In our last two posts we reviewed the two sources of SEC guidance for the use of non-GAAP measures:
Reg G for non-filed documents such as earnings releases, and
Reg S-K Item 10(e) for non-GAAP measures included in filed documents such as in the MD&A of Form 10-K.
We also explored issues in the definition of a non-GAAP measure, which can be complex for some operational measures such as revenue per employee and same store sales.
In our next few posts we will discuss areas where companies sometimes push the use of non-GAAP measures a bit too far. When this happens, as you would expect, the SEC frequently writes comments about these issues.
The first is something that has happened frequently when companies want to show what their F/S would look like without certain non-cash charges. A very common example is share based payment expense. Since share based payments can affect a number of lines in the F/S companies will sometimes present an entire F/S, for example an Income Statement, on a non-GAAP basis.
In the view of the SEC their non-GAAP measure guidance allows the presentation of individual measures, but it does not permit this kind of full financial statement presentation. In essence, the risk that this could cause investor confusion is too great.
This position is formally stated in a Compliance and Disclosure Interpretation (C&DI). Here is the text:
Question 102.10
Question: Is it appropriate to present a full non-GAAP income statement for purposes of reconciling non-GAAP measures to the most directly comparable GAAP measures?
Answer: Generally, no. Presenting a full non-GAAP income statement may attach undue prominence to the non-GAAP information. [Jan. 11, 2010]
You can find all the C&DI’s for non-GAAP measures at:
www.sec.gov/divisions/corpfin/guidance/nongaapinterp.htm
Given this position, when the staff sees this kind of presentation, they do write comments! Here is an example:
- We see on page 5 of your earnings release that you present non-GAAP financial measures and related reconciliations required by Item 10(e) of Regulation S-K in the form of non-GAAP income statements. Please tell us how your presentation considers the guidance set forth in Compliance and Disclosure Interpretation 102.10. Under the cited guidance, it is generally not appropriate to present a non-GAAP income statement for purposes of reconciling non-GAAP financial measures to the most directly comparable GAAP financial measures.
And, here is another that has a bit more complexity, but the same theme, and makes the point that gross sales is in fact a non-GAAP measure that should be reconciled to net sales.
- We note that you present gross sales less promotional and other allowance figures at the top of your full GAAP income statements on page 48. In addition, you present and discuss gross sales, a non-GAAP measure, prior to the presentation and discussion of net sales, the most comparable GAAP measure, in your selected financial data on page 40 and in your discussion on page 49. Furthermore, it appears that you reconcile gross sales, the non-GAAP measure, to net sales, the most directly comparable GAAP measure, by presenting this reconciliation in a full non-GAAP income statement which is generally not considered appropriate as it may attach undue prominence to the non-GAAP measure, gross sales. Please revise future filings to present and discuss the GAAP measure net sales, more prominently than the non-GAAP measure, gross sales. In addition, any reconciliation of the two measures should not be included on your full income statement as this may result in presentation of a full non-GAAP income statement. Refer to the guidance outlined in Item 10(e) of Regulation S-K and Question 102.10 of Staff’s Compliance & Disclosure Interpretation on Non-GAAP Financial Measures at http://www.sec.gov/divisions/corpfin/guidance/nongaapinterp.htm
As always, your thoughts and comments are appreciated!