The Wall Street Tax Shelter That Crashed Your Local Transit Agency

redline.jpgThe scene of Monday's Metro crash in D.C., where the local transit agency still has 15 outstanding "SILO" tax deals. (Photo: AP)

The D.C. Metro accident that killed nine riders this week has renewed calls for rail safety upgrades and reminders that car travel remains far riskier than transit. But the crash is also shedding light on a problem that goes beyond Washington: tax shelter deals between banks and struggling transit agencies -- deals that were given a retroactive pass by Congress even though the IRS considers them illegal. 

The tax shelters at issue are called "sale in, lease out" deals, also known as SILOs. Starting in the 1980s, local transit agencies began selling rail cars and other equipment to Wall Street firms, which would then turn around and lease the goods back to the agencies.

Why would either side want to get into such arrangements? Sarah Lawsky, an associate professor at George Washington University Law School, has explained the situation in detail. But the short answer is that banks got tax write-offs for their newly leased transit equipment, while local agencies got a cash benefit for giving away tax deductions they could not use.

Congress outlawed SILOs in a 2004 tax bill sponsored by Sen. Chuck Grassley (R-IA). His original language was retroactive, Grassley's office said yesterday in a release, "but was watered down during conference negotiations to apply only prospectively."

That exception for existing SILO deals was added by Congress amid fierce lobbying by both Wall Street and urban transit agencies, as the Wall Street Journal reported at the time.

The Internal Revenue Service declared SILOs illegal in 2005, prompting some banks to accept lower payments in settlement deals with transit officials. However, Lawsky noted in an interview that some banks -- inspired by the congressional exemption -- have decided to try their luck in court with transit agencies.

"Some people want to settle and take 20 cents on the dollar," she said. "Some people want to say no ... we entered into these deals before the statute."

It remains to be seen whether the SILOs played a role in this week's D.C. Metro crash. But when federal safety inspectors asked the WMATA, which runs the D.C. Metro, in 2006 to replace its aging Rohr series rail cars -- the model that crumpled in this week's crash -- the agency declined.

WMATA was "constrained by" SILO leases from phasing out the Rohr cars, it said.

And that's just the beginning of the fallout from the tax deals, which have affected transit systems all across the country.

AIG served as a guarantor for many SILO deals, and its collapse late last year prompted several banks to seek "termination payments" from transit agencies that were otherwise up to date with their SILO leases. D.C.'s WMATA, in fact, was one of those transit networks fighting legal battles over AIG's unraveling.

A report released by Moody's Investors Service in March found that 17 of 25 major transit agencies embroiled in SILOs had lowered their risk by renegotiating with banks in the aftermath of the credit crisis. But that doesn't mean urban transit systems are all out of the woods -- Atlanta's MARTA transit agency was left with a $390 million exposure even after unwinding many of its SILOs, according to Moody's.

Meanwhile, congressional Democrats are still trying to convince the federal government to step in as a guarantor for the transit deals. After former President Bush declined to hear their appeals, Reps. Jim Moran (VA) and Chris Van Hollen (MD) inserted language into a January bailout-reform bill that would give Treasury backing to SILOs, but the bill was never taken up by the Senate.

Sen. Robert Menendez (D-NJ), whose home-state transit agency faces $150 million in looming bills from SILOs, introduced a bill this week that would impose a 100 percent windfall-profits tax on any payments requested by banks. In a statement on his proposal, Menendez said:

Development of our mass transit systems is going to help us get out of this economic crisis and create long term economic security. If some of the nation’s most heavily-used transit systems were forced to pay tens of millions of dollars to banks seeking a windfall, that would not only hit millions of commuters today, it would slow the wheels of our economy.