From the December 2006 issue of Wealth Manager Web • Subscribe!

Off With Their Heads

If you have clients who are contemplating loosening their grip on a concentrated stock position, you may have already taken a look at the variable prepaid forward (VPF), long a popular hedging tool. But take note of an Internal Revenue Service memorandum issued earlier this year. The IRS, which has officially expressed its distaste for this hedging strategy in the past, left little doubt about its feelings in its Technical Advice Memorandum (TAM) 200604033. "The IRS is cracking down on these puppies, and there are a lot of people scared about the magnitude of it," observes Barry Kaplan, CFP, of Cambridge Southern Financial Advisors in Atlanta. The IRS's recent salvo provides a good excuse to examine whether the VPF represents a worthwhile strategy or is burdened with too much baggage to be of serious consideration.

Variable prepaid forwards became popular during the tech boom when Congress outlawed a tried-and-true method of hedging a large stock position: The Taxpayer Relief Act of 1997 put an end to the practice of shorting against the box. Until then, an investor could lock in the price for a stock and borrow up to 95 percent of its locked-in value for reinvestment. That's when the variable prepaid forward stepped in to fill the void as an alternative. VPF contracts allowed investors, who remain bullish on their outsized stock position, to diversify their portfolio without paying immediate capital gains taxes or sacrificing all of the stock's upside potential.

A VPF contract essentially squeezes into one package a put, a call and a loan against the stock. In exchange for a cash advance that often ranges from 75 percent to 90 percent of the stock's market value, an investor agrees to deliver stock shares when the contract matures. The time period for these contracts is usually between three and five years. The number of shares that the investor ultimately hands over will depend on the structure of the deal and the price of the equity at maturity. When constructing the collar, the put and call options need to be far enough apart to avoid tripping the constructive sale rules, thus triggering taxes. Often this bandwidth is set at 20 percent.

While the investor unlocks much of the stocks' cash value, he avoids capital gains taxes until the contract's maturity. Technically, the cash advance is not called a "loan," but a "forward sale of securities," which allows banks to avoid margin lending restrictions.

Today's typical clients are senior-level executives who have accumulated a large position in company stock through stock options and grants. During the tech boom, however, the client was more likely to be an entrepreneur who had built a company and sold it to a publicly traded company for stock. During the bubble, investors who had taken out margin loans against their concentrated stock, also embraced variable prepaid forwards. Bernard Ebbers, one of the most notorious figures of the tech bubble (the former WorldCom head began serving a 25-year prison sentence in September), used $70.6 million in a VPF, in part to pay off margin loans.

However, some question whether the VPF is a worthwhile option when today's attractive long-term capital gains rate makes it far less painful to sell a low-basis stock. Paying today's 15 percent tab could be far preferable to gagging over a much higher tax rate if political fortunes in Washington change. Investors who hedge their position also face a steeper tax bill--up to 35 percent--on dividends. Another worrisome drawback is expense. The imbedded costs of a VPF are opaque, but some critics suggest that if investors knew what they were really paying, they would hardly be happy campers.

If you are a disciple of behavioral finance, however, you can appreciate that a dispassionate analysis of the financial merits of a VPF isn't necessarily going to matter much to a client loathe to relinquish a stock that he considers his baby. Sometimes, clients who are bullish on their stock and can't let go, end up with a VPF because the alternative--doing nothing--could be worse.

"The more I work with these transactions, the more I realize that I'd have been better served being a psychology major in college and not a math major," says Scott Welch, a managing director at Fortigent Company, LLC, who co-authored a paper on variable prepaid forwards last year for the Journal of Wealth Management. Some suggest that missing out on the 15 percent tax rate--regardless of what type of hedging technique is used--is a non-issue. There will be plenty of advance notice for clients to ditch a hedge if favorable rates vanish. "No one is going to get surprised by a higher tax rate," says Robert N. Gordon, who is president of Twenty-First Securities Corp. in New York.

VPF sales are complicated and the recent TAM didn't make the task of evaluating them any easier. While noting that it had only scrutinized the VPF of an unidentified investor, the 23-page technical memorandum made clear that anyone who strays from the guidelines listed in yet another IRS pronouncement--Revenue Ruling 2003-7--would be painting a red bull's eye on the transaction. The revenue ruling essentially requires investors who want to hedge through a variable prepaid forward to follow a sizable laundry list of do's and don'ts. The numerous requirements include the taxpayer receiving a fixed payment with no restrictions on its use and retaining the right to receive dividends and to vote the shares. An investor is also expected to have an unrestricted right to re-acquire the shares on the exchange date by delivering cash or other shares.

The list created anxiety because typically, VPF transactions do not satisfy all of the conditions, says Robert S. Keebler, CPA, a partner with Virchow, Krause & Company LLP in Green Bay, Wisc. "The memorandum," Keebler points out, "indicates that the IRS intends to attack VPF transactions that differ significantly from the model transaction described in Revenue Ruling 2003-7 by distinguishing them on their facts. Although a VPF might qualify for tax deferral under the relevant case law without meeting all the requirements in the revenue ruling, the only way to assure favorable tax treatment would be to use it as a model in structuring the transaction."

Interestingly enough, some say that Wall Street purveyors of these hedging contracts have largely reacted as if the IRS warning was shot out of a popgun. Industry proponents of VPFs suggest that these transactions should be squeaky clean as long at the Wall Street brokerage houses and banks that provide them avoid share lending. Share lending can occur when the brokerage firm or bank that created the VPF contract decides to hedge by shorting. An easy and cheap way to obtain shares to short is through the VPF client, which is what causes the trouble. In the TAM, the IRS warned that an investor who lends the institution his shares has effectively relinquished his ownership. When this happens, the investor is hit with a capital gains tax bill.

Dismissing the IRS concerns as primarily or exclusively about share lending is foolhardy, Gordon suggests. "Wall Street would like to wrap it up in a nice package and say share lending is the only problem, but the TAM doesn't say that. There have been two or three times that the IRS has said it doesn't like prepaid forwards," he adds, "but I don't think Wall Street is getting the message."

Why is the Street more optimistic about keeping the IRS at bay? Gordon believes it's because variable prepaid forwards are moneymakers. An investment bank, he estimates, may make as much as 50 or 100 basis points a year on these contracts.

Craig McCann, president of Securities Litigation and Consulting Group, Inc. in Fairfax, Va., sees high costs as a huge deal- breaker. McCann, a former SEC economist who has served as an expert witness in litigation involving these contracts, says investors can incur costs of 6 percent to 8 percent in collaring the position, and there are also interest charges on the embedded loan. These interest payments, by the way, are not tax deductible. "I wouldn't say 100 percent of the time, but pretty close to 100 percent of the time, you'd be better off selling and diversifying," McCann says. "I'm not against putting collars against the position, but it's the way the brokerage firms structure them to make money that makes them quite expensive." The only time a VPF would be suitable, McCann suggests, is when investors own restricted stock that can't be dumped.

Techniques exist to duplicate the benefits of a VPF without buying the product. "We are telling clients we think we can still do hedging," Gordon says, "but if I had a choice I wouldn't do a prepaid forward." Instead he advocates breaking out the components of a VPF--getting a call, a put and a loan--which is a cheaper option.

The built-in costs certainly necessitate that advisors negotiate with the investment banks and wirehouses that are players in this niche. In April, Robert Pagliarini, CFP, president of Pacifica Wealth Advisors, Inc. in Newport Beach, Calif., shopped for two VPF contracts for a client who wished to diversify a $23 million stock position. After soliciting bids from seven or eight brokerage firms and a handful of banks, Pagliarini said the range of proposals was "pretty shocking." While all the institutions were given the same parameters, the amount of upfront cash each bidder was willing to extend the client differed by five or six percentage points. The difference between the present value of the concentrated stock shares and the client's actual cash advance represents the transaction's financing expense.

Requesting a customized contract, rather than an off-the-shelf version, could also benefit a client. When soliciting bids, you need to focus on the four major variables:

o The desired downside protection

o Amount of upside potential

o Length of the tax deferral period

o Amount of cash generated by the contract

It will be easier to evaluate competing offers if you provide banks with three of the variables already determined. Most of the time, Welch says, it's the dollar figure that the clients leave blank.

One way to make the VPF more appealing is to sink the freed-up cash in passive, tax-efficient investments. With a tax-efficient replacement portfolio, the advisor should be able to harvest losses during the contract period that could be used to reduce or offset the eventual long-term capital gains taxes incurred when the contract expires. That was the conclusion that Welch and Cliff Quisenberry of Parametric Associates in Seattle arrived at in their study titled, "Increasing the Tax-Effectiveness of Concentrated Wealth Strategies." The case study looked at a handful of scenarios including variable prepaid forwards with narrow and wide bands. The broad band provided downside protection of 90 percent and upside potential of 130 percent, while the narrow band set the floor price at 100 percent and the ceiling price at 120 percent.

In the case the authors examined, the investor would have fared better if the cash advance had been invested in a model of the Standard & Poor's 500 Index or in a tax-enhanced S&P 500, which harvests portions of its positions to generate net losses. Over the three-year period of the VPF, the losses from the simulation averaged about 25 percent of the initial amount invested, which would be used to offset the future taxes.

The two researchers also discovered that the narrow versions of the VPFs did better than the wider ones. Welch acknowledged that this might seem counterintuitive since the wider bands have a higher ceiling on the single stock. The wider VPFs, however, have a lower floor, which affects the overall average of the distribution. "This, in conjunction with the fact that the narrow versions receive a larger cash advance, which earns a market return, helps to produce the higher mean result."

Clearly, advisors must be equally knowledgeable about VPFs and their alternatives.

Lynn O'Shaughnessy (lynnosh@cox.net) is a financial journalist and former Los Angeles Times reporter. She is the author of the Retirement Bible and the Investment Bible (both Wiley).

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