Changes to Broker-Dealer Reporting & Auditing Requirements

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1 Changes to Broker-Dealer Reporting & Auditing Requirements Reporting and auditing requirements for broker-dealers changed significantly starting June 1, These changes are the culmination of several years of outreach and debate to enhance customer protection following the 2007 financial crisis and several high-profile broker-dealer collapses. Background The Sarbanes-Oxley Act of 2002 (SOX) created the Public Company Accounting Oversight Board (PCAOB) and required that auditors of U.S. public companies be subject to external, independent oversight for the first time. In 2010, the Dodd-Frank Wall Street Reform and Consumer Protection Act amended SOX to give the PCAOB oversight of the audits of broker-dealers registered with the SEC. In July 2013, the Securities and Exchange Commission (SEC) finalized amendments to Rule 17a-5 on annual reporting, audit and notification requirements for brokerdealers. The rules required that broker-dealer audits and reviews of newly required compliance and exemption reports be conducted by firms registered with the PCAOB in accordance with PCAOB standards. The SEC rules were effective as of June 1, To address the SEC s amendments, PCAOB adopted three auditing and attestation standards to establish guidance for the auditor s responsibility related to the new reports. The attestation standards will apply to all registered accounting firms conducting attestation engagements related to broker-dealer compliance or exemption reports. The standards do not extend to the audit work performed in connection with the client asset custody arrangements of registered investment advisors, which are governed by other SEC rules. These PCAOB rules are effective for fiscal years ending on or after June 1, Recent Updates On May 2, 2014, the SEC approved on an accelerated basis the PCAOB s proposed broker-dealer rules, bringing those rules into conformance with Dodd-Frank amendments. The amendments modify the PCAOB s professional practice standards to include the audits of brokers and dealers to the same extent they previously applied to the audits of financial reporting issuers, along with several technical updates. PCAOB s registration, withdrawal and reporting forms (Forms 1, 1-WD, 2, 3 and 4) have been updated to include relevant broker and dealer audit client information. Other technical changes include: Clarification on the definition of person associated with a public accounting firm Allowing the PCAOB to share certain information with foreign auditor oversight authorities Clarification that PCAOB s sanctioning authority is not limited to persons who are supervisory personnel at the time a failure-to-supervise sanction is imposed An updated definition of audit committee to include brokers and dealers that may not have organizational structures that include audit committees As approved by the SEC, these amendments to the PCAOB s rules and Ethics Code took effect June 1, The amendments to Forms 1, 1-WD, 3 and 4 took effect on July 1, The amendments to Form 2, used to file the annual report of a registered public accountant firm, will take effect April 1, Recent updates to the Commodities Futures Trading Commission s (CFTC) customer protection rules mean the changes approved by the SEC are applicable to audits and attestation engagements of brokers-dealers and futures commission merchants (FCM), including those that are dual-registered.

2 Compliance Report & PCAOB Attestation Standard No. 1 SEC s amendments will require broker-dealers to report on their internal controls on compliance in certain areas, including net capital requirements (Rule 15c3-1), customer protection, reserves and custody of securities (Rule 15c3-c), quarterly security counts (Rule 17a-13) and compliance with the entities designated enforcement agency (DEA)* rules on customer statements. The SEC collectively refers to these rules as the Financial Responsibility Rules. Registered broker-dealers would be required to prepare a compliance report including a statement that the broker-dealer has established and maintained a system of internal control to provide the broker-dealer with reasonable assurance that any instance of noncompliance with net capital and reserve rules would be prevented or detected on a timely basis. Broker-dealers will not be required to assess the effectiveness of internal controls over financial reporting as issuers are required to do in connection with SOX. PCAOB s Attestation Standard No. 1, Examination Engagements Regarding Compliance Reports of Brokers and Dealers, establishes the auditor s requirements for examining the new SEC compliance reports and requires auditors to obtain sufficient, appropriate evidence to provide reasonable assurance on the following statements in the compliance report: The broker-dealer was in compliance with the net capital rule and reserve requirement rule at fiscal yearend The broker-dealer had effective internal control over compliance (ICOC) during the year and at year-end The broker-dealer based its assertions on information from its books and records * A broker-dealer that is a member of more than one securities self-regulatory organization may be assigned a DEA that is responsible for examining the broker-dealer s compliance with SEC financial responsibility rules. Example of DEAs include the National Association of Securities Dealers (NASD), Chicago Board Options Exchange (CBOE) and Financial Industry Regulatory Authority (FINRA). The rules covered by ICOC are broader than those covered by the compliance statement. ICOC - entire year and at year-end 15c3-1, 15c3-c, 17a-13 Account Statement Rule Compliance Statement - year-end only 15c3-1 15c3-3(e) 2

3 Exemption Report & PCAOB Attestation Standard No. 2 Many brokers are introducing firms that do not hold customer assets. Some clearing broker-dealers clear only their own transactions and do not hold customer securities or cash. If broker-dealers meet certain criteria, they could be exempt from SEC s Rule 15c3-3, Customer Protection Reserves and Custody of Securities. Such brokerdealers would file an exemption report that would be reviewed by a PCAOB-registered independent public accountant. PCAOB s Attestation Standard No. 2, Review Engagements Regarding Exemption Reports of Brokers and Dealers, requires auditors to obtain moderate assurance whether conditions exist that would cause one or more of the following assertions not to be fairly stated: SIPC The provision under which the broker-dealer claimed an exemption A statement that the broker-dealer either Met the identified exemption provisions throughout the most recent fiscal year without exception Met the identified exemption provisions throughout the most recent fiscal year, with some exception(s); a broker-dealer would need to identify each exception with a brief explanation and the date(s) when the exception(s) existed The Securities Investor Protection Corporation (SIPC) is a not-for-profit corporation responsible for providing financial protection to customers of failed broker-dealers. The SEC previously only required limited information to be filed with SIPC. SEC s amendments require SIPC-member broker-dealers to file their full annual reports with SIPC including the independent registered public accountant s reports covering the financial statements and the compliance or exemption report. This requirement was effective December 31, Form Custody All broker-dealers are required to file with their DEA a new quarterly report called Form Custody, which contains information on how custody is maintained on customer assets and relationships with other custodians. The report is to be filed within 17 days after the end of each calendar quarter and should be based on settlement date positions. All securities carried by a broker-dealer should be included in the Form Custody report including fully paid, margin and excess margin securities. Only futures collateral held in a securities account should be included in the report. Market value ranges of securities held for customers and noncustomers should be determined based on aggregate long positions only. Unpriced positions and fails related to delivery versus payment or receive versus payment transactions should be excluded from market value. Notification Requirements An auditor must immediately notify the broker-dealer s chief financial officer of any instances of noncompliance with the financial responsibility rules and the nature of the noncompliance or existence of a material weakness. When the broker-dealer is required to notify the SEC, a copy also must be provided to the auditor. If the auditor does not receive the notice within one business day or disagrees with the notice, it must notify the SEC. PCAOB Auditing Standard No. 17: Supplemental Information Broker-dealers also file with their financial statements certain supplemental information, including the calculation of their net capital and reserve requirements and information related to possession and control of customer assets. This standard sets forth the independent accountant s responsibilities when the auditor of the financial 3

4 statements is engaged to perform audit procedures and report on whether supplemental information accompanying the financial statements is fairly stated, in all material respects, in relation to the financial statements as a whole. An auditor is required to perform the following procedures: Determine the supplemental information reconciles with the underlying accounting and other records or the financial statements, as applicable Test the completeness and accuracy of the supplemental information, to the extent it was not tested as part of the audit of the financial statements Evaluate whether the supplemental information, including its form and content, complies with relevant regulatory requirements or other applicable criteria SEC s amendments to Rule 15c3-3 require broker-dealers carrying proprietary accounts of broker-dealers (PAB) to perform a separate reserve computation for PAB accounts and a supplemental schedule containing the PAB calculation will have to be included in the financial report. For audits of broker-dealers with fiscal years ending on or after June 1, 2014, this required supplemental schedule will be required to be audited in accordance with AS 17. Futures Commission Merchants Some broker-dealers are registered with both the SEC as a broker-dealer and with the CFTC as an FCM. Previously, the PCAOB had no jurisdiction over FCMs registered with the CFTC. The SEC and CFTC have aligned the reporting and auditing requirements for dual-registered broker-dealers with CFTC s release, Enhancing Protections Afforded Customers and Customer Funds Held by Futures Commission Merchants and Derivatives Clearing Organizations. On March 28, 2014, the CFTC issued Letter No , Interpretation of Commission Regulation 1.16 Auditor Independence Standards for Audits of Futures Commission Merchants, which provides clarification over FCM auditor independence requirements. In combination, these CFTC releases will affect audits of FCMs and those dually registered as FCMs and broker-dealers for fiscal years ending on or after June 1, 2014, as noted below: FCM auditors must be registered with the PCAOB FCM audits must comply with the PCAOB standard; currently, such audits are conducted in accordance with AICPA standards FCM auditors must have undergone an inspection by the PCAOB by December 31, 2015 FCMs and their auditors would be deemed to be in compliance with CFTC Regulation 1.16(c)(2) if they comply with the auditor independence requirements of SEC Rule 17a-5 FCM auditors still must issue a Report of Internal Control disclosing any material inadequacies (MI) existing at the date of the audit. The SEC amendments to Rule 17a-5 replace the requirement for the MI letter to be issued by auditors of broker-dealers. However, this requirement currently remains in place for audits of FCMs (including those dually registered as FCMs and broker-dealers) subject to CFTC regulation. Auditors of dual-registered FCMs and broker-dealers will be required to issue both an MI letter and either an examination or review report, in accordance with Rule 17a-5. 4

5 Reporting Requirements & Audit Assurance Dual Registration CFTC FCM Only Material Inadequacy Letter The scope of the audit and review of the accounting system, the internal control and procedures for safeguarding securities shall be sufficient to provide reasonable assurance that any material inadequacies existing at the date of examination in accounting systems, internal accounting control or procedures for safeguarding securities would be disclosed. SEC-Registered Broker-Dealers Only Compliance Report The broker-dealer has established and maintained a system of internal control to provide reasonable assurance that any instance of noncompliance with net capital and reserve rules would be prevented or detected on a timely basis. OR Exemption Report Based on our review we are not aware of any material modifications that should be made to management s statements for them to be fairly stated in all material aspects. moderate assurance Additional Resources The SEC has issued two Frequently Asked Questions (FAQ) documents to address various implementation matters: FAQs Concerning the Amendments to Certain Broker-Dealer Financial Responsibility Rules FAQs Concerning the July 30, 2013 Amendments to the Broker-Dealer Financial Reporting Rule To learn more about how these new requirements could affect your organization, contact your BKD advisor. Contributor Anne Coughlan Director acoughlan@bkd.com 5