Estimating the cost of country-by-country reporting

Posted by Christie Malry on October 10, 2011 at 9:38 am

Last week, the Task Force on Financial Integrity and Economic Development held its 2011 conference in Paris. On Thursday morning they had a question and answer session on country-by-country reporting, and they invited questions from Twitter users. As tends to happen in these sessions, the questions were rather dominated by critics rather than supporters. And, by jove, despite the presence of Richard Murphy on the panel, I managed to get a question answered:

And here came the answer:

OK, because he's given me just a single tweet in response, and it might be presumptuous to take it as read that he agrees with E&Y's assessment (on past form, I suspect he may not), I can only take it at face value. But, assuming that E&Y are right, it means that country-by-country reporting will be phenomenally expensive.

This month's Accountancy magazine has a table of the audits of the FTSE 100. This says that the audit fees for the entire FTSE 100, excluding audit-related fees and non-audit fees, were some £521.8m 1. Therefore, applying E&Y's 25% uplift, country-by-country reporting would add £130 million to the cost of audits of these companies. And that's only for the biggest companies; there are many other UK listed companies with international operations, albeit with lower audit fees because of their smaller size.

And it gets worse. UK pension funds don't just invest in UK companies; they also invest in foreign companies. So, to the extent that country-by-country reporting might get mandated in Europe, these funds - our retirement - will also be hit by the additional costs.

Remember, Ritchie expects the companies to just eat these costs. While there may be some indirect benefits for investors, the main purpose of these proposals is to help NGOs badger governments. Governments, in the main, don't need country-by-country reporting because they have the ultimate sanction - "give us the information we want or we won't let you trade here". There are even doubts as to whether country-by-country reporting would provide sufficient information for Ritchie and the NGOs to derive meaningful and accurate conclusions about the tax compliance of multinational firms. 

So unless the NGOs feel like cutting a cheque (and they may have some difficulty explaining this in terms of their charitable objects), on what basis do they feel they have any right to demand that the pensions of ordinary working people be punished annually to the tune of hundreds of millions of pounds for their ridiculous vanity project?

Notes:

  1. Accountancy magazine, October 2011, p16

Accounting espionage at the Big 4

Posted by Christie Malry on May 27, 2010 at 11:40 am

Who said accountants were boring. The Telegraph has huge amounts of fun with a delightful story about two neighbours who just can't seem to get along:

Back in 2007 when PricewaterhouseCoopers decided to build a new office next to Ernst & Young's More London HQ it was described as an "exciting move" for the firm.

Three years later with the building nearing completion the two companies are starting to realise quite how exciting things could get. At their closest point the two offices are roughly 10m apart – leading to concerns rival employees could spy on each other.

First blood in the battle has gone to PwC with the installation of blinds that close automatically whenever audio-visual presentation equipment is switched on and an office layout that ensures no computer screens face windows.

E&Y is unlikely to be far behind. On Tuesday it said it was "evaluating a number of options".

Ernst & Young, More Place, LondonEr, didn't they see this coming? I don't suppose it would ever have crossed my mind to have spied on a competitor like that, even though I share - with the late John Peel - a love of staring out of the window.

E&Y's offending building, shown to the right, is part of the rather swish More London complex near London Bridge. There's a funny sort of stream that runs down the middle of the street - you can see it in the picture - which serves no purpose as far as I can tell other than to trip up the unwary.

There's a picture of PricewaterhouseCoopers's building here.

And no doubt we can look forward to more tales of accounting espionage involving these firms in the future!

Why can't we charge our failed banks with false accounting?

Posted by Christie Malry on March 22, 2010 at 8:35 pm

The Birmingham Post Business Blog has a valiant attempt at trying to stick our failed banks with a charge of failed accounting.

[I]t was somewhat ironic that four parliamentarians were up before the beak last week being charged with False Accounting under the Theft Act. For isn't it the case that the main reason we had a financial collapse and the subsequent credit crunch recession er...false accounting?

One has to wonder why Slipper of the Yard hasn't been doing the rounds of Big Banks and Investment houses and, indeed, their accountants and legal advisors with the same alacrity as with MPs?

The case isn't entirely helped by starting with Lehmans. Arguing that false accounting should apply here, when the UK accounts appear to have been prepared properly is a tough call. And Ernst & Young where not 'labelled as "professionally negligent" by the Court Examiners'; there was a "colorable claim" for negligence, which isn't the same thing.

The article does identify, I suspect correctly, that proving intent may well explain why false accounting doesn't appear to be on the cards. With MPs and their expenses, the very fact that they signed expenses forms that were clearly invalid is enough in itself to prove intent. With false accounting forming merely part of the Serious Fraud Office's armoury, other charges may be more appropriate or easier to get to stick.

The article concludes with a doomsday scenario - that lots of lawsuits are filed by disgruntled shareholders at the false accounting of our dodgy banks. Ah, but now they're underpinned by the bottomless pit of money that is the state. So potentially some very big claims could be raised and we, the people, would have to fund them. As a shareholder of Lloyds Banking Group, strongarmed by an idiotic Prime Minister into a shotgun wedding with a bank with one of the worst loan books in history, I would certainly like Something To Be Done. But ultimately it must be the directors who must face our ire. Robbing one group of shareholders to pay another group can't be the right answer.

A brief history of double entry book-keeping #10

Posted by Christie Malry on March 21, 2010 at 10:48 pm

Arthur Andersen advertisementThe final episode of this series looked at fraud. This recognises that accounting, as well as being a force for good can also be used in bad ways.

CM: This was, in my view, a very shoddy and badly put together episode. I will be responding to the issues raised in order to give the balance this episode failed to provide. In the meantime, I have summarised the episode verbatim below.

We have had in the last decade or so some spectacular and notorious frauds. In some cases, there were complex and exotic accounting devices used to mask the scale of the fraud. Only this last week, we have seen reference to Lehmans and their "accounting gimmicks" and questions have been raised of their auditors, Ernst & Young, who may have failed to question their disclosures.

Jenkins interviewed Steve Priddy, Technical Director at the ACCA [CM: I wonder where Helen Brand was, eh]. Were the auditors to blame? Unsurprisingly, Priddy didn't want to comment on the detail. There might be some culpability, but he wouldn't know one way or the other. Jenkins had another go - company auditors are paid millions to do their job, but what did they do in this case? Priddy explained about the audit process. Auditors do some tests to allow them to form a view on truth and fairness, but we must remember that banks are complicated. Even directors don't always understand all transactions, which makes it hard for auditors to stay one step ahead. Meantime, the Lehmans investigations will surely continue.

This is not the first time auditors have got the blame. Enron is the recent case we all remember best. Anne Loft (Lund University, Sweden) said that their auditors, Arthur Andersen, had gotten too close to the company. It was advising companies like Enron how to set up connected companies in which they could hide liabilities while also doing the audit. There were also many former Andersen employees working at Enron.

Prem Sikka is a long-standing critic of the profession. He sees auditors as a weak link in corporate governance. A major flaw is that these big firms both do audits and also advise companies on how to bypass rules and regs and how to flatter their financial statements. They could check these things but have incentives not to do it properly. It's like a game of russian roulette. In his opinion, the recent banking crisis "vindicates" his point of view. He gave a further example: even after Northern Rock had been nationalised, audit firms were still giving clean audit reports to banks. This ought to have been a wake-up call to them.

David Cooper (University of Alberta) suggested that the profession has a short-sighted view of the public interest. Auditors really do try to be independent. But auditors and accountants are brought up with a view that what's good for business is good for society.

After Enron, Andersen collapsed, leaving just the Big 4. Sikka provided some statistics to explain the size of the Big 4. Overall combined turnover is $90bn a year, which would make them a very significant country. They operate all over the world, selling lots of other services.

Cooper also bemoaned how little we know about how they operate. They portray themselves as uber-rational and efficient but they can't live up to this. They sell the model to clients but don't live it themselves. And they promote transparency/accountability but don't disclose much themselves - they don't themselves provide audited financial statements.

Sikka added that even where they do publish accounts (e.g. because they operate through a limited liability partnership) they're very unhelpful. Also, at a company's AGM you are given the chance to appoint the auditor, but are never given any information to help you decide. For example - have they been sued? Have their partners gone to jail? etc... The Big 4 sell the idea of league tables, but there aren't any for performance of accountancy firms.

By contrast, Anne Loft thought it was more or less moving in the right direction. The International Federation of Accountants, which represents most of the major bodies and which sets international auditing standards has a public interest oversight board to watch over it and maintain the public interest.

Prem Sikka thinks more radical action is needed. He advocates a properly designated independent regulator to deliver what the public expects - to open audit firms up to scrutiny. With there now being more liability concessions for firms, it makes it more difficult to sue them. He believes we will see more and more scandals.

Priddy disagrees. The global consensus is that it's not a good idea to have a central regulator; self-regulation is the perceived wisdom. Jenkins asked him if firms are transparent enough. Priddy replied that it's a road we're all on. Firms are evolving. In the UK there are now regular inspections from the national regulator and its inspections are placed in the public domain.

David Cooper said that the information that other users need are still a work in progress. What is the sort of information that corporations might be providing to the general public to help them to hold organisations to account? These are ethical issues. Whose side is the accountant on? We must remain optimistic that we can get beyond obscure information and see what's really there.

The inconsistent treatment of Repo 105 in the UK and US

Posted by Christie Malry on March 21, 2010 at 4:39 pm

LehmansI tweeted a few days back with an unresolved question on the treatment of Repo 105. There's an inconsistency in the way that the Repo 105 transactions have been accounted for in the UK and US.

A quick recap: Lehmans wanted a 'true sale' opinion on Repo 105, which they couldn't get from any US law firm, so they got one under English law from Linklaters. That's why all the Repo 105 transactions were undertaken through the UK subsidiary.

I've now had some time to digest the Linklaters opinion itself (Appendix 17 of this document). And it leaves us with a dilemma. Why did the accounts of Lehmans UK subsidiary account for Repo 105 differently to the group accounts?

Richard Murphy would probably chalk this up to GAAP arbitrage. That does go on, it's true, but I don't think that's an adequate explanation in this case, because I don't see where the opportunity for arbitrage is. The Linklaters opinion says (para 2.1) the following:

In determining whether a person has entered into a contract involving the sale of an asset, the courts will look at the substance of the transaction: the terminology used by the parties to the transaction is not necessarily conclusive. Furthermore, if a series of transactions with respect to the same asset are entered into at the same time, it is the substance of the overall arrangements which is important. For example, an arrangement between two parties may purport to involve a sale but on its true analysis actually amount to a charge. Whether this is the case will depend on whether the legal nature of what has been agreed has the characteristics which the law recognises as those of a sale or those of a charge.

Much of this will be instantly recognisable to a keen-eyed chartered accountant as the sort of stuff that we take into account under FRS 5, Reporting the Substance of Transactions. So, Linklaters was clearly aware that you can sew legal agreements together that create artificial sales, and that the courts tend to look through such arrangements to the overall substance.

Linklaters was of the view that in this case the substance was a true sale. Yet, reversing out the transactions under UK GAAP can only have been possible if the directors in the UK believed that the substance of the transaction was not a true sale. GAAP arbitrage can only work where there are differences between standards. Here, the 'substance' test applies to both the (UK) accounting and (UK) legal considerations. The UK legal opinion was then used as justification for the US accounting treatment.

Ernst & Young LondonWhen I first learned US GAAP, a US partner warned us that you must never fix bad UK accounting in the accounts of US-listed UK-headquartered companies through the UK-US GAAP reconciliation. Even back in the 90s, the SEC was wise to 'fake' GAAP differences on transactions that in truth are accounted for identically under both UK GAAP and US GAAP. On many areas of the accounts, if your UK GAAP treatment wasn't great, you had to live with it for US GAAP too. In fact, this was often very helpful leverage in convincing companies to fix their UK accounts.

Lehmans, as a US-headquartered company, did not have to prepare a GAAP reconciliation, but from a risk management perspective it should not have tolerated inconsistent treatment in its UK and US statutory reporting.

So I really don't understand what the Lehmans UK directors were doing here. Was there nobody at group with any interest in what the UK subsidiary did for statutory purposes? Didn't they realise that they had to dig their heels in and insist for true sale treatment?

Perhaps they did, but their auditors overruled them. In which case, Ernst & Young UK must have decided that the substance of the transaction made it not a true sale. This decision repudiated the entire basis for the Linklaters letter, which formed the crux of Repo 105 accounting for US GAAP purposes. Didn't they think to mention that to their colleagues in the States?

Perhaps they did. In which case, we have the situation that the group auditors, having been informed by their UK colleagues that they (the UK) could not sign off on the true sale basis and would not do so for statutory reporting purposes, and having been informed by a Lehmans whistleblower that there was a problem, decided to ignore and sign anyway. My experience of Big 4 risk management makes this pretty implausible, although I guess that may be resolved if the two partners get thrown to the wolves by Ernst & Young if/when this ever comes to court.

What’s exceptional about Richard Murphy?

Posted by Christie Malry on March 15, 2010 at 9:11 pm

Other than his unerring ability to suspend facts while delivering his truly unexceptional blog entries. This time, Ritchie crows:

What’s exceptional about E & Y’s performance. They:

- alloweed window dressing

- put fornm over substance

- ignore the true and fair over-ride

- box ticked to confirm compliance with an accounting framework they helped create and which is itself misleading

That’s what auditors do. There’s nothing exceptional about this. The only odd thing is no one has appreciated it - bar the likes of Prem Sikka, Dennis Howlett, Francine McKenna and me.

I wonder if Dennis Howlett and Francine McKenna are entirely happy being lumped in with Tweedledum and Tweedledumber. I doubt it; Francine's article on Lehmans is pretty good, as you'd expect. Not for her the dribbling conspiracy theories beloved of our old friends Sikka and Murphy.

A measured observer, looking at what auditors do, would conclude that they do an excellent job. That a handful of audits end in failure among the many millions undertaken in recent years is evidence of high overall audit quality, not that the audit process is subverted and rotten.

Ritchie hasn't done an audit in years and I doubt he's ever done an ISA audit. He is simply ignorant of what auditors do in accordance with either ISAs or PCAOB standards. We know this for sure, because he muddled the two up in his previous article, as I pointed out before.

On the accounting standards side, far from SFAS No. 140 being "created" by the (then) Big 5, Michael Crooch (an Andersen partner) abstained in the vote to endorse it. There wasn't an E&Y partner on the FASB at the time.

"True and fair override" is a UK GAAP concept that has no direct equivalent in IFRS or US GAAP. However, there are protections in both IFRS and US GAAP against the form over substance problem. As the examiner's report makes clear, US directors are not permitted to prepare financial statements that are misleading. And it's the directors who prepare financial statements, not the auditors.

As for his first two statements, I think we'll just have to wait and see. The examiner's report said that there were "colorable claims" against E&Y. He didn't sign their death sentence, even if that's what Ritchie would have liked.

If you read one Lehmans blog post, read this one

Posted by Christie Malry on March 15, 2010 at 8:35 pm

A diamond in the rough - here's the one Lehmans blog post (courtesy of zerohedge.com) you should read. It's lengthy but well worth the time investment.

Michael Meacher's Lehmans howlers

Posted by Christie Malry on March 15, 2010 at 8:26 pm

A lot has been written in the blogosphere about Lehmans already. And a lot of it is blathering nonsense. So it's time to start rebutting some of the most flagrant idiocy out there.

We'll start with Michael Meacher MP, who is fuming.

It has just been reported that the Wall Street bank, Lehman Brothers, in its final days in September 2008 set up accounting ‘gimmicks’ which falsely gave the impression that its balance sheet was $50 billions stronger than it actually was. and that the auditors, the UK accountancy firm, Ernst and Young, when alerted to this by the Lehman vice-president, “took virtually no action to investigate”.

This is yet another example – almost daily – of the collapse of accountability in this country. Is Ernst & Youg guilty of negligence or malfeasance? If so, who is taking action to make them liable? $50bn isn’t pocket money.

This is not the first time that auditors have made appalling mistakes or shown extreme culpable negligence. Lehman Brothers had a leverage ratio of more than 30:1, i.e. for every £1 of hareholder funds, it borrowed £30. That means that a mere 3.3% drop in the value of assets wipes out the entire value of equity and makes the company insolvent. Auditors didn’t notice the problem, even though the warning signs were on the front pages of newpapers.

Auditors are supposed to be independent, but they are selected by directors and remunerated by companies. They act as consultants to companies and their directors, collecting huge fees in the process when in fact they’re auditing the transactions they themselves created. They also pick up a lot of insolvency and other work from their bank clients, but these details are kept quiet. Fee dependency encourages silence. The same audit firm can retain its position with a bank or company for years, creating a cosy, lucrative and corrosive relationship with the directors. There is no compulsory re-tendering for the job.

This is a huge public scandal. I intend to campaign via the OFT and other regulators to get this iniquity stopped.

Good grief, where to start?

Firstly, Lehman was not trying to give the impression that its balance sheet was $50 billions (sic) greater than it really was. Under the Repo 105 arrangement, it sold assets worth $52.5 billion and got cash back worth $50 billion. It made its books balance by recognising a derivative for the remaining $2.5 billion. Nowhere was it trying to improve its balance sheet by $50 billion. The benefit was subtler - in improved capital ratios that it could report to the markets.

Secondly, it's a bit rich for a member of the Labour Government, whose current leader pledged "no more boom and bust". If auditors can be criticised, then Gordon Brown must be seriously culpable as well. Unlike auditors, he was in a position to do something meaningful about it.

Auditors might be selected by directors, but their decision is voted on by owners annually. Authority from owners to set their remuneration is also typically sought annually. Auditors are restricted by ethical standards as to the range of services they can sell to companies. For a US-listed company like Lehmans, all services must be pre-approved by the audit committee. It's misleading to say that auditors are minting it in consulting fees. Many of the non-audit services offered, although classified as non-audit services, would be considered essential supplementary services to the audit.

And, to use political parlance, I do not accept that auditors gamble their firm's reputation by undertaking low-quality audits merely so they can rake in fees. That's just ridiculous. Rotation of key partners is helpful - and already required by ethical standards. Compulsory retendering isn't the answer. The Parmalat scandal is evidence enough of that. Further evidence is provided by a 2005 study, which concludes (p.52):

Based on the academic literature collected the present analysis supports the idea that the benefits of the rotation rule are largely doubtful. Moreover most of empirical papers present data contrary to the introduction of this rule. Furthermore an analysis of the empirical studies shows that the evidence doesn’t support the [rotation rule] with regard to [any] of the advocated possible advantages (increase in auditor independence, audit quality, audit market competition and financial market reaction).

Read my lips: auditor rotation doesn't work.

What do you think Meacher has in mind when he talks of "the daily... collapse of accountability in this country"? Uddin refusing to resign or pay back her ill-gotten expenses? Three of his party's MPs using parliamentary privilege to try to avoid having their expenses examined in court? Michael Martin's catalogue of failures as Speaker being rewarded with a peerage? Lord Mandelson's many starts?

Meacher, you are right on one count. We expect accountability. But what we're looking for starts rather closer to home than politicians might like.

Lehmans papers - full disclosure imminent

Posted by Christie Malry on March 14, 2010 at 11:56 pm

The Times is reporting that, subject only to a couple of objectors (which include Barclays), the complete stack of evidence that formed the basis of the Lehmans examiner's report is due to be published.

legal sources say there is more to come with the publication of the millions of pages of Lehman emails, internal company files and documentary evidence from third parties that formed the basis of the report.

A court hearing will take place soon, possibly as soon as April 1, in which the examiner’s team is expected to argue for the release of these “underlying documents”.

This is exciting stuff. I particularly look forward to examining the communications involving Ernst & Young New York. The examiner's report is so detailed, that there's probably not much more to be found within, but it'll be fun digging through it anyway.

Richard Murphy on CRAP GAAP

Posted by Christie Malry on March 14, 2010 at 12:53 pm

Ritchie strays into financial reporting and auditing, on the subject of Lehmans:

But let’s be clear – Ernst & Youngs’ defence – that their audit complied with US GAAP (Generally Accepted Accounting Principles - pronounced ’gap’) may be true. But that’s not the point. The point is US GAAP is crap and the Big 4 engineered that their audits do not need to report either truth  or fairness.

As the rules of the IAASB (International Auditing and Assurance Standards Board), which sets auditing standards says, an audit is:

The purpose of an audit is to enhance the degree of confidence of intended users in the financial statements. This is achieved by the expression of an opinion by the auditor on whether the financial statements are prepared, in all material respects, in accordance with an applicable financial reporting framework. In the case of most general purpose frameworks, that opinion is on whether the financial statements are presented fairly, in all material respects, or give a true and fair view in accordance with the framework. An audit conducted in accordance with ISAs and relevant ethical requirements enables the auditor to form that opinion.

The wording is not a chance: the emphasis is on compliance with the financial reporting framework first; the consequence of being true and fair is assumed to follow, but is consequential, not the goal.

So, E & Y influence the International Accounting Standards Board that sets the framework.

And they influence the IAASB which limits the scope of the audit to the point it’s useless.

And although financial statements are meant to be produced for the benefit of the providers of capital to a business (in itself far too narrow a requirement) the auditors in the UK (by reason of the Caparo decision) and in the US under Delaware law basically can’t be sued by those providers of capital.

In other words the auditors charge a lot for doing a job badly for which they know they have almost no liability. It’s not surprising they don’t really care.

It’s not E & Y who have erred here – it’s all those who let this situation develop that have erred. The accounting structures we use are rotten to the core and so is auditing. Unless both are reformed we are heading for collapse after collapse after collapse as the prevailing mood of society to promote expedient short term greed will destroy entity after entity without any check or balance in place to stop it happening.

Ritchie should stick to tax advocacy. His knowledge of financial reporting and auditing, particularly in the US, looks pretty scant.

Financial reporting

The Lehmans examiner's report makes it very clear that technical compliance with a particular GAAP standard is insufficient in itself to comply with GAAP overall, if the resulting financial statements are misleading (Vol. 3, pp. 964-5):

Even if Lehman’s use of Repo 105 transactions technically complied with SFAS 140, financial statements may be materially misleading even when they do not violate GAAP. The Second Circuit has explained that “GAAP itself recognizes that technical compliance with particular GAAP rules may lead to misleading financial statements, and imposes an overall requirement that the statements as a whole accurately reflect the financial status of the company.”

Similarly, as noted in In re Global Crossing Ltd. Securities Litigation, even if a defendant established that its accounting practices “were in technical compliance with certain individual GAAP provisions . . . this would not necessarily insulate it from liability. This is because, unlike other regulatory systems, GAAP’s ultimate goals of fairness and accuracy in reporting require more than mere technical compliance.”

So Ritchie is plain wrong to suggest that technical compliance means the statements were compliant with US GAAP, or that US GAAP is, as he puts it rather crassly, 'crap'. The examiner's report explains that the courts expect more than slavish dedication to the letter of the law; they expect GAAP to be fair and accurate too.

This is underscored by the Sarbanes Oxley Act, Section 302, which requires management to sign a statement for each public report that asserts that:

  • The report does not contain any material untrue statements or material omission or be considered misleading
  • The financial statements and related information fairly present the financial condition and the results in all material respects

Again, this goes much further than Ritchie's narrow, flawed view of how US GAAP works.

Auditing

Ritchie is wrong to say that the IAASB sets auditing standards. Lehmans, as a US-listed company, is audited in accordance with auditing standards issued by the Public Company Accounting Oversight Board (PCAOB). On inception, the PCAOB adopted the former auditing standards as issued by the AICPA, and subsequently has been adding its own standards. These aren't the same as the IAASB's standards - most notably, PCAOB standards address the particular procedures a US auditor must follow to comply with Sarbanes Oxley Act Section 404, which does not apply to companies without a US listing.

I suspect it's bluster to suggest that Ernst & Young did influence either the IASB or IAASB, even if they could.

I'm not apologising for E&Y here. As I posted earlier, based on what is in the Lehmans examiner's report, E&Y have some very serious questions to answer about their audit work in the UK and/or the US. But it's imperative that any analysis of the situation is based on facts, instead of a inaccurate, sloppy diatribe that happens to fit in with Murphy's own intolerances.