Back to basics: Consolidation—Identifying a VIE

0:00Thought Leadership from PwC's National Office.

0:07Hello, and welcome to PwC's Accounting Podcast. I'm Heather Horn. Today, we're continuing our back-to-basic series on consolidation accounting, where we're revisiting some of our favorite conversations with Matt Sabatini, a Deputy Chief Accountant in PwC's National Office, and Alexander Martin, a partner in PwC Steals Practice, to break down the framework step-by-step. In our first episode, we covered some of the background on the consolidation framework, including the two consolidation models under US GAAP, an overview of the VIE model, and the first step in that analysis, determining whether a scope exception applies.

0:49In today's episode, we move to the next step, determining whether the entity is a variable interest entity or VIE.

0:59Matt and Alexander start with some important groundwork, including understanding the purpose and design of the entity, identifying variable interests and at-risk equity, and then they walk through the characteristics used to determine whether an entity is a VIE. This is one of those areas where the details can add up quickly, but having that foundational understanding makes the rest of the analysis much easier to follow. With that, let's listen to my conversation with Matt and Alexander. We're going to be talking about step two of that model, right? So I think Matt broke it down into three easily digestible steps, right?

1:34When we're applying the VIE framework. So step one that we talked about last episode was determining if a scope exception applies, right? If not, then we're at step two, where we have to figure out whether the entity is a VIE, right? And specifically, there's five characteristics that the FASB laid out, and we're going to walk through each one of those. All right, perfect. So with that, then, again, just level setting, we're assuming we have a legal entity, and that none of the scope exceptions apply. And so long story short, that I'm in scope of ASCE 10. And just reminder to listeners that you do have to evaluate if you have a VIE before you just jump straight to the VOE or voting model.

2:16So this important reminder we talked about last time. So with all that said, then Matt, what does step two look like? Right. So step two is like Alexander said, determining whether or not the entity itself is a variable interest entity. And I know we keep saying there's three simple or easy steps, but we're totally lying when we say that. Exactly. Okay. Cause there are lots of little steps in between and we're just hiding them into the bigger steps. Yes. Well, and none of them are simple. So right. Because you're going to be annoyed when I say, I'm not really going to jump into the first characteristic just yet and identifying whether something is a variable interest entity because we have to do a few things first.

2:51Oh, yes. Okay, I was not prepared for that. I know. That's because we hit it. And just for our listeners' benefit, even the heading of this section is called determine if the entity is a VIE. Yeah, so we're hiding it even from you. Yes, thank you. Well, because again, we're just trying to make this a little bit easier to follow. So it's easier to get your head around three steps than it is 16 steps. So we're burying this in step one, but this is a very important kind of precursor to evaluating the five characteristics. So the first thing I'll say is it's very important. And this is one of the changes the FASB made back in 2009-ish was really focusing on what the purpose and the design of the entity is that you're looking at.

3:32The reason why, right, is because generally we're thinking about entities here where there's significant rights or significant economics that are held outside of the equity interest. And we want to understand why, right? We want to understand why the entity was set up that way. What was it designed to achieve? What are its operations? Because that's really the only way to understand how these contractual relationships or these outside of the equity interest relationships mean anything, right? And whether or not they should be determining who should consolidate. So because of this, right, the VIE guidance is really focused on understanding structure of the entity, understanding who holds what interests and in what form.

4:12understanding things that maybe aren't necessarily interest in the entity, but are interests around the entity. So you're going to want to look at relationships between kind of interest holders in the entity as well. All of this is really coming down to what we're doing now is identifying what are the variable interests in the entity. And the reason we're holding off on this is the terminology does get confusing, right? Because you can hold a variable interest, which is really a contractual relationship in an entity, but that entity might not be a variable interest entity. So that's why, again, we wanted to try to introduce this concept slowly.

4:45And when I say variable interest, I'm going to simplify it, right? Because it really is what I've been talking about. It's a contractual relationship or an interest in an entity that exposes you to some kind of economic risk or reward, right? So it's really something like an interest where, the other way to think about it is an interest where the value of that contract that you hold changes based on the changes in the value of the entity's assets. Okay. Simplest example is equity. Now we're talking a lot about equity being important in the voting model, but it can also be important in the variable interest model.

5:14So equity is a contract, right? It gives you the rights to the residual economics in an entity. Its value change is very much proportional to how the value of the assets and the entity changes. So you're the holder of the equity. The value of your instrument is going to be directly related to the value of the entity itself. Therefore, it's a variable interest. All right. That makes sense. Any other examples you could give, though, that kind of could help people get their head around it? I, of course, immediately jump to power contracts, but maybe you would like to give something outside of the power and utilities industry.

5:46Yeah, I think those are the hardest ones to try to describe. So only because I don't come from that industry. Yeah, I mean, I'll give you a concept first. Right. And again, to try to help people understand it's generally things that you would think about as being on the right side of the balance sheet on the credit side of the balance sheet. So I mentioned equity. So common and preferred. Those are things that are exposed to economics of the entity, but also debt guarantees, whether subordinated or senior. The value of those instruments, again, are related to the value of the assets of the entity and they're on the right side of the balance sheet.

6:17So those are generally pretty simple examples of what variable interest would be. I mean, harder ones would be things like put in call options, other derivative instruments, leases. Those really depend on the nature of the contract itself and what the design of the entity is. Because sometimes those are exposed to economic risks and rewards of the entity. Sometimes those are the things that create value in the entity. And that's really what I think where it gets very complicated. And that's why I just at least want to touch briefly that it goes beyond just equity. And I know we're going to get more into this.

6:49I'm jumping ahead. I don't know. It's okay. And we do in our consolidation guide, which we've mentioned a couple of times on the previous episode, we have a pretty good listing of examples of things that are oftentimes variable interest, things that may be variable interest, and kind of some qualitative guidance around how to think about some of the more complicated contractual relationships with entities. One of the examples that always sticks out in my mind is a decision-maker contract. It's not something that like an everyday person understands really what that is, right? But maybe a management agreement?

7:19Exactly. So the best way to think about it is a management agreement or anything that gives you the ability to kind of exercise power over the assets of the entity. Right. So it could be in the power utility space where you have an O &M agreement. Maybe that's a decision maker contract. We frequently see it in asset management space where the investment manager, the GP, has the ability to control what kind of investments. Yeah, I think hotels sometimes have these types of arrangements as well. Absolutely. And oftentimes those can be variable interest. But again, you're looking at the nature of the contract itself and the guidance has specific criteria to work through, which we're not getting into in a ton of detail, but it really does relate to pricing, exposure to economics, whether or not you have other variable interest in the entity.

8:00But those decision maker contracts may or may not be variable interest. And that has a huge impact on the rest of the analysis. So then, Matt, just maybe one other point here, that when you're thinking about these interests, it's not every interest you need to think about. So that's right. I think you would ignore generally things that are non-substantive. So terms and conditions that don't have any substance to them really shouldn't weigh into your thinking about the purpose and design of the entity or whether or not the contractual relationship is a VI because you would ignore things that are non-substantive.

8:27So the guidance actually specifically says that. And there's another section in the guidance, which I think is helpful, that says you don't necessarily rely on the legal or accounting determination or characterization of a contract to tell you whether or not something is a variable interest. So that's also helpful. It's really dependent on looking at the entity itself and, again, understanding its purpose and design when making that call. All right. So long story short, sometimes it's obvious that something's a variable interest. Other times you need more analysis. But either way, you need these variable interests to have a variable interest entity, but you can have variable interests and not have a variable interest entity.

9:02Is that fair? Yes. All right. So we kind of, I think, got through that. Although clearly, if someone is dealing with that, they might need to look for more guidance. But let's assume we've passed the test. We do have variable interest. So then, Alexander, going back to you, then now are we going to the five characteristics? Unfortunately, not yet. Right. We still have some more to do. Are these stuffs like 2.1 and 2.0 or something like that? That's right. Romanet 3.a. Yeah, exactly. No. So we do all of this to Matt's point, right? There's the reason the guidance was written was basically to try to figure out, OK, I need to understand the structure and design of the entity.

9:40And that requires us to basically look at almost everything. Right. And so I will say the silver lining is the upfront homework that we're going to do is actually going to pay off later because the later steps in the model assume that you already did this. So our later episode is going to be a lot more streamlined because we're just going to reference, hey, remember when we said the variable interests? This is what you got to do with them when you're looking at them. So our next step, though, right, we identified all of the variable interests in the entity. Right now we need to figure out if we actually have one, if our interest constitutes a variable interest.

10:11Right. So if not, right, this is the good news. I can stop my analysis. Right. You have to have a variable interest in an entity in order to consolidate it. So if I had something like a management contract that Matt had mentioned and I determined it wasn't a variable interest based on the criteria and that was my only interest in the entity, then I get to stop. Right. I get to go home and party. Right. But if not. Right. Then assuming I do have a variable interest and I have to then determine who the at risk equity group is. Again, I'm using my air quotes. Yeah. So can I just go back to this management contract for a moment?

10:44So then one thing I think that can be confusing is it sounds like what you said is that in some cases, for example, you could have a management agreement and it could be a variable interest. But in other cases, a management agreement may not be. So it's not always sort of cut and dried. So what can you just give an example on each side of that? Sure. So an example where let's say I have a plain vanilla management agreement where I'm managing the assets of a real estate entity. right and and i'm getting paid as let's say actually a property manager and i'm just getting paid a market rate and you know if i do my job i get my paycheck and that's it i don't have any other interests in the entity then the guidance would say that's probably not a variable interest right you're basically just a service provider a different example would be hey i'm a property manager but if the entity loses money then my fees are slashed or i may even have to come out of pocket and pay some penalties, right?

11:40In that case, you are exposed to the downside risk in the entity. So that probably would be considered a variable interest. All right. And one thing here, I've been thinking this even in our last episode, but this is not about sustainability. So we're not going to talk deeply about sustainability here. But I do think it's important for listeners that there is an intersection here with the considerations of your organizational boundaries for a sustainability perspective. That's a whole other episode, but I just, every time you guys mention something, it kind of clicks with those frameworks as well.

12:11So I just want to remind our listeners that the sustainability reporting and accounting are not completely separate ideas. So good public service announcement. Exactly, thank you. All right, so let's keep going though here. So we've now said we have a legal entity, we don't meet a scope exception, the entity itself has variable interests and we have a variable interest in the entity. So the next step is to identify quote at risk equity. That's right. That's right. So when we get into the test, which I promise we will, right? All of the tests really you'll see are kind of designed or centered around basically trying to determine whether the equity behaves like traditional equity, right?

12:53And so all the tests are really asking, okay, well, do the equity holders have this characteristic or can the equity holders do that, right? Which, again, should make sense, right? That's the whole point of this guidance, right? If we can use equity as an indicator of control, and then we can apply the voting model, right? But when we're doing this analysis, and they're saying, can equity do this? Or does equity have that characteristic? It makes sense to define what we're talking about when we're saying equity. So that's what the FASB did, right? They created a specific definition of equity to use in these VIE tests.

13:24And they called it equity at risk. Sometimes, you know, people say at risk equity, but same thing, right? It's a very specific definition. So in order to qualify for equity at risk, right, an investment has to have two things, right? High level. The first one, it needs to be classified as equity under US GAAP, right? So this one's generally straightforward, right? If it's reported as GAAP equity in the financial statements, it meets this characteristic, right? But if you have something like redeemable preferred stock that's classified as a liability under US GAAP, then even though it's legal form equity, it's not GAAP equity.

13:56So it wouldn't meet this criterion. The second one is then I got my gap equity and now need to determine whether it's at risk, right? And so there's a few criteria here, but the real idea is that it needs to act like traditional equity. So it needs to participate in both the upside and the downside in the entity. And the other one is that the holder needs to have skin in the game. So they needed to pay for their equity interest, right? Their interest can't be financed for them either by the entity or other people involved with the entity. So an example of this that we typically see come up is around sweat equity, where an investor is granted equity for either their past efforts or future efforts that they're going to provide to the entity.

14:35Question is, OK, well, is that sweat equity at risk? And the answer is no, because that equity was financed for the investor. So it's viewed as being not at risk. And I think just to clarify, I want to make sure this is right. If we are talking about this at-risk equity, we don't have to be the holder of the at-risk equity. So I have a variable interest. We gave this example of the management contract where I have downside risk, no upside risk. So if I was just thinking, oh, that doesn't meet this at-risk. But what you are saying is, no, this is an overall evaluation. Does anyone have at-risk equity?

15:11That's right. Because it's going to come into play later on the specific characteristics. the characteristics are going to say, do the equity at risk holders have this characteristic? And that's going to dictate whether or not the entity is a VIE. So even if our interest is in an at-risk equity interest, we still need to know it to do the VIE test. All right. And then another question, follow-up question is, I actually just did an episode with Chip Curry. We were talking about mezzanine equity. So how does that fit in? Do you consider it as equity or do you consider it as debt? Because as listeners to the episode will know, can be both or not at the same time, but one or the other.

15:46It's a great question. The short answer is it depends, right? So even though they're technically considered gap equity, you have to look at all of the characteristics and understand the instrument in a bit more detail to understand if it would be considered at risk for VIE purposes, right? And there's a lot of other questions that come up with whether certain instruments are viewed as at risk equity or not. But the big takeaway is that you do have to have an understanding and identify the at-risk equity group because that's the baseline that we're using to do the testing. All right. So and it sounds like that's something we can save again for another podcast or someone could look at our very excellent consolidation guide for more information about that.

16:26So I'm almost afraid to ask. I think we've gone through either two or three steps since we said we were going to start talking about step two in the model. So that math doesn't quite work. But are we now finally ready to evaluate the characteristics of a VIE? So, yeah, we're ready to go. We've identified the at-risk equity holders, and we've identified which equity in the entity is considered at-risk. The reason I said it like that is because not only do we want to know who holds the equity at risk, we want to understand how much equity at risk there is. And that gets us into characteristic one, right?

17:00Really evaluating the entity itself to see if it has sufficient equity at risk. What I mean by that is it has to have enough equity at risk to allow the entity to finance its current operations without additional subordinated financial support. That's a defined term in GAP. I'm never going to use it again on this podcast, I promise, because it doesn't really have a satisfying definition in GAP. So I'm going to try to explain to you what it means. So when we're looking at this characteristic, remember the whole fundamental concept here is we're trying to figure out if the voting model should apply or the VIE model should apply.

17:35right voting model relies on voting rights with common equity if there's not a substantial amount of common equity why would we look to the voting rights it doesn't really make a lot of sense to let that dictate who should consolidate um and i guess matt just to simplify here you're basically saying is there a party that has money that they could lose if something goes wrong or that can make a ton of money if something goes right i want to make sure that that party is an equity holder Right. And not some other instrument holder. You got it. Right. And I want to make sure there's enough of that equity.

18:07That's right. Because if there's just a very small amount, then the voting rights should probably and often are meaningless. Right. Because somebody else really is calling the shots if they're the ones exposed to most of the risk. Right. And I think we talked about this in the last episode. And this does not just apply to structured entities. But sometimes I think it is helpful to think of it in that context where you have this very structured entity, very minimal equity. All the decisions and all the interests are held by people other than the equity holders. It's sort of a classic example. Right.

18:38If you remember before the FIN46R rules came out, everyone said, well, 3 % equity is enough for an SBE to be not consolidated. Right. And that's kind of where this one criteria evolved from. Right. was 3 % equity is not enough for an entity to be not consolidated. All right. Said briefly. Yeah. And I know I interrupted you. So what are some examples then? Can you give like - Yeah, so I actually had something in my notes that is a highly structured example, right? Okay, perfect. So if you think about an entity that's 100 % debt financed, like a structured financing vehicle that doesn't have any residual interest, that's going to be a VA because it's got zero equity at risk.

19:13That's an easy one, right? If you think about an entity that's 100 % equity financed and doesn't have equity commitments to keep funding its current operations, generally that's not going to meet this criteria. It's going to be sufficiently capitalized. So that's generally going to be enough. All right. So then, Matt, of course, you made it sort of easy ones where it's very clear it's either 100 % debt or 100 % equity. But what about if it's a mix? You mentioned the 3 % rule that no longer exists. So how do you decide if the equity at risk is sufficient? Good question. So it's really going to depend, and I know we're going to say this a lot, on the purpose and design of the entity, because you're really looking at what the operations of the entity are and whether or not there's enough equity capital to help finance it.

20:00In the guidance itself, there's a presumption that if the total equity at risk is under 10 % from a fair value perspective of the total assets of the entity, then you could presume the entity is a VIE under this characteristic that it's thinly capitalized. So the other way, like if it's greater than 10%, there's no presumption that it's well capitalized, right? And that's where you would have to get into the analysis because you're never really going to be at one of those bookends where it's all debt or all equity. So you're going to be looking at a certain percentage of equity capital, certain percentage that's considered good equity at risk.

20:30You're trying to determine whether or not it's enough. What are the ways to do that? Right. So the guidance has a couple of ways. One is if you're looking at the entity itself and it has a history of and is currently demonstrating that it can fund its own operations without additional support and financial support. I know I was going to say it, but I said it. That's a good example of a situation where it's it's well capitalized. And let me break that down because I'm going to simplify that one a little bit more. So if you're looking at an entity that has enough equity capital that it can actually go out to the market and raise debt at market rates without guarantees from other parties, that's a good example that there's a lender out there that thinks there's enough capital to rely on to be able to provide good financing to this entity.

21:13The bad financing, the guarantees from the parents or like junk bonds that are necessary to finance your current operations, that's really what we mean by subordinated financial support. That's the second time you said it. But I just defined it in a way that I think makes a little bit of sense to the listener. But I do have another example because I do think that this helps. And this is the way I got my head around this was thinking about when you go buy a house. And I know maybe not everybody owns a house, but if you think about it's a simpler concept, right? You have to go get a mortgage generally.

21:43And when you're dealing with a mortgage lender, there's a requirement that you put a certain amount down of your own equity in order for them to lend on the property, right? So they have a security interest, which is nice. And that lets you put less equity down. But generally, if you put 20 % down, the mortgage lender with their security interest is saying, great, I'm going to give you a market-based loan. Don't need any guarantees. And I don't need any insurance. That's kind of the test you're doing with an entity, right? Is do you need any of those guarantees? Do you need mortgage insurance?

22:10Do you have to get your rich uncle to help co-sign on the loan? No, great. You have enough equity at risk to be able to support the current operations. And to be clear, you're not suggesting that you need 20 % equity to be at risk. That was just an example. That's just for mortgage lenders. Exactly. I just want to make sure because then I can just see someone coming to you with a question. I heard you say 20%. Yeah. And there's two other ways to prove you have enough equity. One is you can do comps, right? So you can qualitatively prove that you have other entities that are similar to you that are operating with the same level of equity that you are.

22:42And that's a good way to demonstrate that it's enough. if neither of these qualitative ways get you there, you can jump into a quantitative analysis to prove that you have enough equity at risk. That's complicated. And even if you do a quantitative analysis, you got to then reconcile to some of your qualitative features. So it's not the best way to do it. It's definitely not the starting point. Yeah. I was just going to ask you, and I guess Alexander as well, if you really have seen a lot of companies that have been successful in doing this quantitative analysis to quote, prove that you have enough.

23:12I haven't seen one since like the fin 46 days, right? Yeah, I've seen absolutely zero. Okay, that's good. So just as people are thinking things through, probably not the best path to go down to do that. All right. And maybe to that point, it's very judgmental. Yeah, that's fair. I mean, I think there's a lot of areas of judgment in this one. One that we see a lot that comes up is where Andy expects to receive funding in stages. So that's an area where there's a lot of judgment because you look today and you say, well, if I know I'm going to have to get funding down the road, How do I have enough equity to finance my operations?

23:44But it's not always that simple, right? Sometimes you're doing a project, like think about a biotech that's developing a compound, right? You're in phase one. Are you going to go out and raise all the equity capital to get you to FDA approval? Yeah, no way. So you're going to raise enough to get you to a certain inflection point, right? So you think about the purpose and design of the entity. You think about where those inflection points are, where you're going to have to make another decision. A lot of time, the biotechs are maybe at the end of phase two thinking, I'm either going to out-license, collaborate, or sell, or maybe raise more money.

24:11And maybe that's enough, right? Like to say I have enough equity capital. Not always, but, you know, it's a good kind of rule of thumb to think about where are those inflection points? What's my time horizon? What are my current operations? And do I have any ability to think about smaller chunks of time? So maybe Matt, one last question for you before we go on to characteristics two. And you may have said this. I just want to make sure. So like, let's say you don't have sufficient equity at risk. Do you automatically say you have a VIE or do you have to have all five characteristics to be a VIE?

24:42That's a great question. And it means I didn't emphasize it enough if I did say it. So you only need to meet one of the characteristics in order to be a VIE. So if you're doing the analysis and you are done with characteristic one, you say, I'm insufficiently capitalized, therefore I'm a VIE. Then you don't necessarily have to keep evaluating the rest. Sometimes you may want to just for documentation, completeness, and just in case anything comes up later on where there's a reconsideration, you've thought through everything else. But yeah, you don't have to meet more than one to be a VAE. All right.

25:11That's very helpful. And I think important because, again, each of these pieces of analysis can be very complicated. So if you've already concluded one thing, maybe to your point, you may want to finish your analysis, but you don't need to go to characteristic two. But Alexander, let's assume you do have sufficient equity at risk. So then what do we need to think about? Sure. So characteristic two is all about decision making. So specifically whether the at-risk equity group is the one that's making the most significant decisions about the entity right so the rationale here again should make sense by now this characteristic is really asking okay well if the equity doesn't decide what's going on with the entity then why do i care about who holds the majority of that equity right i should be applying the vie model instead so honestly this characteristic can be a whole podcast by itself as you can probably tell most of the questions at least that i get typically center around determining whether an entity is a VIE.

26:06And then most of those questions actually center around this characteristic. Do the equity holders have power or not? In order to check this characteristic, we need to do a couple of things, right? We first need to identify what are the most significant activities of the entity. Then we need to determine how decisions around those activities are made and if it's the at-risk equity holders are the ones that are making it, right? So taking each one in turn, I'll start with identifying the most significant activities, right? So what are we talking about here? These are the activities that most significantly affect the economic success of the entity, right?

26:38So activities are decisions that meaningfully impact future cashflow prospects, operating metrics, revenues, things like that. This is really entity specific, right? So it's kind of hard to give a broad swath of what the most significant decisions are. But as we mentioned before, this is largely based on the entity's purpose and design, which we should already know by now, as well as there's typically industry-specific considerations and the nature of the entity's operations where you can kind of see if an entity is a real estate entity, there's probably certain decisions that are going to be significant.

27:12All right. But with all of that said, it's still not that easy. So are there some general guidelines you use in considering what are the most important or significant decisions? Yeah. So a lot of things related to strategic direction are going to be viewed as being significant, right? Some other ones that typically transcend industry are things like entering into new lines of business or having new product offerings. A big one that we see are like negotiating and approving significant acquisitions, selecting the management team. So selecting the C-suite, setting their compensation. Those are always typically viewed as being important and significant decisions.

27:51Others are a little bit more industry specific. So I mentioned real estate. So if I imagine that I'm a real estate lessor and I own a single property, some of the significant decisions there are probably going to involve selecting the tenant and establishing the terms of the lease, right? Because that's going to dictate my cash flows over the lease term. And then at the end, right, when the lease expires, the decision whether to sell the property and, you know, make my money, right, realize a return or relet it to another lessee. That's a significant decision that you would probably expect the equity holders to have if they meet this characteristic.

28:26Other industries have other key activities. And so I'll say, again, the world's best consolidation guide, we have an awesome table in section 4.4 that basically lists out key activities generally by industry. You know, it's not an end all be all, but it's a really good starting point if you're if you're trying to look at that stuff. So once we figured out what are the most significant activities, then we need to determine who makes the decisions. Right. and if it's the equity holders or not. And so saying it another way, we basically have to understand how the entity is governed and where the decisions are made about those significant activities.

28:59And this is actually where we get to a bit of a fork in the road. So, you know, step 4.8 point, whatever. But when we're evaluating whether the equity holders have the ability to make the most significant decisions, right? The criteria is different depending on whether the entity is a limited partnership, right? Or maybe saying it even more straightforward, there's special rules for limited partnership. The rationale, though, is that limited partnerships are governed fundamentally differently than like a corporate type of entity, right? Typically, they designate a general partner or a GP that makes all of the significant decisions on behalf of the limited partners, right?

29:32And so because of that, they have different criteria than from corporate type entities to determine whether or not the limited partners have a say-so in the significant decisions, all right? And the real check here is whether the limited partners can block any of the significant decisions that the GP is trying to make, right? If so, then the limited partners are viewed as having a check over the GP's power, which means that they actually have power over those key decisions. So it wouldn't be a VIE based on this characteristic. Another one, if they don't have blocking rights, if they have the ability to remove or fire the GP, right, then that kind of goes without saying that they have power over the GP, which means they have power over the GP's significant decisions.

30:09But if they don't have either blocking rights or kickout rights over the general partner, then the limited partnerships of VIE. And this goes back to something we said in the last episode, right? Just to make sure we are connecting dots, that most limited partnerships are going to end up being variable interest entities because the way we typically see it is that most limited partnerships don't grant the limited partners those rights. All right. That's super helpful. So you just talked about limited partnerships. I assume there's a different model for corporations. But then how do we think about LLCs?

30:41I'm sure that's a complicated answer. Good question. It's actually less complicated than you would think. It really depends on how the LLC is governed. So a lot of LLCs are governed through a managing member, which is very similar to the way a limited partnership governance works. So the managing member would be the equivalent of the GP in that case, and then we would use a limited partnership model. So we'd be looking to see whether or not the non-managing members have the ability to kick out or have substantive participating rights to figure out whether or not it's a VIE. But if it's an LLC that's managed by a board of directors or a board of managers.

31:12That's more similar to the way a corporation's covered. So we would use a corporate model for figuring that out. All right. And so basically, and you should know that answer because you would have considered that when you're thinking about your accounting for the LLC, but you just mentioned corporate models. So what is the model for corporates? Yeah. While we're on the topic, it's the corporate model is really figuring out whether or not the decision-making rights that Alexander talked about, right? So the rights to make decisions over the important activities of those entities that we identified earlier, whether or not those reside within the group of at-risk equity holders.

31:44Sometimes that's straightforward, right? Sometimes the at-risk equity holders are common stockholders and oftentimes their voting rights and their ability to nominate a majority of the board of directors or all of the board of directors, that's where power resides. So in that case, it's going to be a straightforward analysis and you're going to say, yes, the at-risk equity holders do have the power over the most significant decisions. Unfortunately, it's not always going to be that easy, right? It can be trickier in situations where you have kind of these other variable interests that maybe we were talking about earlier, right?

32:12So you could have outsourced decision-making through a contract. In that situation, you may have some rights that reside with the at-risk equity holder group, and then other rights that reside contractually with the manager or the decision-maker. So it's really going to be a careful analysis, a little bit of a push-pull about which rights are the most important and which rights are the ones that are held contractually versus the ones that are held through the equity? Or how easy is it for the equity owners to remove the decision maker or take those rights back? So it's not always that straightforward in that situation.

32:44So another common complexity that we see in this area is where the decision making rights reside with the equity investors, but the equity investors aren't at risk. So they've already been disqualified in the earlier step that Alexander was talking about of having the characteristics that we need them to have to be at risk equity, but they still have voting rights so they still have power, in which case you'd hit this trigger and the entity would be a VIE. All right. That's helpful. I want to rewind and I'll ask this question of both of you. So this whole discussion of characteristic two started with sort of predicated on this idea that you're identifying the significant decisions, like important or significant decisions.

33:20And you guys have referenced, obviously you get a lot of questions about variable interests and VIEs. Typically from your experience, when people are coming to you with questions, are there gaps in what they've identified as the important or significant decisions? Or is this something people normally are able to identify those and that maybe some of the complexity is figuring out who holds the rights? Or do we often see they haven't really thought through all of these important decisions? I'd say it's, again, you see a little bit of A and a little bit of B. But a lot of the times they have identified most of the significant decisions.

33:55So there may be one or two that they haven't fully thought through, or they're giving less weight to one that they've identified than maybe they should. So it's less about, you know, have they identified all of the gaps and it's more about how they're, they're weighting them, right. And, and, and have they given enough credence to the ones that they've identified? And I guess thinking them all the way through maybe is the point. So to like Matt was talking about kickout rights and otherwise. So are you sort of looking at what's at the surface or what else there is? That's right. Yeah. And to, to kind of further on that point, I mean, there are times where we will see analyses where there are 15 decisions laid out on a piece of paper and all of them are being labeled as important.

34:32And we might need to push back a little bit and say, maybe not all of them are the most important, right? So let's try to narrow that down to really understand. And there are some times where we get a list of two and it just says budgeting and hiring and firing and management. And we say, well, okay. Okay. That's probably more. Yeah. So like, give us some industry specific or give us this entity, like what's going to drive the economic success of this entity? What are those decisions? Yeah. And I guess the reason I asked the question is I think that if you're not used to doing this type of analysis, just this concept of what are the most important or significant decisions, that's not something you sort of go about and think about every day.

35:05And so that's, I was just curious if from your experience, people are able to kind of get their head around that. Sounds like yes, but may need to kind of dig a little deeper. Yeah. Or as Alexander likes to say, yes and, right, to be more positive. But he made a good point. I could try that with my kids. Alexander made a good point earlier that if you put in the effort in this part of the analysis, it's going to pay off later. Because this part of the analysis is also very consistent with how we're going to do the primary beneficiary test, which we're going to talk about in the next episode. But the next episode could be 10 minutes if we just kind of send people back here and say we've done the work.

35:39All right. So let's keep going because I think with that, we're up to characteristic three. So what do we think about next? Yeah. So I think this one's going to be a little bit of a quicker one, hopefully. Right. But this one's focused on whether the equity was established with non-substantive voting rights is the words in the guidance. Right. But a school in the know people call it the anti-abuse test. Right. And so basically this test was designed to catch scenarios where an entity might have been intentionally structured to circumvent the voting model by providing non-substantive voting equity to a different party.

36:13right so as an example matt and i set up a legal entity right and i fund 80 of the equity capital matt funds the other 20 so you'd expect because i put up 80 of the money that i would get 80 of the voting interest right but let's say i don't want to consolidate for whatever reason so i approach matt and i say look i only want to take 40 of the voting interest you go ahead and take the other 60 i assume he probably would agree and so if i were applying the voting model i actually wouldn't consolidate because I don't have a majority of the vote, even though I have 80 % of the economics. So these are the types of scenarios where the FASB wanted to run through the VIE model.

36:50So that's why they actually came up with this characteristic. And there's two here, and you have to meet both in order to trip it up, right? So the first characteristic is around disproportionality. Basically, does one of the investors have a disproportionately low voting relative to their economics, right? So in my example, I had an 80 % economic interest, but I only had a 40 % voting interest, right? So in this instance, I would fail this characteristic because of that disproportionality. I go on to the second test. Second test is checking whether substantially all of the entities activities are conducted on the behalf of the investor with the disproportionately low vote, right?

37:27This one is super judgmental, right? You have to have a strong command over all of the facts and it's a holistic analysis, but you need to look at the economics. They're not necessarily determinative, but you can't ignore them either. You also have to look at other things, right? Like who are the investors? What are the relationship with each other, right? What do they do? What line of business are they in? Is that consistent with the line of business from the VIE, right? And it can spiral out of control pretty quickly. But this is necessary because it is meant to be an anti-abuse test. So you really want to make sure you do a fulsome and holistic analysis.

38:02But that being said, they do use the word substantially also. So it is a high hurdle to his second one. All right. I mean, the first one obviously is fairly straightforward. But then I guess the second one, even going back to thinking about some of those decisions, I would think would have some influence here in terms of what the entity is doing and what's important to that entity. Purpose and design. All right. There you go. And I think it's fair to say that there are probably certain levels of economic risk that you might have that make it harder to prove that substantially all the activities aren't on your behalf.

38:35Is that fair? That's very fair. All right. So we made it through three, taking a lot of time to get through those. So how about the next one, Matt? Yeah, we're going to do two together. All right. I'm sure our listeners are buy one, get one free. There you go. Exactly. So the reason why we're going to do these two together is they're kind of the inverse of each other, right? So again, to take us back to why we're doing this in the first place, it's to really identify situations where the equity at risk isn't behaving like traditional equity. And I know I mentioned this a few times. you expect traditional equity to be exposed to downside losses, like first dollar loss of the entity, but also to have unlimited upside.

39:09So what characteristic four does is it says, does the equity at risk have exposure to the expected losses of the entity? In other words, is it protected by another variable interest holder or another contract from really being exposed to that downside risk? If it is protected, then it meets this characteristic and it's a VIA. what characteristic five does is the opposite of that. It basically says, does the equity at risk holder, the group of equity at risk, do they have unlimited upside? And if they don't, if they're capped by some contractual mechanism or get another variable interest holder, then generally you hit this characteristic, the entity would be a VAE, right?

39:45So I'll give you an example kind of on both sides of that, right? So assume I'm a speculative real estate investor. I have$100 because I'm rich. And so put all that into an entity, the entity goes out and buys a property for$100. As the equity investor in that speculative real estate investment, if the fair value of the property that I bought goes down to zero, my equity is worth zero. Okay. So in that situation, I'm exposed to first dollar loss. So I don't hit this criteria. We're clean on that criteria. Also, if the fair value of the property goes up to$200, I make$100. So So I'm not capped.

40:23Great. I don't hit characteristic five. I compare that to another situation where I have a legal entity that goes out and buys a building for 100. But the seller of the building guaranteed that when I eventually sold the building, I'm always going to get at least$90 back. That's a different scenario, right? Because now I have another contract holder who's made a promise to me. And that promise is protecting me from being exposed to downside loss, right? So the value of the building goes down to zero. I'm only at 10 bucks, right? The seller provided that guarantee and they're down to 90. And there could be a situation right on the opposite side where maybe I buy a building, but the seller has a fixed price purchase option to buy it back.

41:00So in that situation, value goes up, but I'm capped at whatever that fixed price is. So if they could buy it back at 120, if the building goes up to 200, I'm only making 20 bucks. So again, those are ways where you can see these contractual relationships, either capping the upside or protecting the downside of the equity investors and would cause the entity to be a VIE. All right. So then just from you gave us some examples there, but do you have sort of a standard list that you would tell people to look out for? Yeah. And we do include these in the consolidation guide as well. But on the downside, you'd see like guaranteed returns on equity investments, significant cost plus arrangements, loss reimbursements, residual value guarantees, like we said in the example, or fixed price put options on the entity's assets.

41:40Those are all things that would trigger a characteristic four. And again, it's kind of that you think about inverse contracts for characteristic five. The most common one we see is like a fixed price call option on the equity interest, which caps the upside for the equity investors. Those are the most common ones. I mean, one thing to think about on these call options and these put options, if they're over assets that are in the entity itself. So remember, we're looking at a legal entity. If you have a call option over an asset that represents 10 % of the total assets of the entity, it's not necessarily a variable interest in the entity.

42:10it wouldn't necessarily trigger this criteria for the entity to be a VIE. It's got to be a significant enough asset for it to really trigger this criteria. All right. So definitely another important point to look at. So we've covered a lot. We've made it through all five, plus a lot of pre-steps or in-between steps that you guys don't officially count. I call them hidden steps. Hidden steps. All right. That's maybe the best way to put it. I'm not sure in accounting, hidden is the thing we're looking for. But nonetheless, in this case. So we've made it through step one and step two, including all these other steps.

42:43But I think it might be helpful because we've gone through a lot just to recap. So, Alexander, can you do that? Yes, I can do. And yeah, we did go through a lot. My brain is full and I actually know this stuff. So I can only imagine what our listeners are thinking right now. So this episode was all about step two. We ran through the five characteristics of a VIE. Right. And as we mentioned, before you even get to start looking at the characteristics, you have some upfront homework to do. So you first have to understand the purpose and design of the entity. Then you have to identify all of the variable interests in the entity.

43:13And then you have to identify the at-risk equity holders. Once you have that, then you get to run through each one of the five characteristics. And as we reminded everybody, it only takes one to be a BIE. But characteristic one was around the sufficiency of equity, basically trying to determine is the at-risk equity sufficient to finance the entity's ongoing operations. And that had a killer mortgage example, which I'm going to refer to later and pretend like I made it up. Characteristic two is around whether the decision making authority resides with the outwarsk equity group, right? That one was a bit longer and a bit of a doozy.

43:45And we reminded people that there's two paths to go down, depending on if it's a limited partnership or a corporate like entity. Characteristic three was that anti-abuse test that we talked about and whether the equity was structured to have non-substantive voting rights. And characteristics four and five, Matt just hit on. And this is where we were basically focusing on whether the equity behaved like equity and was exposed to the entities up and downside on a residual basis. And so if any one of those characteristics are met, you have a VIE, which means you move on to step three in the model.

44:14And then you finally get to determine who should consolidate this VIE. All right. And so for that, we will go to episode three. But I'm sure there is no surprise here that I do have a final question for both of you. It's sort of asked this question before, but I want to ask it more directly. And basically, if you guys think about this step two, what is one of the biggest pitfalls you see people make in terms of when they come to you, something missing in their analysis or someplace where maybe something veered off course? So, Alexander, you can go first. I'll go first because I just had a light bulb in my head.

44:49Okay, perfect. And I think you might have referenced it before, but I think it's really understanding the full governance structure of the entity, right? Because a lot of the times, you know, folks will come to us and they know how the board vote works, but they don't have a full understanding of, OK, well, what happens if there's a tie? You know, what are the contingency mechanisms? Because a lot of the times that actually, you know, really matters. So if we're thinking about, you know, how the powers manifest in the entity, that's one that I typically see people mess up on is not understanding the full governing documents.

45:20All right. Excellent. Matt, this is a contest. Can you top that? I don't think so. But I'll give you my answer. I think people are intimidated by the VAE model oftentimes. Or all the time, pretty much. Yeah. And there are certain areas that do require a lot of judgment and that are complex. But I would advise people, don't get caught up or get lost in the terminology or the details, right? Take a step back and try to remember why we're doing what we're doing, right? Because a lot of times you might be doing a lot of work for no reason because the entity is totally well capitalized by common equity.

45:56Common equity gets to vote. They appoint the board. There are no other weird contractual relationships. And we're getting kind of all caught up in the details when we can take a step back and see where we should be headed is really down a path where this probably isn't a VIE. Same can be said on the opposite side as well. But folks who get caught up in kind of all the terminology and trying to understand what a variable interest is versus – Subordinated debt. subordinated financial support terminology that I keep using, it can get a little bit intimidating if you don't step back, remember where you are in the model, remember why we're trying to do what we're trying to do, and try to keep it a little bit more simple, right?

46:31Yeah. And maybe I can add to that. Again, my experience with VIAs is a little dated compared to yours, but I think this still applies, which is I think there's sometimes a tendency to just jump in and not make sure you understand the purpose and design. And you guys mentioned that a few times, but without that sort of foundational understanding, then the rest of the analysis, you're always, you're sort of wobbling the whole time. So I think making sure you, you start with that and then get into some of this other detail is also helpful. That's right. Yeah. Or like jumping in without first identifying who the equity at risk is.

47:04Yes. Or the variable interest holders. Like you really have to do your groundwork and then the rest of it actually, to your point, can be more straightforward if you have that full understanding. That's right. All right. They're, they're nodding and smiling. So I think that's a good sign. So Alexander, Matt, it's always great to talk to you guys. Thank you for this. And for our listeners, stay tuned because next week you'll get to find out if you should be consolidating your VIE. So thanks again for joining me. Thank you. Thanks. That's our show for today. Tune in next week for more fresh episodes so that you never miss any of our audio content.

47:38Follow the PwC Accounting Podcast wherever you listen to your podcasts. And to stay up to date on all our latest accounting and reporting news, sign up for our newsletter at viewpoint.pwc.com. From Thought Leadership at PwC, I'm Heather Horn. Thanks for tuning in.

48:03This podcast is brought to you by PwC, all rights reserved. PwC refers to the U.S. member firm or one of its subsidiaries or affiliates, and they sometimes refer to the PwC network. Each member firm is a separate legal entity. Please see www.pwc.com slash structure for further details. This podcast is for general information purposes only and should not be used as a substitute for consultation with professional advisors, including accountants and lawyers.