SEC “Seeking Small Business Input”

In line with President Obama’s recent Executive Order relating to regulation and the regulatory environment the SEC is seeking input on topics that specifically impact smaller reporting companies. 

In the request for comments they state “We are particularly interested to hear your views on rules that affect smaller reporting companies, as well as smaller companies that are not subject to the Commission’s reporting requirements but seek to raise capital in the exempt markets.”

The SEC request is looking for comments within the following 3 areas where you can post and read comments posted by others:

• Regulations and Exemptions Relating to the Offer and Sale of Securities
• Disclosure and Reporting Requirements
• Updating Commission Rules to Promote Economic Growth

As of today there are very few comments posted and most of them relate to exempting smaller reporting companies from the XBRL requirements citing cost constraints. 

I urge everyone in the smaller reporting company arena to take advantage of the opportunity to make suggestions.

Audit of ICFR for Small Reporting Companies

It appears the time has come for non-accelerated filers to obtain an audit of internal controls over financial reporting from their external auditor, likely in the form on an integrated audit with the filer’s financial statements.

To date, the SEC has not updated its most recent rules release on the requirement for non-accelerated filers to include an attestation report of their independent auditor on internal controls over financial reporting for fiscal years ending on or after December 15, 2009 (with certain exceptions for new registrants).

Recent remarks by both SEC Commissioner Luis Aguilar and SEC Chairman Mary Schapiro seem to indicate no additional extension will be granted, absent the SEC’s on-going cost-benefit study of SOX Section 404 indicating costs significantly out of line with the benefits.

In preparing for obtaining an audit report, which is as of the annual balance sheet date, it is a good idea to be familiar with a couple of different pieces of guidance.  The first of which is the COSO ICFR guidance for smaller reporting companies to ensure appropriately designed and implemented controls to detect and prevent material misstatement of financial information.  Secondly, to get an idea of the auditor’s approach, review the PCAOB’s Auditing Standard No. 5 and further the PCAOB’s staff views issued January 23, 2009.

SFAS 157 – How ‘Fair is Fair’ Value?

No matter if you believe that “fair value” drives unnecessary market instability or that it provides enhanced transparency of financial information, the question remains unchanged. What is a supportable fair market value that reflects an orderly transaction between two or more willing market participants?

The SEC’s recently issued “Report and Recommendations Pursuant to Section 133 of the Emergency Economic Stabilization Act of 2008: Study on Mark-To-Market Accounting” concludes, amongst other things, that “..additional measures should be taken to improve the application and practice related to existing fair value requirements – particularly as they relate to both Level 2 and Level 3 estimates”. In the report, the SEC’s Committee on Improvements to Financial Reporting (CIFiR) further recommended the SEC issue a statement of policy articulating how it evaluates the reasonableness of accounting judgments and include factors that it considers when making this evaluation, as well as that the PCAOB should also adopt a similar approach with respect to auditing judgments.

In light of these conclusions, and unlikely forthcoming judgment “guidance” for valuing financial instruments with primarily Level 2 and 3 inputs, it is important to gather all pertinent information and variables potentially used in building a valuation model. There are several keys to doing this including:

• Monitor your investments and those similar throughout the reporting period, not just at the reporting date.
• Stay in touch with general economic indicators.
• Consider your true plans of instrument liquidation and whether the Company has the ability to wait out the market.
• Get your non-accounting finance and analyst types involved as they are generally more comfortable with assumptions and judgment than most accounting types.
• Provide your assumption documentation to your auditor as soon as possible – it is generally not difficult to audit the fair value model itself, however, getting reasonable documentation related to assumptions is where the time is spent, particularly when there is a difference in opinion as to what constitutes reasonable.
• Try to keep it simple concise and as straightforward as possible. Tying certain assumptions to the lining up of the planets will likely not pass your auditor’s smell test.

By the way, the SEC’s Report concluded that the fair value accounting standards did not cause the bank failures of 2008.