Tag Archives: SEC

More Change – Final – Resource Extraction Payment Rule Repealed

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By: George M Wilson & Carol A. Stacey

On February 14, 2017 President Trump signed the law eliminating the resource extraction payment disclosure provisions of the Dodd Frank Act.

From:

www.whitehouse.gov/the-press-office/2017/02/14/president-trump-cutting-red-tape-american-businesses

 

GETTING GOVERNMENT OUT OF THE WAY: Today, President Donald J. Trump signed legislation (House Joint Resolution 41) eliminating a costly regulation that threatened to put domestic extraction companies and their employees at an unfair disadvantage.

H.J. Res. 41 blocks a misguided regulation from burdening American extraction companies.

By halting this regulation, the President has removed a costly impediment to American extraction companies helping their workers succeed.

This legislation could save American businesses as much as $600 million annually in regulatory compliance costs and spare them 200,000 hours of paperwork.

The regulation created an unfair advantage for foreign-owned extraction companies.

 

 

As always your comments and thoughts are welcome.

 

Non-GAAP Measures – Rise of the Enforcement Message!

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By: George M. Wilson & Carol A. Stacey

On January 18, 2017, the SEC ended the speculation about whether or when we would see enforcement actions focused on non-GAAP measures.   MDC Partners, a New York marketing company, paid a fine and consented to an SEC cease-and-desist order without admitting or denying the findings. The case dealt with two issues, non-GAAP measures and failure to disclose certain perks properly. The non-GAAP measure issue related to amounts disclosed for “organic revenue growth” which the company did not calculate consistently from period to period. In addition the company did not present the comparable GAAP measure with equal or greater prominence, as Regulation S-K Item 10(e) requires in an earnings release.

 

Both issues are frequently discussed areas in the SEC’s May 2016 C&DI’s about non-GAAP measures.

 

You can read the related release here.

 

 

IPO’s – Getting Ready and Keeping Up

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By: George M. Wilson & Carol A. Stacey

If you are contemplating an IPO or advising companies in this process, PLI’s “Securities Offerings 2017: A Public Offering: How it is Done” will provide you with valuable knowledge and how-to tools about the IPO process. The program simulates an offering from start to finish, builds a foundation in the law and SEC guidance, and walks through each step in the process. The program is on March 3, 2017 and you can learn more here.

The program also includes up to 2 hours of ethics credit (see program page on www.pli.edu for credit by state).

Why, Oh Why, Is It Always Segments?

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By: George M. Wilson & Carol A. Stacey

If you have been involved with SEC reporting for more than say, five minutes, you have heard about or discussed with someone the SEC’s focus on operating segments. Segment related disclosures are included in several Form 10-K Items, including:

Item 1 – Description of the business,

Item 2 – Properties,

Item 7 – MD&A, and of course

Item 8 – Financial Statements.

Almost every SEC conference or workshop addresses the importance of segment disclosures.

The latest segment “message” from the SEC is in the November 7, 2016 Accounting and Auditing Enforcement Release dealing with PowerSecure.

It is the same familiar message we heard in the Sony case in 1998 and the PACCAR case in 2013. When companies avoid making proper GAAP disclosures for operating segments to try and bury problems in one part of a business with profits from another part of their business, trouble will result.

In the “classic” Sony case the company used profits from its music business to mask problems in its movie business. This case also has a great known trend disclosure problem and becomes an almost scary “double trouble” example. To escalate this case to “triple trouble” the SEC also made it clear that Sony’s assignment of MD&A to the IR manager was not appropriate by naming that person in the case and forcing Sony to reassign this responsibility to the CFO. With all that was going on with Sony the SEC went so far as to require the company to engage its auditors to “examine” MD&A. Surprisingly, under the attest standards, auditors can issue a full opinion report on MD&A!

In the PACCAR case problems in new truck sales were hidden with profits from truck parts sales. This SEC Complaint includes a very detailed summary of the operating segment disclosure requirements, discussing in detail how PACCAR’s management viewed the business and how, in the SEC’s judgement, PACCAR was not following the GAAP requirements. It includes this language:

“However, in reporting its truck and parts results as a single segment, PACCAR did not provide investors with the same insight into the Company as PACCAR’s executives.”

This story line repeats in PowerSecure. For the periods in question PowerSecure reported one segment when that was not how management actually viewed the business:

“PowerSecure also misapplied ASC 280 by concluding that its CODM – who was determined to be the Chief Executive Officer (“CEO”) – did not regularly review operating results below the consolidated level to make decisions about resource allocations and to assess performance. This was inconsistent with the way in which the CEO regularly received, reviewed, and reported on the results of the business and how the company was structured. On a monthly basis, the CEO received financial results that reflected a measure of profitability on a more disaggregated level than the consolidated entity. Further, on a quarterly basis, the CEO met with each business unit some of the business unit leaders had business unit level budgets and forecasts and received incentive compensation based, at least in part, upon the results of their business unit.“

The message is clear, don’t use segments to try and hide problems! As a last reminder, don’t forget that these disclosure requirements may go to an even lower level than operating segments in MD&A. Regulation S-K Item 303 makes this clear:

“Where in the registrant’s judgment a discussion of segment information or of other subdivisions of the registrant’s business would be appropriate to an understanding of such business, the discussion shall focus on each relevant, reportable segment or other subdivision of the business and on the registrant as a whole.”

As always, your thoughts and comments are welcome!

 

Tone at the Top, History and COSO

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By: George M. Wilson & Carol A. Stacey

 

First, a quick warning before you read this post. One of the authors of this post spent nine years teaching at a university which had one of the few undergraduate business programs in the country with a required course in business ethics. This post is perhaps a bit preachy!

We have seen some distressing examples in the news lately of organizations acting unethically. If you were around during the early 2000s these events evoke a strong feeling of déjà vu. The similarities in the “tone at the top” of the organizations in the news today compared to the tone at the top in the companies involved in the pre-SOX waves of fraud (such as WorldCom and Enron) is eerie!

In all of these frauds, the roots of unethical conduct which harmed shareholders were at the top of the organizations.

History, as it always seems to do, is repeating itself. Eventually defective tone at the top will always result in trouble and distress for the organization and investors. (Yes, that was one of the preachy parts!)

All this makes it seem like a great time to review a key element in the foundations of internal control, the control environment. Here is an excerpt from the Executive Summary of the 2013 COSO Framework:

 

“Control Environment

The control environment is the set of standards, processes, and structures that provide the basis for carrying out internal control across the organization. The board of directors and senior management establish the tone at the top regarding the importance of internal control including expected standards of conduct. Management reinforces expectations at the various levels of the organization. The control environment comprises the integrity and ethical values of the organization; the parameters enabling the board of directors to carry out its governance oversight responsibilities; the organizational structure and assignment of authority and responsibility; the process for attracting, developing, and retaining competent individuals; and the rigor around performance measures, incentives, and rewards to drive accountability for performance. The resulting control environment has a pervasive impact on the overall system of internal control. “

Building an effective control environment starts at the top of an organization with the executive leadership, board and Audit Committee. If the people in these roles place financial performance before integrity, if their attitude is about accomplishing objectives at whatever the cost, that is poison in the control environment.

Understanding, assessing and evaluating tone at the top and the other elements of the control environment is not easy.

In a telecom company where the message from the CEO is to make the numbers at any cost is there any surprise that the end result is one of the largest financial reporting frauds ever? Or that the fraud was carefully crafted to avoid detection by the auditors? And, when the perpetrators of the fraud are the leaders of the organization, who have the power to punish anyone who might call out the tone at the top issues, is it any wonder that it is easy for them to conceal the corruption in the control environment? Is it any surprise that the courageous internal auditors who eventually called out the fraud actually had to conduct their investigation in secret and at times wondered if they should be afraid for their lives?

 

In an energy trading company where the CFO was behind hidden issues involving off-balance sheet arrangements that were not on the up-and-up, is it any wonder that the first person to really escalate the issue did so in an anonymous letter?

 

In a bank where not making sales goals resulted in your termination, is there any surprise when rules are bent? Is there any surprise when people are fired when they attempt to raise the issue to their managers?

 

As another example, check out this 10-K for Hertz which includes a major restatement. In the “Explanatory Note” at the beginning of the document you will find this language:

 

As of December 31, 2014, we did not maintain an effective control environment primarily attributable to the following identified material weaknesses:

• Our investigation found that an inconsistent and sometimes inappropriate tone at the top was present under the then existing senior management that did not in certain instances result in adherence to accounting principles generally accepted in the United States of America (“GAAP”) and Company accounting policies and procedures. In particular, our former Chief Executive Officer’s management style and temperament created a pressurized operating environment at the Company, where challenging targets were set and achieving those targets was a key performance expectation. There was in certain instances an inappropriate emphasis on meeting internal budgets, business plans, and current estimates. Our former Chief Executive Officer further encouraged employees to focus on potential business risks and opportunities, and on potential financial or operating performance gaps, as well as ways of ameliorating potential risks or gaps, including through accounting reviews. This resulted in an environment which in some instances may have led to inappropriate accounting decisions and the failure to disclose information critical to an effective review of transactions and accounting entries, such as certain changes in accounting methodologies, to the appropriate finance and accounting personnel or our Board, Audit Committee, or independent registered public accounting firm.

 

This is another example of a fraud with its roots in tone at the top.

When frauds escalate to a material level there is a reasonable likelihood that it started with a problem with tone at the top, with the control environment.

So, where does all this lead? Assessing tone at the top is not easy. And a poisoned control environment will do everything it can to protect itself. The leaders of an organization with a defective control environment will use the power they wield to keep others from exposing the problem. Perhaps more protections for whistleblowers are a good thing in this regard. Tools to measure ethical behavior in an organization are difficult to find, subjective and imprecise. Enron in fact had a model code of ethics, but having something on paper does not mean that people will live by the code of ethics. The one thing that is clear is that this continues to be a complex area and continues to be at the root of many financial reporting frauds. We all need to focus on this area and work to develop a better understanding and better tools to assess the control environment.

We all need to focus on tone at the top and ethical behavior. Yes, it is not easy to measure, it is not easy for an outsider to observe, but it is clearly crucial to effective ICFR!

 

As always, your thoughts and comments are welcome!

 

 

More Transitions at the SEC

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By: George M. Wilson & Carol A. Stacey

As you have most likely heard, Chair White recently announced that she will leave the Commission at the end of the Obama administration. As usual, whenever there is a change in administration the senior leadership at the commission leaves and their successors are appointed by the new President. Yesterday Chief Accountant Jim Schnurr announced that he will be retiring from the Commission. You can read the details here. Wes Bricker has been named the new Chief Accountant.

 

If you want to follow along and see SEC news as it happens, you can find all the SEC’s current press releases here.

 

As always, your thoughts and comments are welcome!

Happy Thanksgiving!

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All of us here at the SEC Institute wish you a Happy Thanksgiving! We hope that you have a wonderful time with loved ones and enjoy this time of year.

And, to add a smile, we have been building a list of things we are thankful for!

  1. All of you and your support of our programs!
  2. Disclosure Effectiveness

OK, we tried to add some humorous SEC and accounting related items to this list, but when we started to think about all the change in our profession and we got to revenue recognition and leases, we weren’t sure if we were thankful for them or not!

So, even with all the change in the world around us, Happy Thanksgiving, and thanks for your participation and support!

 

The SEC Institute Team

Three Years of Fun – Planning the “Big Three” New FASB Statement Transitions

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by: George M. Wilson & Carol A. Stacey, SEC Institute

We have all heard about the major projects the FASB has completed in recent years. Together with their implementation dates for public companies and allowed transition methods they are:

Revenue recognition: January 1, 2018. (F/Y’s beginning after December 15, 2017)

Early adoption is allowed to the original effective date, F/Y’s beginning after 12/15/16). Either a retrospective or modified retrospective with a cumulative effect adjustment transition may be used.
Leases: January 1, 2019. (F/Y’s beginning after December 15, 2018)

Early adoption is allowed. A retrospective transition must be used. The retrospective approach includes several practical accommodations.

Financial Instrument Impairment: January 1, 2020 (F/Y’s beginning after December 15, 2019)

Early adoption to years beginning after December 15, 2018 is allowed. The transition method is essentially a “modified retrospective approach with a cumulative effect adjustment” with adjustments for certain types of financial instruments.
The revenue recognition and lease changes have been widely discussed, but the financial instruments impairment change has not been as “hot” a topic. It could be problematic for some companies as it will apply to all financial instruments, including accounts receivable. Many companies could face significant challenges gathering the information to move from the current incurred loss model to the new expected loss model.
While the impact of each new standard will vary from company to company, every company needs to think about how to manage these three transitions. Will it be best for your company to adopt all three at once, or will it be best to adopt them sequentially? Or perhaps mix and match a bit?
There are several considerations in these implementation date decisions. How they will affect investor relations is a major issue. The time and other resources required, systems issues and ICFR impact are among the other inputs to this decision. Each company has to evaluate these considerations based on their own circumstances.
Given the potential magnitude of these changes and their widespread discussion in the reporting environment, disclosures about these changes have become more and more important to users. With the recent SEC Staff Announcement at the September EITF meeting about SAB 74 (SAB Codification Topic 11-M) disclosures, disclosing where you are in this process has become almost required. The more or less simple “standard” disclosures about “we have not selected a transition method” and “we do not yet know the impact” may not be enough. Qualitative information about where you are in the process may be a required disclosure.

There are strong incentives to move diligently on these transitions and to tell investors where you are in the process. And, anyway, who really wants to look unprepared?
Three years of sequential fun or big change? Spread it out or rip off the Band-Aid? Slow burn or big bang? We all get to decide what will be best for our company and our investors, the key issue is to make this decision on a timely basis!

 

As always, your thoughts and comments are welcome!

A Year End Planning Detail – No More Mailing the ARS to the SEC!

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One frequently asked question in our Workshops concerns the “10-K Wrap” or the annual report that companies prepare: Is this a required report or is it an optional investor relations “marketing” document?

Turns out it actually is required for the proxy process. When a company solicits proxies for its annual meeting, and the annual meeting includes, the election of directors, the proxy statement must be accompanied or preceded by an Annual Report to Shareholders or “ARS”.   You can find all the details about this requirement in Rule 14a-3. The Form 10-K and the ARS, however, are significantly different. The Form 10-K is a filed document while the ARS is furnished to shareholders pursuant to the proxy rules.

In this earlier post we reviewed the details of the proxy requirement for the ARS.

If you would like a refresher on the filed vs. furnished issues, check out this post.

One of the seeming anachronisms in this process is that the SEC has, even in these days of EDGAR, still required that paper copies of the ARS be sent to the SEC. This requirement is in the proxy rules. (Check out rules 14a-3(c) and Rule 14c-3(b)). Every time we talk about this requirement in our Workshops there are visions of the last scene from “Raiders of the Lost Ark” with a huge warehouse full of boxes no one will ever open again!

 

On November 2 the SEC modernized this requirement with the following Compliance and Disclosure Interpretation:

Proxy Rules and Schedule 14A (Regarding Submission of Annual Reports to SEC under Rules 14a-3(c) and 14c-3(b))

 

Question: Exchange Act Rule 14a-3(c) and Rule 14c-3(b) require registrants to mail seven copies of the annual report sent to security holders to the Commission “solely for its information.” A similar provision in Form 10-K requires certain Section 15(d) registrants to furnish to the Commission “for its information” four copies of any annual report to security holders. Can a registrant satisfy these requirements by means other than physical delivery or electronic delivery pursuant to Rule 101(b)(1) of Regulation S-T?

Answer: Yes. The Division will not object if a company posts an electronic version of its annual report to its corporate web site by the dates specified in Rule 14a-3(c), Rule 14c-3(b) and Form 10-K respectively, in lieu of mailing paper copies or submitting it on EDGAR. If the report remains accessible for at least one year after posting, the staff will consider it available for its information. [November 2, 2016]

So, as we approach this year end we can change this process and even save some postage!

As always, your thoughts and comments are welcome!

 

George M.  Wilson, Director, The SEC Institute & Carol A. Stacey, Director, The SEC Institute

Revenue Recognition – How Much Time Will You Really Need?

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By: George M. Wilson & Carol A. Stacey, SECI Institute

Much has been written and said about the resources and time that will be required to implement the new revenue recognition standard. All public companies must implement the new standard for fiscal periods beginning after December 15, 2017, roughly 15 months from now. For calendar year-end companies, the first report on Form 10-Q using the new model will be filed in about 18 months. Time is, well, short.

Even the SEC has expressed their concerns about this transition. If you have not seen their comments, check out their expansion of SAB 74 disclosures announced at the September EITF meeting in this post.

Now, we are not writing this post to nag people. Our goal is to help you assess your particular situation with a deeper understanding of the areas you will need to address and the time and resources you will need. Armed with appropriate information you can build a plan and obtain the requisite resources.

Amidst all the commentary there isn’t much detail about the specific challenges in transitioning to the new revenue recognition model. Obviously a single blog post can’t do that either! But what we can do is help you with some starting points that your situation analysis will have to address to determine the resources your company will need. So, here are highlights of three of the more involved areas.

 

  1. As you likely know the new standard is contract based. Step one in the five step revenue recognition model is to identify contracts with customers. This means you need processes and controls to assure all contracts with customers are identified and tracked. And, perhaps more complex, modifications to contracts will need to be tracked and recorded. How much work and time will be required to build the systems to capture and control this information flow?

 

  1. The new standard requires many judgments, including, what are your performance obligations, how you will estimate variable consideration and how you will estimate stand-alone selling price to allocate consideration. How much time will you need to build these processes and the controls surrounding these processes?

 

  1. Even if the timing of your revenue recognition will not change, you will need to make substantially more disclosures including what are your performance obligations, how and when they are satisfied, how you estimate variable consideration and how you estimate stand-alone selling price. Perhaps the most subjective of all the new disclosures is the requirement to disaggregate revenue based on how different revenue streams are affected by “economic factors”. How much time will you need to assess “economic factors” and make these kinds of judgments about disclosures?

 

This process will be different for every company. For a retailer the process will likely need less time than for a custom manufacturer. But all companies will need some time. The time to analyze the new standard, build the policies for how the new standard will apply to your business, do the proper documentation, build processes and establish controls is what this is all about. And while it may not change how or when some companies recognize revenue, it will affect how and when you make disclosures.

This discussion does not even begin to address a raft of other issues companies face such as the decision about which transition method to use or how you will assess when customers “obtain control” of a product or service to determine the time revenue is recognized under the new standard.

So, again, not to nag, we do urge you to begin your planning process and if you have not yet done so, begin to learn how the new standard works and assess how it will apply to your business.

If you would like to let us know where are you in the process, we will share aggregate status reports in future posts.

Here are some example status updates.

Aware of the new standard.

Studying the new standards to learn how it works.

Reviewing how the new standard will apply to your business.

Drafting the policy white paper for the new standard.

Modifying accounting systems and processes for the new standard.

Updating IT systems or acquiring IT systems for the new standard.

Implementing new IT systems.

Currently running parallel between the old and new standard.

 

As always, your thoughts and comments are welcome!