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Treasury: Expenses paid from PPP loans are not deductible
On November 18, the U.S. Treasury Department and Internal Revenue Service (IRS) clarified the tax treatment of expenses where a Paycheck Protection Program (PPP) loan has not been forgiven by the end of the year the loan was received. According to the IRS revenue ruling, businesses are not taxed on the proceeds of a forgiven PPP loan, thus the business expenses paid from those proceeds are not deductible. The revenue ruling illustrates multiple taxpayer scenarios, which conclude that if the PPP loan has not yet been forgiven by the end of 2020, but the business reasonably believes the loan will be forgiven in the future, the expenses are not deductible. This applies whether the business has filed for forgiveness yet or not. However, if a PPP loan was expected to be forgiven, and was not, the expenses are deductible.
FTC says mobile banking app is deceptive
On November 18, the FTC filed a complaint against a mobile banking app operator alleging the defendants violated the FTC Act by deceiving users about their high-interest bank accounts and falsely promising users “24/7” access to their funds. The FTC’s complaint alleges that the defendants represented that users would receive “‘minimum base’ interest rates” of at least 0.2 percent or 1.0 percent, but that users actually received a starting interest rate of 0.04 percent and stopped earning any interest if they requested that their funds be returned. Additionally, the complaint claims that while the defendants promised users 24/7 access to their funds and represented they could make transfers out of their accounts and receive the requested funds within three to five business days, some users waited weeks or months to receive their funds despite submitting repeated complaints to the defendants. Other users claimed they never received their money. Moreover, some users claimed that the defendants blamed the failure to deliver the requested funds on “unspecified issues with unspecified ‘banking partners’ or ‘technology partners’ and promised the delays were temporary.
The FTC seeks an injunction against the defendants, along with monetary relief including “rescission or reformation of contracts, restitution, the refund of monies paid, disgorgement of ill-gotten monies, and other equitable relief.”
FHFA finalizes GSE capital framework
On November 18, the FHFA announced a final rule, which establishes a new regulatory capital framework for Fannie Mae and Freddie Mac (GSEs) to ensure safety and soundness. The final rule is similar to the proposed rule published earlier this year (covered by InfoBytes here), and it generally makes the following notable modifications in response to comments: (i) increases the dollar amount of capital relief for the GSEs’ credit risk transfers; (ii) reduces the credit risk capital requirements for single-family mortgage exposure subject to Covid-19 related forbearance; and (iii) increases the exposure level risk-weight floor for single-family and multifamily mortgage exposures to 20 percent.
According to a fact sheet released in conjunction with the announcement, the final rule preserves key enhancements contained within the proposed rule. These include, among other things, (i) ensuring each GSE “maintains high-quality regulatory capital by including a set of supplemental capital requirements based on the U.S. banking framework’s definitions of [common equity tier 1], tier 1, and total capital”; (ii) strengthening the quality of regulatory capital; (iii) including backstop leverage requirements; and (iv) addressing pro-cyclicality through measures such as capital buffers and single-family mortgage exposure countercyclical adjustments.
The final rule takes effect 60 days after publication in the Federal Register.
Trump to nominate Brooks as Comptroller
On November 17, President Trump announced his intention to nominate Brian P. Brooks as Comptroller of the Currency. Brooks has been serving as acting Comptroller since the end of May 2020. Prior to serving as acting Comptroller, Brooks served as Senior Deputy Comptroller and Chief Operating Officer of the OCC. Prior to joining the OCC, Brooks was Chief Legal Officer of a digital currency exchange, and prior to that, he served as Executive Vice President, General Counsel, and Corporate Secretary of Fannie Mae. In a statement, Brooks called the intent to nominate a “great honor” and stated he “will work ceaselessly to ensure the agency continues to fulfill its critical mission.”
CFPB, Colorado AG to host innovation office hours
On November 16, the CFPB and Colorado attorney general announced that they will host joint, virtual office hours on December 2, as part of the American Consumer Financial Innovation Network (covered by InfoBytes here). The office hours will provide innovators the opportunity to discuss issues related to financial technology, innovative products or services, and other matters related to financial innovation. Those interested need to request a virtual session by November 23 and should include details on what they would like to discuss at the meeting.
FDIC announces disaster relief for Puerto Rico
On November 16, the FDIC issued FIL-105-2020 to provide regulatory relief to financial institutions and help facilitate recovery in areas of Puerto Rico affected by severe storms and flooding starting on September 13. The guidance notes that the FDIC will consider the unusual circumstances faced by institutions affected by the hurricane. The guidance suggests that institutions work with impacted borrowers to, among other things: (i) extend repayment terms; (ii) restructure existing loans; or (iii) ease terms for new loans to those affected by the severe weather, provided the measures are “done in a manner consistent with sound banking practices.” Additionally, the FDIC notes that institutions may receive Community Reinvestment Act consideration for community development loans, investments, and services in support of disaster recovery. The FDIC states it will also consider relief from certain reporting and publishing requirements.
SEC charges bank execs over sales-compensation practices
On November 13, the SEC announced charges against a national bank’s former CEO and Chairman, as well as against the former head of the national bank’s community bank (community bank) for their roles in allegedly misleading investors in connection with the bank’s incentive compensation sales program. As previously covered by InfoBytes, in connection with the same misconduct, the SEC announced a Cease and Desist order with the bank for allegedly violating the antifraud provisions of the Securities Exchange Act of 1934. The bank agreed to cease and desist from committing any future violations of the antifraud provisions and to a civil penalty of $500 million.
According to the complaint filed in the U.S. District Court for Northern District of California against the former head of the community bank, from mid-2014 through mid-2016, the former head publicly endorsed the bank’s incentive compensation program as a measurement of the bank’s success, when in reality, the metrics were allegedly inflated by unused and unauthorized accounts. Moreover, the complaint alleges that the former head signed sub-certifications that attested to the accuracy of the bank’s public disclosures, when she “knew or was reckless in not knowing” that the incentive compensation program depicted in the disclosures were materially false or misleading. The complaint seeks a permanent injunction, disgorgement, and civil penalties.
Additionally, the SEC issued a cease and desist order against the bank’s former CEO and Chairman, alleging that in 2015 and 2016 he certified statements filed with the SEC regarding the community bank’s incentive compensation program, after being put on notice that the bank was misleading the public about the program. The order issues a $2.5 million civil penalty against the former CEO and Chairman.
Fannie Mae updates code for Covid-19 deferrals
On November 18, Fannie Mae updated Lender Letter 2020-07 to clarify the requirement for reporting a delinquency status code for a Covid-19 payment deferral. Specifically, the lender letter states that in the month the Covid-19 payment deferral is completed and the mortgage loan is reflected as current, the servicer is not required to report delinquency status information to Fannie Mae so long as no other delinquency status code is applicable.
FHFA further extends Covid-19 flexibilities until December 31
On November 13, the FHFA announced the extension of several loan origination guidelines put in place to assist borrowers during the Covid-19 pandemic. Specifically, FHFA extended until December 31 existing guidelines related to: (i) alternative appraisal requirements on purchase and rate term refinance loans; (ii) alternative methods for documenting income and verifying employment before loan closing; and (iii) expanding the use of power of attorney to assist with loan closings. The extensions are implemented in updates to Fannie Mae Lender Letters LL-2020-03, LL 2020-04, and Freddie Mac Guide Bulletin 2020-44.
CFPB settles with debt collector over credit reporting violations
On November 12, the CFPB announced a settlement with an Illinois-based non-bank debt collector, resolving allegations that the company violated the Fair Credit Reporting Act (FCRA), Regulation V, and the Consumer Financial Protection Act when providing information to consumer reporting agencies (CRAs). According to the Bureau, the company allegedly (i) “furnished information to CRAs that it knew or had reasonable cause to believe was inaccurate and failed to report to CRAs an appropriate first date of delinquency on certain accounts”; (ii) failed to conduct reasonable investigations into disputes reported to the company and to the CRAs; (iii) failed to send required notices about the results of investigations; and (iv) “failed to establish, implement, and update its policies and procedures regarding its furnishing of consumer information to CRAs.” According to the consent order, the company, among other things, allegedly furnished actual payment amounts as $0.00 on roughly 165,000 accounts even though consumers had made payments. For about 72,000 accounts, the company allegedly furnished current balances and amounts past due in amounts other than $0.00 even though the accounts were settled in full.
The consent order requires the company to pay a $500,000 civil money penalty and to (i) regularly review samples of furnished account information for accuracy and integrity; (ii) review samples of consumer disputes to ensure they are handled in compliance with the FCRA; (iii) update its policies and procedures to ensure compliance and continued effectiveness; and (iv) secure at least one independent consultant who specializes in FCRA and Regulation V compliance to conduct a review of the company’s activities, policies, and procedures related to furnishing and credit reporting.