Understanding the Risks of Transfer-Of-Title Stock Loans: IRS Rules Nonrecourse Stock Loans As Sales


Definition of Transfer-of-Title Nonrecourse Securities Loans. A nonrecourse, transfer-of-title securities-based loan (ToT) means exactly what it says: You, the title holder (owner) of your stocks or other securities are required to transfer complete ownership of your securities to a third party before you receive your loan proceeds. The loan is “nonrecourse” so that you may, in theory, simply walk away from your loan repayment obligations and owe nothing more if you default.

Sounds good no doubt. Maybe too good. And it is: A nonrecourse, transfer-of-title securities loan requires that the securities’ title be transferred to the lender in advance because in virtually every case they must sell some or all of the securities in order to obtain the cash needed to fund your loan. They do so because they have insufficient independent financial resources of their own. Without selling your shares pracitcally the minute they arrive, the could not stay in business.

History and background. The truth is that for many years these “ToT” loans occupied a gray area as far as the IRS was concerned. Many CPAs and attorneys have criticized the IRS for this lapse, when it was very simple and possible to classify such loans as sales early on. In fact, they didn’t do so until many brokers and lenders had established businesses that centered on this structure. Many borrowers understandably assumed that these loans therefore were non-taxable.

That doesn’t mean the lenders were without fault. One company, Derivium, touted their loans openly as free of capital gains and other taxes until their collapse in 2004. All nonrecourse loan programs were provided with insufficient capital resources.

When the recession hit in 2008, the nonrecourse lending industry was hit just like every other sector of the economy but certain stocks soared — for example, energy stocks — as fears of disturbances in Iraq and Iran took hold at the pump. For nonrecourse lenders with clients who used oil stocks, this was a nightmare. Suddenly clients sought to repay their loans and regain their now much-more-valuable stocks. The resource-poor nonrecourse lenders found that they now had to go back into the market to buy back enough stocks to return them to their clients following repayment, but the amount of repayment cash received was far too little to buy enough of the now-higher-priced stocks. In some cases stocks were as much as 3-5 times the original price, creating huge shortfalls. Lenders delayed return. Clients balked or threatened legal action. In such a vulnerable position, lenders who had more than one such situation found themselves unable to continue; even those with only one “in the money” stock loan found themselves unable to stay afloat.

The SEC and the IRS soon moved in. The IRS, despite having not established any clear legal policy or ruling on nonrecourse stock loans, notified the borrowers that they considered any such “loan” offered at 90% LTV to be taxable not just in default, but at loan inception, for capital gains, since the lenders were selling the stocks to fund the loans immediately. The IRS received the names and contact information from the lenders as part of their settlements with the lenders, then compelled the borrowers to refile their taxes if the borrowers did not declare the loans as sales originally — in other words, exactly as if they had simply placed a sell order. Penalties and accrued interest from the date of loan closing date meant that some clients had significant new tax liabilities.

Still, there was no final, official tax court ruling or tax policy ruling by the IRS on the tax status of transfer-of-title stock loan style securities finance.

But in July of 2010 that all changed: A federal tax court finally ended any doubt over the matter and said that loans in which the client must transfer title and where the lender sells shares are outright sales of securities for tax purposes, and taxable the moment the title transfers to the lender on the assumption that a full sale will occur the moment such transfer takes place.

Some analysts have referred to this ruling as marking the “end of the nonrecourse stock loan” and as of November, 2011, that would appear to be the case. From several such lending and brokering operations to almost none today, the bottom has literally dropped out of the nonrecourse ToT stock loan market. Today, any securities owner seeking to obtain such a loan is in effect almost certainly engaging in a taxable sale activity in the eyes of the Internal Revenue Service and tax penalties are certain if capital gains taxes would have otherwise been due had a conventional sale occurred. Any attempt to declare a transfer-of-title stock loan as a true loan is no longer possible.

That’s because the U.S. Internal Revenue Service today has targeted these “walk-away” loan programs. It now considers all of these types of transfer-of-title, nonrecourse stock loan arrangements, regardless of loan-to-value, to be fully taxable sales at loan inception and nothing else and, moreover, are stepping up enforcement action against them by dismantling and penalizing each nonrecourse ToT lending firm and the brokers who refer clients to them, one by one.

A wise securities owner contemplating financing against his/her securities will remember that regardless of what a nonrecourse lender may say, the key issue is the transfer of the title of the securities into the lender’s complete authority, ownership, and control, followed by the sale of those securities that follows. Those are the two elements that run afoul of the law in today’s financial world. Rather than walking into one of these loan structures unquestioning, intelligent borrowers are advised to avoid any form of securities finance where title is lost and the lender is an unlicensed, unregulated party with no audited public financial statements to provide a clear indication of the lender’s fiscal health to prospective clients.

End of the “walkway.” Nonrecourse stock loans were built on the concept that most borrowers would walk away from their loan obligation if the cost of repayment did not make it economically worthwhile to avoid default. Defaulting and owing nothing was attractive to clients as well, as they saw this as a win-win. Removing the tax benefit unequivocally has ended the value of the nonrecourse provision, and thereby killed the program altogether.

Still confused? Don’t be. Here’s the nonrecourse stock loan process, recapped:

Your stocks are transferred to the (usually unlicensed) nonrecourse stock loan lender; the lender then immediately sells some or all of them (with your permission via the loan contract where you give him the right to “hypothecate, sell, or sell short”).

The ToT lender then sends back a portion to you, the borrower, as your “loan” at specific interest rates. You as borrower pay the interest and cannot pay back part of the principal – after all, the lender seeks to encourage you to walk away so he will not be at risk of having to go back into the market to buy back shares to return to you at loan maturity. So if the loan defaults and the lender is relieved of any further obligation to return your shares, he can lock in his profit – usually the difference between the loan cash he gave to you and the money he received from the sale of the securities.

At this point, most lender’s breathe a sigh of relief, since there is no longer any threat of having those shares rise in value. (In fact, ironically, when a lender has to go into the market to purchase a large quantity of shares to return to the client, his activity can actually send the market a “buy” signal that forces the price to head upwards – making his purchases even more expensive!) It’s not a scenario the lender seeks. When the client exercises the nonrecourse “walkaway” provision, his lending business can continue.