September 20, 2018

Bank of America

SEC Not Happy With Bank of America’s Sloppy Accounting

The Securities and Exchange Commission today charged Bank of America Corporation with violating internal controls and recordkeeping provisions of the federal securities laws after it assumed a large portfolio of structured notes and other financial instruments as part of its acquisition of Merrill Lynch. Bank of America agreed to pay a $7.65 million penalty to […]

Bank of America Gets It Some Sharon Allen

Bank of America announced today that perpetually hydrated former Deloitte Chairwoman Sharon Allen will be joining their board of directors effectively immediately. This appointment by a prominent company naming a former Big 4 bigwig to their BoD follows announcements by J.P. Morgan and Walmart that ex-KPMG Chairman Tim Flynn would be joining their boards. This is probably a good […]

Oh For God’s Sake, Bank of America’s Former CFO Is Being Appointed Chairman of a Council That Advises the FASB

Chuck Noski was CFO of BofA for only one year and is still a vice chairman at the bank and is probably a very competent individual but Jesus, has the Financial Accounting Foundation no sense of the reputation of this particular bank? Further, have they heard nothing about the collective reputation of banks these days?


Guess not:

Mr. Noski’s appointment was announced by John J. Brennan, chairman of the Board of Trustees of the Financial Accounting Foundation (FAF). The FAF is responsible for the oversight, administration, and financing of the FASB and its counterpart for state and local governments, the Governmental Accounting Standards Board (GASB).

“With his breadth of experience in corporate finance across a range of industries, Chuck Noski will bring to the FASAC a deep understanding of the complex issues facing the FASB as it seeks to serve the best interests of all those who use, prepare, and audit financial statements,” Mr. Brennan said. “We are very pleased to welcome him as the new FASAC chairman.”

At least the ABA will have a direct line for their hate mail now.

[via FAF]

Berkshire Hathaway: Wall St. Journal Is Wrong About Our Taxes on Bank of America Deal

Last week, folksy octogenarian (81 years today!) billionaire Warren Buffett announced that he was going to invest $5 billion in Bank of America. Some are questioning The Oracle’s intentions with this investment but considering WB came up with the idea in a place where all good ideas originate – the tub – it’s plausible that this investment will turn out okay for Berkshire shareholders (isn’t that the point?).

Regardless, some don’t think a guy who says that he doesn’t want to be “coddled” and needs – nay, WANTS! – to pay higher taxes shouldn’t be throwing around money and should just put his money where his Blizzardhole is. Accordingly, The Wall St. Journal published an editorial today accusing Buffett of being a little dodgy when it comes to Berkshire’s tax liability as it relates to his BofA investment.

Mr. Buffett’s recent decision to invest in Bank of America represents another tax-avoidance triumph for the Berkshire chief executive. U.S. corporations are subject to a top federal income tax rate of 35%, the second highest in the world. But the Journal’s Erik Holm notes [Ed. note: Thanks for linking!] that Mr. Buffett and the Berkshire bunch won’t pay anything close to that on their investment in BofA preferred shares.

That’s because corporations can exclude from taxation 70% of the dividends they receive from an investment in another corporation. This exclusion is intended to prevent double- or even triple-taxation as money is earned by one company, paid to another company and then ultimately paid out to shareholders. The policy makes sense; we only wonder why the exclusion isn’t 100%.

With the 70% exclusion for Mr. Buffett and his fellow shareholders, Berkshire will enjoy an effective tax rate of 10.5% on the $300 million in dividends it will receive each year from Bank of America.

So, a 10.5% effective rate. Not bad, right? Well, Berkshire says it’s wrong and issued a brief press release to rebut the Journal’s op-ed account and not so subtly suggests that they bone up on tax law:

An editorial in today’s Wall Street Journal says that “Berkshire Hathaway will enjoy an effective tax rate of 10.5% on the $300 million in dividends it will receive each year from Bank of America.” That statement is incorrect.

Virtually all of the stocks that Berkshire owns are held in its property-casualty subsidiaries, and that will be the case with the Bank of America preferred.

The tax treatment for dividends paid by U.S. corporations to property-casualty insurance companies was materially changed by a law passed in 1986. The changes were described in detail in the chairman’s letter included in Berkshire’s 1986 annual report.

A minor change in rate was made in 1993. Since that time dividends that insurers receive from U.S. companies incur an effective tax rate of 14.175%. For Berkshire, that rate will apply to dividends it receives from Bank of America.

So, in other words, suck it editorial board. If you know Buffett like you should know him, then you know that if he could save that 3.675%, he would.

Buffett’s Latest Tax Break [WSJ]
Berkshire Hathaway Inc. News Release [Business Wire (a Berkshire Hathaway Compay!)]

Pondering Bank of America’s Balance Sheet

As far as the market is concerned, more than half of the company’s book value is bogus, due to overstated assets, understated liabilities, or some combination of the two. [Jonathan Weil/Bloomberg]

What Do We Make of All These Non-Accountant CFOs?

John Carney points out that Bank of America, JP Morgan and Wells Fargo have all appointed new CFOs recently that are not accountants. It harkens him back to a time when another bank made a similar change.

Of course Carney is talking Lehman Brothers and Erin Callan. Oh and Ian Lowitt too. Both served as Lehman’s CFO prior to the bankruptcy. Funny thing – Francine McKenna wrote a post about the problematic situation of having a CFO with no accounting experience three months before Lehman went bankrupt. But BofA, JPM and Wells aren’t Lehman are they? GAAP is really NBD, right? [CNBC]

A Few People Are Not Satisfied with the $624 Million Countrywide Settlement

And, unfortunately for Bank of America and KPMG, that could mean digging through the couch cushions.

Several large institutional investors have rejected a court settlement where Countrywide Financial Corp. had agreed to pay $600 million to a number of national pension funds. Those pulling out of the agreement include BlackRock Inc.; the California Public Employees Retirement System, or Calpers; T. Rowe Price Group Inc.; Nuveen Investments Inc.; and the Maryland State Retirement and Pension System, according to a document from the suit filed in U.S. District Court in Los Angeles. The investors decided the settlement, initially agreed to last May, wasn’t enough and will seek their own terms with the mortgage originator and its current owner Bank of America Corp., as well as Countrywide’s auditor KPMG LLP. KPMG had committed another $24 million to the settlement.

In typical HofK fashion, the firm didn’t bother commenting for the Journal’s story however BofA managed to express their disappointment, “It is unfortunate that some investors chose to opt out of what we believe is a fair and equitable agreement to settle these issues.” Right. Because the likes of BlackRock and Calpers should be tickled pink with the pleasure of splitting $624 million with dozens of other investors.

Big Investors Refuse Countrywide Settlement [WSJ]

Accounting News Roundup: Brits Investigating Services KPMG Provided BAE Systems; How Many Times Did Harry Reid Vote to Increase Taxes?; PwC Scoffs at ‘Big 5’ Idea | 10.25.10

BofA Finds Foreclosure Document Errors [WSJ]
The Charlotte, N.C., lender discovered errors in 10 to 25 out of the first several hundred foreclosure cases it examined starting last Monday. The problems included improper paperwork, lack of signatures and missing files, said people familiar with the results. In certain cases, information about the property and payment history didn’t match.

KPMG investigated over BAE audit [Accountancy Age]
The investigation by the Accountancy and Actuarial Discipline Board (AADB) focusBritish Aerospace/BAE Systems between 1997 and 2007, looking at commissions paid by BAE to subsidiaries, agents or other companies.

Any professional advice, consultancy or tax work provided to BAE by KPMG during that period will also come under the microscope in relation to commission payments. The investigation will focus on commissions connected to three legal entities: Red Diamond Trading; Poseidon Trading Investments; and Novelmight.

Key Tax Breaks at Risk as Panel Looks at Cuts [WSJ]
The tax benefits are hugely popular with the public but they have drawn the panel’s focus, in part because the White House has said these and other breaks cost the government about $1 trillion a year.

At stake, in addition to the mortgage-interest deductions, are child tax credits and the ability of employees to pay their portion of their health-insurance tab with pretax dollars. Commission officials are expected to look at preserving these breaks but at a lower level, according to people familiar with the matter.

Harry Reid Voted to Raise Taxes ‘Only’ 51 Times [TaxProf Blog]
Apparently there was some talk that it was actually in the ballpark of 300.


Reflections on the Basel Committee Principles for Enhancing Corporate Governance [Marks on Governance/IIA]
News you can use.

Business leaders press administration for repeat on tax break [On the Money/The Hill]
The National Association of Manufacturers and other groups argue allowing companies to “repatriate” money earned abroad to the U.S. at a lower tax rate could spur the economy by providing businesses with a burst of cash they could invest in their companies.

“The business community is looking at ways to jumpstart the economic recovery and here is one you could do without increasing the deficit,” Dorothy Coleman, vice president of tax and domestic economic policy for the manufacturers.

PwC slates FRC idea to create Big Five [Accountancy Age]
Paul Woolston, head of public sector assurance at PwC, criticised the Financial Reporting Council’s suggestion the Audit Commission be used to create a fifth player in the audit industry, currently dominated by the Big Four – PwC, Ernst & Young, Deloitte and KPMG.

“It is at least ironic that the FRC has said what it has, in that the Audit Commission itself has operated with a large monopoly,” he said.

“It is odd that the FRC is concerned about any one organisation having the market share.”

SEC Aims to Streamline Complaint Process [WSJ]
The launch is a step in the agency’s efforts to avoid bottlenecks and duplication in the handling of complaints, which traditionally have been fielded by individual SEC offices and filed there. Complicating matters is the variety of forms in which such complaints come—mail, phone calls, emails and interviews.

“This process is going to ensure that it’s all transferred into a structured format so that it can be more easily searched and analyzed,” Robert Khuzami, director of enforcement, said in an interview.

“We will have all of it in one place, searchable, which will do a lot for us in the long run,” he said.

Thus Far under Obama, the Only Individuals Paying Higher Taxes Are Smokers and Tanners, But They May Have Company Soon [Tax Foundation]
Jersey Shore quips go here.

Accounting News Roundup: Bank America Lands a CFO; FASB, IASB Can’t Guarantee Convergence; Maine to Tax Medical Marijuana | 04.14.10

Bank of America Names an Outsider as CFO [WSJ]
Charles Noski will be the new Bank of America CFO, effective May 11th. He most recently was the CFO at Northrup Grumman, which he left in 2005 and prior to that held the same position at AT&T. He has also served as a advisor to Blackstone Group and is currently a director at Morgan Stanley and Microsoft. It is reported that he will give up his director seat at competitor Morgan Stanley. Noski began his career at Haskins & Sells (now Deloitte) for seventeen years and was a partner.

This ends BofA’s quest to land a CFO after former finance bigwig Joe Price moved into a new role under new CEO Brain Moynihan back in January.


IASB says “no guarantee” of full US accounting convergence [Accountancy Age]
The FASB and IASB, try as they might, have announced that they simply cannot guarantee that they will pull off 100% unadulterated convergence. The two boards have struggled to get their cerebral minds together on a number of “important technical issues” and are holding out for the possibility that they may not resolve any of their remaining differences.

The two boards issued a statement which warned, “Although our recent experiences with joint meetings show that we have been able to resolve differences on several projects, there is no guarantee we will be able to resolve all, or any, of our differences on this project.” The two cite “different imperatives that pushed our development timetables out of alignment,” in the struggle for converging the two sets of rules. While the FASB and IASB are warning that accounting rule convergence may be impossible, the statement indicates that the two still aim to finalize their work by the mid-2011 deadline.

Medical pot users to pay sales tax [Bangor Daily News via Tax Policy Blog]
The Pine Tree State will taxing its medical green that is sold at state-sanctioned dispensaries. The Maine Revenue Service had argued that since marijuana is currently issued for medicinal purposes, that the it should be treated as a prescription drug and thus, not taxed. However, since a prescription isn’t necessary to obtain medical marijuana, Maine lawmakers disagreed and ultimately decided to administer a levy on the sale of state-issued grass.

Quote of the Day: Bank of America’s Statement Sounds Familiar | 03.24.10

“Efforts to manage the size of our balance sheet are routine and appropriate, and we believe our actions are consistent with all applicable accounting and legal requirements.”

~ Bank of America statement on the allegations that they engaged in balance sheet manipulation. A statement not so different from Ernst & Young’s on their final audit of Lehman Brothers.

Job of the Day: Bank of America Needs a CFO But Not Just Anyone Because This Is a Pretty Major Gig

Brian Moynihan is shopping around for a CFO and he needs a good one ASAP. The Post reports that Moynihan will go with someone from outside BofA so that means you’ve got a shot! Now before you get ahead of yourself and think you’re the BSD to turn this ship around, consider some of your responsibilities.

You’ve got to be the numbers jockey for the biggest bank in the known universe that is constantly being given the stink-eye by Tim Geithner, Barack Obama, Ken Feinberg, et al., plus an angry American populous that will not hesitate to call you names and picket your house. Oh, and you may or may not have to move to Charlotte. Maybe that’s not a sticking point for some of you but if you don’t like NASCAR then we’d suggest passing on this one.


See? Trying to come up with a good and willing candidate will not be an easy task. After all, getting someone to takeKen Lewis’ chair wasn’t exactly a piece of cake and CFO is actually a real job.

Naturally, soon-to-be former KPMG Chairman Tim Flynn comes to mind but Moynihan may want to go with some with a little less sweater vesty and he doesn’t really have the mane to match. Former Lehman CFO Erin Callan is busy hanging out with firefighters and Andy Fastow is still unavailable. Better put a call in to Robert Half.

Serious search party [NYP]
Earlier:
Ex-Bank of America CFO Is in Cuomo’s Crosshairs

Ex-Bank of America CFO Is in Cuomo’s Crosshairs

This story is republished from CFOZone, where you’ll find news, analysis and professional networking tools for finance executives.

We briefly discussed work-inspired nightmares yesterday but as professionarobably don’t get a whole lot more unsettling than Joe L. Price’s.

Price, the former CFO at Bank of America, must be tossing and turning lately, what with the attorney general of New York naming him personally last week in a lawsuit over the bank’s handling of the ugly Merrill Lynch acquisition/investor-subsidized bailout/compensation party in late 2008.


Now, Price and former BofA CEO Ken Lewis face another unpleasant twist in what they must’ve thought originally was a slam dunk in an awkward but palatable settlement with the SEC over the Merrill Lynch deal (beware that slam-dunk feeling [see Tenet, George]).

Recall how Jed Rakoff, the irascible U.S. District Court judge presiding over the BofA/Merrill Lynch case, last year rejected a settlement between the SEC and BofA, saying that $33 million wasn’t nearly enough for the bank to make things right with investors who were kept in the dark about the unsavory downside – if that’s not too generous a word – for taking on Merrill Lynch’s baggage. And then on Monday Rakoff started asking mean questions about the second rendition, in which the SEC and BofA are saying, okay, fine, how does $150 million sound?

Going by some of the doubts Rakoff raised, he isn’t leaning toward letting the BofA executives ease on out of their difficult litigation-riddled winter into a springtime of sun-dappled redemption and new life. Easter, as it were, may yet be cold and wet (as may Passover, choose your festival). But don’t blame Rakoff because there are better scapegoats – the SEC, Andrew Cuomo, Punxatawny Phil …

Cuomo, that pesky AG in Albany, asserted in his allegations against Price et al. that BofA lawyers who had counseled against pulling the curtain aside on certain details about Merrill Lynch were essentially operating in the dark and that they were, therefore, misled. “Bank management failed to provide any of their lawyers with accurate information about the losses which the disclosure issue concerned,” the civil-suit complaint says, adding painful elaboration that alleges “false and incomplete information provided by Price.” (Ron Fink explains here).

This is not the kind of thing a CFO likes to read about himself or herself, which is why it may be best as a rule to come clean from the get-go. At the heart of the controversy is the assertion that BofA execs were simply not forthright about how they allowed Merrill Lynch brass to receive billions of dollars in bonus bucks in exchange for having lost billions of investor dollars.

In such a context, Radoff has implied, $33 million is chicken feed and $150 million is – I don’t know – cat food? The good judge apparently wants the bankers to throw some steak over the wall.

Also at issue, and fundamental to how BofA is managed going forward, are questions about how certain aspects of corporate governance are handled, perhaps especially about how compensation is set. Rakoff suggested that there might be better ways to come up with a reasonable pay scheme than leaving it to BofA’s compensation committee to pick its compensation consultant of choice.

A big clue about how he might rule on this is in his observation on Monday as to the “incredibly bloated compensation of too many executives in too many American companies.”

(UPDATE) Was Deloitte’s Warning to Merrill Lynch Lacking Urgency?

Updated to included statement from Deloitte

By now you’ve heard that Ken Lewis and former BofA CFO Joe Price are in a bit of pickle, thanks to NYAG Andy Cuomo.

Long/short is that Drew has filed civil charges claiming that these two ignored advice to disclose information about the losses at Merrill Lynch and went ahead with their plans that ended up screwing just about everyone in the entire world.


According to the complaint, Deloitte was right in the middle of the action back in December of ’08 as the auditor of ML and from the sounds of it, they kinda-sorta encouraged ML’s counsel to disclose the losses saying:

given the losses through what it looks like will be November when it closes, given the fact that you have another couple of billion of dollars coming down the road in goodwill impairment, we believe it’s prudent that you might want to consider filing an 8K to let the shareholders, who are voting on this transaction, know about the size of the losses to date

Okay, so “prudent that you might want to consider” sounds like a “you can disclose the losses if you want to but we’re not making a BFD out of this” but Andy’s complaint sure presents it as a legit warning. We’re not saying that Thomas Graham, the Deloitte partner on Merrill, needed to be hyperventilating while telling ML’s Chief Accounting Officer David Moser that they “might want to consider” the disclosure but Moser was worried enough to tell in-house counsel about it.

Maybe Moser didn’t bring it up because he knew that lawyers don’t take anything auditors say too seriously. If everyone who claims to be worried, was legitimately concerned, perhaps they should’ve considered some double exclamation point usage. Oh well; next time!

We haven’t seen a statement from Deloitte anywhere and they haven’t gotten back to us at this time. Deloitte provided us with the following statement:

Deloitte personnel have testified as part of the New York attorney general’s investigation. Some of that testimony is cited publicly in the attorney general’s complaint. Deloitte is not a party to this proceeding, and due to professional standards, we cannot comment further on confidential client matters.

At the end of the day, BofA’s own general counsel tried to tell KL what’s what and he ultimately got fired so Deloitte ends up being a small fish in this whole situation (i.e. “not a party to proceeding”). Cuomo wants to be governor for crying out loud. Voters don’t give a shit if you file civil complaints against auditors.

NYAG_Complaint

Preliminary Analytics | 12.17.09

ben_old.jpgBen Bernanke: Time’s “Person of the Year” – The JDA almost fools you into thinking that she wasn’t that upset over Time’s selection. [JDA]
BofA Taps Moynihan as CEO – The search is now on for the location for the Ken Lewis send-off. [WSJ]
Proxy Disclosure Of Stock-Based Comp To Change Under SEC Final Rule Approved Today [FEI Financial Reporting Blog]
SAC Capital, Steve Cohen (And His Brother) Sued By Ex-Mrs. C – She’s alleging insider trading, concealing of assets during their divorce, and wants $300 mil for her trouble. [DB]
Citi to Suspend Foreclosures for 30 Days – “The New York-based bank said Thursday the suspension will run from Friday through Jan. 17. It applies only to borrowers whose loans are owned by Citi. Borrowers who make payments to Citi but whose loans are owned by other investors are out of luck.” [AP via NYT]

Review Comments | 07.17.09

Swedbank Losses Show Deeper Troubles in Baltic – Souls as collateral in Latvia. Enough said. [DealBook]
Citibank, BofA Results May Not Point To Recovery – Duh. [NPR]
Fox Biz: Jorge Posada’s Wife Talks Healthcare Reform – Much more interesting perspective than say, anyone in DC [Clusterstock]

Scoping | 07.17.09

paulson2.jpgWhat’s email? – Paulson doesn’t use it, thanks for asking. Next question. [FT Alphaville]
Bank of America Posts a Profit on Trading Gains – “Bank of America, one of the nation’s largest and most troubled banks, announced on Friday a $3.2 billion second-quarter profit, a figure that exceeded analyst expectations.” Ken Lewis will be starting happy hour a little earlier than usual on this Friday. Circa now. [New York Times]
Citigroup profit soars on Smith Barney sale – “Citi’s profit was not driven by improved trading like other banks, and instead came from the gain on the sale of its Smith Barney unit and the increasing values of some of its riskier assets that had plunged during the credit crisis. The New York-based bank recorded an after-tax gain of $6.7 billion on the sale of a majority stake in its Smith Barney brokerage unit to Morgan Stanley.” Selling profitable assets usually ends up looking good. This should not be surprising. [AP via Miami Herald]

Hey California, Bank of America was Just Joking About Taking the IOU’s

california.gifLast week we told you about Bank of America doing California a solid by taking the busted state’s IOU’s. Well, the banks had the holiday weekend to think about it and after some barbecue, beers, and shooting roman candles at Ken Lewis, they pretty much decided that they weren’t so cool with the idea.
“A group of the biggest U.S. banks said they would stop accepting California’s IOUs on Friday, adding pressure on the state to close its $26.3 billion annual budget gap.”
Included in “biggest U.S. Banks” just happened to be BofA.
Turns out Bank of America had their fingers crossed all along because 1) There must have been talk about Cali’s so called “good word” over the grill; and 2) Ken Lewis was completely serious about getting the interest paid back in bourbon.
Big Banks Don’t Want California’s IOUs [WSJ]

Not To Worry California! Ken Lewis is Here!

In the spirit of the recessionary season, Bank of America, being no stranger to asking for assistance, has said that it will accept California’s IOU’s.
Here is BofA’s statement, courtesy of FT Alphaville:

Bank of America Announces Limited Acceptance of California State-Issued Registered Warrants for Customers and Clients

SAN FRANCISCO, July 1 /PRNewswire/ — Bank of America today issued the following statement regarding its decision to accept California state-issued registered warrants:
“Bank of America recognizes the State of California budget crisis will impact our clients and customers. To support our customers, while giving the state legislature additional time to pass a budget, we will accept California state-registered warrants – or IOUs – from existing customers and clients. Based on state disbursement estimates, we will accept the registered warrants through July 10.
(Logo: http://www.newscom.com/cgi-bin/prnh/20050720/CLW086LOGO-b )
“As always, we will work with customers who are impacted by the state budget issues on a case-by-case basis to address their short-term needs using our existing products and services.”

An interest rate has not been announced but Ken Lewis is most certainly pulling for something in the nabe of one case of bourbon per $1 million.

BofA to accept Cali IOUs
[FT Alphaville]