $4 billion in modern terms, and it was just a federal guarantee of loans, not money coming directly from the government.)

Posted by: N.Wells on November 10, 2008 at 8:36 AM | PERMALINK

We have got to get over against our phobia over nationalization. Gordon Brown pulled the trigger, and it salvaged his political career. All Paulson is doing is perpetuating the environment of "privatization of profits, socialization of risk"; this is what happens when the people who caused the problem are put in charge of fixing it.

This is also why Summers should not even be allowed in the door of the Treasury department.

Posted by: Walker on November 10, 2008 at 8:38 AM | PERMALINK

Sure, bail out any large financial institution with the understanding that any company accepting public bailouts will be broken into 4 smaller companies. 3 of which will then be small enough to die if they screw up again.

President Obama.... tie financial assistance to anti-trust enactment. See how eager they are to put their hands out.

I'd love to see the money being talked about for Detroit handed over to startups like Tesla and Scorpion. What could THEY do with the 40 billion I expect Ford and GM to waste on 'business as usual'?

Posted by: williamjacobs on November 10, 2008 at 9:20 AM | PERMALINK

And what exactly did you expect from Mr. Paulson, an exCEO? He gave his former employers a break by letting Lehman go under while supporting the people (AIG) that his own company depends on. He's a Republican so he has absolutely no respect for the law. By the same token he feels that the government exists solely for the personal benefit of his friends and himself. Looting the treasury is SOP. What did you think was going to happen? That the Bush administration was going to be a traitor to its class?

Posted by: Texas Aggie on November 10, 2008 at 10:14 AM | PERMALINK

Maybe what we should do is shrink the private sector until it's small enough to drown in the bathtub. And let's throw in all the fat cats, too, and let them go down the drain, leaving the trillions behind for responsible people to invest in our future.

Posted by: hark on November 10, 2008 at 10:27 AM | PERMALINK

For the last 35 years the automakers have bribed congress to relax fuel economy standards.Now they want taxpayer money to build more fuel efficient vehicles.Let them fail. It's our only way out.

Posted by: tom on November 10, 2008 at 10:36 AM | PERMALINK

My takeaway from this is: Never again let a financial institution get so big or so intricately linked to other financial institutions that its failure could crash the system.

Something to bear in mind as Paulson & Co. use the bailout to create fewer, bigger banks.

Posted by: allbetsareoff on November 10, 2008 at 10:41 AM | PERMALINK

"As for the auto companies... they haven't made a decent car in 30 years. They wanted to keep mileage low, fought pollution standards, etc. They are at least l0 years behind the Japanese.

Let them fold. They deserve it.

Get Toyota and Honda to build plants here."

I'm with ya, Clem2, but I have another idea:

Let GM/Chrysler die, then buy the assets on the cheap and offer the facilities to the first group that engineers a primarily electric car (with a liquid fuel backup system) that achieves practically zero emissions. Give the company a preferred equity interest, require that employees receive a meaningful equity ownership in the company and mandate quality controls on a par with the good car makers. Structure the deal as an earn-out where the company eventually privatizes through buying the assets over time with interest.

For those screaming "Socialism!", the government would remain mostly passive, only requiring that management stick to the business plan or confer on substantive strategic deviations.

It's time to give someone else a chance. Personally, I think a number of engineers who have been quashed over the years by sr. management could probably deliver the goods.

Posted by: bdop4 on November 10, 2008 at 11:29 AM | PERMALINK

Let 'em ALL fail.

Big Corporations have been robbing this nation for decades, it's time to turn off the tap. They don't PAY taxes, but they sure as hell want our tax money to keep their pockets full!

New Talking Point for the Boardroom Class in their NEW jobs: "Would you like Fries with that?"

Let 'em fail, and sell 'em off in bite-sized pieces to Owner-Proprietors instead. Maybe the New (non-corporate) Owners (of the assets we have paid for repeatedly) will build a product (here in the US) that will outlast the warranty for a change.

Posted by: Otolaryx on November 10, 2008 at 12:22 PM | PERMALINK

And, just think – Crazy Uncle Henry, six weeks ago, was rumored to be Obama's choice to stay on at Treasury. Ummm, smell the Change(TM).

Posted by: SocraticGadfly on November 10, 2008 at 1:41 PM | PERMALINK

Hot off Drudge:

Fed refusing to give info about Bailout recipients:

http://www.bloomberg.com/apps/news?pid=20601087&sid=aatlky_cH.tY&refer=worldwide

Posted by: Neil B on November 10, 2008 at 1:50 PM | PERMALINK

eff drudge.

if it's true, the information will be available elsewhere.

Posted by: karen marie on November 10, 2008 at 4:38 PM | PERMALINK

"Let them fold. They deserve it."

I wish we could. There's no doubt they deserve it. The 'Big 3' is like a drug addict we continue to enable. Unfortunately, it's just not that simple.

There are about $1 trillion in credit default swaps bet on GM. Most of the bets will be hedged, but if even a tiny amount of the positions taken are exposed it can cause a cascade of companies to go under as each business failure leads to more unsecured CDS contracts coming due, which causes more business failures, triggering more unsecured CDS contracts, leading to more bankruptcies...

Posted by: postmodernprimate on November 10, 2008 at 8:41 PM | PERMALINK




 

 
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