SEC Re-Examines Auditor Independence Rules

As a new decade begins, the SEC is taking a fresh look at its auditor independence rules, which help ensure public company auditors are independent of their clients in both fact and appearance. Except for minor changes to certain lending rules in 2019 noted below, the rules were last overhauled in 2003. The extensive feedback on the lending rule changes generated additional areas for improvement, including a materiality threshold for common control decision making, a shorter engagement period for domestic initial public offering (IPO) issuers, transition time to resolve merger and acquisition conflicts and increasing the exemptions from the lending rules. The proposed changes are intended to more effectively and efficiently identify transactions and relationships that could impair an auditor’s independence. The SEC believes the changes can reduce compliance costs for both audit firms and their clients by updating unduly burdensome requirements for relationships and services that are less likely to threaten auditor objectivity and impartiality. By reducing the number of minor independence conflicts, clients may be able to choose between an increased number of eligible audit firms for future work. The comment period will end in March 2020.

Common Control & the Affiliate of the Audit Client For independence evaluations, the “audit client” is broadly defined and includes affiliates of the audit client that are under common control, i.e., parents, subsidiaries and sister companies. The audit client definition also includes each entity in an investment company complex (ICC). Keeping track of such relationships can be costly and time-consuming, especially for sister relationships and portfolio companies with a large volume of acquisitions and dispositions that may not result in a threat to an auditor’s objectivity. This also can be a challenge for portfolio companies that use different auditors for individual holders within the same ICC or private equity structure. Even if the portfolio companies are otherwise unrelated, multiple audit firms may need to be independent of each entity. The current ICC rules include not just investment companies that share an investment advisor, but also any investment company that is advised by a sister investment advisor or has a sister sponsor. For some firms, this has significantly reduced the pool of available, qualified auditors. The SEC is proposing adding a materiality threshold to determine who is considered an audit client for portfolio and investment companies. Audit firms would only need to assess those sister entities that are material to the audit client or, for investment companies, those that exercise significant influence. This should reduce the number of sister entities included in independence assessments.

Audit & Professional Engagement Period Under current rules, the term “audit and professional engagement period” is defined differently for domestic and foreign private issuers (FPI) when a company first files—or is required to file—an SEC registration statement or report. The FPI definition creates an unfair advantage compared to domestic issuers for IPOs. The auditor of a domestic issuer engaging in an IPO must be independent during all periods included in the issuer’s SEC registration statement, e.g., if the registration statement includes three years of financial statements, the auditor would have to look back and assess independence during all three prior years. Under current requirements, an auditor that has complied with another independence rule set, such as the American Institute of CPAs, may not have satisfied the SEC’s independence requirements. The auditor of an FPI engaging in an IPO must be independent only during the immediately preceding fiscal year (even if the registration statement for the FPI includes three years of financial statements), provided the FPI has been in full compliance with its home country independence standards in all prior periods covered by any SEC registration statement or report.

SEC Re-Examines Auditor Independence Rules

The proposed changes would level the playing field; a one-year look-back provision would apply to all first-time filers, domestic and foreign.

Loans or Debtor-Creditor Relationships Currently, an accountant is not independent if the accounting firm, any covered person in the firm or any of his or her immediate family members have any loans to or from an audit client or the client’s related parties. Certain loans are exempted from this prohibition: . Automobile loans and leases collateralized by the automobile . Loans fully collateralized by an insurance policy’s cash surrender value . Loans fully collateralized by cash deposits at the same financial institution . A mortgage loan collateralized by the borrower’s primary residence, provided the loan was not obtained while the covered person in the firm was a covered person

The proposal would add certain student loans to the list of exemptions—only previous loans obtained before the auditor was covered by the independence rules. This exemption would not apply to loans for an auditor’s family members. The amendments also clarify that the mortgage loan exemption could apply to other mortgage obligations such as equity lines of credit or second mortgages. Amended language would refer to “consumer loans,” which also would exempt personal consumption loans such as retail installment loans, cell phone installment plans and home improvement loans that are not secured by a mortgage on a primary residence.

Inadvertent Violations for Mergers & Acquisitions Currently, an independence violation can arise from a merger or acquisition where the services or relationships were not prohibited before the corporate action. For example, an audit firm could have an existing audit relationship with an issuer that acquires another company for which the audit firm was not the auditor but provided services or had relationships that were not prohibited under existing independence rules. Through no action of the audit firm, the acquisition would cause the previously permitted services to violate the auditor independence rules. Resolution of independence violations could delay or derail the merger or acquisition or may result in a costly termination of audit work or the nonaudit service. This proposal would give companies up to six months after a merger or acquisition to address—in an orderly manner—any auditor independence violations created by a business transaction, if the following conditions are met: - Be in compliance with the applicable independence standards related to the services or relationships when the services or relationships originated and throughout the period in which the applicable independence standards apply - Correct the independence violations arising from the merger or acquisition as promptly as possible under relevant circumstances - Have in place a quality control system that has procedures and controls that: - Monitor the audit client’s merger and acquisition activity to provide timely notice of a merger or acquisition - Allow for prompt identification of potential violations after initial notification of a potential merger or acquisition that may trigger independence violations, but before the transaction has occurred

2 SEC Re-Examines Auditor Independence Rules

Business Relationships Rule This rule prohibits at any point during the audit and professional engagement period, the accounting firm and any covered person from having “any direct or material indirect business relationships with the audit client or with persons associated with the audit client in a decision-making capacity, such as an audit client’s officers, directors or substantial stockholders ...” The proposal incorporates the language from the 2019 update to the business relationship rule by replacing the undefined term “substantial stockholders” with “beneficial owners who have a significant influence over the audit client.” The concept of significant influence is used elsewhere in the independence guidance. When an auditor is evaluating lending or business relationships with officers, directors or beneficial owners with significant influence over an affiliate of the entity under audit under the Loan Provision or the current or proposed Business Relationships Rule, the auditor should focus on whether the significant influence exists at the entity under audit. Auditors still cannot have a business relationship with a client or its officers, directors or owners.

2019 Lending Relationship Rule Update In 2019, the SEC finalized changes to independence rules in the Loan Provision of Regulation S-X, which primarily affected audits of investment funds. As large accounting firms adopted new financing strategies for business operations—such as syndicated bank borrowings or private placements of debt to financial institutions—it became more costly and complicated to comply with the Loan Provision. The following changes should more effectively and efficiently identify debtor-creditor relationships that could impair an auditor’s objectivity and impartiality: . The new analysis focuses only on beneficial ownership rather than on both record and beneficial ownership. . The existing 10 percent bright-line shareholder ownership test is replaced with a “significant influence” test. An auditor’s independence would be impaired if a lender had significant influence over the fund’s investment policies and day-to-day portfolio management processes, including those governing the selection, purchase, sale and valuation of investments and the distribution of income and capital gains. If the lender does not have the ability to influence portfolio management processes, the lender generally would not have significant influence, even if it holds 20 percent or more of a fund’s equity securities. . A “known through reasonable inquiry” standard has been added with respect to identifying beneficial owners of the audit client’s equity securities. If an auditor conducts a reasonable inquiry and cannot determine that one of its lenders also is a beneficial owner of an audit client's securities, i.e., because the ownership stake is held indirectly or through multiple financial intermediaries, such ownership is unlikely to affect the auditor’s objectivity and impartiality. . “Audit client” definition is updated for a fund under audit to exclude any other funds that otherwise would be considered audit client affiliates.

SEC Rule-Making Agenda In 2020, the SEC is expected to prioritize finalizing several disclosure-related proposals, including: . Definitions of accelerated and large accelerated filer . Regulation S-K – Business, Legal Proceedings and Risk Factors . Regulation S-X

o Rule 3-05, Business Acquisition

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o Rule 3-10, Guarantors o Rule 3-14, Significant Probable Acquisitions o Rule 3-16, Affiliate’s Collateralized Securities o Article 11, Pro Forma Financial Information

BKD has prepared a library of BKD Thoughtware® on public company reporting. Visit our website to learn more. If you have questions about these changes, contact your trusted BKD advisor.

Contributor Anne Coughlan Director 317.383.4000 [email protected]

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