Synthetic prime brokerage
Synthetic Prime Brokerage Anatomy™
A contract in which one party makes payments based on a set rate while the other party makes payments based on the return of an underlying asset, in this case, stocks. A party that purchases a total return swap is, in effect making a bet on whether the underlying asset... will increase or decrease in value by the end of the term of the swap, Thus, if someone [takes] a long position in a swap, the counterparty to that swap will pay that person the amount of the increase in the price of the stock during the life of the swap contract if this price goes up, and the purchaser will pay the counterparty the amount of the decrease in the price of the stock during the life of the contract if the price goes down.
Furthermore, as BILL HWANG, the defendant and other Archegos conspirators understood, the Counterparties generally did not enter into swap contracts with Archegos in order to bet on the increase or decrease of the stock price. Rather, the Counterparties did so to profit from the financing fees charged on the transaction. Accordingly,to avoid market exposure on a swap contract, the Counterparties themselves purchased the stock underlying the swap.
- —United States of America v Sung Kook (Bill) Hwang and Patrick Halligan, Sealed Indictment 22 CRIM 240
A topic of great, sudden, interest in the wake of the Archegos scandal.
Also called portfolio swaps, synthetic equity swaps, contracts for difference or high-delta equity derivatives. Cryptic crossword fans — JC has become addicted over lockdown — may also be thrilled to know how good “synthetic equity swap” is for generating anagrams. A twisty spy technique, for example. Or witty, peachy inquests. If you wanted to know why typist quit seance, or have ever been dismayed by quite whiny typecasts, this may be your inner equity derivative structurer banging on your cranium and trying to get out.
Why are all these things called “synthetic prime brokerage”, then? Well, because economically this is physical prime brokerage — that is, equity brokerage done on margin only done with swaps on shares, and not actual shares. The client never actually owns the share: instead, his swap dealer buys it, and passes on the economic return under an equity derivative.
You may like our longer-form essay — it’s a contrarian piece, be warned — “synthetic prime brokerage and the risk of tax recharacterisation”.
Why synthetic and not physical?
- Going long: instead of buying shares on margin and asking your prime broker to hold them for you, you just trade a total return swap with your prime broker where the PB pays the return of the share price and you pay a floating rate. The PB will (cough, in all probability) buy the physical shares and hold them in its own inventory as a delta-one hedge. But it will do this across its whole book, not client-by-client, much less position-by-position, and it will finance those shares in the market to offset its funding costs, so you shouldn’t imagine your prime broker keeps a little bucket with your name on it containing all the shares it has bought to hedge your swaps. You will be exposed to the price of the assets, but do not control or own the prime broker’s hedge. This can sometimes lead to disappointment when it comes to voting and corporate actions, but it’s all for the best.
- Going short: instead of borrowing shares from your PB and selling them short, you just put on a total return swap, where you pay the return of the share price and the PB pays you a floating rate. Your PB will borrow the shares for its own hedge and sell them short, and will pass on the cost of the stock borrow to you (by deducting it from the floating rate).
- Terminating: You can terminate a synthetic position on any day, at market (subject to usual market disruption and hedging disruption provisions (for more on this see our old friend the triple cocktail). Thus you can make your prime broker liquidate its hedge, but you can’t force it to sell the hedge to you or any of your friends and relations (something it might not want to do if it has an investment banking relationship with the issuer and you are an activist hedge fund), but of course it can if it wants to. Since — given the commercial imperative — it is highly incentivised to keep you happy, don’t by that surprised if the prime broker does want to sell you its hedge, but that this freaks out its compliance team, who will wish you just bought it in the market.
The tax issue
In short, this is the tax risk and the famous hypothetical broker-dealer: In some jurisdictions, derivatives are taxed differently — more favourably — than cash equities (for example stamp duty reserve tax, and in the US, for certain types of underlier, under 871(m)) so it is important that your synthetic position doesn’t look like a tax play. Tax attorneys — especially American ones — fret mightily that high-delta equity derivatives do.
One of the key indicators, they intuit, is the degree to which the contract permits a swap counterparty influence or control its prime broker’s hedge. A swap counterparty should care not one whit about its broker’s hedge — other than its cost. If it does takes an unhealthy interest, the swap position may be — dramatic look gopher — recharacterised as a disguised custody arrangement of shares the swap counterparty has in reality bought, and on which it should pay tax, stamp duty and so on. Depending on which tax specialist you ask, an “unhealthy interest” might extend even to the execution price the broker-dealer achieves on its hedge. (This seems potty to us, by the way, but such is the interior world of the US tax attorney). US tax attorneys are greatly calmed by the suggestion that a hedge execution price is imaginary, and not real, even though it happens to be identical to the real one. Thus, you will see much chatter about prices a “hypothetical broker-dealer” might achieve selling fungible securities, and volume-weighted average prices and so on.
What is a hypothetical broker-dealer anyway?
So who, why, which or what is this much-talked-about, seldom-seen “hypothetical broker-dealer”?
Well, it’s an investment banker’s imaginary friend. A fellow just like the actual broker-dealer — in the same jurisdiction, having the same taxation status, earning the same income, executing the same hedge transactions, eating at the same restaurants, having the same GSOH and watching the same stuff on Netflix — but not the actual broker-dealer. He’s like actual broker-dealer’s “sober me”, only he gets drunk too. Now this might strike you, as it strikes the JC, as just too cute – too much of a playground argument to hold water. (“I didn’t break the window, sir, honest, sir, it was a boy who looked exactly like me who arrived from out of nowhere and is gone now”). But US tax attorneys seem to be taken in by it, even if they won’t buy arguments on actual economic substance.
But do synthetic equity swaps resemble disguised custody arrangements?
Um — no. About the economic substance: synthetic equity swaps don’t resemble disguised custody arrangements at all:
- (i) a prime broker will hedge delta-one across its whole client portfolio — some of which will be short, and some long — so there is no one-to-one relationship between each client’s long position and the prime broker’s net physical hedge in the first place — that is to say, there is no assurance that the prime broker is holding anything in custody at any time; and
- (ii) even if there were, the prime broker will almost certainly finance the net long portion of its delta anyway, to reduce its funding costs, by lending it out, title transfer, for cash, so even if the prime broker has a corresponding exposure, it won’t be hedging it with holding a physical hedge at all, let alone one it is covertly holding on custody for its clients.
But US tax attorneys wilfully ignore all this dispiriting logical talk and insist the only thing that can save you are some magic words about you hedge costs being incurred by a hypothetical broker dealer exactly like you, but who isn’t you.
Now, since the advent of Section 871(m) the practical value of the hypothetical broker-dealer language — if it had any — has diminished since in most cases equity swaps are taxed consistently with physical share transactions. But it has not vanished entirely so, if your US tax people run true to the JC’s experience, you may have to persevere with it.
The long version: If that wasn’t compelling enough here, in a service to the market, is a longer form essay from the JC on “synthetic prime brokerage and the risk of tax recharacterisation”
Loss of Stock Borrow under Synthetic PB: For synthetic prime brokerage, it is common for the PB to pass on its stock borrowing costs (well: it is a synthetic equivalent of a stock borrow and a short sale, after all, so this makes sense). It does this by subtracting the prevailing borrow rate from the floating rate it pays under the swap. Therefore the Non-Hedging Party wears the ultimate cost of the expensive stock borrow, so there’s no real need to impose a Maximum Stock Loan Rate (though prime brokers will typically impose one as a matter of course).
Difference between synthetic PB and normal equity derivative master confirmations
- The parties specifically agree to the trade up front — there is no sense of the “facility” nature of synthetic PB (even if that facility is technically uncommitted), where the broker more or less stands ready to take on any trade at the request of the client. Thus a broker under an MCA can assess the market at the time of trade and take a view for the duration how it feels about hedging risks, and perhaps price them into the trade.
- Initial margin may also be fixed.
- By contrast, in synthetic PB, the expectation is that the broker will put the trade on at the pre-agreed rates, and will keep it on until the client wants to take it off, whether that is over night or five years. Assessing the potential for market disruption is therefore more fraught, hence more flexibility in the ability to get out of a trade if hedging conditions unexpectedly change. While a broker will have a greater flexibility to adjust initial margin under a synthetic equity master confirmation, this doesn't impact the pricing of the risk per se. And there may well be a margin lock-up, meaning the broker can’t quickly get out of the trade.
How synthetic equity swaps are traded
Unlike other derivatives, synthetic equity trades a lot like a cash equity: The client goes to a equity broker to get a firm price indication, the broker then “gives up” this thing that wasn’t actually an order in the first place (it’s complicated: see the box) to the prime broker who then, at the client's request, writes the swap at the price directed by the hedge fund. So the swap provider, which lives in the prime brokerage business, really is a glorified custodian. Cruel people would say that’s not a bad description of a prime broker, come to think of it.
A client can close out its synthetic equity swap in exactly the same way: it obtains a firm price from an executing broker, instruct the closure of the swap at that price, and indicate that the PB can sell its hedge to the executing broker.
Common, tedious, negotiation points of dispute when negotiating a synthetic equity swap master confirmation
- “I want to be co-calculation agent”, “I want a right to dispute your calculations” and “I want to be a Determining Party”: See “I want to be co-calculation agent” and Section 12.7(c).
- Why should you be able to pass on taxes, extraordinary hedge costs and other losses as a result of counterparty defaults on your hedge position? See Hedge Position Adjustments.
- You can change initial margin whenever you like? What’s that all about?
- What do you mean you want a thirty-day termination right?
- Hypothetical broker-dealer. What’s that all about? (In brief: See Section 871(m)).
- Hang on. An indemnity for your tax risk? Are you serious?
- 871(m) of the Internal Revenue Code of 1986
- synthetic prime brokerage and the risk of tax recharacterisation
- Hypothetical broker-dealer
- This has been apt to confuse people; be warned.
- This might, at first, seem a bit upsetting, but once you talk to your tax accountant you will feel much better. This really is as much for your own good as for your prime broker’s.
- Assuming, again, that it had any.