June 25 (Bloomberg) -- Bank of America Corp.'s $3 billion takeover of Countrywide Financial Corp. will be financed by 138 million tax-paying Americans.

Bank of America, led by Chief Executive Officer Kenneth Lewis, can use tax write-offs to pay for Countrywide, the country's biggest mortgage lender, said Robert Willens, a former managing director at Lehman Brothers Holdings Inc. who now runs his own accounting firm. Taxpayers may pick up about $5 billion of Countrywide's losses over 20 years, he said. Countrywide shareholders vote on the sale today.

``Ken Lewis got a break,'' Willens said. ``What these losses do is reduce the effective cost of the deal so the headline price isn't really what they're paying. It's entirely possible that the entire equity purchase price could be financed by tax savings.''

The tax benefit may explain why Lewis continues to back the purchase even as analyst Paul Miller of Friedman, Billings, Ramsey Group Inc. said he should ``walk away.'' Miller, the top- ranked analyst in Bloomberg's latest survey of stock-pickers, estimates Countrywide will lose as much as $33 billion on bad home loans. Lewis said this month Bank of America, the biggest U.S. consumer bank, will come out ahead even if home prices drop by more than 25 percent in the next two years.

``Sometimes that's a reason why companies that don't look like they're worth much get acquired,'' said Bob McIntyre, director of the Washington-based Citizens for Tax Justice. ``It's to keep their tax assets from being wasted.''

Five-Year Limit

Bank of America spokesman Scott Silvestri declined to comment and calls to Countrywide spokeswoman Ginny Zoraster weren't immediately returned. Calabasas, California-based Countrywide will give Bank of America, run since 2001 by the 61- year-old Lewis, about a quarter of the U.S. mortgage market.

Tax law limits for five years the deductions an acquiring company can take on the losses from the company it purchases, Willens said. The amount Charlotte, North Carolina-based Bank of America can write off is based on its equity in Countrywide -- the $3 billion purchase price plus $2 billion the bank invested last August -- multiplied by what's called the long-term tax- exempt rate, which changes daily and currently is about 4.5 percent, he said.

Bank of America's deductions will total more than $1 billion over the first five years, Willens estimates. After that, the deductions depend on how much the bank earns and how much Countrywide loses, he said.

Recoup Cost

Based on Countrywide losses of $30 billion, which are less than Miller's estimate of $33 billion, Bank of America would more than recoup the entire $3 billion purchase price, Willens said.

The U.S. Internal Revenue Service can disallow deductions if the principal purpose of an acquisition is avoiding or evading federal income tax, according to Section 269 of the tax code.

``This isn't a tax-driven transaction, but I'd be surprised if you told me the Bank of America tax lawyers were locked out of the room when they made the decision,'' said Howard Rothman, chairman of the tax department at Kramer Levin Naftalis & Frankel LLP law firm in New York.

Writing off Countrywide's losses reminds Frank Hirsch, a Raleigh lawyer, of how North Carolina National Bank, a Bank of America predecessor, in 1988 bought First Republic Bank, the largest in Texas, in a government-assisted rescue that included an estimated $2.9 billion in tax incentives.

`Little Old NCNB'

NCNB purchased 20 percent of First Republic for $210 million with an option to buy the rest from the Federal Deposit Insurance Corp. for $840 million within five years, according to Ross Yockey's biography of retired Bank of America CEO Hugh McColl Jr. First Republic, with $26 billion in assets, was reporting rising losses from real estate loans as declining oil prices slammed the Texas economy.

The IRS in 1988 allowed NCNB to deduct First Republic's previous losses to offset other NCNB income. Using those losses ``turned out to be a brilliant way for what was then called NCNB to enter Texas,'' said Hirsch, a banking lawyer at Nelson Mullins Riley & Scarborough who previously worked in Charlotte.

McColl called that deal ``the turning point for little old NCNB to become the franchise that it is today,'' Hirsch said.

A House Budget Committee task force in 1991 concluded that the FDIC's agreement provided NCNB with overly generous subsidies, while taxpayers retained most of the risks.

Partial Payments

Among its potential liabilities, Countrywide has $27 billion of negative amortization, or payment-option, adjustable- rate mortgages, according to a company regulatory filing. In the first quarter, 8.7 percent of those borrowers were at least three months late on payments, up from 5.4 percent in December and 0.6 percent in the fourth quarter of 2006, the company said.

An option ARM gives borrowers the choice of making less than full payments each month -- initial interest rates can be as low as 1 percent -- with the unpaid balance added to the principal. Once that balance reaches a predetermined limit, called a negative amortization cap, typically 110 percent to 120 percent of the mortgage amount, their payment rates immediately increase. They also automatically shoot up after five years.

Two-thirds of Countrywide's negative amortization borrowers were making less than full interest payments, and 82 percent of them obtained the mortgages without providing pay stubs or tax returns to prove the income they reported on the loan applications was correct, according to the filing.

Living in Camper

Harry Subers refinanced his $411,000 home in Ben Lomond, California, in 2006 with a Countrywide negative amortization mortgage. His annual income at the time was less than $70,000, and it took a little over a year before he realized he couldn't afford the loan, he said.

``We call them sucker ARMs,'' said Subers, a 59-year-old former mechanical engineer who was has been on disability with Crohn's disease.

Subers said he tried in January to contact Countrywide, which also collected his monthly payments, to arrange an alternate payment schedule. Subers moved out of his home in April and now lives in a camper on a friend's land in Brookings, Oregon.

``I think the mortgage industry has done more to hurt this country than al-Qaeda ever did,'' Subers said.

Countrywide will be sued by Illinois for allegedly hiding fees and using false marketing claims when selling defective home loans, the New York Times reported today, citing the state's attorney general, Lisa Madigan.

Market Share

Countrywide, led by CEO Angelo Mozilo, lost $2.5 billion in the past three quarters as borrowers were late making mortgage payments. The company has also written down the value of securities it holds that are backed by home loans.

Late payments on Countrywide's loans jumped to 4.6 percent as of March 31 from 3 percent in the previous quarter, according to company reports. Lewis said June 11 at a conference in New York that he still supports the deal because of Countrywide's technology, sales force and market share.

The stock swap was valued at $4.1 billion when it was announced in January. Bank of America shares have fallen 31 percent since then, and Countrywide stock is down 26 percent.

Bank of America and Countrywide's banking unit will have $773 billion of combined deposits, equal to a 10.9 percent market share. A 1994 law, the Riegel-Neal Interstate Banking and Branching Efficiency Act, instituted a 10 percent cap on market share to prevent an institution from amassing too much power, said Kenneth Thomas, a Miami-based industry consultant.

`Little Dangerous'

``The regulators let Bank of America live in a gray area and they say that someday we will enforce this 10 percent cap, but just not this time,'' Thomas said.

The Federal Reserve approved the transaction on June 5, saying the regulatory limit doesn't apply because Countrywide's banking unit operates as a thrift, not a bank.

The proposed takeover by Bank of America is ``a little dangerous,'' said Cam Fine, CEO of Independent Community Bankers of America, a Washington-based industry group with 5,000 member banks and thrifts.

``Do we really know how nasty Countrywide's losses will be?'' Fine said. ``If they're worse than we think, there's a possibility they will destabilize Bank of America, and if they destabilize Bank of America, they can destabilize the country. The bigger the company, the greater the potential for damage.''

To contact the reporters on this story: Bob Ivry in New York at bivry@bloomberg.net; David Mildenberg in Charlotte at dmildenberg@bloomberg.net.

Last Updated: June 25, 2008 04:03 EDT

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