In using CET1 as defined in CRR/CRD IV as the relevant capital definition, the comprehensive assessment takes the competent authorities choices previously made at the national level with regard to discretions granted in the CRR as given, in particular with respect to the phase-in rules. However, their implications for the stringency of capital requirements in the transition period to the full application of the deductions (and, hence, the horizon of the comprehensive assessment) cannot be ignored.
Within the limits of the framework in place, the comprehensive assessment thus relied on the most stringent interpretation of CRR rules possible given the constraints of national rules. The most significant choice in this regard was the treatment of modifications of transitional arrangements undertaken after their initial adoption. Such modifications in individual jurisdiction – complementing or changing the content of the initial transitional arrangements – were not taken into account for the calculation of the comprehensive assessment results. This applied, for instance, to national decisions not to fully deduct goodwill or holdings of own funds instruments of a financial sector entity according to Article 49(1) of the CRR or Article 471(1) of the CRR that were taken after the initial CRR implementation in a given Member State. In some jurisdictions, the CRR rules were put in place after 1 January 2014, but with an effect as of 1 January 2014. In those cases their effect was accepted as they represent the initial implementation of CRR/CRD IV.
If the bank concerned was already permitted under CRDII/III not to deduct the holdings of own funds of a financial sector entity and the new decision according to Article 49(1) or Article 471(1) of the CRR was only taken to confirm this treatment under the new CRR/CRD IV a deduction was not required. The same applied if a permission not to deduct was granted in 2013 with a view to the CRR implementation.
In case where a bank faces a shortfall in the Comprehensive Assessment, any positive capital effects of the non-deduction of significant holdings of own funds of a financial sector entity that arise due to the application of Articles 49 (1) CRR or 471 (1) CRR after the initial implementation may only be considered in the bank’s capital plan. However, the JST in charge will, in this context, assess whether the conditions as defined in both Articles are actually fulfilled.
8.2.3
TREATMENT OF DEFERRED TAX ASSETS
The preceding section discussed, inter alia, the CET1 capital deductions due to deferred tax assets (DTAs). This section provides more detail on the various types of DTAs and their treatment across countries and participating banks.
As mentioned in the preceding section, the CRR differentiates between three types of deferred tax assets:
DTAs that rely on future profitability and arise from temporary differences.
Other DTAs that rely on future profitability.
The delineation between DTAs that do not rely on future profitability and those that do is crucial in this context. The regulatory and accounting treatment of different types of DTAs is reflected in the calculation of tax effects in the comprehensive assessment.
For those DTAs that do not rely on future profitability, the bank in question does not need to generate taxable profits to realise their full value. The CRR prescribes that these DTAs do not need to be deducted from banks' CET1 capital. The existence of such DTAs is largely driven by tax laws transforming the DTAs into assets that are guaranteed by the government, e.g. tax credits. By 31 December 2013, Spain and Italy had already passed such tax laws. In the period from 1 January 2014 to the publication of this report, both Portugal and Greece have passed tax laws that effectively state guarantee DTAs or are in the process of doing so. The comprehensive assessment results reflect the effect of the tax laws passed in Spain and Italy. Due to the timing of their respective implementation the new law in Portugal is reflected in the stress test but not in the AQR, whereas for Greece they will be accounted for in banks' capital plans, conditional on the fulfilment of certain requirements, given that the implementation of the respective law is still in progress.
The ECB notes that this transformation of DTAs does not create new capital compared to the past and that those conversions increase the loss absorbing quality of DTAs, but it should be pointed out that such a tax law change brings with it a number of macro-prudential implications. As stated in the ECB's opinion on a draft Portuguese law about Deferred Tax Assets,109 the conversion of DTAs into assets guaranteed by the State may reduce the incentive and/or the regulatory need for shareholders to inject fresh capital into credit institutions. Furthermore, compared with the recapitalisation of the banking sector with cash provided by private investors, the DTA/tax credit scheme may create an additional debt burden for the State, irrespective of the statistical treatment of the scheme; it may strengthen the adverse link between the sovereign debt and participating credit institutions and be less favourable in comparative terms from a bank liquidity perspective.
The value of DTAs that do rely on future profitability can only be realised to the extent that a bank actually generates taxable profits in the future. This is reflected in both accounting rules and the regulatory treatment of DTAs under CRR. IAS 12 states that DTAs shall only be realised on the balance sheet to the extent that it is probable that taxable profit will be available in the future against which they can be utilised. CRR requires DTAs that rely on future profitability to be deducted from CET1, with a modified treatment for the sub-category of such
109
Opinion of the European Central Bank on Deferred Tax Assets, 3 September 2014, CON/2014/66. See Appendix 9.4 for further details.
DTAs that arises from temporary differences between the book value of an asset or liability in the balance sheet and its tax base. As mentioned in the preceding section, the CET1 deductions are subject to phase-in rules, i.e. they only have to be applied gradually during the first years of CRR being in force.
The figure below shows the stock of DTAs that rely on future profitability held by banks by country at the starting point of the AQR. The aggregate stock prior to the comprehensive assessment amounted to around €105.6 billion, equivalent to around 10.6% of aggregate CET1 starting capital. Country-level differences in absolute stocks are, to a significant degree, driven by the size of the banks, but the DTA stock in relation to banks’ CET1 indicates differences in practices with respect to their recognition on banks’ balance sheets.
Figure 76 Stock of DTAs requiring future profitability, pre-AQR
0% 5% 10% 15% 20% 25% 30% 35% 40% 45% 0 5 10 15 20 25 30 GR PT¹ IE CY ES DE FR NL BE LU IT AT SK MT LV SI LT FI EE Sto ck o f DT As % o f s ta rt ing CE T 1 Sto ck o f DT As ( € bil lio n)
Absolute DTAs that rely on future profitability pre-AQR
DTAs that rely on future profitability pre-AQR relative to starting CET1
1. Figures do not reflect the effect of the new tax law that was implemented in Portugal in 2014 (i.e. after the AQR reference date).
Limits in this respect are determined by a combination of country-specific tax laws and statutory auditors’ judgement in assessing the probability of banks being able to generate sufficient taxable profits in the future in relation to the stock of DTAs.
The latter is a bank-specific factor that can lead to significant differences between banks within and across jurisdictions. Comparing the stocks of DTAs that rely on future profitability with the annual amounts of tax paid, bank-level divergences regarding the recognition of DTAs become apparent. By dividing those DTA stocks by future annual tax expense one can determine an approximate number of years of profits that a bank would need to realise the full value of its
DTAs relying on future profitability. This figure is an approximate indicator of how strict practices on DTA recognition have been.
Calculating it using the participating banks’ average tax paid under the baseline scenario of the stress test as the relevant estimate of future annual tax expense, one finds that the vast majority of banks (a total of 75) hold stocks of DTAs relying on future profitability that are equivalent to five years or less of annual tax expenses. The total stock held by those banks amounts to approximately €41.7 billion. For another ten participating banks, holding a stock of approximately € 27.3 billion, the figure lies between six and ten years.
For individual institutions, however, the total stock exceeds those numbers many times over, making their stock of DTAs relying on future profitability appear large in relation to estimates of future taxes. Realising the full value of those DTAs would require baseline taxable profits generated over significantly more than 10 years in some cases. 31 participating banks are not projected to make profits during the baseline scenario, but those banks nonetheless hold around €15.7 billion of DTA stock.
It should be noted that the calculations above are based on the profits (and the related tax expenses) projected in the baseline scenario of the stress test. Those are, by nature, forward- looking estimates, and as such, subject to uncertainty. For banks which will manage to significantly outperform their forecasts in the baseline scenario in terms of profitability, the indicator may thus turn out to be overly conservative. However, the opposite applies to banks that will underperform relative to the projections.
It is important to recall that the CRR allows competent authorities to set the percentage for the deduction of DTAs relying on future profitability at 0% in 2014 for DTAs which have existed before 1 January 2014 (i.e. those shown above), increasing by 10% each year until 2023. Depending on competent authority choices, this implies that, while the negative CET1 impact of the existing DTA stocks may not yet be very severe at the current stage, it will gradually become more so and is likely to be significant for some banks in the later stage of the decade. The SSM will thoroughly look into the matter of DTAs which are solely dependent on future profitability as part of its assessment of the capital quality of its supervised banks.