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CHAPTER 12: FINANCIAL STATEMENTHighlights
CHAPTER 10: CORRUPTION
ὐ FRAUD SCHEMES
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CHAPTER 11 Feedback
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ACCOUNTING PRINCIPLES AND
FRAUD Settings
11 Define fraud as it relates to financial statements
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1
11 Identify the three main groups of people who commit financial
2 statement fraud
11 List the three primary reasons people commit financial
3 statement fraud
11 Describe the three general methods used to commit financial
4 statement fraud
11 Define overstatements
5
11 Define understatements
6
11 Describe the conceptual framework for financial reporting
7
11 List examples of various types of financial statements
8
⬆
records are kept. The accounting profession has long recognized that, to a
large extent, accounting is a somewhat arbitrary process, subject to
judgment. The profession also indirectly recognizes that numbers are
subject to manipulation. After all, a debit on a company's books can be
recorded as either an expense or an asset. A credit can be a liability or
In the next chapter we will explore the five major methods by which
financial statement fraud is committed, but before we delve into the
mechanics of these schemes it is important to first consider three general
questions that go to the heart of these crimes:
Who commits financial statement fraud?
Why do people commit financial statement fraud?
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How do people commit financial statement fraud?
Senior management. In 2010, the Committee of Sponsoring
Organizations of the Treadway Commission (COSO) released
Fraudulent Financial Reporting: 1998–2007, a study of 347
alleged financial statement frauds from 1998 to 2007. The SEC
named the CEO and/or CFO for involvement in 89 percent of these
fraud cases. And within two years of the completion of the SEC
investigation, about 20 percent of the CEOs/CFOs had been
indicted. Over 60 percent of those indicted were convicted.
Motives for senior managers to commit financial statement fraud
are varied and are described below.
Mid and lowerlevel employees. This category of employees
may falsify financial statements for their area of responsibility
(subsidiary, division, or other unit) to conceal their poor
performance or to earn bonuses based on the higher performance.
Organized criminals. This group may use this type of scheme to
obtain fraudulent loans from a financial institution or to hype a
stock they are selling as part of a “pumpanddump” scheme.
To conceal true business performance. This may be to
overstate or understate results.
To preserve personal status/control. Senior managers with
strong egos may be unwilling to admit that their strategy has failed
and that business performance is bad, since doing so may lead to
their termination.
To maintain personal income/wealth from salary, bonus,
stock, and stock options.
We can better deter and detect fraud if we first understand the different
pressures that senior managers and business owners can face that might
drive them to commit fraud. If we understand the motivating factors
behind these crimes, it stands to reason that we will be in a better
position to recognize circumstances that might motivate or pressure
people into committing financial statement fraud. We will also increase
our likelihood of detecting these crimes by knowing the most likely places
to look for fraud on an organization's financials.
As with other forms of occupational fraud, financial statement schemes
are generally tailored to the circumstances that exist in the organization.
In other words, the evaluation criteria used by those with power over
management will tend to drive management behavior in fraud cases. For
example, tight loan covenants might drive managers to misclassify
certain liabilities as longterm rather than current in order to improve
the entity's current ratio (current assets to current liabilities) without
affecting reported earnings.
The following are some of the more common reasons why senior
management will overstate business performance to meet certain
objectives:
To meet or exceed the earnings or revenue growth expectations of
stock market analysts to comply with loan covenants
To increase the amount of financing available from assetbased
loans
To meet a lender's criteria for granting/extending loan facilities
To meet corporate performance criteria set by the parent company
To meet personal performance criteria
To trigger performancerelated compensation or earnout
payments
To support the stock price in anticipation of a merger, acquisition,
or sale of personal stockholding
To show a pattern of growth to support a planned securities offering
or sale of the business
Alternatively, senior management may understate business performance
to meet certain objectives:
To defer “surplus” earnings to the next accounting period. If
current period budgets have been met and there is no reward for
additional performance, corporate managers may prefer to direct
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additional earnings into the next period to help meet their new
targets.
To take all possible writeoffs in one “big bath” now so future
earnings will be consistently higher.
To reduce expectations now so future growth will be better
perceived and rewarded.
To preserve a trend of consistent growth, avoiding volatile results.
To reduce the value of an ownermanaged business for purposes of
a divorce settlement.
To reduce the value of a corporate unit whose management is
planning a buyout.
Playing the accounting system. In this approach, the fraudster
uses the accounting system as a tool to generate the results he
wants. For example, in order to increase or decrease earnings to a
desired figure, a fraudster might manipulate the assumptions used
to calculate depreciation charges, allowances for bad debts, or
allowances for excess and obsolete inventory. To avoid
recognizing expenses and liabilities, vendor invoices might not be
recorded on a timely basis. Genuine sales might be recorded
prematurely. Transactions recorded in the accounting system have
a basis in fact, even if they are improperly recorded. There is a
documentary trail to support the results reported in the financial
statements, though the assumptions shown in some of those
documents may be questionable.
Beating the accounting system. In this approach, the fraudster
feeds false and fictitious information into the accounting system to
manipulate reported results by an amount greater than can be
achieved by simply “playing the accounting system.” Fictitious
sales may be recorded to legitimate or phony customers. Inventory
and receivables figures may be invented, with documents later
being forged to support the claimed numbers. Senior financial
management might determine allowances for bad debts and for
excess and obsolete inventory without regard to the formulae or
methods historically used in the entity to determine these amounts.
Journal entries might be disguised in an attempt to conceal their
fraudulent intent (e.g., splitting big roundsum adjustments into
many smaller entries of odd amounts), or transactions may be
hidden through use of intercompany accounts to conceal the other
side of a transaction. Some transactions recorded in the accounting
system may have no basis in fact, and some that do may be
improperly recorded. There will be no documentary trail to support
certain transactions or balances unless the fraudster prepares
forged or altered documents to help support this fraud.
Going outside the accounting system. In this approach, the
fraudster produces whatever financial statements he wishes. These
financial statements could be based on the results of an accounting
and financial reporting process for an operating entity, with
additional manual adjustments to achieve the results desired by the
fraudster. Alternatively, they could just be printed up using phony
numbers supplied by the fraudster. In some cases, the fraudster
might go back and enter false data in the accounting system to
support the phony financial statements. In other cases, he may not
bother, or there might be no accounting system. So not all
transactions may be recorded in an accounting system, and some
or all transactions may have no basis in fact. To catch this type of
fraud, it is usually necessary to start by tracing the published
financial statements back to the output of the accounting system. As
in the previous situation, there will be no documentary trail to
support certain transactions or balances reported in the financial
statements unless the fraudsters prepare forged or altered
documents to help support this fraud.
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are responsible for formally recognizing acceptable accounting
principles. In the United States, for instance, the Financial Accounting
Standards Board (FASB) is the official standardsetting body. It is an
independent organization established to create and improve an official
set of standards of financial accounting and reporting for U.S.
nongovernmental entities.
The majority of the rest of the world adheres to the standards set by the
International Accounting Standards Board (IASB). This organization is
responsible for setting International Financial Reporting Standards
(IFRS), which differ from U.S. GAAP. The IASB has guidance which
addresses the framework of International Financial Reporting
Standards (IFRS). The Conceptual Framework for Financial Reporting is
a general overview of the purpose of financial statements and the
accounting principles accepted by the IASB for financial reporting. The
complete set of IFRS standards, including the conceptual framework, is
available on the IASB website at www.ifrs.org (http://www.ifrs.org) .
Although accounting students should already be familiar with GAAP, we
will review several key accounting principles here with the emphasis on
fraud. The following is a conceptual framework for financial reporting:
1. Recognition and measurement concepts
1. Assumptions
1. Economic entity
2. Going concern
3. Monetary unit
4. Periodicity
2. Principles
1. Historical cost
2. Revenue recognition
3. Matching
4. Full disclosure
3. Constraints
1. Costbenefit
2. Materiality
3. Industry practice
4. Conservatism
2. Qualitative characteristics
1. Relevance and reliability
2. Comparability and consistency
ECONOMIC ENTITY
The premise of the economic entity assumption is that the activity of a
business enterprise should be kept separate and distinct from its owners
and other business entities. The entity concept does not rely on a legal
basis, but rather on substance. The concept of the entity is becoming ever
more difficult to define. Companies with subsidiaries, joint ventures, or
specialpurpose entities (SPEs), like those established by Enron, have
raised further questions about how to account for the entity in order to
prevent fraudulent manipulation of the financial statements.
GOING CONCERN
In valuing a firm's assets for financial statement purposes, it is assumed
that the business is one that will continue into the future. That is because
the worth of the business, if it is any good, will always be higher than the
value of its hard assets. For example, if you wanted to buy a business that
paid you a 10 percent return, then you would pay up to a million dollars
for an investment that earned $100,000 a year. The value of the actual
assets underlying the business, if they were sold at auction, would
typically not bring nearly a million dollars. The going concern concept
assumes that the business will go on indefinitely in the future. If there is
serious doubt about whether a business can continue, this must be
disclosed as a footnote in the financial statements.
Fraud in the going concern concept will usually result from attempts by
an entity to conceal its terminal business condition. For example,
assume a company is in the computer parts manufacturing business. Last
year, the company earned $100,000 after taxes. This year, management
is aware that new technology will make its business totally obsolete, and
by next year, the business will likely close. The company's auditors might
not know this fact. And when they prepare the financial statements for
their company, management has the duty to inform the accountants of the
business's future ability to earn money. The auditors, in turn, will insist
that the financial statements for the current period reflect this future
event.
MONETARY UNIT
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In order to measure and analyze financial transactions, a common
standard is necessary. In our society, that common denominator is
money. The U.S. dollar has remained reasonably stable, but some
countries, as a result of persistent economic volatility, use “inflation
accounting” to adjust for pricelevel changes in their currency.
International companies that deal with foreign currency transactions
may be subject to fraudulent abuse of monetary exchange rates.
PERIODICITY
This “time period” assumption advises that economic activity be divided
into specific time intervals, such as monthly, quarterly, and annually.
With shorter reporting periods, however, the data tends to be subject to
greater human error and manipulation and, therefore, is less reliable.
HISTORICAL COST
Generally accepted accounting principles (GAAP) require that assets be
carried on the financial statements at the price established by the
exchange transaction. This figure is referred to as historical or
acquisition cost and is generally the most conservative and reliable
method. However, there are some exceptions to the historical cost
principle. For example, if inventory is worth less than its cost, this lower
value is to be reported on the financials. This approach is referred to as
the lower of cost or market. Furthermore, many investments are reported
at fair value. But there are other methods of valuation, too. The net
realizable value of an asset is the amount of money that would be realized
upon the sale of the asset, less the costs to sell it. The problem arises
when attempting to establish a sales value, without selling it. If
companies were required to place a sales value on every asset in order to
determine net income, the resulting figure would be materially affected
by opinion. The potential for fraud, in this case, is evident. Similar
arguments have been made against using replacement value.
REVENUE RECOGNITION
According to generally accepted accounting principles, the accrual basis
of accounting should be used for financial reporting. As such, revenues
are recognized and reported in the period in which they are earned.
Intentional manipulation of the timing for revenues earned could be a
potential area for fraudulent abuse.
MATCHING
The matching concept requires that the books and records and the
resultant financial statements match revenue and expense in the proper
accounting period. Fraud can occur when purposeful attempts are made
to manipulate the matching concept. For example, through controlling
the yearend cutoff in financial figures, many companies boost their
current net income by counting revenue from the following year early
and by delaying the posting of this year's expenses until the following
year.
FULL DISCLOSURE
The principle behind full disclosure, as in the previous example, is that
any material deviation from generally accepted accounting principles
must be explained to the reader of the financial information. In addition,
any known event that could have a material impact on future earnings
must be explained or disclosed. For example, as we discussed earlier,
suppose a company is aware that competitors are making its principal
manufacturing method for computer parts obsolete. Such an event must
be disclosed. If the company is being sued and is in danger of a material
monetary judgment, that must be disclosed, too. In actuality, any
potential adverse event of a material nature must be disclosed in the
financials. Many major financial frauds have been caused by the
purposeful omission of footnote disclosures to the statements.
COST-BENEFIT
In formulating standards for financial reporting, accountingstandard
setters must consider the tradeoff between the cost of providing certain
information and the related benefit to be derived by the users of the
information. The specific costs and benefits, however, are not always
readily apparent. Some costs, such as the cost to collect, distribute, and
audit data, are more easily measured than, for example, the cost of
disclosure to competitors. This constraint should not be construed as an
excuse to purposely and fraudulently omit material information from the
financial statements.
MATERIALITY
Financial statements are not meant to be perfect, only reasonable and
fair. There are doubtless many small errors in the books of corporations
of all sizes, but what does it really mean when considering the big
picture? The answer is that it depends on who is looking at the financial
statements and making decisions based on them. If a company's
estimated earnings are $1 million a year on its financial statements, and
it turns out that figure is actually $990,000 (or $1,010,000), who cares?
Probably not many people. But suppose that $1 million in earnings on
the financial statements is actually $500,000—half what the company
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showed. Then many people—investors and lenders, primarily—would
care a great deal.
Materiality, then, according to GAAP, is a useroriented concept. If a
misstatement is so significant that reasonable, prudent users of the
financial statements would make a different decision than they would if
they had been given correct information, then the misstatement is
material and requires correction.
A typical issue involving materiality and fraud would be asset
misappropriations.
Many of them, taken separately, are quite small and not material to the
financial statements as a whole. But what of the aggregate? If many steal
small amounts, the result could indeed be material.
INDUSTRY PRACTICE
Reporting practices may exist within certain industries that deviate from
generally accepted accounting principles. For example, due to the utility
industry's highly capitalintensive nature, noncurrent assets are listed
first on the balance sheet, rather than listing the assets in order of
liquidity. In the event of deviations from GAAP, a determination should
be made regarding whether there is justification for the departure.
CONSERVATISM
The conservatism constraint requires that when there is any doubt, we
should avoid overstating assets and income. The intention of this
principle is to provide a reasonable guideline in a questionable situation.
If there is no doubt concerning an accurate valuation, this constraint
need not be applied. An example of conservatism in accounting is the use
of the “lower of cost or market” rule as it relates to inventory valuation. If
a company's financial statements intentionally violate the conservatism
constraint, they could be fraudulent.
Recall that financial statement fraud is generally instigated by members
of management, or, at the least, by persons under the direction and
control of management. In the instances where management does not
investigate suspected frauds, how can management assure itself that
fraud will be deterred and, if fraud does occur, that it will be detected?
A company's board of directors and senior management generally set the
code of conduct for the company. This code of conduct is often referred to
as the company's “ethic.” The ethic is the standard by which all other
employees will tend to conduct themselves. It stands to reason,
therefore, that if the company's ethic is one of high integrity, the
company's employees will tend to operate in a more honest manner. If,
on the other hand, the ethic is corrupt, employees will view that as a
license to also be corrupt. However, an unimpeachable company ethic
does not, in and of itself, ensure that financial statement fraud will not
occur; additional measures are required in order for management to
discharge its responsibilities with respect to deterrence and detection of
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fraudulent financial reporting.
Balance sheet
Statement of income or statement of operations
Statement of retained earnings
Statement of cash flows
Statement of changes in owners' equity
Statement of assets and liabilities that does not include owners'
equity accounts
Statement of revenue and expenses
Summary of operations
Statement of operations by product lines
Statement of cash receipts and disbursements
Although not ordinarily included in a set of financial statements, some
other presentations can be involved in financial reporting, such as:
Prospective financial information
Pro forma financial statements
Proxy statements
Interim financial information
Current value financial representations
Personal financial statements
Bankruptcy financial statements
Registration statement disclosures
Similar financial statements are prepared for companies reporting under
IFRS. While the purpose of these financial statements is similar to the
corresponding U.S. GAAP versions, the conceptual framework used to
generate the numbers on these statements is completely different.
Therefore, in order to compare a company whose financial statements
are reported using GAAP to a company whose financial statements are
reported using IFRS, one set of statements will have to be converted so
that the account balances are determined in the same way.
Standard IFRS financial statements include:
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Statement of financial position (comparable to the balance sheet)
Statement of comprehensive income (comparable to the income
statement)
Statement of changes in equity
Statement of cash flows
Other comprehensive bases of accounting include:
Government or regulatory agency accounting
Tax basis accounting
Cash receipts and disbursements, or modified cash receipts and
disbursements
Any other basis with a definite set of criteria applied to all material
items, such as the pricelevel basis of accounting
As we see from the preceding lists, the term financial statement includes
almost any financial data presentation prepared according to generally
accepted accounting principles or in accord with another comprehensive
basis of accounting. Throughout this chapter and the next, the term
financial statements will include the above forms of reporting financial
data, including the accompanying footnotes and management's
discussion.
Establishing higher standards for corporate governance and
accountability
Creating an independent regulatory framework for the accounting
profession
Enhancing the quality and transparency of financial reports
Developing severe civil and criminal penalties for corporate
wrongdoers
Establishing protections for corporate whistleblowers
The act authorized the Securities and Exchange Commission (SEC) to
issue implementation rules on many of its provisions intended to
improve corporate governance, financial reporting, and audit functions.
As part of these directives, the SEC implemented rules pertaining to the
following:
Management's report on internal control over financial reporting
and certification of disclosure in periodic reports
Improper influence on conduct of audits
Standards of professional conduct for attorneys
Standards and procedures related to listed company audit
committees
Strengthening the commission's requirements regarding auditor
independence
Disclosure in management's discussion and analysis about off
balance sheet arrangements and aggregate contractual obligations
Disclosures regarding a code of ethics for senior financial officers
and audit committee financial experts
Retention of records relevant to audits and reviews
Insider trades during pension fund blackout periods
Conditions for use of nonGAAP financial measures
Certification of disclosure in companies' quarterly and annual
reports
These implementation rules are intended to create an environment that
promotes strong marketplace integrity, improves the probability of
detection and deterrence of corporate misstatements, and restores public
trust in the quality and transparency of financial information. Exhibit 11
1 summarizes important provisions of the act aimed at improving
corporate governance, financial reports, and audit functions to restore
investor confidence and public trust in financial information.
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EXHIBIT 111 Corporate Governance and Accounting Provisions of
the Sarbanes–Oxley Act of 2002
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to oversee the audit of public companies that are subject to the securities
laws, and related matters, in order to protect the interests of investors and
further the public interest in the preparation of informative, accurate, and
independent audit reports for companies the securities of which are sold to,
and held by and for, public investors.
[Section 101]
In short, the board is charged with overseeing public company audits,
setting audit standards, and investigating acts of noncompliance by
auditors or audit firms. The board is appointed and overseen by the
Securities and Exchange Commission. It is made up of five persons, two
who are or have been CPAs and three who have never been CPAs. The act
lists the board's duties, which include:
Registering public accounting firms that audit publicly traded
companies
Establishing or adopting auditing, quality control, ethics,
independence, and other standards relating to audits of publicly
traded companies
Inspecting registered public accounting firms
Investigating registered public accounting firms and their
employees, conducting disciplinary hearings, and imposing
sanctions where justified
Performing such other duties as are necessary to promote high
professional standards among registered accounting firms, to
improve the quality of audit services offered by those firms, and to
protect investors
Enforcing compliance with the Sarbanes–Oxley Act, the rules of the
board, professional standards, and securities laws relating to
public company audits
Registration with the Board Public accounting firms must be
registered with the Public Company Accounting Oversight Board in order
to legally prepare or issue an audit report on a publicly traded company.
In order to become registered, accounting firms must disclose, among
other things, the names of all public companies they audited in the
preceding year, the names of all public companies they expect to audit in
the current year, and the annual fees they received from each of their
public audit clients for audit, accounting, and nonaudit services.
Auditing, Quality Control, and Independence Standards and
Rules Section 103 of the act requires the board to establish standards for
auditing, quality control, ethics, independence, and other issues relating
to audits of publicly traded companies. Adopted rules do not take effect
until the SEC approves them, as detailed in Section 107 of the act.
Although the act places the responsibility on the board to establish audit
standards, it also sets forth certain rules that the board is required to
include in those auditing standards. These rules include the following:
Audit work papers must be maintained for at least seven years.
Auditing firms must include a concurring or secondpartner review
and approval of audit reports and concurring approval in the
issuance of the audit report by a qualified person other than the
person in charge of the audit.
All audit reports must describe the scope of testing of the company's
internal control structure and must present the auditor's findings
from the testing, including an evaluation of whether the internal
control structure is acceptable and a description of material
weaknesses in internal controls and any material noncompliance
with controls.
Inspections of Registered Public Accounting Firms The act also
authorizes the board to conduct regular inspections of public accounting
firms to assess their degree of compliance with laws, rules, and
professional standards regarding audits. Inspections are to be conducted
once a year for firms that regularly audit more than 100 public companies
and at least once every three years for firms that regularly audit 100 or
fewer public companies.
Investigations and Disciplinary Proceedings The board has the
authority to investigate registered public accounting firms (or their
employees) for potential violations of the Sarbanes–Oxley Act,
professional standards, any rules established by the board, or any
securities laws relating to the preparation and issuance of audit reports.
During an investigation, the board has the power to compel testimony
and document production.
The board has the power to issue sanctions for violations or for
noncooperation with an investigation. Sanctions can include temporary
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or permanent suspension of a firm's registration with the board (which
would mean that firm could no longer legally audit publicly traded
companies), temporary or permanent suspension of a person's right to be
associated with a registered public accounting firm, prohibition from
auditing public companies, and civil monetary penalties of up to
$750,000 for an individual and up to $15,000,000 for a firm.
There are two types of officer certifications mandated by Sarbanes–
Oxley: criminal certifications, which are set forth in Section 906 of the act
and codified at 18 USC §1350, and civil certifications, which are set forth
in Section 302.
Criminal Certifications (Section 906) Periodic filings with the SEC
must be accompanied by a statement, signed by the CEO and CFO, which
certifies that the report fully complies with the SEC's periodic reporting
requirements and that the information in the report fairly presents, in all
material respects, the financial condition and results of operation of the
company.
These certifications are known as “criminal certifications” because the
act imposes criminal penalties on officers who violate the certification
requirements.
Corporate officers who knowingly violate the certification
requirements are subject to fines of up to $1,000,000 and up to ten
years' imprisonment, or both.
Corporate officers who willfully violate the certification
requirements are subject to fines of up to $5,000,000 and up to
twenty years' imprisonment, or both.
Civil Certifications (Section 302) Section 302 of the act requires the
CEO and CFO to personally certify the following in their reports:
1. They have personally reviewed the report.
2. Based on their knowledge, the report does not contain any
material misstatement that would render the financials
misleading.
3. Based on their knowledge, the financial information in the report
fairly presents in all material respects the financial condition,
results of operations, and cash flow of the company.
4. They are responsible for designing, maintaining, and evaluating
the company's internal controls, they have evaluated the controls
within ninety days prior to the report, and they have presented
their conclusions about the effectiveness of those controls in the
report.
5. They have disclosed to the auditors and the audit committee any
material weaknesses in the controls and any fraud, whether
material or not, that involves management or other employees
who have a significant role in the company's internal controls.
6. They have indicated in their report whether there have been
significant changes in the company's internal controls since the
filing of the last report.
Note that in items 2 and 3 the CEO and CFO are not required to certify
that the financials are accurate or that there is no misstatement. They are
simply required to certify that to their knowledge the financials are
accurate and not misleading. However, this does not mean that senior
financial officers can simply plead ignorance about their companies' SEC
filings in order to avoid liability. The term fairly presents in item 3 is a
broader standard than that required by GAAP. In certifying that their SEC
filings meet this standard, the CEO and CFO essentially must certify that
the company (1) has selected appropriate accounting policies to ensure
the material accuracy of the reports, (2) has properly applied those
accounting standards; and (3) has disclosed financial information that
reflects the underlying transactions and events of the company.
Furthermore, the other certification rules (see 1 and 4–6 above) mandate
that CEOs and CFOs take an active role in their companies' public
reporting and in the design and maintenance of internal controls.
It is significant that in item 4, the CEO and CFO not only have to certify
that they are responsible for their companies' internal controls, but also
that they have evaluated the controls within ninety days prior to their
quarterly or annual report. Essentially, this certification requirement
mandates that companies actively and continually reevaluate their
control structures to prevent fraud.
Item 5 requires the CEO and CFO to certify that they have disclosed to
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their auditors and their audit committee any material weaknesses in the
company's internal controls and also any fraud, whether material or not,
that involves management or other key employees. Obviously, this is a
very broad reporting standard that goes beyond the “material” standard.
The CEO and CFO must report to their auditors and audit committee any
fraud committed by management. This places a greater burden on the
CEO and CFO to take part in antifraud efforts and to be aware of
fraudulent activity within their companies in order to meet this
certification requirement.
Item 6 is significant because periodic SEC filings must include statements
detailing significant changes to the internal controls of publicly traded
companies.
Management Assessment of Internal Controls In conjunction with
the Section 302 certification requirements on the responsibility of the
CEO and CFO for internal controls, Section 404 of Sarbanes–Oxley
requires all annual reports to contain an internal control report that (1)
states management's responsibility for establishing and maintaining an
adequate internal control structure and procedures for financial
reporting; and (2) contains an assessment of the effectiveness of the
internal control structure and procedures of the company for financial
reporting. The filing company's independent auditor will also be
required to issue an attestation report on management's assessment of
the company's internal control over financial reporting. This attestation
report must be filed with the SEC as part of the company's annual report.
Composition of the Audit Committee The Sarbanes–Oxley Act
mandates that each member of a company's audit committee must be a
member of its board of directors and must otherwise be “independent.”
The term independent means that the audit committee member can
receive compensation from the company only for his service on the board
of directors, the audit committee, or another committee of the board of
directors. The company may not pay them for any other consulting or
advisory work.
Financial Expert Section 407 of the act requires every public company
to disclose in its periodic reports to the SEC whether the audit committee
has at least one member who is a “financial expert,” and, if the
committee does not, to explain the reasons why. The act defines a
“financial expert” as a person who, through education and experience as
a public accountant or auditor, or a CFO, comptroller, or a similar
position (1) has an understanding of generally accepted accounting
principles and financial statements; (2) has experience in preparing or
auditing financial statements of comparable companies and in the
application of such principles in accounting for estimates, accruals, and
reserves; (3) has experience with internal controls; and (4) has an
understanding of audit committee functions.
Establishing a Whistleblowing Structure The act makes it the
responsibility of the audit committee to establish procedures (e.g., a
hotline) for receiving and dealing with complaints and anonymous
employee tips regarding irregularities in the company's accounting
methods, internal controls, or auditing matters.
Bookkeeping services
Financial information systems design and implementation
Appraisal or valuation services, fairness opinions, or contribution
inkind reports
Actuarial services
Internal audit outsource services
Management functions or human resources
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Broker or dealer, investment advisor, or investment banking
services
Legal services and expert services unrelated to the audit
Any other service that the Public Company Accounting Oversight
Board proscribes
There are certain other nonaudit services—most notably, tax services—
that are not expressly prohibited by Sarbanes–Oxley. However, in order
for a public accounting firm to perform these services on behalf of an
audit client, that service must be approved in advance by the client's audit
committee. Approval of the nonaudit services must be disclosed in the
client's periodic SEC reports.
Mandatory Audit Partner Rotation Section 203 of the act requires
public accounting firms to rotate the lead audit partner or the partner
responsible for reviewing the audit every five years.
Conflict of Interest Provisions Another provision of Sarbanes–Oxley
aimed at improving auditor independence is Section 206, which seeks to
limit conflicts or potential conflicts that arise when auditors cross over to
work for their former clients. The act makes it unlawful for a public
accounting firm to audit a company if, within the prior year, the client's
CEO, CFO, controller, or chief accounting officer worked for the
accounting firm and participated in the company's audit.
Auditor Reports to Audit Committees Section 301 requires that
auditors report directly to the audit committee, and Section 204 makes
certain requirements as to the contents of those reports. In order to help
ensure that the audit committee is aware of questionable accounting
policies or treatments that were used in the preparation of the company's
financial statements, Section 204 states that auditors must make a timely
report of the following to the audit committee:
All critical accounting policies and practices used
Alternative GAAP methods that were discussed with management,
the ramifications of the use of those alternative treatments, and the
treatment preferred by the auditors
Any other material written communications between the auditors
and management
Auditors' Attestation to Internal Controls As was stated previously,
Section 404 of the act requires every annual report to contain an internal
control report that states that the company's management is responsible
for internal controls and that it also assesses the effectiveness of the
internal control structures. Section 404 requires the company's external
auditors to attest to and issue a report on management's assessment of
internal controls.
Improper Influence on Audits The act also makes it unlawful for any
officer or director of a public company to take any action to fraudulently
influence, coerce, manipulate, or mislead an auditor in the performance
of an audit of the company's financial statements. This is yet another
attempt by Congress to ensure the independence and objectivity of audits
in order to prevent accounting fraud and strengthen investor confidence
in the reliability of public company financial statements.
Pro Forma Financial Information Section 401 also directs the SEC to
issue rules on pro forma financial statements. These rules require that
pro forma financials must not contain any untrue statements or
omissions that would make them misleading, and they require that the
pro forma financials be reconciled to GAAP. These rules apply to all pro
forma financial statements that are filed with the SEC or that are included
in any public disclosure or press release.
Prohibitions on Personal Loans to Executives Section 402 makes it
illegal for public companies to make personal loans or otherwise extend
credit, either directly or indirectly, to or for any director or executive
officer. There is an exception that applies to consumer lenders if the
loans are consumer loans of the type the company normally makes to the
public and on the same terms.
Restrictions on Insider Trading Section 403 establishes disclosure
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requirements for stock transactions by directors and officers of public
companies, or by persons who own more than 10 percent of a publicly
traded company's stock. Reports of changes in beneficial ownership by
these persons must be filed with the SEC by the end of the second business
day following the transaction.
Under Section 306, directors and officers are also prohibited from
trading in the company's securities during any pension fund blackout
periods. This restriction applies only to securities that were acquired as a
result of their employment or service to the company. A blackout period is
defined as any period of more than three consecutive business days in
which at least 50 percent of the participants in the company's retirement
plan are restricted from trading in the company's securities. If a director
or officer violates this provision, he can be forced to disgorge to the
company all profits received from the sale of securities during the
blackout period.
Codes of Ethics for Senior Financial Officers Pursuant to Section
406 of the act, the SEC established rules that require public companies to
disclose whether they have adopted a code of ethics for their senior
financial officers, and if not, to explain the reasons why. The rules also
require immediate public disclosure any time there is a change in the
code of ethics or a waiver of the code of ethics for a senior financial
officer.
Enhanced Review of Periodic Filings Section 408 of the act requires
the SEC to make regular and systematic reviews of disclosures made by
public companies in their periodic reports to the SEC. Reviews of a
company's disclosures, including its financial statements, must be made
at least once every three years. Prior to this enactment, reviews were
typically minimal and tended to coincide with registered offerings.
RealTime Disclosures Under Section 409, registered companies must
publicly disclose information concerning material changes in their
financial condition or operations. These disclosures must be “in plain
English” and must be made “on a rapid and current basis.”
Civil Liability Whistleblower Protection Section 806 of the act,
which is codified at 18 USC §1514A, creates civil liability for companies
that retaliate against whistleblowers. It should be noted that this
provision does not provide universal whistleblower protection; it protects
only that it is unlawful to fire, demote, suspend, threaten, harass, or in
any other manner discriminate against an employee for providing
information or aiding in an investigation of securities fraud. In order to
trigger Section 806 protections, the employee must report the suspected
misconduct to a federal regulatory or law enforcement agency, a member
of Congress or a committee of Congress, or a supervisor. Employees are
also protected against retaliation for filing, testifying in, participating
in, or otherwise assisting in a proceeding filed or about to be filed
relating to an alleged violation of securities laws or SEC rules.
The whistleblower protections apply even if the company is ultimately
found not to have committed securities fraud. As long as the employee
reasonably believes she is reporting conduct that constitutes a violation
of various federal securities laws, then she is protected. The protections
cover retaliatory acts not only of the company, but also of any officer,
employee, contractor, subcontractor, or agent of the company.
If a public company is found to have violated Section 806, the act
provides for an award of compensatory damages sufficient to “make the
employee whole.” Penalties include reinstatement; back pay with
interest; and compensation for special damages including litigation
costs, expert witness fees, and attorneys' fees.
Criminal Sanction Whistleblower Protection Section 1107 of
Sarbanes–Oxley—codified at 18 USC §1513—makes it a crime to
knowingly, with the intent to retaliate, take any harmful action against a
person for providing truthful information relating to the commission or
possible commission of any federal offense. This protection is triggered
only when information is provided to a law enforcement officer; it does
not apply to reports made to supervisors or to members of Congress, as is
the case under Section 806.
In general, the coverage of Section 1107 is much broader than the civil
liability whistleblower protections of Section 806. While the Section 806
protections apply only to employees of publicly traded companies,
Section 1107's criminal whistleblower protections cover all individuals
(and organizations) regardless of where they work. Also, Section 806
applies only to violations of securities laws or SEC rules and regulations,
whereas Section 1107 protects individuals who provide truthful
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information about the commission or possible commission of any federal
offense.
Violations of Section 1107 can be punished by fines of up to $250,000
and up to ten years in prison for individuals. Corporations that violate
the act can be fined up to $500,000.
Attempt and Conspiracy The act amends the mail fraud provisions of
the United States Code (Chapter 63) to make “attempt” and “conspiracy to
commit” offenses subject to the same penalties as the offense itself. This
applies to mail fraud, wire fraud, securities fraud, bank fraud, and health
care fraud.
Mail Fraud and Wire Fraud Sarbanes–Oxley amends the mail fraud
and wire fraud statutes (18 USC §§1341, 1343), increasing the maximum
jail term from five to twenty years.
Securities Fraud Section 807 of the act makes securities fraud a crime
under 18 USC §1348, providing for fines up to $250,000 and up to
twentyfive years in prison.
Document Destruction Section 802 of the act makes destroying
evidence to obstruct an investigation or any other matter within the
jurisdiction of any U.S. department illegal and punishable by a fine of up
to $250,000 and up to twenty years in prison.
The final rules adopted by the SEC under Section 802 specifically require
that accountants who perform audits on publicly traded companies must
maintain all audit or review work papers for a period of seven years.
Although the original provisions of Section 802 only required a retention
period of five years, the SEC extended the requirement to be consistent
with the sevenyear retention period required under the Auditing
Standards promulgated by the Public Company Accounting Oversight
Board (PCAOB) per Section 103 of the act. Violations of the final SEC
rules may be punished by fines up to $250,000 and up to ten years in jail
for individuals, or fines up to $500,000 for corporations.
Section 1102 of the act amends Section 1512 of the U.S. Code to make it a
criminal offense to corruptly alter, destroy, mutilate, or conceal a record
or document with the intent to impair its integrity or use in an official
proceeding, or to otherwise obstruct, influence, or impede any official
proceeding or attempt to do so. Violations of this section are punishable
by fines up to $250,000 and imprisonment for up to twenty years.
Freezing of Assets During an investigation of possible securities
violations by a publicly traded company or any of its officers, directors,
partners, agents, controlling persons, or employees, the SEC can
petition a federal court to issue a fortyfiveday freeze on “extraordinary
payments” to any of the foregoing persons. If granted, the payments will
be placed in an interestbearing escrow account while the investigation
commences. This provision was enacted to prevent corporate assets from
being improperly distributed while an investigation is underway.
Bankruptcy Loopholes Section 803 amends the bankruptcy code so
that judgments, settlements, damages, fines, penalties, restitution, and
disgorgement payments resulting from violations of federal securities
laws are nondischargeable. This is intended to prevent corporate
wrongdoers from sheltering their assets under bankruptcy protection.
Disgorgement of Bonuses One of the most noteworthy aspects of the
Sarbanes–Oxley Act is Section 304, which states that if a publicly traded
company is required to prepare an accounting restatement due to the
company's material noncompliance, as a result of “misconduct,” with any
financial reporting requirement under securities laws, then the CEO and
CFO must reimburse the company for:
Any bonus or other incentivebased or equitybased compensation
received during the twelve months after the initial filing of the
report that requires restating
Any profits realized from the sale of the company's securities
during the same twelvemonth period
While the act requires the CEO and CFO to disgorge their bonuses if the
company's financial statements have to be restated because of
“misconduct,” it makes no mention of whose misconduct triggers this
provision. There is nothing in the text of Section 304 that limits the
disgorgement provision to instances of misconduct by the CEO and CFO.
Presumably, then, the CEO and CFO could be required to disgorge their
bonuses and profits from the sale of company stock even if they had no
knowledge of and took no part in the misconduct that made the
restatement necessary.
Now that we understand the underlying accounting principles that allow
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financial statement frauds to occur, and the impact of the Sarbanes–
Oxley Act to discourage these acts, we will turn, in the next chapter, to the
mechanics of how such frauds are committed.
Although they were the least frequently reported category of occupational
fraud, financial statement schemes were the most costly by far. The
median loss associated with financial statement fraud schemes in our
survey was $1 million, four times the median loss caused by corruption
schemes and more than eight times the median loss for asset
misappropriations (see Exhibit 113).
EXHIBIT 112 2011 Global Fraud Survey: Frequency of Three
Major Categories *
EXHIBIT 113 2011 Global Fraud Survey: Median Loss of Three
Major Categories
EXHIBIT 114 2011 Global Fraud Survey: Financial Statement
Fraud Schemes by Category
SUMMARY
Financial statement fraud generally takes one of two forms: overstated
assets or revenue, or understated liabilities or expenses. Although they
are conceptually distinct, both general forms result in increased equity
and net worth for a company, all as a result of fraud.
There are three main groups of people who commit financial statement
fraud. Sometimes it is committed by organized criminals, who may
engage in this type of fraud as part of a scheme to obtain fraudulent loans
or to promote a stock. Mid and lowerlevel employees may be involved
in falsification of financial statements to conceal their own poor
performance or for other related reasons. Most commonly, seniorlevel
management perpetrates financial statement fraud schemes for various
reasons. Some of these reasons might include concealing their actual
business performance, preserving their status and control, or
maintaining their personal wealth.
The three primary methods of committing financial statement fraud
include playing the accounting system, beating the accounting system,
and using methods outside of the accounting system. In order to attempt to
prevent the overstatement of assets or revenues, guidelines have
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developed over the years, and have been codified by the Financial
Accounting Standards Board into what has become known as generally
accepted accounting principles (GAAP). Financial statements are the
responsibility of a company's management, and management can
attempt to deter financial statement fraud by setting and following a code
of conduct.
ESSENTIAL TERMS
Financial statement fraud A type of fraud whereby an individual
or individuals purposefully misreport financial information about an
organization in order to mislead those who read it.
Overstatements Type of financial statement fraud in which an
individual exaggerates a company's assets or revenues to meet
certain objectives.
Understatements Type of financial statement fraud in which an
individual minimizes a company's liabilities or expenses to meet
certain objectives.
Generally accepted accounting principles Recognition and
measurement concepts that have evolved over time and have been
codified by the Financial Accounting Standards Board and its
predecessor organizations. The standards serve to guide regular
business practices and deter financial statement fraud.
Comparability and consistency Secondary qualitative
characteristics that state that a company's information must be
presented with the same consistent method from year to year, in
order for it to be useful for analytical purposes in decision making.
Relevance and reliability Primary qualitative characteristics of
financial reports as they relate to usefulness for decision making.
Relevance implies that certain information will make a difference in
arriving at a decision. Reliability means that the user can depend on
the factual accuracy of the information.
Periodicity A “time period” assumption, which deems that economic
activity be divided into specific time intervals, such as monthly,
quarterly, and annually.
Full disclosure A standard for financial reporting that states that
any material deviation from generally accepted accounting
principles must be explained to the reader of the financial
information. Any potential adverse event must be disclosed in the
financial statements.
REVIEW QUESTIONS
111 (Learning objective 111) Why are the fraudulent statement methods
under discussion referred to as “financial statement fraud”?
112 (Learning objective 112) There are three main groups of people
who commit financial statement fraud. Who are they?
113 (Learning objective 113) What are the three primary reasons
people commit financial statement fraud?
114 (Learning objective 114) What are the three general methods
commonly used to commit financial statement fraud?
115 (Learning objective 115) What is meant by the term overstatement?
116 (Learning objective 116) What is meant by the term
understatement?
117 (Learning objective 117) What are the components of the conceptual
framework for financial reporting?
118 (Learning objective 118) Define the term financial statement and
provide examples of types of financial statements used in companies.
DISCUSSION ISSUES
111 (Learning objective 111) Why is financial statement fraud
commonly referred to as “cooking the books”?
112 (Learning objectives 11.2 and 11.3) Compare the three main groups
of people who may commit financial statement fraud, and describe their
potential reasons for the fraud.
113 (Learning objective 114) Although three general methods of
committing financial statement fraud have been identified, one of these
methods is typically used first. Which method is this, and why is it more
likely to be selected first as opposed to the other two?
114 (Learning objective 117) What is the generally accepted accounting
principle known as matching? Describe how a company may be involved
in fraud that violates this principle.
115 (Learning objective 117) Management of a cellular phone company
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learns that a new technological advance will occur within the next year
that will make the company's current phones and related products
obsolete. As a result, there is a strong chance that the company will close.
When financial statements appear for auditors, management does not
reveal its knowledge of the new technology. In this case, what accounting
concepts are involved?
116 (Learning objective 118) In an organization, who is generally
responsible for the financial statements, and how can those responsible
help to deter financial statement fraud?
* The sum of these percentages exceeds 100 percent
because some cases involved multiplefraud schemes
that fell into more than one category. Various charts
in this chapter may reflect percentages that total in
excess of 100 percent for similar reasons.
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