Our approach to regulation - cars vs. banks

Posted by Christie Malry on July 19, 2010 at 11:12 am

From a little something I posted to CiF:

Cars are instructive to our unconscious approach to regulation.

We're angry that Gordon and Tony introduced light touch regulation on the banks, but we want the speed limits on the roads taken away, because we can be trusted to drive safely. We think it's okay to speed up to a camera and then slam on the brakes, but then complain furiously about how Lehmans was window-dressing its accounts at each period-end. We want borrowers' recklessness to be stopped,and tight controls put on how much banks can lend to people as a multiple of salary. But we resist any attempts to limit our own car usage.

And remember, the banks didn't actually kill anyone. Cars kill some 3,000 people a year in the UK. Are we sure we really like our ultra light touch regulation?

Don't get me wrong, I'm not arguing for heavy regulation everywhere forever; merely using our extreme tolerance for cars as an example of how we don't need to react to every single bad outcome with more regulation.

Naughty Diebold directors get pwned

Posted by Christie Malry on June 6, 2010 at 10:55 am

The SEC's website lists, often in gory detail, the cases that it's handled in the courts.  This one is a real peach.

According to the SEC's complaint against Diebold, filed in U.S. District Court for the District of Columbia, the company manipulated its earnings from at least 2002 through 2007 to meet financial performance forecasts, and made material misstatements and omissions to investors in dozens of SEC filings and press releases. Diebold's improper accounting practices misstated the company's reported pre-tax earnings by at least $127 million. Among the fraudulent accounting practices used to inflate earnings and meet forecasts were:

  • Improper use of "bill and hold" accounting.
  • Recognition of revenue on a lease agreement subject to a side buy-back agreement.
  • Manipulating reserves and accruals.
  • Improperly delaying and capitalizing expenses.
  • Writing up the value of used inventory.

Without admitting or denying the SEC's charges, Diebold consented to a final judgment ordering payment of the $25 million penalty and permanently enjoining the company from future violations of the antifraud, reporting, books and records, and internal control provisions of the federal securities laws.

Just check out that list of frauds!  They're like something you'd learn in Accounting 101.  These are hardly complex accounting gimmicks, a la Lehman, they're the most fundamental, obvious, blatant earnings management approaches you could possibly take.

Which, although their auditors, KPMG, appear to have been involved in the forensic work in cleaning up this mess, does rather make you wonder where they were at the time of the audit.  The SEC's complaint indicates that the auditors did identify some problems but inadequate action was taken as a result (para. 25).

Now, I'm all for the auditor getting it in the neck when they're really to blame.  But the happy ending for this story is that the SEC has really thrown the book at the directors.

Section 304 of the Sarbanes-Oxley Act deprives corporate executives of certain compensation received while their companies were misleading investors, even in cases where that executive is not alleged to have violated the securities laws personally. The SEC has not alleged that O'Dell engaged in the fraud. Under the settlement, O'Dell has agreed to reimburse the company $470,016 in cash bonuses, 30,000 shares of Diebold stock, and stock options for 85,000 shares of Diebold stock.

I approve heartily.

Curious Treasury Committee comment on audit reports

Posted by Christie Malry on March 31, 2010 at 1:15 pm

Also from the same Treasury Committee report, this time on pp16-17 (emphasis added):

If investors are to assess properly the level of risk they are prepared to take, they need clear and impartial information about the companies in which they invest. Company audits should provide such material, but as we concluded in our Report on Banking Crisis: reforming corporate governance and pay in the City, the current audit process results in "tunnel vision", where the big picture that shareholders want to see is lost in a sea of detail and regulatory disclosures. The recent revelations about Lehman’s use of Repo 105 illustrates the extent to which audit reports can seemingly omit crucial information. We call for progress on our earlier recommendations, to ensure that audit reports are an effective tool for investors.

The Treasury Committee is complaining that the Lehmans audit report omitted information that investors might have found useful. While that may be true, don't you think that's a matter for the PCAOB, the body which writes auditing standards governing the audits of US-listed entities, rather than a UK committee of parliamentarians? Doesn't the Treasury Committee have enough to worry about without going all extra-territorial on us?

Ritchie double-takes Repo 105

Posted by Christie Malry on March 30, 2010 at 9:28 pm

Richard Murphy notes that the SEC has written to several financial services companies to enquire whether they were using transactions like Repo 105.

This is actually very bad news for Ritchie. His article on Repo 105, as you'll recall, argued that Lehmans was trying to undertake GAAP arbitrage between UK GAAP and US GAAP. So the fact that the SEC seems to believe it didn't fly under US GAAP on top of the FSA's comment that it didn't work under UK GAAP either is a comprehensive torpedoing of Ritchie's theory.

Better luck next time, Ritchie!

Richard Murphy's latest fail

Posted by Christie Malry on March 22, 2010 at 11:43 pm

I asked Ritchie for clarification over why he claimed I was wrong to criticise his batty claims that Lehmans was an example of GAAP arbitrage. And here is his decidedly unmeasured reply:

@FCAblog

Let me give reasons why I won’t debate with you:

a) You claim to be an FCA - there is no evidence you are. This could be a serious misrepresentation

Indeed it could be. But it's not. I am a genuine, straight-up fo' real bona fide Fellow of the Institute of Chartered Accountants in England and Wales. It should be apparent from my knowledge of financial reporting, tax and auditing that at an absolute minimum I have several years of auditing experience and at least some form of accounting qualification.

Indeed, if I'm not qualified, Ritchie should be very worried at how easily I can take him on in debates on accounting matters.

b) You use a pseudonym to abuse others - if you are an FCA this is an ethical offence

Ritchie, I thought you were convinced that I'm not an FCA. But now suddenly you've decided I am? I'm confused.

The pseudonym is a red herring. It's no more an ethical offence to abuse people, if that's genuinely what an independent observer would say I'm doing, under the banner of anonymity as it is under your real name.

And boy, do you like to abuse people. I boggle at the very concept that Richard J. Murphy Esq feels he is in any way entitled to start doling out lessons in manners. This is the man who believes it's "polite" to call the entire Conservative party "bastards". Who managed to rile the very gentle Giles Wilkes. Who replies to one of his commentators "You really don’t help your argument by being stupid" and to another in the same thread to "Please stop writing absolute nonsense" Or to another poster "You’re really so inane you’ll be blocked from now on". Who tolerates one commentator calling another "moron of the year". Who calls a commentator a "silly billy". Who tells a commentator "as usual all you say is complete rubbish"

And that's just a selection from the last three months.

Perhaps you should refer to Matthew 7:3?

c) You deliberately seek to offend - taking your cue from Tim Worstall. This is profoundly unprofessional

I think Tim is distinctly more abrasive than I am. My request for clarification from you was extremely polite. Anyway, if you can’t take a little rough and tumble please don’t play.

And you want me to debate with a person who claims to be something they may not be, who uses a false name and does so whilst abusing others?

With respect, I will not do so

Richard

No, I want you to answer the questions that have been posed of you. Questions that seek to expose the gaping factual inaccuracies in your posts. Questions that you don't want to answer. Possibly questions that you simply cannot answer.

PS The debate is also closed - the FSA has confirmed I’m right….

No, the FSA confirmed that the UK accounts did not account for Repo 105 transactions as sales. Given that Ernst & Young UK didn't audit the UK accounts when reporting to Ernst & Young US as part of the group audit, as I've already explained here, here and here, the FSA's announcement is about as relevant to this debate as you are.

So, what's it going to be - some straight answers, or more obfuscation and more insults?

After all, what's the problem? Over to you, Richard.

In praise of Priddy

Posted by Christie Malry on March 22, 2010 at 9:54 pm

From ACCA Technical Director Steve Priddy over at the ACCA's business blog:

Firstly, the examiner's report itself is a model of clarity. Many of my accounting colleagues find it very difficult to put pen to paper, lodged as we are in the universe of double entry bookkeeping. Yet one of the key and often overlooked roles of the accountant in business is that of translator. The vast majority of the world's population are not accountants and their hearts do not leap at the thought of financial statements. But this vast majority contribute to economic progress and economic activity. Accountants have a vital role in presenting information in a way that is easy to understand for non-accountants, that is relevant and that is error free. The examiner explains Repo 105 very effectively on pages 750 to 760 of his report.

I agree. How I wish that I could write about accounting as clearly as Valukas. And he's not even an accountant!

The rest of Priddy's article is good, too.

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.

Consolidation and Lehmans - why Richard Murphy is wrong

Posted by Christie Malry on March 18, 2010 at 9:28 pm

Richard is very excited. Today the FT published an article on the treatment of Repo 105 in Lehman Brothers International Europe's (LBIE) UK filed accounts. LBIE accounted for Repo 105 under UK GAAP as a standard repo, not as a sale. Ritchie thinks this proves that the sale treatment must have been added via a consolidation journal in arriving at the consolidated results. It doesn't.

How a multinational group audit works

Lehman had a year-end of 30 November. For its year ended 30/11/2007, it reported on 29/01/2008. This is under two months, which is quite an achievement for a large and complex group with subsidiaries all over the world. It does this by being very efficient:

  • All subsidiaries must prepare a consolidation return
  • All subsidiaries must follow group accounting standards
  • All subsidiaries must follow the group reporting timetable, with no exceptions

For a group with a 30/11 reporting deadline, the group reporting timetable would most likely have been the third week of December at the very latest. In order to meet this, the subsidiary will do nothing other than prepare its consolidation return in accordance with group accounting standards. There simply isn't any time to do anything else.

Lehman's accounting policy for Repo 105 transactions required that they were accounted for as sales, provided that they met the criteria. Accordingly, in its consolidation return, LBIE would have accounted for Repo 105 transactions as sales. These would have been submitted to head office on that basis.

So, where are the subsidiary accounts?

Good question. They haven't been prepared yet. That's because there isn't time to do anything other than report for group purposes. Local management typically won't prepare their local statutory accounts until the group has reported its consolidated results.

And this is the case for LBIE. Lehman Brothers Holdings Inc reported its 10-K on 29/01/2008. The subsidiary accounts for LBIE were filed with Companies House on 04/03/2008, over a month later, having been signed by directors on 28 February, the date the audit report was also signed. Companies House requires that accounts of UK limited companies are filed in accordance with either UK GAAP or IFRS. LBIE's accounts are prepared under UK GAAP. That means that transactions that were prepared under Lehman GAAP for the consolidation pack may need to be re-evaluated and adjusted to comply with UK GAAP. Ernst & Young UK appear to have agreed with (or perhaps they required) the local directors' adjustment of the treatment of Repo 105.

Note that the date the directors sign the UK subsidiary accounts is almost one full month after the date the consolidated US GAAP accounts were filed with the SEC.

This should make it clear that the treatment of Repo 105 in the UK subsidiary accounts for UK Companies Act purposes is completely unrelated to the treatment of Repo 105 in the UK consolidation pack return for the purposes of preparing the group results.

That Ritchie thinks this is some sort of 'eureka' moment would suggest that he has absolutely no idea how a group consolidation works in the real world. Well cheer up, Ritchie, now you do.