New PCAOB Rules Limit the Tax Services Accounting Firms May Provide to Public Company Audit Clients

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1 ALBANY AMSTERDAM ATLANTA BOCA RATON BOSTON CHICAGO DALLAS DELAWARE DENVER FORT LAUDERDALE HOUSTON LAS VEGAS LOS ANGELES MIAMI NEW JERSEY NEW YORK ORANGE COUNTY ORLANDO PHILADELPHIA PHOENIX SACRAMENTO SILICON VALLEY TALLAHASSEE TOKYO TYSONS CORNER WASHINGTON, D.C. WEST PALM BEACH ZURICH Strategic Alliances with Independent Law Firms* New PCAOB Rules Limit the Tax Services Accounting Firms May Provide to Public Company Audit Clients BRUSSELS LONDON MILAN ROME TOKYO GREENBERG TRAURIG, LLP ATTORNEYS AT LAW

2 PCAOB RULES LIMIT TAX SERVICES On April 19, 2006, the Security and Exchange Commission approved new Public Company Accounting Oversight Board ( PCAOB ) rules relating to the independence of registered public accounting firms that audit the financial statements of public companies. Among other things, the rules provide that an accounting firm will not be considered independent of its public company audit client if it provides certain types of tax services to the public company, certain members of management or their family members. Most of these rules take effect in Serious consequences to public companies may be triggered by a violation of these rules, even if inadvertent (e.g., the unanticipated loss of independence by the company s accounting firm). Accordingly, public companies and their audit committees will need to scrutinize carefully any tax services proposed to be provided by the companies auditors. BACKGROUND In February 2003, the Securities and Exchange Commission adopted rules, mandated by the Sarbanes-Oxley Act of 2002, that impose stricter requirements regarding auditor independence. Among other things, those rules bar an accounting firm from providing certain non-audit services to a public company audit client. 1 In addition, all other non-audit services (subject to an exception for de minimis services), including tax services, may be provided only if pre-approved by the company s audit committee. The SEC declined to prohibit accounting firms from providing tax services generally to public company audit clients. In December 2004, the PCAOB proposed rules addressing tax-related services provided by registered public accounting firms to public company audit clients. The PCAOB noted that the proposal addressed concerns about auditor independence when auditors become involved in marketing or otherwise opining favorably on aggressive tax shelter schemes and in selling personal tax services to individuals who play a direct role in preparing the financial statements of public company audit clients. In its July 2005 release, the PCAOB adopted these rules substantially as proposed, and the rules were submitted to the SEC for approval. TAX SERVICES WHICH IMPAIR AUDITOR INDEPENDENCE The new rules identify three situations in which rendering tax-related services to a public company audit client will impair an accounting firm s independence with respect to that client: (1) where the firm provides assistance to a client in connection with confidential or aggressive tax transactions; (2) where the firm performs tax services for a person in a financial oversight role with the client; or (3) where the firm performs tax services for the client and receives a contingent fee or commission. Each of these three situations is discussed in detail below

3 Services Rendered in Confidential or Aggressive Tax Transactions An accounting firm is not independent of its public company audit client if the firm, or any affiliate of the firm, provides any non-audit service related to marketing, planning or opining in favor of the tax treatment of either of the following types of transactions: Confidential Transactions a transaction offered to a taxpayer under conditions of confidentiality and for which the taxpayer has paid an advisor a fee; or Aggressive Tax Position Transactions a tax position transaction that was initially recommended, directly or indirectly, by the accounting firm and a significant purpose of which is tax avoidance, unless the proposed tax treatment is at least more likely than not allowable under applicable tax laws. This rule addresses two classes of tax-motivated transactions that, in the PCAOB s view, present an unacceptable risk of impairing an accounting firm s independence. In the case of confidential transactions, the PCAOB was particularly concerned with the provision of tax services that require confidentiality so that they may be offered by an accounting firm to multiple clients. Any condition of confidentiality, however, will trigger the rule, regardless of the reason for the condition. In the case of aggressive tax position transactions, the PCAOB notes that the threshold requirement that a significant purpose of the transaction be tax avoidance is intentionally low (as compared to a principal purpose test ) and could encompass any plan to reduce taxes. The term could include the acceleration of deductions into earlier taxable years and the deferral of income to later taxable years. The aggressive tax position transaction rule does not apply if the recommended tax treatment is more likely than not allowable under applicable tax laws. To satisfy this standard, the accounting firm would need to establish, based on an analysis of the relevant facts and authorities, that there is a greater than 50% likelihood that the tax treatment would, if challenged, be upheld. Any listed transaction - - i.e., a transaction identified in published guidance by the Internal Revenue Service as a potentially abusive tax strategy - - is deemed to not satisfy the standard. The PCAOB notes that the rule does not require an accounting firm to obtain a third-party opinion that the standard has been met. Conversely, a third-party opinion would not relieve the accounting firm of its obligation to form its own judgment as to the likelihood that the tax treatment would be upheld. The PCAOB noted that accounting firms may continue to provide other kinds of tax services not covered by the new rules, such as tax compliance services, provided that the audit committee preapproval requirements are satisfied. As a practical matter, however, given the intentionally low threshold on the tax avoidance prong of the rule, and the inherent uncertainty in the more likely that not standard applicable under the rule, public companies will need to carefully consider whether to continue to engage their auditors to provide any tax services or related services (e.g.; valuation) which may result in the avoidance, reduction or deferral of taxes. This rule applies to any tax services completed by an accounting firm after June 18,

4 Tax Services for Persons in Financial Oversight Roles The new PCAOB rules also provide that an accounting firm is not independent of its audit client if the firm, or any affiliate of the firm, provides any tax services to a person in a financial reporting oversight role at the audit client, or an immediate family member of such person. A person is deemed to be in a financial reporting oversight role if he or she is in a position to, or does, exercise influence over the contents of the financial statements or over anyone who prepares them, such as a member of the board of directors, chief executive officer, president, chief financial officer, chief accounting officer, general counsel, chief accounting officer, controller, director of internal audit, director of financial reporting, treasurer or any equivalent position. An immediate family member of a person means that person s spouse, spousal equivalent and dependents. The rule is intended to address concerns that the performance of tax services by an accounting firm for such persons creates an appearance of a mutual interest between the firm and those persons. Although the definition of the term financial reporting oversight role includes members of the board of directors, the rule does not prohibit the provision of tax services to a person who is in such a role solely as a result of his or her service on the board. In addition, the rule provides an exception for a person whose financial reporting oversight role arises only from his or her relationship to an affiliate of the issuer, if the affiliate s financial statements are not material to the issuer s audited financial statements, or if the affiliate s financial statements are audited by another accounting firm. The rule also provides an exception for persons to whom the accounting firm was already providing tax services at the time the person attains a financial reporting oversight role, such as due to a hiring or promotion, so long as the services are completed within 180 days after the date of hire or promotion. This rule became effective on April 19, 2006, but will not apply to any tax services being provided pursuant to an engagement in process on that date, so long as such services are completed by October 31, Contingent Fees The third situation is where the accounting firm provides any product or service to the audit client for a contingent fee or commission. This rule reflects the PCAOB s view that contingent fee arrangements create per se conflicts of interest that impair the accounting firm s independence by aligning its interests with that of the client. The rule defines a contingent fee as any fee established pursuant to an arrangement in which no fee will be charged unless a specified finding or result is obtained, or in which the amount of the fee is otherwise dependent upon the finding or result of the product or service provided by the accounting firm. Excluded from the definition is any amount fixed by a court or other public authority and not dependent on a finding or result, such as a fee approved by a bankruptcy court. However, unlike the SEC definition, the PCAOB s definition of contingent fee includes fees based on the results of a judicial decision or the findings of a governmental authority. This rule became effective on April 19, 2006, but will not apply to contingent fee arrangements that are paid in their entirety, converted to fixed fee arrangements, or otherwise unwound by June 18, However, unlike the SEC definition, the PCAOB has made clear that fees based on the results of a judicial decision or the findings of a governmental authority fall within the definition of contingent fees and are therefore impermissible

5 AUDIT COMMITTEE PRE-APPROVAL REQUIREMENTS FOR PERMISSIBLE TAX SERVICES The new PCAOB rules also specify the procedures that a public company s audit committee must follow in order to pre-approve any permissible tax services. The accounting firm must: describe, in writing, to the audit committee the scope of the service, the fee structure, any agreement (including an oral agreement) between the firm and the client relating to the service and any compensation arrangement or other agreement, such as a referral agreement or fee-sharing arrangement, between the firm and any other person with respect to the promoting, marketing or recommending of a transaction covered by the service; discuss with the audit committee the potential effects of the service on the firm s independence; and document the substance of its discussion with the audit committee. These procedures are more detailed than the procedures prescribed by the SEC with respect to the pre-approval of non-audit services generally. The PCAOB noted that the procedures are intended to provide audit committees with a robust foundation of information upon which to determine whether to approve any proposed permissible tax services. The rules do not specify a particular methodology or timing for the required communications; the PCAOB has indicated that the approval process may take place on either an ad hoc basis, or as part of an overall periodic approval process (e.g., in connection with an audit committee s annual planning process). This rule became effective on April 19, 2006, but will not apply to any tax service pre-approved on an engagement-by-engagement basis before June 18, For tax services provided to audit clients whose audit committees pre-approve tax services pursuant to policies and procedures, the rule will not apply to any such tax service that is started by April 20, CONCLUSION The adoption of these PCAOB rules means that accounting firms and public companies must both be sensitive to the risks associated with having an accounting firm provide tax-related services to a public company audit client or to certain company employees and family members. Given the inherent uncertainty of the more likely than not standard, and the potential for seemingly reasonable determinations to be second-guessed in hindsight, public companies and their audit committees must be very cautious about engaging their accounting firms in connection with any transactions that are designed, even in part, to avoid, reduce or defer tax. Public companies should also adopt clear policies that prohibit any employees who could be deemed to be in a financial reporting oversight role from hiring the company s accounting firm to provide tax services to themselves or to family members. 1 The categories of prohibited services under Rule 2-01 of Regulation S-X are (i) bookkeeping and related services, (ii) financial information systems design and implementation, (iii) appraisal or valuation services, (iv) actuarial services, (v) internal audit outsourcing services, (vi) management functions or human resources, (vii) broker or dealer, investment adviser or investment banking services, (viii) legal services and (ix) other expert services unrelated to the audit and any other services that the PCAOB determines by regulation to be impermissible

6 This Alert was written by Timothy Jessell and Jason Simon in the Tysons Corner office. Please contact Mr. Jessell or Mr. Simon at or your Greenberg Traurig liaison, if you have any questions regarding the subject matter of this GT Alert. Albany Amsterdam Atlanta Boca Raton Boston Chicago Dallas Delaware Denver Fort Lauderdale Houston Las Vegas Los Angeles Miami New Jersey New York Orange County Orlando Philadelphia Phoenix Sacramento Silicon Valley Tallahassee Tokyo Tysons Corner Washington, D.C West Palm Beach Zurich This Greenberg Traurig ALERT is issued for informational purposes only and is not intended to be construed or used as general legal advice. The hiring of a lawyer is an important decision. Before you decide, ask for written information about the lawyer s legal qualifications and experience. Greenberg Traurig is a trade name of Greenberg Traurig, LLP and Greenberg Traurig, P.A Greenberg Traurig, LLP. All rights reserved. *Greenberg Traurig has entered into Strategic Alliances with the following independent law firms, where Greenberg Traurig attorneys are available for consultation by appointment only: Olswang in London and Brussels, Studio Santa Maria in Milan and Rome, and the Hayabusa Kokusai Law Offices in Tokyo. Greenberg Traurig is not responsible for any legal or other services rendered by attorneys employed by the Strategic Alliance firms