Update on Fiscal Cliff: What's at Stake for Real Estate

As we go into the final weekend of 2012, Congress continues to wrestle with what to do about the fiscal cliff, the hundreds of billions of dollars in automatic tax increases and federal spending cuts that take effect at the end of the year unless Congress acts to avert it.

NAR is monitoring the situation closely. To help explain the real estate interests at stake, NAR Chief Economist Lawrence Yun and NAR Director of Tax Policy Linda Goold sat down today for a short discussion on the issues.

With Congress and the White House expected to negotiate through the weekend, NAR will be sending out another update on the fiscal cliff situation next week.

Click the link below to access a 6-minute video of their conversation and a short post summarizing their remarks.  

http://speakingofrealestate.blogs.realtor.org/2012/12/28/update-on-fiscal-cliff-whats-at-stake-for-real-estate/

A Report from Wayne Caplan on Commercial Real Estate Political and Regulatory Issues

Wayne Caplan

As Council Chair of Political and Regulatory Affairs, the time has come for an update on some of the current issues facing the commercial real estate industry.

There are many issues to discuss at any given time.

While we are to a large degree paralyzed as far as anything getting resolved until after the November Presidential election, below is information on three of the more important / questioned items at the present time.

1.       The 3.8% TAX

Firstly,  there have been several requests out there for clarification on the 3.8% Tax that will be implemented as part of the Affordable Care Act (aka “Obamacare”, or ACA).

While there are a number of new taxes buried within the ACA, this particular tax has been falsely labeled as a tax on all real estate sale transactions (commercial and residential).

This is not the case, as it is an investment/income based tax, not one based on a given real estate transaction. However, there are ramifications to this tax, specifically to higher income earners.

This, in addition to a potential capital gains tax increase (which will happen if the Bush tax cuts expire at years end as scheduled) could be a reason for some investors/property owners to unload commercial property before the end of calendar year 2012, especially if they are not going to engage in a 1031 tax free exchange.

Below is a link to NAR’s description of the 3.8% tax for anyone who would like some clarification:

http://www.realtor.org/topics/health-care-reform/the-38-tax-and-health-care-reform

2.       Lease Accounting Standards

The Financial Accounting Standards Board (FASB) and their international counterpart (IASB) has proposed eliminating all operating leases, forcing companies to capitalize their lease liabilities on their balance sheets.

This change, if it goes into effect, would create large devaluations of all companies, big and small, with any leasehold exposure, not to mention greatly affect the length of lease terms that corporations are willing to commit to. All in all, this would have dire ramifications on both the leasing and investment sales parts of our brokerage businesses.

Below is a link to ICSC’s public policy page discussing this matter which has lots of links and discussion on the subject.

http://www.icsc.org/government/gr_issues/issue_details.php?s=5

While NAR, ICSC, and other real estate trade organizations have, if nothing else, delayed and clouded this potentially harmful new policy, it is still expected to be implemented in some fashion.

There cannot be enough discussion on this item with our elected officials and regulatory community.

3.       Sales Tax Fairness

The Main Street Fairness Act to level the playing field on sales tax collection between on-line and physical retailers has seen lots of progress.

There are bills in the House and Senate to ensure that physical retailers are able to fairly compete with on-line retailers.

While we all have enjoyed tax-free internet shopping, most people agree that traditional retailers are being endangered by on-line retailers having the advantage of not having to charge sales tax in many instances.

Below is a link to ICSC’s page on Sales Tax Fairness, and where it stands to date.

http://www.icsc.org/salestaxfairness/index.php

The Cost of Capital- Update from NAR

BACKGROUND


As you may recall, on June 12, 2012, the Federal Reserve, OCC and FDIC proposed regulations implementing the Basel III capital accords. Basel III is an international agreement that updates capital and liquidity requirements for banks and other financial institutions. This 750 page regulation will impact the ability of non-financial businesses to raise capital and increase their costs of borrowing.
In a series of three separate but related proposals, the regulators proposed substantial revisions to the U.S. regulatory capital regimen for banking organizations that, if adopted, will have a significant impact on the entire U.S. banking industry. The U.S. rules are based on the core requirements of the 2011 international Basel III Accord and in significant part on the “standardized approach” for the weighting and calculation of risk-based capital requirements under the 2004-2006 Basel II Accord. Importantly, the proposals will extend large parts of a regulatory capital regime that was originally intended only for large, internationally active banks to all U.S. banks and their holding companies, other than the smallest bank holding companies (generally, those with under $500 million in consolidated assets).
Commercial Real Estate

Most commercial loans will continue to be risk-weighted at 100 percent. The one significant change is for “high volatility” commercial real estate loans (“HVCRE loans”), a subset of ADC loans. HVCRE loans will be risk-weighted at 150 percent. A lender may be able to return an ADC loan to the 100 percent risk weight through underwriting and the imposition of certain terms, as follows:

• The LTV ratio is less than or equal to the “applicable maximum supervisory LTV ratio.”

• The borrower has contributed at least 15 percent of the appraised “as completed” value of the property. The contribution may take the form of cash or unencumbered readily marketable assets, or the borrower may have paid development expenses out of pocket.

• The borrower has paid to the bank the capital charge that the bank will have to incur on the loan and has done so before the bank advances any funds.

• The contributed capital, which may eventually include capital generated internally by the project, must remain in place until the project is completed, the facility converts to permanent financing, or is sold or paid in full.

• Permanent financing by the bank must conform to the bank’s underwriting criteria for long-term commercial mortgage loans. An ADC loan to finance one- to four-family residential properties, however, may continue to be risk-weighted at 100 percent.

Residential Construction and Multifamily Loans

The current risk-based capital rules assign a risk weight of 50 percent to certain one-to-four family residential presold construction loans and to multifamily loans. A 100 percent risk weight applies to a presold construction loan if the purchase contract is cancelled. These risk weights are fixed by statute and cannot be changed. The proposed Standardized Approach, however, adds several new conditions to both kinds of loans in order to qualify for these risk weights.

Presold construction loans must meet several prerequisites designed to ensure that the property will, in fact, be sold on completion. Two notable new requirements are, first, that the builder incur at least the first 10 percent of the direct costs of construction (land, labor, and construction) before the builder may begin to draw down on the loan; and, second, that the loan amount may not exceed 80 percent of the sales price of the presold residence.

Loans secured by mortgages on multifamily properties will remain eligible for the 50 percent risk weight if several conditions are met. For example, a newly originated multifamily loan cannot be risk-weighted at 50 percent and must be weighted at 100 percent. If, after at least one year, the borrower has made all principal and interest payments on time, the loan will be eligible for the 50 percent risk weight, if other conditions are satisfied.

These conditions include the following: (i) the LTV ratio does not exceed 80 percent on a fixed rate loan or 75 percent on a loan where the rate may adjust; (ii) amortization of principal and interest must occur over a period of not more than 30 years, and the original maturity for repayment of principal is not less than seven years; and (iii) annual net operating income of the property must exceed annual debt service by 20 percent for a fixed-rate loan or 15 percent for a loan where the rate may vary.

Basel III Working Group

We have formed a staff level working group with various real estate groups in Washington. This group is meeting regularly to share information and develop a collective strategy on these proposed rules.

Jim Schultz Founder of Open Prairie ventures

I really enjoyed the chance to interview Jim Schultz. Jim’s passion for entrepreneurship and building businesses was born of lessons learned within a family of global entrepreneurs dating back to the creation of the family seed company in 1903. He has carried those lessons throughout his twenty year career as an advisor and investor.

Jim has played an active role in a multitude of agriculture businesses, including operating experience with the Brazilian-unit of the family soybean business and a farmland syndication business which he co-founded. Today, he is Founder and Managing Partner of Open Prairie Ventures and invests in ag-tech businesses with disruptive technologies.

Open Prairie Ventures is a venture capital firm focused on investing in early and growth-stage Midwest-based companies in the ag-tech and life science sectors.

Today Open Prairie ventures is a dynamic force in supporting start up activity in the Mid-West and is engaged in transactions that are on par with any VC in the country. To watch the entire interview with Jim Schultz CLICK HERE

Can a Public Adjuster Save You Money?

A public adjuster is an insurance expert who is employed exclusively by a business or personal policy holder who has sustained an insured loss. Public adjusters handle every aspect of the claim and work closely with the insured to provide the most equitable and prompt settlement possible. A public adjuster inspects the loss site immediately, analyzes the damages, assembles data supporting the claim, reviews the insured's coverages, determines current replacement costs and negotiates with the insurance company. One of the best in the business is Richard Michaelson. He is a liscenced public adjuster in multiple states and is a sought after speaker on the topic. As a service to my clients I was able to garner some time from Rich and have him stop in Champaign on his way to the SEC conference in Las Vegas where he is to be a keynote speaker for the convention. In just the short time we had together Rich was able to share some very informative and extremely valuable information about how to deal with the myriad of insurance issues that we all face. Public Adjusters work for the commercial or residental property owner, not the insurance company. The highly stressful period following a loss is a difficult time for individuals and businesses. A professional public adjuster can reduce those major headaches, allowing you to get back to what is really important. Public Adjusters negotiate insurance settlements for the benefit and protection of the policy holder. Your insurance company has an adjuster representing them and their interests and so should you! A Public Adjuster can re-examine, re-open and negotiate settled claims for additional money. We had a great turn out in the second presentation in our CLIENT SERIES with Rich Michaelson. Stay tuned for new and continuing presentations for our clients.

A Word From Better Capital Partners

Reports indicate that 2009 will see one of the highest numbers of bank closings in US history. According to reports the hundredth bank will be closed and taken over by the FDIC next weekend. Just about a week ago the FDIC closed the ninety-ninth bank for the year. California in particular, has been one of the hardest hit states with one of the higher bank failure rates in the country. The FDIC took over the San Joaquin Bank in Bakersfield, California, making it the tenth bank closing in the state. There are reports of more closings to come within the state. Even with this grim news, many believe that 2009 will not have as many bank closings as there were in 1980, which had 534 failures. Reports indicate that 2009 should do better than 1992 as well, which had 181 banks fail. 2009 may not be as bad as previous years, in history, but according to the FDIC, currently there are 416 banks in its “at risk” category. This indicates that there are many more bank failures to come in the months ahead. FDIC does not indicate which banks are in this category, to curb the mass withdrawal of money from the banks at risk of failures. Many bank closings have been caused by the real estate boom of the mid-2000s. It is clear that many banks are still at risk and will continue to be at risk of failure for some time. Written By: Maulik Shah, AVP, Sperry Van Ness Better Capital Partners.

SECTION-BY-SECTION ANALYSIS OF THE LEGISLATION

"Emergency Economic Stabilization Act of 2008."

Section 2. Purposes.

Provides authority to the Treasury Secretary to restore liquidity and stability to the U.S. financial system and to ensure the economic well-being of Americans.

Section 3. Definitions.

Contains various definitions used under this Act.

Title I. Troubled Assets Relief Program.

Section 101. Purchases of Troubled Assets.

Authorizes the Secretary to establish a Troubled Asset Relief Program ("TARP") to purchase troubled assets from financial institutions. Establishes an Office of Financial Stability within the Treasury Department to implement the TARP in consultation with the Board of Governors of the Federal Reserve System, the FDIC, the Comptroller of the Currency, the Director of the Office of Thrift Supervision and the Secretary of Housing and Urban Development.

Requires the Treasury Secretary to establish guidelines and policies to carry out the purposes of this Act.

Includes provisions to prevent unjust enrichment by participants of the program.

Section 102. Insurance of Troubled Assets.

If the Secretary establishes the TARP program, the Secretary is required to establish a program to guarantee troubled assets of financial institutions.

The Secretary is required to establish risk-based premiums for such guarantees sufficient to cover anticipated claims. The Secretary must report to Congress on the establishment of the guarantee program.

Section 103. Considerations.

In using authority under this Act, the Treasury Secretary is required to take a number of considerations into account, including the interests of taxpayers, minimizing the impact on the national debt, providing stability to the financial markets, preserving homeownership, the needs of all financial institutions regardless of size or other characteristics, and the needs of local communities. Requires the Secretary to examine the long-term viability of an institution in determining whether to directly purchase assets under the TARP.

Section 104. Financial Stability Oversight Board.

This section establishes the Financial Stability Oversight Board to review and make recommendations regarding the exercise of authority under this Act. In addition, the Board must ensure that the policies implemented by the Secretary protect taxpayers, are in the economic interests of the United States, and are in accordance with this Act.

The Board is comprised of the Chairman of the Board of Governors of the Federal Reserve System, the Secretary of the Treasury, the Director of the Federal Home Finance Agency, the Chairman of the Securities and Exchange Commission and the Secretary of the Department of Housing and Urban Development.

Section 105. Reports.

Monthly Reports: Within 60 days of the first exercise of authority under this Act and every month thereafter, the Secretary is required to report to Congress its activities under TARP, including detailed financial statements.

Tranche Reports: For every $50 billion in assets purchased, the Secretary is required to report to Congress a detailed description of all transactions, a description of the pricing mechanisms used, and justifications for the financial terms of such transactions.

Regulatory Modernization Report: Prior to April 30, 2009, the Secretary is required to submit a report to Congress on the current state of the financial markets, the effectiveness of the financial regulatory system, and to provide any recommendations.

Section 106. Rights; Management; Sale of Troubled Assets; Revenues and Sale Proceeds.

Establishes the right of the Secretary to exercise authorities under this Act at any time. Provides the Secretary with the authority to manage troubled assets, including the ability to determine the terms and conditions associated with the disposition of troubled assets. Requires profits from the sale of troubled assets to be used to pay down the national debt.

Section 107. Contracting Procedures.

Allows the Secretary to waive provisions of the Federal Acquisition Regulation where compelling circumstances make compliance contrary to the public interest. Such waivers must be reported to Congress within 7 days. If provisions related to minority contracting are waived, the Secretary must develop alternate procedures to ensure the inclusion of minority contractors.

Allows the FDIC to be selected as an asset manager for residential mortgage loans and mortgage-backed securities.

Section 108. Conflicts of Interest.

The Secretary is required to issue regulations or guidelines to manage or prohibit conflicts of interest in the administration of the program.

Section 109. Foreclosure Mitigation Efforts.

For mortgages and mortgage-backed securities acquired through TARP, the Secretary must implement a plan to mitigate foreclosures and to encourage servicers of mortgages to modify loans through Hope for Homeowners and other programs. Allows the Secretary to use loan guarantees and credit enhancement to avoid foreclosures. Requires the Secretary to coordinate with other federal entities that hold troubled assets in order to identify opportunities to modify loans, considering net present value to the taxpayer.

Section 110. Assistance to Homeowners.

Requires federal entities that hold mortgages and mortgage-backed securities, including the Federal Housing Finance Agency, the FDIC, and the Federal Reserve to develop plans to minimize foreclosures. Requires federal entities to work with servicers to encourage loan modifications, considering net present value to the taxpayer.

Section 111. Executive Compensation and Corporate Governance.

Provides that Treasury will promulgate executive compensation rules governing financial institutions that sell it troubled assets. Where Treasury buys assets directly, the institution must observe standards limiting incentives, allowing clawback and prohibiting golden parachutes. When Treasury buys assets at auction, an institution that has sold more than $300 million in assets is subject to additional taxes, including a 20% excise tax on golden parachute payments triggered by events other than retirement, and tax deduction limits for compensation limits above $500,000.

Section 112. Coordination With Foreign Authorities and Central Banks.

Requires the Secretary to coordinate with foreign authorities and central banks to establish programs similar to TARP.

Section 113. Minimization of Long-Term Costs and Maximization of Benefits for Taxpayers.

In order to cover losses and administrative costs, as well as to allow taxpayers to share in equity appreciation, requires that the Treasury receive non-voting warrants from participating financial institutions.

Section 114. Market Transparency.

48-hour Reporting Requirement: The Secretary is required, within 2 business days of exercising authority under this Act, to publicly disclose the details of any transaction.

Section 115. Graduated Authorization to Purchase.

Authorizes the full $700 billion as requested by the Treasury Secretary for implementation of TARP. Allows the Secretary to immediately use up to $250 billion in authority under this Act. Upon a Presidential certification of need, the Secretary may access an additional $100 billion. The final $350 billion may be accessed if the President transmits a written report to Congress requesting such authority. The Secretary may use this additional authority unless within 15 days Congress passes a joint resolution of disapproval which may be considered on an expedited basis.

Section 116. Oversight and Audits.

Requires the Comptroller General of the United States to conduct ongoing oversight of the activities and performance of TARP, and to report every 60 days to Congress. The Comptroller General is required to conduct an annual audit of TARP. In addition, TARP is required to establish and maintain an effective system of internal controls.

Section 117. Study and Report on Margin Authority.

Directs the Comptroller General to conduct a study and report back to Congress on the role in which leverage and sudden deleveraging of financial institutions was a factor behind the current financial crisis.

Section 118. Funding.

Provides for the authorization and appropriation of funds consistent with Section 115.

Section 119. Judicial Review and Related Matters.

Provides standards for judicial review, including injunctive and other relief, to ensure that the actions of the Secretary are not arbitrary, capricious, or not in accordance with law.

Section 120. Termination of Authority.

Provides that the authorities to purchase and guarantee assets terminate on December 31, 2009. The Secretary may extend the authority for an additional year upon certification of need to Congress.

Section 121. Special Inspector General for the Troubled Asset Relief Program.

Establishes the Office of the Special Inspector General for the Troubled Asset Relief Program to conduct, supervise, and coordinate audits and investigations of the actions undertaken by the Secretary under this Act. The Special Inspector General is required to submit a quarterly report to Congress summarizing its activities and the activities of the Secretary under this Act.

Section 122. Increase in the Statutory Limit on the Public Debt.

Raises the debt ceiling from $10 trillion to $11.3 trillion.

Section 123. Credit Reform.

Details the manner in which the legislation will be treated for budgetary purposes under the Federal Credit Reform Act.

Section 124. Hope for Homeowners Amendments.

Strengthens the Hope for Homeowners program to increase eligibility and improve the tools available to prevent foreclosures.

Section 125. Congressional Oversight Panel.

Establishes a Congressional Oversight Panel to review the state of the financial markets, the regulatory system, and the use of authority under TARP. The panel is required to report to Congress every 30 days and to submit a special report on regulatory reform prior to January 20, 2009. The panel will consist of 5 outside experts appointed by the House and Senate Minority and Majority leadership.

Section 126. FDIC Enforcement Enhancement.

Prohibits the misuse of the FDIC logo and name to falsely represent that deposits are insured. Strengthens enforcement by appropriate federal banking agencies, and allows the FDIC to take enforcement action against any person or institution where the banking agency has not acted.

Section 127. Cooperation With the FBI.

Requires any federal financial regulatory agency to cooperate with the FBI and other law enforcement agencies investigating fraud, misrepresentation, and malfeasance with respect to development, advertising, and sale of financial products.

Section 128. Acceleration of Effective Date.

Provides the Federal Reserve with the ability to pay interest on reserves.

Section 129. Disclosures on Exercise of Loan Authority.

Requires the Federal Reserve to provide a detailed report to Congress, in an expedited manner, upon the use of its emergency lending authority under Section 13(3) of the Federal Reserve Act.

Section 130. Technical Corrections.

Makes technical corrections to the Truth in Lending Act.

Section 131. Exchange Stabilization Fund Reimbursement.

Protects the Exchange Stabilization Fund from incurring any losses due to the temporary money market mutual fund guarantee by requiring the program created in this Act to reimburse the Fund. Prohibits any future use of the Fund for any guarantee program for the money market mutual fund industry.

Section 132. Authority to Suspend Mark-to-Market Accounting.

Restates the Securities and Exchange Commission's authority to suspend the application of Statement Number 157 of the Financial Accounting Standards Board if the SEC determines that it is in the public interest and protects investors.

Section 133. Study on Mark-to-Market Accounting.

Requires the SEC, in consultation with the Federal Reserve and the Treasury, to conduct a study on mark-to-market accounting standards as provided in FAS 157, including its effects on balance sheets, impact on the quality of financial information, and other matters, and to report to Congress within 90 days on its findings.

Section 134. Recoupment.

Requires that in 5 years, the President submit to the Congress a proposal that recoups from the financial industry any projected losses to the taxpayer.

Section 135. Preservation of Authority.

Clarifies that nothing in this Act shall limit the authority of the Secretary or the Federal Reserve under any other provision of law.

Section 136. Temporary Increase in Deposit and Share Insurance Coverage.Raises the FDIC and the National Credit Union Share Insurance Fund deposit insurance limits from $100,000 per account to $250,000 until December 31, 2009. Temporarily raises the borrowing limits at the Treasury for the FDIC and the National Credit Union Share Insurance Fund.

Title II—Budget-Related Provisions

Section 201. Information for Congressional Support Agencies.

Requires that information used by the Treasury Secretary in connection with activities under this Act be made available to CBO and JCT.

Section 202. Reports by the Office of Management and Budget and the Congressional Budget Office.

Requires CBO and OMB to report cost estimates and related information to Congress and the President regarding the authorities that the Secretary of the Treasury has exercised under the Act.

Section 203. Analysis in President's Budget.

Requires that the President include in his annual budget submission to the Congress certain analyses and estimates relating to costs incurred as a result of the Act; and

Section 204. Emergency Treatment.

Specifies scoring of the Act for purposes of budget enforcement.

Title III—Tax Provisions

Section 301. Gain or Loss From Sale or Exchange of Certain Preferred Stock.

Details certain changes in the tax treatment of losses on the preferred stock of certain GSEs for financial institutions.

Section 302. Special Rules for Tax Treatment of Executive Compensation of Employers Participating in the Troubled Assets Relief Program.

Applies limits on executive compensation and golden parachutes for certain executives of employers who participate in the auction program.

Section 303. Extension of Exclusion of Income From Discharge of Qualified Principal Residence Indebtedness.

Extends current law tax forgiveness on the cancellation of mortgage debt.