On April 19th the SEC Enforcement Division announced two financial fraud enforcement cases in which companies, officers and in one of the cases the company’s auditors were named and barred or paid fines. Financial fraud enforcement cases are on the rise, but the interesting issue in these cases is that both centered on the challenging, grey area judgements that we make in the accounting process.
In the release Enforcement Division Director Andrew Ceresney said:
“We are intensely focused on whether companies and their officers evaluate judgmental accounting issues in good faith and based on GAAP.”
The most unsettling implication of these two cases is that while we make these judgements with uncertain and sometimes incomplete information, the people who pass judgment on them after the fact always operate with 20-20 hindsight.
The areas involved in these two cases are classic accounting estimate areas. One of the named companies/executives used a warranty accrual, failure to appropriately amortize intangibles and failure to appropriately write down inventory to lower of cost or market to be able to meet earnings targets.
In the other case, company executives failed to appropriately value accounts receivable from and impair investments in an electric car manufacturer that was a major customer. In addition, the audit engagement partner was suspended from appearing before the SEC.
You can read the release at:
www.sec.gov/news/pressrelease/2016-74.html
This message is more than unsettling, it’s downright scary. It almost starts to feel that someone is watching over our shoulder as we make difficult judgment calls. And we know that when we make these kinds of accounting judgments and estimates there is usually no “right answer”. In fact, different professionals may arrive at different conclusions when making these kinds of judgements, but there is usually a range of reasonable estimates.
That said, the message is clear, be sure to exercise due care and follow GAAP when making subjective accounting judgments, because if things go wrong, enforcement may be asking questions! And, as we said above, when they ask questions, they will have the benefit of 20-20 hindsight.
How do we assure that when someone with hindsight evaluates our decisions we have as strong a position as possible? Here are a few reminders about your process for making and documenting these judgments:
- Always create your documentation contemporaneously. If you wait to document a decision until you are asked about it by someone like the SEC, you will never remember all the issues and considerations in your decision. And, it will be easy to see that you created the documentation after the fact.
- In your documentation be sure to thoroughly evaluate all the different alternatives in the decision process. Lay out in clear language each alternative and the pros and cons of each alternative. Include all relevant factors on all sides of the decision. If someone wants to second guess your decisions and you have not addressed all the issues, it will be more likely that you will be second guessed.
- Support your discussion with appropriate references to the Accounting Standards Codification. Explain what GAAP you think is relevant and how the guidance applies in your situation. Most importantly, document and be faithful to the principles underneath the GAAP you are using.
- As part of ICFR, have a documented review process. All appropriate levels of involvement in the decision should be documented, and if your company has a policy about reviewing accounting decisions it should be documented that that policy was followed. If you know there is a material intentional error, such as occurred in these cases, use the appropriate channels within your company to rectify it.
If you would like some background about writing these kinds of white papers you could check our One-Hour Briefing about drafting accounting white papers at:
www.pli.edu/Content/How_to_Write_an_Accounting_White_Paper/_/N-1z11dsbZ4n?ID=264615
And lastly, if you are thinking about how the issues in this enforcement relate to issues that could be critical accounting estimates, you could also review the requirements for these disclosures in FR 72. You can find them at the end of the FR at:
www.sec.gov/rules/interp/33-8350.htm
As always, your thoughts and comments are welcome!