As established readers know, we’ve been writing since mid 2010 about the widespread, possibly pervasive, failure of mortgage securitization originators to convey the notes (the borrower IOU) to securitization trusts as stipulated in the deal documents, well before the robo signing scandal broke. This abuse matters because the transaction procedures were designed carefully to satisfy certain legal requirements, among them rules contained in the 1986 Tax Reform Act regarding REMICs, or real estate mortgage investment conduits, which required that the securitization trust receive all its assets by 90 days after closing and that all assets conveyed to the trust have to be “performing”, as in not in default. Failure to comply with the rules is a prohibited act and subject to taxation at a rate of 100%, and additional penalties may apply.
Now, with the Federal government under enormous budget pressure, shouldn’t the authorities be keen to go after tax cheats? The headline of a Reuters article, “IRS weighs tax penalties on mortgage securities,” would suggest so. But don’t get your hopes up. The lesson is don’t jump to conclusions when big finance is involved.
An overview from the article:
Should the IRS find reason to take tough action, the financial impact could be enormous. REMIC investments are held by pension funds, in individual retirement plans such as 401(k)s and by state and local government entities.
As of the end of 2010, investments in REMICs totaled more than $3 trillion, according to data supplied by the Securities Industry and Financial Markets Association.
In a brief statement in response to questions from Reuters, the agency said: “The IRS is aware of questions in the market regarding REMICs and proper ownership of the underlying mortgages as set out in federal tax law, and is actively reviewing certain aspects of this issue.”
This matter was raised early last year by an attorney I know with IRS, to a senior officer, not in enforcement but familiar with REMIC rules. She immediately understood the importance and nature of the violations being alleged and was keen to proceed. Having had no follow up, the attorney rang again, and the IRS officer took the call, this time reluctantly. She indicated she was not supposed to be taking to him. She said the issue had gone to the White House, where word came back that tax was not going to be used as a tool of policy.
So demanding that tax law violators pay what they owe is somehow seen as an misuse of government authority? That appears to be the message.
Knowing of this background, in the blogger meeting with Treasury last August, when someone we will euphemistically call as senior official argued that the Treasury had little power over servicers, I objected, and said it depended on whether they construed of their power narrowly or broadly. I pointed out that a Pacer scrape on foreclosure filings would find thousands of violations of REMIC rules that were subject to punitive charges, and that that was an important leverage point to bring the industry to heel. (Yes, this is an example of using tax as a tool of policy, as opposed to merely enforcing the rules……that was by design). He sidestepped the reference to REMIC both in my initial question and follow up.
Steve Waldman, who was also at the session, was as skeptical of the exchange as I was. From a message last August:
Re REMICs: The reaction to your probing was very suspicious.
It’d have been one thing if he’d said they hadn’t looked into the issue. But that wasn’t how he responded. He started talking about how he’d had his staff “look for leverage”, against servicers I think, but found there was nothing there. In other words, he didn’t want to leave the issue open. He wanted to neutralize it.
One possibility is that the truth is face value, but I doubt it. After all, we’d just had staffers describe using the government’s leverage in creative ways to protect taxpayers or serve other public purposes as “extra legal”. Yet here was [the senior official] apparently on a fishing expedition for leverage, no doubt desperate to persuade servicers to facililitate mods to help homeowners. Yeah. Right.
If I’m not misunderstanding you, your core point is that the paperwork on many boomtown mortgages is invalid, and therefore various sorts of transactions, from foreclosures to bundling into REMICs, cannot be legally done, at least not without a lot of expensive research and recertification. In other words, your line of thinking would put a question mark beneath the value of a whole lot of bank assets. That would obviously not be in the national interest according to Treasury. So of course they’ve already looked onto the story and there’s nothing to it.
As Waldman indicates, there is a blindingly obvious reason why the IRS inquiry is a coverup. If the IRS were to find any of the questionable practices to be violations, they’d lead to widespread and large assessments against mortgage investors. That in turn would spawn the mother of all litigations by investors against the originators and trustees. That would blow up the mortgage industrial complex and put us back in a financial crisis. That is the last thing the officialdom wants to happen.
Now in fact there are ways the IRS can make this problem go away. The article quotes Jim Peaslee, who is one of the top experts on REMICS and was i one of the major influences on the original REMIC regulation. Note how he avoids discussing whether there might be violations; his point is the IRS will take a “see no evil” stance:
James Peaslee, a partner at law firm Cleary Gottlieb who is an expert on taxation of securitized investments, said that even if the IRS finds wrongdoing, it might be loath to act because of the wide financial damage the penalties would cause. He notes that the REMIC investors, who he called “innocent parties,” would have to pay rather than the banks that were responsible for any wrongdoing in transferring mortgage ownership.
I had a few above-my-pay grade e-mail discussions with one of Peaslee’s colleagues, another REMIC expert, last year, and the issues are vastly more complex than mere mortals would appreciate. For instance (and this is one of the simple examples), arguably, if the securitization vehicle wasn’t really created with the assets it claimed, so arguably, at least technically speaking, it was disqualified from the outset. However, legal structures and issues don’t map cleanly on to tax issues. We’ve argued that if the notes were not properly conveyed to the trusts (assuming they are New York trusts, which is the governing law in the vast majority of cases) then the trusts will have a big problem with foreclosing, since New York trusts don’t have any discretion and there is no mechanism for getting the notes into the trust other than shortly after it was formed.
But that particular concern isn’t germane from a tax perspective. State law doesn’t determine characterization of an entity for federal tax purposes. So, for example, even if a taxpayer said he a partnership and planned to set up a state law LLC as the partnership vehicle but failed to take all the legal steps, but did have a contract with a partner, and both has acted according to the partnership tax rules and reported income them on their tax returns accordingly, it would most likely still be treated as a partnership in spite of the lack of a state law legal vehicle.
The net result, as the expert indicated, is “that the rules about REMIC (or other securitization) qualification become very bendable” which in turn gives the IRS a great deal of latitude in what it can deem to be acceptable. He felt that was a bad posture to take, since that would give the servicers considerable leeway to manipulate tax liabilities directly.
The Reuters article points out the more obvious concern: foregone revenues by letting tax violations go unpunished:
Adam Levitin, a Georgetown University Law School professor and expert on taxation, said that if the IRS fails to act, “it would be a backdoor bailout of the financial system.”
If the IRS did impose penalties, the REMICs could turn around and sue the banks for causing the problems and not living up to the terms of the agreements establishing each REMIC, thus transferring the costs to the banks. If the IRS finds wrongdoing but fails to act, the IRS would forego “potentially enormous tax revenue that would be passed on to the federal government,” Levitin said. “Given the federal budget deficit that’s not something to sniff at,” he added.
So why is the IRS looking into this issue at all? Wouldn’t one expect them to let sleeping dogs lie? I can think of reasons. First, the issue has gotten enough profile that the IRS (really Treasury) may feel it’s better to go into “put the matter behind us” mode. Second is that it isn’t just the Federal government who would be able to charge taxes against RMBS if they found they had violated the rules, but also states. It’s not hard to imagine that some states have realized that going after the RMBS could be a significant source of badly-needed income. The IRS may thus feel it needs to get in front of this potential source of that investor bugaboo “uncertainty” as well as discourage state action. Mind you, state rules necessarily track the Federal REMIC rules precisely, nor are they required to interpret them the same way, but an IRS “nothing to see here” finding would deter action by all but the most bloodyminded state treasuries).
So we have yet again another example of two tier justice in America. Do you think the IRS would cut you any slack if you had engaged in as many violations of the tax rules as mortgage originators and trusts have? But the point of having a kleptocracy is to avoid inconveniencing the people with money at all costs.
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The REMIC tax laws are probably an open issue, however I do agree that the REMIC investors are an innocent party here. The effects would be disastrous. This should be solved on a go-forward basis making sure new trusts are done properly.
For now the issue of foreclosure is the more important one.
When is it ok to actually punish anyone in big business then? Should we just forever forgive any misdeeds by people with a lot of money, in order to save the economy?
At some point, it is worthwhile to just zero out some of the fake propped up assets just to get people’s attention. This is serious. We can’t keep papering over all these crimes and violations. The people responsible need to start making their decisions with more care. That is never going to happen, until at least some of them feel the consequences of their actions.
The “innocent” suffer often. The “innocent” who invested in farmland in Fukushima suffered, right? When you buy a financial asset (or any other asset), a tremendous, almost infinite number of risks come with them.
Further, witnessing suffering is one way that people are spurred to change their previously careless ways and focus on building a better society. Life is not fair; we are not making it more fair by not enforcing clear, long-held rules of taxation against pension funds that should have investigated how their financial assets were composed.
Make the sheisters pay. The American people should not be forced to pay for the FANNIE MAE/FREDDIE MAC PONZI SCHEME crimes with our homes. We are paying for it enough already through our hyper-inflated property taxes and utility bills as well as the maintenance of these underwater homes. AN INDEFINITE NATIONWIDE FORECLOSURE MORATORIUM is in order, until the Government can investigate and get to the bottom of who really owes who, what and throw these FINANCIAL TERRORISTS, who INTENTIONALLY robbed the American people blind and destroyed our economy.
Dude, What exactly makes such weasly thinking “conservative”? I thought you dudes were all about personal responsibility. Forever excusing past bad behavior because prosecution and punishment might have add-on effects is irresponsible. It encourages lawbreaking. I understand that withdrawal from heroin is painful, so surely the best course forward for addicts is to keep mainlining.
She said the issue had gone to the White House, where word came back that the IRS was not going to be used as a tool of policy.
There’s the Status Quo Lie again. Any tax regime is necessarily a political policy. There’s no such thing as a technocratically neutral tax policy. (And technocracy itself is a radical political choice anyway.)
But the Status Quo Lie takes the radical, aggressively ideological status quo and presumes it to be the normal, natural, moderate baseline. It then accuses any attempt to change things, no matter how objectively rational, moderate, common-sensical, to be a radical “politicizing” of things.
we’ve been writing since mid 2010
Actually, since at least autumn of 2009. Here’s just one link I plucked from my records, and there were several more:
http://www.nakedcapitalism.com/2009/10/more-judges-taking-on-foreclosures-without-document-trails.html
I think the cover-up is running out of steam. There is starting to be real push back by state and federal courts and state legislatures. The trusts are too screwed up. It just can’t stand in the long run that more than one party may hold the note/mortgage to a given property. The trusts have to be unwound to clean this up. And it may not go down too well to put tax fraud on top of security fraud. Similar to the problem the Bernank is running into with QE. A 14,000 Dow would be nice but do we want $8 gas…
How is the DOW relative if the dollar is is not adjusted to pre-GFC pricing, 14,000 at high 80s or sub 70s.
Tulips had more reality than these electrons…sigh…seriously this shiat is made up on the go.
Skippy…games of ether, cross referencing all the vapors is laborious…eh…feature or flaw…rofl.
When will you nitpickers understand that the Income Tax and the Federal Reserve System are the Scylla and Cherybdis of modern American Economic Life? The only purpose is to keep the workers working and the rich rich. Only by understanding this can a person make any sense of the Infernal Revenue Code. As for those REMIC provisions, ask the guy at Covet and Burrowing who drafted them and stuck them under Bill Bradley’s nose while he was practicing jump shots and daydreaming about becoming president.
Didn’t they bring down Al Capone with tax policy? Oh, how times have changed. To bad for Al.
Did this Mr. Capone do campaign contributions and revolving doors?
Mr. Capone would never had to worry about the Untouchables if had increased his federal donations….he had covered his state donations pretty well…
He did when it used to be called bribery.
Having worked at CS, Lehman and law firms, I can tell you that the lawyers there were totally aware of shortcuts that were being taken and the business was fully aware of all of them. If anyone, anyone at the federal level were interested, all he would have to do would be to look at e-mails among the mortgage and real-estate teams during the period from 2002-2008 for example and see how bad it was. Covington and Burling, indeed.
I wouldn’t put too much trust in state level action of any seriousness. Look at how the “putting people in jail” coming along.
It really isn’t that hard to understand what is going on. Mortgages were issued en masse without the proper paperwork to people who couldn’t afford them (or, more specifically, could only afford them if implausible scenarios came to place), were bundled without regard to due diligence, sold to people who didn’t understand what they were buying because they were told by others (the rating agencies) that there was no risk involved. The law was ignored with the belief that no one could afford to prosecute without taking down the whole industry.
It’s a house of cards based on a pack of lies. The fraud is deep and systematic: the people who are best set to set things right, the investors who bought the MBS who were sold fraudulent securities, are instead trying to enforce their normal legal recourse, foreclosure. Proving the fraud is much harder than foreclosures, but ultimately would be the more rewarding path (for the first ones to win their cases: after that, everyone involved is broke).
Everyone is trying to avoid getting caught. The government doesn’t want this to blow up in their collective faces, as they are facing an epic fail of oversight and law enforcement. This is the financial equivalent of not prosecuting someone for murder because his well-connected family doesn’t want it to happen: despicable even back in the bayou, utterly unforgiveable anywhere else. Without enforced laws, societies collapse. Not today, not tomorrow, but once the criminals understand that there are no penalties, we end up looking like your garden-variety corrupted third-world dictatorship.
Pardon the use of the vernacular, it’s a huge steaming pile of shit in the middle of the shopping center that everyone contributed to, but everyone is ignoring in the hopes that someone else gets caught. It has the potential of taking down the economy. And it stinks to high heaven, but everyone is studiously pretending that there is nothing there…
Then again, looking at 2011Q1 GDP figures, it is doing exactly that: real non-residential real estate down by 21.7%, annualized. Commercial construction is dead, residential construction is moribund.
And the banks are now facing penalties for failing to make loans to low-income cohorts in their lending areas, as per the law that started the problem. If they are found in violation, their reserve requirements become so onerous that they will go out of business. The problem is that the banks are only lending to those who can actually pay (duh), not to those who can’t afford to carry mortgages.
The plutocracy can not allow any real enforcement. The entire Chicago School economics model, while possibly dreamed up with good intention, enabled the looters to be free for over 30 years. But the silly folks are up in arms over Obama’s birth certificate (odd, given that McCain was not born in the USA and only naturalized after the fact by subsequent federal action….)
The racial laws of Jim Crow south revealed a Dual State. This REMIC episode presents another example of the current Dual State in American Jurisprudence. It is a separate and discrete set of principles for justice under the law, that is guided by political power of the ruling class business interests. While a lone individual may pay for his crimes, Bernie Madoff, the structural function of the mortgage securitization industry can not be allowed to fall, it is a chief component of organizing our larger SOCIAL ORDER.
Of course, the structure was built to enrich as well to give access to universal home ownership. You not only attack a fee making machine of Wall ST. you attack the cultural bedrock of American Middle Class Status as well. Home ownership is a way for the Great Society Liberals to do well by doing good. The laboring masses have something to show for a lifetime of diligent toil other than some lousy t-shirt from the annual company picnic. You can not take away this prime element of success, which also includes wealth building for the middle class. This is a problematic structural issue, not to be underestimated. The fact that there are so many issues coming forward into the light of day that can only be dealt with by the creation a Dual State, with 2 separate and unequal legal codes is an indication of the weakening of these structures for one of their main purposes.
Under the uncritical view that law can not be corrupted without severe political problems for government and socially disruptive consequences, the emerging Dual State not only reveals unjust, unfair, unacceptable and unbelievable breaches of our democracy but even the end of the system itself. It simply no longer works, and patching it up includes the entire principle of justice under the law being jettisoned is a sign of the end of the social order that we had. It is now a struggle for what will replace it. It is not a technocratic fix or an economic policy tweak, or even a moral confrontation in the courts over legality. It is a structural problem that will affect the entire society.
We can not pursue criminals, we can’t change the capital markets, we can not take home ownership from the millions, we can not allow societal collapse. And, we can’t go on living like this.
So we need to make a revolution. How can we do that?
This is the ‘sky’ part of the 10,000 piece jigzaw puzzle. The really hard part where all the pieces are the same color and shape and some of them are missing which you only discover after weeks of working on it. This part is really challenging but it has to be done to complete the picture.
The IRS will not move to enforce tax law, but it is inevitable that the system will collapse. The “Turn those machines back on!” strategy can’t compensate for the dramatic and unprecedented collapse in home equity.
I think the expert made a mistake here:
“James Peaslee, a partner at law firm Cleary Gottlieb who is an expert on taxation of securitized investments, said that even if the IRS finds wrongdoing, it might be loath to act because of the wide financial damage the penalties would cause. He notes that the REMIC investors, who he called “innocent parties,” would have to pay rather than the banks that were responsible for any wrongdoing in transferring mortgage ownership.”
If the entity didn’t qualify as a REMIC, (which is possible for additional reasons not even specified anywhere in the post.), then it would taxable as some other sort of entity. Investors already paid tax on the income. The alternative to REMIC taxation (which is essentially similar to a partnership) would be taxation at the entity level, either as a complex trust (rather than a simple trust) or an association taxable as a corporation (less likely). Either way, the tax due would be at the entity level, NOT the individual investor level. If assessed and paid at the entity level, the value of the investments would surely decline well beyond their existing value (if there is any value remaining), but it would NOT create additional tax bills to investors.
This is no more than using the poor investors for sympathy to ignore the tax law, when they wouldn’t be the parties damaged by enforcing the laws. To the contrary, it would create what appears to be an indefensible cause of action by the investors against the Trustees and promoters of the REMIC investments. More succinctly, another bailout.
Thank you for catching that, Stuart. I don’t know much about tax law, but your knowledgeable explanation is an eye-opener & that last paragraph sums up the spin/chicanery pretty well.
I took his comment to mean that the investors would pay in the sense that their investments would lose money when the REMIC pays at the entity level.
They’d have to waste time and money litigating something that may not even be a sure thing. It’s not a frictionless event, so they prefer to keep the pass-through status of the REMIC rather than lose money and then have to pursue compensation in court.
The clock is ticking: it will be less than a decade until it stops.
there will be no top-down enforcement. only a grassroots quiet title campaign will work.
the banks cannot prove ownership of any securitized mortgage. sue for quiet title, naming only the people on your DOT.
once your note is unsecuritized, have a little refinance conversation with your bank to write down principal to market values and get a new interest rate–the same one the banks get from the Fed–0%.
Otherwise, walk away. Tell them to sue you for the note. They can’t prove ownership. Do it. I have.
I’m challenging pretender-lender in BK court right now. Its slow going, expensive & not fun, but there is no other way. More and more fraud is coming to light every day. The outrageous thing to me is that our government is ready, willing and able to go to ANY lengths to cover it up.
“our government is ready, willing and able to go to ANY lengths to cover it up.”
Obama alone has one billion reasons to cover it up. That’s right! A cool billion is the cost of re-electing an incumbent President.
Just venture to think about all the other politicians looking for re-elections in 2012. How much moolah is gonna float around DC? Sure thing is, it’ll be corporate money above all else.
See how this whole affair fits so well into this list?
The 14 identifying characteristics of fascism:
http://www.ratical.org/ratville/CAH/fasci14chars.html
Powerful and Continuing Nationalism
Fascist regimes tend to make constant use of patriotic mottos, slogans, symbols, songs, and other paraphernalia. Flags are seen everywhere, as are flag symbols on clothing and in public displays.
Disdain for the Recognition of Human Rights
Because of fear of enemies and the need for security, the people in fascist regimes are persuaded that human rights can be ignored in certain cases because of “need.” The people tend to look the other way or even approve of torture, summary executions, assassinations, long incarcerations of prisoners, etc.
Identification of Enemies/Scapegoats as a Unifying Cause
The people are rallied into a unifying patriotic frenzy over the need to eliminate a perceived common threat or foe: racial , ethnic or religious minorities; liberals; communists; socialists, terrorists, etc.
Supremacy of the Military
Even when there are widespread domestic problems, the military is given a disproportionate amount of government funding, and the domestic agenda is neglected. Soldiers and military service are glamorized.
Rampant Sexism
The governments of fascist nations tend to be almost exclusively male-dominated. Under fascist regimes, traditional gender roles are made more rigid. Opposition to abortion is high, as is homophobia and anti-gay legislation and national policy.
Controlled Mass Media
Sometimes to media is directly controlled by the government, but in other cases, the media is indirectly controlled by government regulation, or sympathetic media spokespeople and executives. Censorship, especially in war time, is very common.
Obsession with National Security
Fear is used as a motivational tool by the government over the masses.
Religion and Government are Intertwined
Governments in fascist nations tend to use the most common religion in the nation as a tool to manipulate public opinion. Religious rhetoric and terminology is common from government leaders, even when the major tenets of the religion are diametrically opposed to the government’s policies or actions.
Corporate Power is Protected
The industrial and business aristocracy of a fascist nation often are the ones who put the government leaders into power, creating a mutually beneficial business/government relationship and power elite.
Labor Power is Suppressed
Because the organizing power of labor is the only real threat to a fascist government, labor unions are either eliminated entirely, or are severely suppressed.
Disdain for Intellectuals and the Arts
Fascist nations tend to promote and tolerate open hostility to higher education, and academia. It is not uncommon for professors and other academics to be censored or even arrested. Free expression in the arts is openly attacked, and governments often refuse to fund the arts.
Obsession with Crime and Punishment
Under fascist regimes, the police are given almost limitless power to enforce laws. The people are often willing to overlook police abuses and even forego civil liberties in the name of patriotism. There is often a national police force with virtually unlimited power in fascist nations.
Rampant Cronyism and Corruption
Fascist regimes almost always are governed by groups of friends and associates who appoint each other to government positions and use governmental power and authority to protect their friends from accountability. It is not uncommon in fascist regimes for national resources and even treasures to be appropriated or even outright stolen by government leaders.
Fraudulent Elections
Sometimes elections in fascist nations are a complete sham. Other times elections are manipulated by smear campaigns against or even assassination of opposition candidates, use of legislation to control voting numbers or political district boundaries, and manipulation of the media. Fascist nations also typically use their judiciaries to manipulate or control elections.
Fascism never allow the little people to obtain justice if big money interests are at stake…never!
I believe the REMIC business will be yet another test of how deep into the rabid hole of fascism-nativism this country has fall into.
Thank you, Francois. That certainly does explain what has been going on in this country. So it isn’t my paranoid imagination – good old fascism is definitely alive, well and growing by leaps & bounds.
Michigan court rules against MERS …and MSM reports it!
http://www.wxyz.com/dpp/news/region/detroit/michigan-court-of-appeals-ruling-could-halt-some-foreclosures
I’ve said before that I think it’s wildly implausible that the IRS will pursue this. The REMIC rules are designed to create certain organizational structures, not punish mistakes caused by negligence or even recklessness. And since the IRS prefers to look to economic substance rather than formalistic state law considerations, they have the room to argue that the trusts didn’t violate the rules. (ie, even if a note wasn’t transferred for state law purposes doesn’t mean it wasn’t transferred for purposes of the IRC).
Q: 1) If a trust does not show up in IRS publication 938 would that be the indicator that it is falsely reporting as a REMIC? MY trust’s PSA expicitely states the trust is to be a REMIC and Master Servicer , etc. must not do anything that would jepordize it…..I have searched every quarter sinc 2006 in IRS publication and it doesnt show up.
2) I was thinking that if the bank collapsed and FDIC took it under receivership and it was pursued & prosecuting for violations and sanctioned that it would just bite the tax payer again BUT I remembered they sold it for bankruptcy remoteness to an IndyMac MBS/Depositor that didnt go under, so is still $$S viable. Also the Master Servicer Deutsche Bank (28th largest conglomerate on the planet in 2008) would/should be held liable for mis management of its fiduciary responsibilities. I say go after the B——- . it has got to correct some way, some how. About time for them to fall as the homeowners and tax payers have already carried that one.
Q: Since it is obvious that it is going to HAVE to come from a grass roots effort/whistleblowers and not our Government that is not By the People, For the People nor Of the People….what are we going to do folks???
I keep expecting the investors to start suing en masse for being defrauded. Question whether there is a push by one or more government agencies, or the shadowy thug divisions of the megabanks, to STOP investors who start doing this, because otherwise I don’t see why it hasn’t happened yet.
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it’s time to punish the Big Banks for all the Fraud and Carnage they have caused!
They weaken our Country… they are as bad as Terrorist!
Families being Foreclosed on and thrown out in the streets!!!
What happened to America my home sweet home?