May 12, 2009
Much has been said about the state of the nation's current economy and the question of whether or not we've reached the proverbial "bottom." While it may only provide a cold kind of comfort, the fact that our battered economy may have reached the end of its historical drop means that the rebuilding effort can begin. On the other hand, the fact that the market still has further to go before hitting bottom means that there's still work to be done and difficult conditions to be weathered.
The very reason companies want to know if we've reached the bottom is so that they can know when to change course and whether or not to position themselves and their business for clearer skies and better conditions or for reduced sales and to continue cutting costs. G.I. Joe, that cartoon bounty of wisdom, once said, "Knowing is half the battle," but sometimes knowing isn't as easy as it sounds.
"What we've seen over the last year or so is dramatic change in the U.S. economy as well as the world economy," said NACM Economist Chris Kuehl, Ph.D., co-founder and managing director of Armada Corporate Intelligence. "Part of what we are trying to do now as a nation and as credit managers and people dealing with money, is simply reacting to those changes, and anticipating what kind of changes will come up in the next few months and what the expectations will be."
"We've dealt with most of these things for a long time; it's just that they keep evolving. And as we go through these different evolutions, our responses change and our expectations change," he added.
As an expert economist, it's Kuehl's job to know where the market is, how it got there and where it's going. He regularly provides his insightful analysis to companies and credit professionals both domestically and internationally through his daily email intelligence briefs and through presentations like the one he'll deliver at Credit Congress next month. "Where Are We Now? An Assessment of the Economy Mid-year" will give attendees a lively and intelligent look at the first months of the Obama presidency and the effect of legislation on the recession. Kuehl will also offer his assessment of the actions taken by the Federal Reserve, judge whether or not other economic predictions were right or wrong and deliver a thorough explanation of what companies should expect in the future.
To learn more about this session and other educational opportunities offered at Credit Congress, click here.
Jacob Barron, NACM staff writer
To the Moon and Back and Back Again
At NACM's 113th Credit Congress in Orlando, Florida, members have the opportunity to retrace the footsteps of some of the United States' greatest explorers at the Kennedy Space Center, where the dreams of the country's space pioneers took flight.
On the optional tour, "Lunch With an Astronaut" on Tuesday, June 16, visitors will be able to embark on an adventure aboard a special shuttle motor coach beginning at the main Kennedy Space Center's Visitor Complex. The first stop is the LC39 Observation Gantry for a bird's-eye view of current exploration projects from the 60-foot observation tower that has an unobstructed view of the Space Shuttle launch pads. From there, the tour proceeds to the Apollo/Saturn V Center where visitors can get a first-hand look at the massive 363-foot Saturn V moon rocket, the most powerful rocket ever built. As the tour continues, members can experience history in the Firing Room Theater as the countdown reaches zero and they hear and feel the enormous blast as Apollo 8 leaves for the Moon.
To cap the tour, guests are treated to a buffet lunch where the guest of honor is a NASA astronaut. During lunch, members can see a mission briefing, hear real stories of space exploration and have the opportunity to talk to the astronaut. After lunch, members can view an IMAX film, displayed on a gigantic five-and-a-half story screen, which is hailed as the next best thing to actually being in space.
For more information on what this year's Credit Congress has to offer, or to register, click here!
Even a cursory glance at the District of Columbia these days reveals a wealth of issues related to the world of B2B credit management. In their quest to accelerate economic recovery, Capitol Hill has taken up the mantle of topics such as bankruptcy, data security and accounting, all of which have ramifications for the country’s credit professionals.
As noted in previous editions of eNews, NACM and its Bankruptcy Work Group recently proposed changes to the Bankruptcy Code in the hopes of re-establishing the balance between the rights of debtors, secured and unsecured creditors. These alterations have been officially submitted to the House Committee on the Judiciary by NACM’s lobbyist, Jim Wise of Pace Government Relations, who noted that the committee staff’s response to the changes was largely positive. Following the Chapter 11 filing of Circuit City, which ended in liquidation, Congress took up the issue of bankruptcy reform in order to stem the tide of retailer bankruptcies and ensure that the Chapter 11 reorganization process worked as intended. However, Rep. Jerrold Nadler (D-NY) proposed a bill that, if passed, would eliminate many creditors’ rights, such as the Section 503(b)(9) 20-day administrative priority claim, and could limit the ability of trade creditors to extend financing to struggling retailers. NACM’s changes counter the Nadler bill’s provisions with an expansion of creditors’ rights which would allow for greater financing capabilities and aim to make vendors more likely to extend credit when a company is in Chapter 11.
In other news, the Federal Trade Commission (FTC) recently delayed enforcement of the "Red Flags" Regulations, an issue that NACM has covered thoroughly from its passage. The FTC’s stated purpose for the three-month delay was that it would give Congress greater time to consider the regulations and give associations, such as NACM, more time to share guidance with members about complying with the regulations. NACM’s Government Affairs Committee is keeping a close eye on the regulations and considering whether or not the FTC has overstepped its Congressional mandate in making the regulations vaguely apply to business creditors instead of just consumer creditors. Updates can be found in eNews and on the advocacy page on NACM’s website (www.nacm.org).
In terms of accounting, President Barack Obama’s budget stipulates that businesses must account for inventory differently than in previous years, switching from the concept of last in, first out (LIFO) accounting to first in, first out accounting (FIFO). LIFO accounting refers to a strategy where a company records the last units purchased or produced as the first units sold. While in many instances this isn’t the absolute truth, this lowers business taxes since, due to inflation, prices rise over time. This makes the most recent goods made or sold typically the most expensive in a company’s inventory. LIFO accounting then reduces a company’s profit on a financial statement and, in turn, reduces the potential tax burden. If the new budget passes, LIFO will be replaced with FIFO, meaning companies will be required to report the oldest product as the first shipped, leaving the newer, more expensive goods sitting in the warehouse as assets to be taxed. This measure will raise tax revenue for the government by raising the amount businesses have to pay, but also could affect the way a company’s finances look on paper. The National Association of Manufacturers (NAM) has come out against the measure and NACM’s Government Affairs Committee is considering whether similar action is necessary to protect creditors.
As with all government affairs and advocacy, NACM depends on you, the member, for input and information. Please send any stories, experiences or thoughts related to bankruptcy changes, "Red Flags" Regulations, accounting changes or any other pressing issue to firstname.lastname@example.org. Make your voice heard!
Jacob Barron, NACM staff writer
NACM’s May Survey is Now Live!This month’s question asks if your company levies late charges on customers in today’s economy. Your participation automatically earns you .1 road map points and enters you in a drawing to win a FREE teleconference! Visit www.nacm.org to answer the May survey question today!
Last week, after nearly six months of straight declines, the U.S. Census Bureau released that construction spending in March had crawled upward at an annually adjusted rate of 0.3% above February to $969.7 billion. This was better news than many had predicted, though the figures are still 11.1% below that of March 2008.
The private sector in total was down slightly, but nonresidential construction reported an increase of 2.7% above February’s numbers to $402.6 billion. This marked the second consecutive increase for the sector and was the largest increase in nine months. Unfortunately, the numbers aren’t necessarily displaying the realities with which the industry is grappling. “The increase in nonresidential construction spending for March reported by the Census Bureau is a reminder that construction is often a lagging indicator of economic activity,” said Ken Simonson, chief economist, Associated General Contractors of America (AGC). “Increases in manufacturing construction are being propelled by huge refinery and steel mill projects that were begun well before the economic downturn.”
Manufacturing spending reported an increase of 64.4% year over year, while power spending showed an increase of more than 18% during the same period. These large projects are overshadowing the broader negative trends that are rippling through the sector. As they come to completion or are reigned in due to financing concerns over the next several months, the impact will be felt in a weightier pull down on nonresidential construction and a clearer picture of how adverse the economic effects have been on the sector will begin to emerge. Even public construction spending was a misnomer for nonresidential office and commercial projects as they reported double-digit increases year over year, while March’s commercial spending showed an 8.2% increase over February.
“Given declining office and hotel occupancy rates, continued difficult retail conditions and ongoing challenges with the credit markets, it is hard to imagine many new office, hotel or retail projects starting anytime soon,” explained Simonson. “Unfortunately, even where there may be demand, financing these projects right now is, at best, difficult.” Simonson added that despite the increases reported by the Census Bureau, spending declines are likely on the horizon.
“Meanwhile, stimulus money has not yet turned into construction put in place—the concept measured by the Census Bureau,” said Simonson. “Although thousands of projects have been announced, they are not likely to show up as construction spending until May data is released in July.” He explained that federal construction spending slipped 1.7% in March in contrast to an increase in state and local spending of 1.3%. Spending for highway and street projects—the areas where the earliest injections of stimulus funds are most likely to appear—also slid down 0.7%. This is a back-to-earth reality for the construction sector, which is hoping for a rebound over the next several months as stimulus funds are increasingly mainlined into projects. However, “it is not likely to overcome the downturn in private, state and locally funded projects,” said Simonson. “Given the broader economic trends at play, it is likely that nonresidential spending could fall by as much as 9% in 2009, even with stimulus funds.”
Matthew Carr, NACM staff writer
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“Trade creditors today have more access to information than they ever have before,” said Ken Rosen, Esq., assistant vice president at Lowenstein Sandler PC. “When a big company files a bankruptcy, there aren’t a whole lot of excuses for trade creditors not to know.”
During his recent teleconference, “Providing Senior Management the Facts on Financially Distressed Key Customers,” Rosen offered listeners a wealth of sources for information regarding a struggling customer’s finances. In today’s economic environment, sometimes the difference between getting paid and not getting paid comes down to how much information a company has prior and during a bankruptcy proceeding. “We’re all accustomed to traditional sources of information like talking to other vendors. That’s always very valuable,” he said, but for bankruptcy attorneys and turnaround professionals, "We have to remember that in the world of bankruptcy…we love to gossip. In the world that we live in today, insolvency professionals are a great source of information because they can’t keep secrets. With a well-placed phone call you can find that information out.”
Rosen noted that while bankruptcy attorneys are often a walking encyclopedia of business information themselves, what makes a good insolvency professional worthwhile is their list of contacts. “Claims traders will purchase the claims of a trade creditor at a discount where a creditor wants to get cash. We often will call them and say ‘tell us what the market is paying for such-and-such company,’ and I’m talking about prior to bankruptcy. That gives us a good idea of what people are thinking,” said Rosen. “There’s no bankruptcy attorney, crisis manager or investment banker that wouldn’t love to hear these questions. Whoever your counsel is, buddy up to them. They have a lot of information that could be very valuable.”
In addition to bankruptcy professionals, Rosen also pointed out that publicly available information can help a company position itself to better ride out a customer’s tough times. “I’m amazed at how much research there is in the public domain,” he said, adding that sometimes a deeper look at a struggling buyer’s local news can come in handy. “Things that would not make the press in a larger town, make the press in a small town.”
For more information on NACM’s teleconference series, or to register, click here.
Jacob Barron, NACM staff writer
Escheatment: What Every Credit Manager Needs to KnowWith unclaimed property enforcement on the rise, it is imperative that adequate procedures are in place as directors of credit departments assist their companies to ensure compliance. Though many of these laws have been in effect since the early 1900s, there are still many businesses that are unfamiliar with the law and struggle with how best to implement internal controls and reporting procedures in order to comply with various state unclaimed property laws. With the current emphasis on compliance with Sarbanes-Oxley regulations, your company can't afford not to be in compliance. An upcoming NACM-sponsored teleconference will provide a foundation for a greater understanding of the purpose of escheatment laws, will identify what every company and credit manager needs to know, and will detail the consequences for noncompliance. Join us on May 18th at 3:00pm EST for a summary of proactive measures and suggested best practices in an effort to achieve compliance. Presenter Valerie Jundt, Esq., director for the unclaimed property services group at Thomson Reuter, will also provide you with valuable tools and resources for your compliance library.
To learn more, or to register, click here.
For much of the last two years, the country has been awash in the turmoil created by over-leveraged lenders. The United States’ appetite to turn a fast buck by happily spoon feeding loans to far from creditworthy individuals who will probably never pay them off spread from one country to the next, ending in a domino tumbledown of collapse. Lending standards seized up, the usually mind-numbing business of banking became a frightening rollercoaster ride and the world was sucked down into a whirlpool of recession.
To help alleviate business conditions, the U.S. Small Business Administration (SBA) has amended its lending standards on 7(a) loans, its largest loan program, to make more capital available to as many as an additional 70,000 struggling firms. “This is just one more step we are taking to make sure small businesses have access to capital to keep their doors open and employees working during these tough economic times,” said SBA Administrator Karen Mills. “We have seen signs that small businesses that are just outside the traditional 7(a) size standard are being shut out of the conventional lending market.”
Starting this week and remaining in place until September 30, 2010, the SBA will adopt an alternate size standard for 7(a) loan eligibility, allowing for companies and their affiliates with a net worth of less than $8.5 million and an average net income of less than $3 million after federal income taxes for the two preceding completed fiscal years. “This temporary change will help those businesses weather these tough times and help move our nation closer to economic recovery,” said Mills.
The SBA had experienced five-straight years of record-setting loan approvals. But as the nation’s economy began to crumble, the demand for new loans fell by more than 18% and in 2005, the loans guaranteed by the agency dropped 30%. In 2005, the SBA dished out more than 99,000 loans under the 7(a) program. In 2008, that had fallen to just a little more than 69,000, the lowest total the agency had seen since 2003.
The dollar amounts of 7(a) loans have also eased back from a high in 2005 of $15.4 billion to $12.8 billion in 2008. The big problem with lending in this economy is that between March 2007 and March 2008, the delinquency rate in the SBA’s 7(a) loan program shot up 62% and the charge-off amount of 7(a) loans just last year was $793 million. The unpaid principal balance for 2009 on all SBA guaranteed loans is more than $80.2 billion.
This isn’t the first time that the SBA has changed its lending standards. When the country was trudging through the recession in the 1990s, the SBA made similar changes in 1993, and again in 2005 after Hurricanes Katrina and Rita devastated the Gulf Coast. “With banks throughout the country tightening lending standards to Main Street businesses, these companies have found it harder and harder to stay open,” said Chair of the Senate Committee on Small Business and Entrepreneurship Mary Landrieu (D-LA), who has fought to have the standards changed in the American Recovery and Reinvestment Act, as well as in two separate bills she introduced in the last session of Congress. “Increasing 7(a) size standards means more Main Street businesses that have been shut out of traditional lending markets will have the opportunity to utilize provisions of the Recovery Act to grow and strengthen their business.”
Matthew Carr, NACM staff writer
Clearing the Haze: Addressing Some Lingering Concerns About FTC’s "Red Flags" Rules
The woes of identity theft for both businesses and individuals have been compounded to near numbing levels. In the war against this type of fraud, both federal and state governments have launched a number of offensives, including establishing cyber-crime law enforcement divisions and passing data security laws in an attempt to curb damage and weave a tighter security net to protect consumers. One of the latest and most widely discussed initiatives has been a multi-agency effort to fill in the gaps in corporate efforts left by some of those data security provisions.
On January 1, 2008, the Federal Trade Commission’s (FTC) “Red Flags” Rules went into effect as part of amendments to the Fair and Accurate Credit Transactions Act of 2003 (FACT Act) and ultimately the Fair Credit Reporting Act (FCRA). Even though the mandatory deadline for compliance has been pushed back from May 1st to August 1st, credit managers don’t want to be left in the dark about lingering questions about the FTC’s “Red Flags” Rules and its impacts. Look in the May issue of Business Credit for more information. To start a subscription, click here.
The Government Accountability Office (GAO) recently published its analysis of the U.S. Securities and Exchange Commission (SEC) and its division of enforcement, noting that the agency needs to pay greater attention to the division to enhance communication and effective usage of resources. “This testimony focuses on (1) the extent to which Enforcement has an appropriate mix of resources; (2) considerations affecting penalty determinations and recent trends in penalties and disgorgements ordered; and (3) the adoption, implementation and effects of recent penalty policies,” said the GAO in the report, having relied on enforcement data and interviews with current and past division staff for the analysis.
Specifically, the report notes that, overall, enforcement actions by the SEC have been relatively level despite the 11.5% decrease in investigative staff between 2004 and 2008. "Enforcement management said resource levels have allowed them to continue to bring cases across a range of violations, but both management and staff said resource challenges have delayed cases, reduced the number of cases that can be brought and potentially undermined the quality of some cases,” said the report. “Specifically, investigative attorneys cited the low level of administrative, paralegal and information technology support and unavailability of specialized services and expertise, as challenges to bringing actions.”
Additionally, interviews revealed that much of the red tape that goes along with enforcement actions has proved to be detrimental to the division’s effectiveness. “Enforcement staff said a burdensome system for internal case review has slowed cases and created a risk-averse culture,” they said.
“In 2006, the Commission adopted a policy that focuses on two factors for determining corporate penalties: the economic benefit derived from wrongdoing and the effect a penalty might have on shareholders. In 2007, the Commission adopted a policy, now discontinued, that required Commission approval of penalty ranges before settlement discussions,” said the report. “Setting aside the effect of any policies, total penalty and disgorgement amounts can vary on an annual basis based on the mix of cases concluded in a particular period. Overall, penalties and disgorgements have declined significantly since the 2005-2006 period.” Notably, the GAO found that total annual penalties fell 84%, from a peak of $1.59 billion in fiscal year 2005 to $256 million in fiscal year 2008. Disgorgements fell 68%, from a peak of $2.4 billion in fiscal year 2006 to $774.2 million in fiscal year 2008. "Enforcement management, investigative attorneys and others agreed that the two recent corporate penalty policies—on factors for imposing penalties and Commission pre-approval of a settlement range—have delayed cases and produced fewer, smaller penalties.”
A full copy of the report is available at www.gao.gov.
Jacob Barron, NACM staff writer
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President Barack Obama outlined his plan to unravel the veil of tax havens and to create what he describes as a more level playing field for U.S. businesses. The White House cited that in 2004, American international corporations paid just $16 billion in U.S. tax on an estimated $700 billion in foreign earnings. That translates into a tax rate of a mere 2.3%.
The Administration also pointed to a January 2009 report by the Government Accountability Office (GAO) that found that 83 of the nation’s 100 largest corporations, have subsidiaries in tax havens and more than 18,850 corporations have a home at the same address in the Cayman Islands. President Obama and U.S. Treasury Secretary Timothy Geithner said they are taking a stand to close these types of abuses and loopholes that allow companies to avoid paying billions of dollars in taxes. Many of these initiatives, which are touted to raise $210 billion over the next decade, will be unveiled in the Administration’s full budget released later this month.
One piece of the tax plan, which would go into effect in 2011, is to restructure the deductions companies are allowed to take on U.S. tax returns for expenses supporting overseas investments while being able to defer paying taxes on the profits they make from those investments. This is not the first time that dismantling this corporate benefit has been considered. In 2007, House Ways and Means Committee Chairman Charles Rangel (D-NY) introduced a tax reform bill to do the same. Historically, since the U.S. has a worldwide tax system that taxes income no matter where it is earned, this deferment has been praised as a means for U.S. companies to pay the same rate of tax as their foreign competitors from developed countries that aren’t often subject to the same tax liabilities. The new strategy would bar companies from taking those deductions until they pay taxes on their offshore profits. This move is expected to result in $60 billion in tax revenue between 2011 and 2019.
The other part of the plan is to take the tax revenue generated by closing this and other such loopholes and offsetting it by making the Research and Experimentation (R&E) Tax Credit, set to expire this year, permanent as an incentive for investing in research and innovation within the United States. The White House estimates that over the next 10 years it would represent a tax cut of $74.5 billion for businesses that invest here.
Though he admitted there was still investigation that needed to be done to fully realize the effect these proposed tax changes would have, Senate Finance Committee Chairman Max Baucus (D-MT) said that the president’s proposal highlights an important point: the corporate international tax system is due for reform. “I want to make certain that our tax policies are fair and support the global competiveness of U.S. businesses,” said Baucus. “These policies must be designed to encourage economic growth and create good-paying jobs Americans need right now.”
Additional elements of President Obama’s plan are tagged as “getting tough” and include eliminating loopholes for “disappearing” offshore subsidiaries, cracking down on the use of tax havens by individuals and devoting more resources to IRS enforcement efforts to close the international tax gap.
Early rebuttal has been heated. “The rhetoric on this issue fundamentally misrepresents the nature of global taxation and global competition,” said John Engler, president, National Association of Manufacturers (NAM). “Limiting deferral and further restricting foreign tax credits would simply increase the U.S. corporation’s tax bill based on their overseas operations, making them less competitive against their foreign-based competitors.”
Engler sided with the president on making the R&E Tax Credit permanent, but felt the rest of the proposal would undermine the strength of domestic multinational companies and the more than $100 billion in new taxes would destroy jobs. He pointed out that 21 million people in the U.S., representing about 19% of the domestic workforce and some 53% of all manufacturing workers, are employed by companies with operations overseas.
Senator Charles Grassley (R-IA), ranking member of the Senate Finance Committee, felt the process should be vetted carefully. “Out of fairness, corporate taxpayers generally shouldn’t pay pennies on the dollar compared to the rest of Americans who don’t have lots of options to cut their bill,” said Grassley. “Congress needs to look at whether these tax increases are fair, whether American workers will lose their jobs and whether U.S. companies will fall behind foreign competition and even become more vulnerable to foreign acquisition.” He said there is a big difference between abusive tax avoidance, which the Senator supports cracking down on and has authored international tax reform bills to attack, and legitimate tax policy that recognizes the nature of the global economy. Grassley added that the two-year delay in implementation proposed by the White House recognizes the impact it will likely have on U.S. businesses.
“To the extent the President continues on the road of cracking down on tax abuse, he can count on my support,” said Grassley. “But if he’s using tax shelters as a stalking horse to raise taxes on corporations at the costs of U.S. jobs, he’ll lose me.”
Matthew Carr, NACM staff writer
The U.S. and the European Union (EU) recently reached an agreement that will expand opportunities in the European market for U.S. beef producers, hopefully giving the industry a shot in the arm. United States Trade Representative Ron Kirk and European Union Trade Commissioner Catherine Ashton reached an accommodation in principle on additional duty-free access for U.S. high quality beef in the EU market, but the agreement only applies to beef derived from cattle not treated with growth-promoting hormones, to which the EU objects. The agreement was welcomed but still criticized by Ranking Member of the Senate Finance Committee, Chuck Grassley (R-IA).
“This provisional accommodation would increase exports of U.S. beef, and that’s good news for cattle and beef producers and consumers in Europe. At the same time, it’s disappointing that U.S. beef from cattle treated with growth-promoting hormones remains locked out of the EU market,” he said. “This beef is safe and consumed by millions of people in the United States and other countries every day. The European Union should reopen its market to all U.S. beef, which is entirely safe.”
Meanwhile, among other meat producers, the recent outbreak of H1N1 Influenza A has taken its toll on the pork industry. Specifically, the industry blames the mislabeling of the disease as “swine flu” for its recent bout of troubles and has asked the U.S. Department of Agriculture (USDA) for assistance in its ongoing struggles. Pork producers, who prior to the announcement of the current flu “outbreak” already were losing money, have seen losses accelerate to an average of $17.69 on each hog marketed as of May 1. Total losses reached $7.2 million a day between April 24 and May 1. “Given those loses and based on May 1 futures prices,” said National Pork Producers Council (NPPC) President Don Butler, “a bad situation for pork producers has been exacerbated and could get worse unless the industry gets some relief.”
To help stem the losses U.S. pork producers are incurring, NPPC has asked USDA Secretary Tom Vilsack to implement a USDA purchase program for $50 million of pork products to help boost cash hog prices, urge President Barack Obama to work with U.S. trading partners to remove all restrictions on exports of U.S. pork and pork products. The NPPC also asked Vilsack to maintain U.S. pork export markets around the world, develop a comprehensive surveillance program for swine diseases, which will provide an early warning for emerging diseases that affect human and animal health and work to keep open the border between the United States and Canada—in the wake of a report that pigs on a Canadian pork operation contracted from a worker the H1N1 flu—to allow hog movements.
Jacob Barron, NACM staff writer
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