Highlights of recent accounting and regulatory issues This document highlights key accounting and regulatory issues, new developments and best practices for broker-dealers from the SEC, Public Accounting Oversight Board (PCAOB), and the Financial Accounting Standards Board (FASB). Contents 1 Revisions to Rule 17a-5 2 Regulatory updates 4 Public Company Accounting Oversight Board (PCAOB) and its role in broker-dealer auditor regulation 5 FASB update Revisions to Rule 17a-5 The proposed effective date for the Rule 17a-5 amendments is for annual reports filed with the SEC for fiscal years ending on or after Dec. 15, 2011. Many comment letters to the proposed amendments expressed significant concerns over timing of implementation. The Commission is looking for a responsible implementation for all and asks the industry to stay tuned, but focus on requirements that exist today. On July 21, 2010, Section 982 of the Dodd-Frank Wall Street Reform and Consumer Protection Act granted the PCAOB oversight over audits of brokers and dealers registered with the Commission. Public accounting firms should follow AICPA standards until PCAOB releases its final auditing standards for broker-dealers. On June 15, 2011, the Commission proposed amendments to broker-dealer financial reporting to, among other things, update the existing requirements of Rule 17a-5 and facilitate the ability of the PCAOB to implement oversight of independent public accountants audits of broker-dealers. The Commission is very cognizant of the existing rules that have served the industry well for over 30 years and is looking to leverage the existing rules. Current reporting standards require a material inadequacies report from the independent auditor that references a study of practices and procedures followed for 15c3-1, 15c3-3 and 17a-13. The new 17a-5 amendments look to replace the concept of a study with obtaining reasonable assurance, which is the common phrase used for financial statement audits. In addition to existing requirements to file audited financial statements, Proposed Rule 17a-5 would require two new reports: Carrying broker-dealers must file a compliance report that is examined by an independent public accountant and noncarrying broker-dealers must file an exemption report that is reviewed by an independent public accountant.
The examination and review reports from the independent public accountants are expected to replace the current material inadequacy report being issued in practice today. In addition, the term material inadequacy would be replaced by the following: Material non-compliance A failure by the broker-dealer to comply with any of the requirements of the Financial Responsibility Rules in all material respects; and Material weakness A deficiency, or combination of deficiencies, in internal control over compliance with the Financial Responsibility Rules, such that there is a reasonable possibility that material non-compliance with those provisions will not be prevented or detected on a timely basis. Correspondents should think of material weakness as the likelihood and magnitude of errors may pass through to financial reporting. Correspondents should also be aware that any failure in meeting the Financial Responsibility Rules is considered an instance of noncompliance. Comment letters on the proposed 17a-5 amendments initially raised the concern of how to measure materiality for both material non-compliance and material weakness. The comment letters asked the SEC to provide more guidance (or examples) in this area. The Commission did not intend to have different materiality levels for both. The proposed 17a-5 amendments also require independent public accountants to notify the Commission, within one business day, if instances of material non-compliance exist with respect to the Financial Responsibility Rules. Comment letters from the industry raised concern about this new amendment and many asked that the rule not change. Other comment letters asked for clarity of the relationship between internal controls over compliance with Financial Responsibility Rules and internal controls over financial reporting. The Commission intended for a focus on controls over compliance with the Financial Responsibility Rules, however, some controls may overlap with controls over financial reporting (e.g., the Sarbanes-Oxley Act of 2002). Comment letters also asked for clarity in regards to the 15c3-3 report and whether it s for a period or an as of date. The Commission recognizes the proposal was not clear and will revise: The intention was to cover the year. Regulatory updates The SEC, Commodity Futures Trading Commission (CFTC), the Financial Industry Regulatory Authority (FINRA) and other industry regulators have recently issued interpretations and notices for broker-dealers. Below is a summary of key issues. Margin debit balances: The SEC s interpretation is that margin debit balances are not good assets when customer securities held as collateral in a control location away from the broker-dealer. However in certain situations, collateral held in specific control locations may qualify as acceptable (generally for customers that are not permitted to provide collateral directly to the broker, e.g., mutual funds). This issue is being readdressed due to a proposed interpretation by the CFTC for uncleared swap transactions. The Capital Committee has this proposal under consideration and the SEC has not yet determined whether to issue a no action letter allowing this interpretation. Regulatory Notice 10-57, Funding and Liquidity Risk Management Practices: FINRA is concerned with excess liquidity maintained at the holding company level, which poses a risk as all legal entities will be looking to obtain that excess in times of a significant event. Therefore, FINRA is asking broker-dealers to maintain the excess liquidity at the broker-dealer level and encouraging staff that is independent of the business lines to help ensure that the firm does not exceed levels of risk tolerance set by the governing board or senior management. The staff may perform such functions as analyzing exposure across business lines, monitoring for early warning signs concerning potential funding and liquidity problems, evaluating pricing decisions, performing stress tests, and maintaining and regularly updating contingency funding plans. 2
Valuations: Examiners are looking at procedures for automated pricing and the analysis of exception reports. The examiners believe it is good practice for management to analyze exceptions on a gross basis rather than net basis, including taking an increased focus on variances reported by traders in acceptable ranges that may not be getting enough scrutiny. In addition, the examiners are looking for independent pricing firms to be truly independent with a low reliance on pricing information from internal traders. Delayed delivery: Examiners are also focusing on trading operations for delayed delivery and controls over trade cancellations. Examiners will conduct reviews of profit and loss on a gross (rather than net) basis, with a focus on notional values and credit risk. Trade cancellations: Examiners are focusing on what trade desk the cancellation came from and looking at trade cancellations where confirmation was not sent to the counterparty. Employee transition to trade desks: Examiners are also focusing on employees who move from operations to the trade desk and whether the system entitlements for those employees were appropriately modified. In addition, examiners are looking for mandatory vacations and a control for not having those employees make trades (or accessing systems) remotely. Rule 15c3-5: The Rule requires firms to have risk management controls when they give direct access to submit orders. Firms should have controls to set appropriate limits and prevent certain types of transactions (i.e., due to size). Reg SHO: Examiners have noted that locates are not being done appropriately under the regulation. Volcker Rule: The exceptions to the Volcker Rule are as follows: 1) underwriting, 2) market-making and 3) customer facilitation. The regulators are looking for a feasible process for monitoring compliance with these exceptions. Rule 17a-5: The possibility is low that new Proposed Rule 17a-5 amendments will be in effect for 2011 audits. However, if/when the new rules become effective, SAS 70 for investment advisers would not satisfy the requirements. Account statement rule: The rule is meant to provide customers with an opportunity to say whether assets were incorrect. To comply, broker-dealers should focus on sending statements to customers in an orderly fashion and ensure that the statements are complete. Access to independent accountant work papers: Regulators are looking to leverage the work performed by independent auditors and may seek access to certain areas of interest. There could be occasions where copies will be taken back to an examiner s office. Supplemental Statement of Income: The FOCUS report was drafted in the 1970s and has not kept pace with changes in the industry. A majority of firms are reporting up to 70 percent of their revenues in the other income line item. In order for examiners to perform risk-based examinations, revisions may be needed to the FOCUS report. Electronic filings: As of Sept. 30, 2011, firms are required to file audits through the FINRA gateway in PDF form themselves, not via their auditors, under Rule 17a-5. FINRA is no longer accepting paper forms. The SEC has not implemented an electronic filing process, but deems it a priority. Qualification examinations: FINRA is now requiring certain operations personnel to become registered personnel. The concern is that individuals who handle customer records may not have sufficient knowledge of the broker-dealer s activity to identify potential red flags. FINRA recommends personnel with decision-making or supervising/oversight authority to take a qualification exam. The regulator also suggests that broker-dealers contact the examination coordinator if any questions arise on whom to register. Some firms are registering a wide range of employees as a precaution. There is no limit on how many times the operations personnel can take the exam, although there may be a blackout period depending on how many times the test was taken recently. Lease accounting: Regulatory interpretations will be sent out once accounting rules becomes final. 3
The PCAOB and its role in broker-dealer auditor regulation With the passage of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (Dodd-Frank Act), the PCAOB was given oversight authority over the firms that perform the audits of broker-dealers, including annual reports filed pursuant to federal securities laws, to promote protection of both account holders and investors. Following are some recent developments. Registration and inspection Recently, the PCAOB adopted and the SEC approved a temporary rule to establish an interim inspection program for registered public accounting firms audits of brokers and dealers. The PCAOB s goal for the interim inspection program will be to gather information that will be used as the basis to inform its consideration of a permanent inspection program. The PCAOB will consider whether to exclude introducing brokers-dealers, which do not generally maintain customer cash and securities, in the permanent inspection program. The interim inspection program for the firms that audit brokers and dealers will not initially include firm-specific inspection reports. Instead, the PCAOB will, at least annually, publish reports on the interim program and what inspectors are finding. The PCAOB will not issue firm-specific reports until inspection work is performed under the permanent program, which is not imminent. (However, any significant audit issues identified in the interim program should be promptly addressed by the inspected firm. In egregious cases, the PCAOB may initiate disciplinary actions or refer information about potential broker-dealer violations to the SEC, FINRA or other designated examining authority.) The payment model, evolution of reporting, conflicts of interest and more The PCAOB has labelled a number of challenges that require addressing. First, under the payment model, the auditor is hired and fired by the company itself. The Sarbanes-Oxley Act s reform to shift hiring and oversight of the auditor from management to the audit committee may, in practice, have proved insufficient to counteract that conflict and others facing the auditors. According to the PCAOB, as with management, audit committees may see their job as negotiating the lowest audit fee, not championing auditor objectivity and independence from management. Second, to protect the investing public, all public companies are required by law to obtain an audit. This statutory franchise protects the profession as a whole from the risks of obsolescence, thereby reducing auditors need to adapt to investor needs. The PCAOB expressed concern that auditors do not have a natural incentive to evolve their reports to what investors want. Finally, the PCAOB cited other external conflicts of interest for the auditor to overcome. Conflicts arise from the fundamental issues auditors face in evaluating whether a company s going concern assumption is valid. They exist in the judgments of people who prepare and market valuations while actively trading. Conflicts also emerge in audit committees compensated substantially in stock. Funding Under the PCAOB s funding rules, broker-dealers will be allocated a portion of the broker-dealer accounting support fee based on their average quarterly tentative net capital. Generally, brokers and dealers with average quarterly tentative net capital of greater than $5 million may be assessed a share of the fee. 4
The PCAOB s policy agenda to enhance the relevance, credibility and transparency of audits In June 2011, the PCAOB released a concept release on potential changes to the auditor s reporting model. The Concept Release presents several possible alternatives for changing the auditor s reporting model and requests comment on these or other alternatives that could provide investors with more transparency in the audit process and more insight into the company s financial statements or other information outside the financial statements. The alternatives discussed in the release include: an auditor s discussion and analysis; required and expanded use of emphasis paragraphs; auditor assurance on other information outside the financial statements; and, clarification of language in the standard auditor s report. In August 2011, the PCAOB issued a Concept Release to seek public comment on how to enhance auditor independence, including whether audit firms should be subject to term limits. The PCAOB has also proposed amendments to its auditing standards to improve audit transparency by enhancing disclosure about the participants in audits, including disclosure about the partner in charge of the audit, as well as other firms involved in the audit. The comment periods for the Concept Releases have passed. FASB update Below is an update from the FASB on convergence efforts, joint projects and other key issues. For the most up-to-date status of FASB projects, refer to the information on the FASB Technical Plan and Project Updates page which provides a summary of decisions reached to date and is updated shortly after each meeting. Convergence efforts The FASB and IASB have been working since 2002 to improve and converge U.S. GAAP and IFRS. The Boards are currently focusing their attention on completing the revenue recognition, leases, financial instruments and insurance projects. Both Boards have agreed to re-expose leases and revenue recognition was re-exposed in November 2011. Accounting for Financial Instruments Classification and Measurement The FASB expects to complete its deliberations on classification and measurement in December 2011. The IASB has issued a final standard, IFRS 9, Financial Instruments, to address classification and measurement. However, the IASB recently decided to defer the effective date of IFRS 9 until 2015. The purpose of the deferral is to allow the IASB and FASB time to reconcile differences in their seperate models. The Boards have not yet set a timetable as to when they expect to discuss these differences. The IASB has indicated that it intends to expose these differences, together with other implementation issues in IFRS 9. The FASB has not yet decided if it will re-expose the tentative decisions reached on classification and measurement. Accounting for Financial Instruments Impairment Both Boards are currently working on a revised impairment model. The current thinking is to create a model based on expected credit losses. The model would group financial assets into three buckets that would capture the deterioration of credit quality in the loan portfolio. To date, the Boards have discussed the model in terms of loans held by a financial institution. However, the Boards still intend to develop a single impairment model that would apply to other financial assets (for example, debt securities) and all entities, not just financial institutions. 5
Offsetting of Financial Instruments In July 2011, the Boards tentatively agreed on converged disclosures to allow financial statement users to reconcile the differences in the offsetting approaches of the FASB and IASB. A final ASU is expected in December 2011. The effective date is for all periods beginning on or after January 1, 2013, with retroactive application for comparative financial statements. Revenue Recognition The FASB has recently re-exposed the revenue recognition exposure draft. The FASB is interested in hearing how the standard will impact the financial services industry. In particular, the impact to asset management fees, acquisition costs, below-market lending activities and stock exchange fees were mentioned. The proposed ASU is available at fasb.org. Accounting for Financial Instruments Hedge Accounting The FASB has not re-deliberated feedback received on the May 2010 exposure draft or February 2011 discussion paper seeking comment on the IASB s hedge accounting exposure draft. It is not expected that the FASB will begin re-deliberating hedge accounting until the second half of 2012. The IASB has completed its re-deliberations on hedging and expects to publish a review draft in early 2012. A summary of the IASB decisions have been posted to the IASB website. Accounting for Financial Instruments Liquidity Risk and Interest Rate Disclosures The FASB has decided to focus on improving liquidity risk and interest rate disclosures in light of feedback from the Financial Instruments Exposure Draft. All entities would have to provide liquidity risk disclosures, with only financial institutions needing to provide interest rate risk disclosures. Banks, savings and loan associations, credit unions and brokerdealers are considered financial institutions. The purpose of the liquidity risk disclosures is to provide financial statement users with information about the risk that an entity will have trouble meetings its obligations. The interest rate risk disclosures would focus on providing financial statement users with information about how fluctuations in interest rates impact an entity. For more information For more information about these topics, contact: Jack Katz National Managing Partner, Financial Services Grant Thornton LLP T 212.542.9660 E jack.katz@us.gt.com Nichole Jordan National Banking and Securities Leader Grant Thornton LLP T 212.624.5310 E nichole.jordan@us.gt.com This Grant Thornton LLP bulletin provides information and comments on current accounting issues and developments. It is not a comprehensive analysis of the subject matter covered and is not intended to provide accounting or other advice or guidance with respect to the matters addressed in the bulletin. All relevant facts and circumstances, including the pertinent authoritative literature, need to be considered to arrive at conclusions that comply with matters addressed in this bulletin. For additional information on topics covered in this bulletin, contact your Grant Thornton LLP adviser. Visit www.grantthornton.com/ financialservices. Grant Thornton LLP All rights reserved U.S. member firm of Grant Thornton International Ltd 6