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December 22, 2005

The stench of tax gross-up payments, Thurs., Dec. 22, 2005, 5:50 PM

Mark Maremont of the Wall Street Journal writes an interesting story today. I'll give you a snippet below. This is a well-written piece, and is a story that has legs. The point is, are shareholders being misled by the failure of public companies to transparently disclose full compensation to executive officers, and what is the SEC going to do to put a stop to it?

We're not talking chump change here. What we are talking about, to be precise, is more rip-offs of the shareholders by the management of these public corporations. We're talking about deceit on a massive scale.

Under the microscope at WSJ in today's newspaper are little-known payments, called "tax gross-ups," which, they point out, are "often buried in impenetrable footnotes or obscure filings".

These payments are so well hidden that the WSJ reported: "compensation experts say it's hard to know for sure if more companies are paying gross-ups. ...The Securities and Exchange Commission is conducting a broad crackdown on hidden compensation of all types, although it hasn't yet focused on gross-ups. The agency worries that investors may not realize just how much senior managers are paid beyond their base salaries."

I say that (i) shareholders are clearly misled by reported executive compensation numbers that do not include taxes paid on them, (ii) the information being reported to shareholders is a fraud if it misrepresents the facts, and (iii) it's time for Eliot Spitzer to move in, if the SEC refuses to.

Since the WSJ story focuses on Home Depot (NYSE: HD), I'm sure Eliot is just shaking his head at the prospect of yet another fight with Kenneth Langone (founder of Home Depot). But Eliot, you have to do what you have to do.

If Home Depot paid the taxes and conferred other benefits on all 300,000 of its staff, including the cashiers and warehouse staff, then the shareholders have a right to know. Who at HD presumed they had the right to keep it secret as to how much the CEO is really being paid? This is after all, a public company.

You know I'm getting totally fed up with the thinking of people in management and on boards of these companies who think a public company is really a private fiefdom! You read this material from today's WSJ (Dec-22-05) and tell me I don't have a point, and I'll gladly publish point and counter-point.


"Like most Americans, rank-and-file employees of Home Depot Inc. must reach into their own pockets to pay taxes.

But not Robert Nardelli, the home-improvement retailer's chief executive. Under his employment contract, Home Depot picks up a big chunk of his federal and state income taxes. Specifically, the company is obliged to reimburse its CEO for taxes due on a slew of perks, including a high-end luxury car, his family's travel on Home Depot jets and forgiveness of a $10 million loan. Last year, these payments amounted to at least $3.3 million, topping Mr. Nardelli's $2 million base salary.

Amid soaring CEO compensation, a number of companies are paying extra sums to cover executives' personal tax bills. Many companies are paying taxes due on core elements of executive pay, such as stock grants, signing bonuses and severance packages. Others are reimbursing taxes on corporate perquisites, which are treated as income by the Internal Revenue Service. They run the gamut from personal travel aboard corporate jets to country-club memberships and shopping excursions.

"This smacks of Leona Helmsley-like treatment, that only little people pay taxes," says Patrick McGurn, an executive vice president of Institutional Shareholder Services Inc., an influential adviser to big investors that often critiques companies' corporate-governance practices. For these top executives, he says, companies "are removing taxes from the list of inevitable life experiences, leaving only death."

In its 2005 proxy statement, Home Depot didn't disclose many of the perks it must give Mr. Nardelli, or that the company is required to reimburse him for taxes related to those perks. The company provided specifics of these benefits and the gross-ups in his employment agreement, which was attached to a 2001 regulatory filing.

A spokesman for Atlanta-based Home Depot wouldn't discuss the details of Mr. Nardelli's compensation. In a written statement, the spokesman says: "Consistent with the company's philosophy of attracting and retaining the highest performing leadership available, gross-up payments are sometimes utilized as a part of compensation to achieve a net after-tax effect." He also says the company "fully complies" with disclosure rules.

Gross-ups first started gaining widespread acceptance in the 1980s after Congress slapped a 20% special tax on multimillion-dollar "golden parachute" payments for executives who lost their jobs in mergers. At the time, Congress was reacting to public outrage about corporate pay packages. It designed this new "excise" tax to kick in if an executive's payout equalled or exceeded three times his average compensation over the prior five years. The excise tax is levied on top of regular income tax, which affected executives usually pay themselves.

Instead of curbing pay, the law had the opposite effect. Some companies adopted gross-up plans to cover the new tax and eventually that became common practice. In part, consultants say, boards were trying to make the severance process fairer. Because of a quirk in the law, executives paid the same amount of severance could end up being hit with widely varying amounts of excise tax depending on what they earned in previous years.

In an effort to shield executives from any tax bite on their pay, gross-ups can quickly spiral into huge sums. When a company reimburses executives for their tax payments, that creates new taxable compensation. The company then has to cover taxes on that new amount, which creates yet more taxable pay, and so on. The spiral ends when the ever-decreasing amount of new income reaches zero, or close to it.

The bottom line: Grossing up an executive for taxes on $1 million can easily cost an additional $700,000 to $900,000. In some circumstances, gross-up reimbursements can be more than double the covered pay.

Companies say they have to offer generous pay packages, including gross-ups, to attract top executive talent. For most corporate executives, these tax benefits are often a relatively small portion of total pay.

Tax gross-ups have proliferated for one major reason, many compensation experts say: They allow companies to quietly pay more to top managers at a time when executive compensation is increasingly controversial. The current rules don't require companies to disclose tax reimbursements separately in pay tables given to shareholders.

Instead, gross-ups tend to get lumped into a category called "other annual compensation" in companies' proxy statements. The details are then relegated to densely worded footnotes. Even there, some companies don't disclose the exact amounts of gross-up payments.

According to a study done by compensation-research firm Equilar Inc., 52% of companies disclosed they paid gross-ups to one or more top executives last year, up from 38% in 2000. The study, which was done this month for The Wall Street Journal, examined the U.S.'s 100 largest companies by revenue and counted those for which public filings could be found in both periods."


These tax gross-up payments are made, not because management demands them, but because they can get away with hiding them from the employees and shareholders.

This situation is like a barrel of dead fish, each stinking from the head.

Wall Street Journal ought to be commended for running the story. If you can, I hope you buy the newspaper because it happens to be a much larger story than what I reproduced here.

Shareholders have been deceived. Now it's time for Eliot Spitzer to do his thing.

Posted by Posted by Bill Cara on December 22, 2005 05:50:36 PM | Category: Cara Investment Reports

Discourse

Bill,
What gets me is that Gasparino has been pushing Langone's agenda on CNBC that Spitzer's pressure has been hampering business and it needs to stop. If this kind of stuff takes place with all the "so called" scrutiny thats already in place, what will they pull when the curtains are drawn? Another thing that bothers me is that these companies will point out rising healthcare costs, expensive pension obligations, cry about expensing options, and then cut benefits in the name of corporate profitability but have the money to allocate to pay the taxes on exorbitant pay packages...is there a disconnect here or is it just me..I'm all for making money but this takes the cake! btw great commentary by you! Merry Christmas!

Posted by: tommy [TypeKey Profile Page] at December 22, 2005 6:37 PM [link]

Tommy,

The Little People get it. CNBC has run a smear-Spitzer campaign for a week now. I like to say, "Shame on them!" But I do that every day. If the Big Apple has a worm in it, we know where to look.

Eliot, please do your job, and I'm sure it'll lead direct to the White House. The last occupant promised he'd clean things up, but all he did was bring in his mess from Texas.

I'd like to think either Spitzer or Frist would put things back on the right track.

Red or blue, all the Little People desperately want is a modicum of integrity.

Posted by: Bill Cara [TypeKey Profile Page] at December 22, 2005 6:57 PM [link]