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Nutter Bank Report, March 2019

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03.28.2019 | Legal Update

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  1. FFIEC Issues Principles for Examiners in Developing Reports of Examination
  2. Fed Issues Guidance on New Accounting Treatment for Leases of Bank Premises
  3. IRS Proposes Amendments to Regulations Affecting Certain BOLI Transfers
  4. FDIC Rescinds Part 350 Annual Financial Disclosure Statement Requirements
  5. Other Developments: Paid Leave and PACE Loans

1.  FFIEC Issues Principles for Examiners in Developing Reports of Examination

The Federal Financial Institutions Examination Council (“FFIEC”) has issued a policy statement that describes the minimum expectations for what bank examiners should include in all reports of examination (“ROEs”). The policy statement released on March 6 lists a set of principles that the federal banking agencies expect examiners to follow in the development of ROEs and replaces the 1993 Interagency Policy Statement on the Uniform Core Report of Examination. According to the FFIEC, the principles also are meant to promote consistency, clarity, and ease of reference in ROEs, while allowing examiners the flexibility in documenting their assessment of banks of different sizes, activities, risk profiles, and financial and managerial conditions. Each federal banking agency determines the specific format of its ROEs, and more specific guidance on the preparation and content of ROEs is provided in each agency’s examination manual. The agencies plan to examine and make any needed adjustments to their existing ROE guidance consistent with the principles listed in the ROE policy statement. The OCC announced that it is reviewing and updating its ROE policy in the Bank Supervision Process booklet of the Comptroller’s Handbook, and that the streamlined ROE may be used for any OCC-supervised bank until the OCC completes its update of the Comptroller’s Handbook. Click here for a copy of the FFIEC’s ROE policy statement.

Nutter Notes: According to the FFIEC’s ROE policy statement, each ROE should present examiners’ conclusions and identify issues of concern in order of importance, and document issues of supervisory concern or warranting corrective action prominently. The FFIEC’s principles also require each ROE to discuss the adequacy of the bank’s risk management practices, which should include noncompliance with applicable law or regulation, the status of compliance with any outstanding enforcement action, and the status of issues of supervisory concern or warranting corrective action identified in the prior ROE. Each ROE must be signed by the members of the board of directors to acknowledge their receipt and review of the ROE, according to the FFIEC’s principles. Finally, the principles require that each ROE document the bank’s condition and risk profile, including the assigned regulatory component and composite ratings, and provide a narrative and data to support assigned ratings and other conclusions “with a level of detail consistent with the assigned rating or level of concern.” The principles direct examiners generally to provide a brief narrative for 1- and 2-rated components, and increasing details in the narrative for 3-, 4-, and 5-rated components.

2. Fed Issues Guidance on New Accounting Treatment for Leases of Bank Premises

The Federal Reserve has issued guidance to state member banks on the treatment of operating leases as an investment in bank premises under the Federal Reserve’s Regulation H upon the implementation of the new accounting standard for leases, issued by the Financial Accounting Standards Board (“FASB”) in February 2016. The Federal Reserve’s guidance published on March 21 as Supervision and Regulation Letter no. SR 19-7 explains that the most significant change in the new accounting standard relates to accounting for operating leases. According to the guidance, the new lease accounting standard requires lessees to record a right-of-use asset and a lease liability on the balance sheet for most leases. Under the old lease accounting standard, lessees recognize lease assets and liabilities on the balance sheet for finance leases, but generally do not recognize lease assets and liabilities on the balance sheet for operating leases, according to the guidance. The guidance advises that, once a state member bank adopts the new lease accounting standard, operating leases, including those entered into prior to the standard’s effective date, will be recorded on lessees’ balance sheets, with the exception of certain short-term leases and certain types that are accounted for outside the scope of FASB Accounting Standards Update No. 2016-02, Leases (Topic 842). Click here for a copy of the Federal Reserve’s guidance on the new lease accounting standard.

Nutter Notes: The FASB’s new lease accounting standard is effective for public companies, including banking organizations, for fiscal years beginning after December 15, 2018, including interim periods within those fiscal years, according to the Federal Reserve’s guidance. For all others, the new lease accounting standard is effective for fiscal years beginning after December 15, 2019, and interim periods within fiscal years beginning after December 15, 2020. The guidance points out that the new standard may be adopted early. The guidance advises that a bank choosing to adopt the new standard early must apply it in its entirety to all lease-related transactions. The Federal Reserve’s guidance also points out that, under the new lease accounting standard, the carrying value of bank premises will include leases recorded on the balance sheet, the value of which may exceed the amount of the bank’s capital stock. Section 24A of the Federal Reserve Act (“Section 24A”) prohibits a state member bank from making investments in bank premises without the prior approval of the Federal Reserve if such investments, in the aggregate, would exceed the capital stock of the bank. The Federal Reserve’s guidance clarifies that Federal Reserve approval is not required under Section 24A where a change in accounting standards requires a state member bank to capitalize premises leased before the effective date of the new standard. However, prior Federal Reserve approval will be required under Section 24A for any investment in bank premises that would exceed the amount of a bank’s capital stock made after the new accounting standard is effective or adopted, according to the guidance.

3. IRS Proposes Amendments to Regulations Affecting Certain BOLI Transfers

The U.S. Internal Revenue Service (“IRS”) has proposed amendments to its regulations that would, if adopted, clarify the tax reporting requirements for bank-owned life insurance (“BOLI”) transferred as part of a bank merger or acquisition transaction under new reporting rules for certain transfers of life insurance policies that were included in the Tax Cuts and Jobs Act of 2017 (“TCJA”). In particular, the proposed amendments published on March 22 would provide that tax-free transfers of BOLI policies between banking organizations organized as C corporations that do not have more than 50 percent of their assets in BOLI policies would not be subject to new reporting requirements applicable to certain transactions involving life insurance contracts. The proposed amendments would also clarify that tax benefits associated with the receipt of proceeds from transferred BOLI would be eligible for exclusion from income. Comments on the proposed amendments are due by May 9, 2019. Click here for a copy of the proposed amendments.

Nutter Notes: The TCJA established a new Section 6050Y of the Internal Revenue Code (“IRC”) and amended IRC Section 101(a) to impose new income tax on, and information reporting requirements related to, certain life insurance contract transactions, including reportable policy sales and payments of reportable death benefits under certain life insurance policies. Without clarification by the IRS, the new Section 6050Y of the IRC could be interpreted to apply to the acquisition of certain life insurance contracts in connection with a corporate merger or acquisition, including merger of or acquisition involving a bank that owns BOLI. The consequence of such an interpretation could be that the transfer of ownership of the BOLI as part of an otherwise tax-free bank merger or acquisition transaction might result in a reportable policy sale under Section 6050Y and possible tax liability resulting from the policy sale. The proposed amendments to the IRS’s rules would generally exclude a transfer of BOLI in connection with a bank merger or acquisition from the new income tax and information reporting requirements, and maintain the current tax treatment of BOLI policy death benefit proceeds.

4. FDIC Rescinds Part 350 Annual Financial Disclosure Statement Requirements

The FDIC has adopted a final rule to rescind and remove Part 350 of the FDIC’s rules and regulations, entitled Disclosure of Financial and Other Information by FDIC Insured State Nonmember Banks. The FDIC announced on March 8 that it would eliminate the Part 350 annual disclosure statement requirements to simplify its regulations. The FDIC's final rule rescinding and removing Part 350 will take effect on April 17, 2019. In addition, the FDIC announced that state nonmember banks will not be required to prepare and make available to the public the disclosure statements containing financial data for 2018 and 2017 that would otherwise be required under Part 350 prior to April 17. Click here for a copy of the final rule.

Nutter Notes: Part 350 of the FDIC’s rules and regulations requires insured state nonmember banks to prepare, and make available to the public, annual disclosure statements consisting of certain financial reports and other information, such as enforcement actions, that the FDIC may require of individual banks. Part 350 does not apply to insured state savings associations. In announcing its decision to rescind the rule, the FDIC stated that technological advancements since Part 350 took effect in 1988 allow the public to access more extensive and timely information on the condition and performance of FDIC-supervised institutions through the FDIC’s website. Information about enforcement actions against individual banks is also available through the FDIC’s website. Considering the public availability of information through the FDIC’s website that is equivalent to, or more extensive than, the Part 350 disclosure requirements, the FDIC determined that Part 350 is outdated and no longer necessary.

5. Other Developments: Paid Leave and PACE Loans

  • Applications for Exemptions from New Family and Medical Leave Program Contributions to be Accepted Starting in April

Massachusetts employers, including banks, that already offer paid leave benefits to their workers will be able to apply beginning in April for an exemption from new requirements to collect, remit, and pay a new tax intended to fund a Massachusetts paid family and medical leave program. The Massachusetts Department of Family and Medical Leave (“DFML”) announced on March 20 that employers that offer workers a plan at least as generous as the benefits provided by the new state law will be able to apply for an exemption starting on April 29, 2019.

Nutter Notes: According to the DFML, Massachusetts employers will be able to apply for an exemption from the medical and family leave contributions through MassTaxConnect accounts. Click here for the DFML’s answers to frequently asked questions about paid family and medical leave for employers.

  • CFPB Seeking Information about Residential Property Assessed Clean Energy (PACE) Financing

The CFPB on March 8 published an advance notice of proposed rulemaking to ask the public for information to better understand residential Property Assessed Clean Energy (“PACE”) financing in preparation for developing regulations to implement Section 307 of the Economic Growth, Regulatory Relief, and Consumer Protection Act (EGRRCPA). Section 307 of EGRRCPA amends the Truth in Lending Act (“TILA”) to direct the CFPB to issue regulations relating to PACE financing that carry out the purposes of TILA’s ability-to-repay (“ATR”) requirements.

Nutter Notes: Section 307 of EGRRCPA also directs the CFPB to apply TILA’s general civil liability provision for violations of the ATR requirements the CFPB will develop for PACE financing. Under Section 307, the regulations must “account for the unique nature” of PACE financing. Public comments in response to the CFPB’s request for information are due by May 7, 2019. Click here for a copy of the advance notice of proposed rulemaking.

Nutter Bank Report

Nutter Bank Report is a monthly electronic publication of the Banking and Financial Services Group of the law firm of Nutter McClennen & Fish LLP. Chambers and Partners, the international law firm rating service, after interviewing our clients and our peers in the profession, has ranked Nutter’s Banking and Financial Services practice among the top banking practices in the nation. Visit the U.S. rankings at ChambersandPartners.com. The Nutter Bank Report is edited by Matthew D. Hanaghan. Assistance in the preparation of this issue was provided by Thomas J. Curry, Jason J. Cabral and Heather F. Merton. The information in this publication is not legal advice. For further information, contact:

Thomas J. Curry 

tcurry@nutter.com

Tel: (617) 439-2087

Kenneth F. Ehrlich

kehrlich@nutter.com

Tel: (617) 439-2989

Michael K. Krebs 

mkrebs@nutter.com

Tel: (617) 439-2288

This update is for information purposes only and should not be construed as legal advice on any specific facts or circumstances. Under the rules of the Supreme Judicial Court of Massachusetts, this material may be considered as advertising.

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