For the economy to truly thrive, small businesses need more access to business loans and capital, right now.
There are three ways to help the 90% of all American companies that may be identified as small businesses but leave a large imprint on our economy. First — and there's just no way around this — Congress should repeal the Sarbanes Oxley Act. Second, the government needs to add both years and money to the Small Business Administration's 7(a) lending program, which will be pivotal for expansion. Third, and no less important, venture capital cannot be punished for taking chances now — the tax code should be amended to allow capital losses to be written off 100% in the year that they are incurred, rather than having to wait for a capital gain offset or taking $3,000 per year.
The Sarbanes-Oxley act of 2002 was primarily created to make sure the events that led to accounting scandals relating to Enron and MCI World Com would not happen again. What Sarbox primarily has done is create undue costs, particularly for microcap and small-cap public companies (defined as those with market capitalizations below $200 million). These companies are the growth vehicles for job creation, capital formation and capital investment. Sarbox has singlehandedly made it much more difficult for small to midsized businesses across all industries, geographies and demographics to raise capital and grow in the public sector.
In addition to creating undue legal and accounting costs, these regulations and excessive compliance requirements have created an environment where many entrepreneurs refuse to accept the risks associated with being an executive, as well as not wanting to deal with the excessive amount of corporate governance that is required. Many broker-dealers cannot purchase shares of small-cap and microcap companies due to the appearance of excessive risk, and further inhibit the ability of small businesses to grow and become a growth engine for economic activity.
At the very least, section 404 of Sarbanes-Oxley, which affects companies with market capitalizations in excess of $75 million, needs to be eliminated or rewritten. Congress and the Public Company Accounting Oversight Board have been looking at these modifications since 2007. But an immediate repeal of Sarbanes-Oxley in full would increase the flow of equity capital to microcap and small cap public companies and significantly increase the major growth engine for jobs and the United States economy.
The SBA 7(a) program has been in existence for the last 53 years. The agency, through its ability to provide guarantees on a portion of small business loans, has enabled many small to medium sized business owners to raise capital when other conventional sources have not been accessible. The SBA 7(a) program has historically returned money to the United States Treasury based on the guarantee fees it takes in its borrowers.
Many financial institutions, due to their size, limitations of community presence or inadequate commercial and small business lending staff, have historically been unable to provide small business loans to their communities. The SBA 7(a) program has created an environment that fosters more capital going to the small businesses without further expenditures to US taxpayers or growing government debt. Last year the 7(a) program provided $16 billion in loans to small businesses across all 50 states. Congress needs to increase the allotment for this program and guarantee it exists for the next three years. In doing so, it will encourage banks to extend loans to small businesses.
Small businesses would have a much easier time attracting angel investment capital, borrowing from their own personal accounts or acquiring capital for startups in their community if the tax law was simplified and made equitable for the utilization of capital losses. I cannot figure out why in the world it is fair for the government to immediately tax a capital gain when and if it occurs, but not to allow a capital loss to be utilized immediately against ordinary income if not offset by a capital gain. I cannot figure out on what mathematical basis or concept of fairness creates a $3,000 per year limitation on carrying forward a capital loss. If investors and risk takers were able to immediately write off capital losses as they occur against ordinary income, many more dollars would flow to the early stage businesses, entrepreneurs or startups — which is desperately needed in the current environment.
The three proposals above, if enacted by Congress, would be extremely beneficial to small business economic development and job growth. All of them come under the theme of less government regulation, limited government and free enterprise. All would be a most welcome addition to the U.S. economy, independent business owners, and entrepreneurs.
Barry Sloane is the chairman, chief executive and president of Newtek Business Services Inc. in New York. The company's lending subsidiary was the 20th-largest SBA 7(a) lender, and the largest nonbank one, in 2011.