Author: Caleb Newquist

Founding editor, Going Concern.

KPMG, Center for Audit Quality Weren’t Too Keen on PCAOB Inspection Documents Being Subpoenaed

Last week, we told you about Jonathan Weil’s latest scoop exposing a PCAOB issuer in an inspection report. The issuer in question was Motorola and it, once again, featured KPMG as the auditor on the receiving end of the Board’s criticism. It was also noted that PCAOB Chair Jim Doty mentioned this particular case (without naming names) in his speech at USC the previous week when he described “one large firm tam was aware that a significant contract was not signed until the early hours of the fourth quarter. Nevertheless, the audit partner allowed the company to book the transaction in the third quarter, which allowed the company to meet its earnings target.”

J Dubs put this all together in a nice little package, citing court documents from a class-action lawsuit in Chicago. What isn’t mentioned in Weil’s column but is spelled out in other court documents that we’ve reviewed is that KPMG and the Center of Audit Quality fought the release of the documents related to the PCAOB’s inspection report because they’re afraid that more lawsuits could result if issuers’ identities are made public.

The CAQ submitted an amicus curiae brief (in full on the next page) stating:

The supervisory model of regulation created by Sarbanes-Oxley and implemented by the PCAOB has thus far worked well and has improved the quality and reliability of audits of public companies. It has worked to the satisfaction of both the Board and the regulated community.

Since the PCAOB’s own Investor Advisory Group issued a report entitled “The Watchdog that Didn’t Bark … Again,” one might say that the Center’s final point is debatable.

Yet, the CAQ argued that if the PCAOB inspection documents were released, “the [Sarbanes-Oxley] Act’s carefully supervisory model will be adversely affected.” That is, the confidentiality afforded to the communication between auditors and the PCAOB would be compromised and would allow Board information into the ‘hands of litigating lawyers.’ The CAQ declined to comment for this post, saying that they did not “have anything to add to the amicus brief.”

In her ruling denying KPMG’s motion (in full, on page 3) to squash the subpoena of the PCAOB documents, Judge Amy St. Eve cited KPMG’s argument that sounds very similar to the CAQ’s:

KPMG argues that “if litigants can compel production of materials related to the PCAOB’s confidential inspection process notwithstanding section 105(b)(5)(A), open and constructive engagement between the PCAOB and accounting firms could be chilled by the threat of increased civil litigation, and the statutory framework carefully crafted by Congress to improve the quality of public company audits could be frustrated.”

So basically auditors are afraid that if their super-special-secret discussions with the PCAOB are out there for all the world to see, they’ll get sued more often. But hasn’t suing audit firms already reached critical mass? Can they really fear more litigation? The only thing that keeps audit firms from being on the same level of litigation risk as tobacco companies is that they aren’t killing people.

Weil and those that agree with him argue that the PCAOB owes it to investors to name names in their inspection reports. To continue keeping issuers confidential protects them from legitimate criticism for shoddy accounting and perpetuating equally shoddy audits. Of course, if you’re an investor and that doesn’t bother you, then maybe you’re okay with auditors trying to stop the release of more information related to their work. Work that cost the investors in Motorola $244 million from 2000 to 2010.

caqamicusbrief

Minute Order 1

Accounting News Roundup: Chinese Investors Say ‘Meh’ to Accounting Scandals; Cat Lady Beats IRS; A $90 Million Mistake Will Get You Fired | 06.13.11

Richest Americans Get $1.4 Million Tax Cut in Pawlenty Plan [Bloomberg]
The top 0.1 percent of U.S. taxpayers would save an average of $1.4 million in taxes under the economic plan of Republican presidential candidate Tim Pawlenty, according to an independent analysis. Pawlenty’s $11.6 trillion tax-cut plan, which reduces rates on income, capital gains, interest, estates and dividends, is almost three times larger than the proposals endorsed by House Republicans.

Chinese investors shrug off U.S. accounting scandal fallout [ two dozen Chinese retail investors gathered at the dimly lit public hall of a brokerage firm in Shanghai, the accounting scandals involving U.S.-listed Chinese companies are far from the hot topic of the day’s trading as they swap strategies over tea and cigarettes. Many of the investors, mostly retirees, have not even heard about the saga over fake numbers among some Chinese firms that has shaken U.S. investors and stunned regulators there.

Stray Cat Strut: Woman Beats IRS [WSJ]
When Jan Van Dusen appeared before a U.S. Tax Court judge and a team of Internal Revenue Service lawyers more than a year ago, there was more at stake than her tax deduction for taking care of 70 stray cats. Hanging in the balance were millions of dollars in annual tax deductions by animal-rescue volunteers across the nation—and some needed clarity on the treatment of volunteers’ unreimbursed expenses for 1.55 million other IRS-recognized charities. Early this month, Ms. Van Dusen learned she had won her case. “I was stunned,” she said. “It feels great to have established this precedent.”

Fuzzy Accounting Enriches Groupon [NYT]
Groupon, the Internet coupon company, had an operating loss of $420 million last year. But it thinks investors in its initial public offering should instead look at “adjusted consolidated segment operating income,” or adjusted C.S.O.I. It is easy to see why Groupon wants prospective shareholders to view its accounts this way. Strip out marketing expenses, acquisition-related costs, stock compensation, interest expense and payments to the tax man and, presto, the start-up earned $60.6 million.

VF to Buy Timberland for $2 Billion in Cash [WSJ]
Branded-apparel company VF Corp. agreed to buy Timberland Co. for about $2 billion, taking advantage of the footwear company’s beaten-down stock price to boost its outdoor and action-sports businesses. VF’s offer of $43 a share represents a premium of 43% to Friday’s close. Shares of Timberland, which specializes in boots and outdoor apparel, traded above $45 as recently as late April, but a first-quarter report that fell well short of estimates sent the stock tumbling. Its earnings in the period fell 30% as it spent more on planned initiatives and saw higher product costs.

$90 million accounting mistake costs county official his job [WBEZ]
The former worker, Faisal Abbasi, 36, of Prospect Heights, accidentally made double entries for county cigarette and sales tax revenue from 2009, said Cook County Chief Financial Officer Tariq Malhance. “It was really a human error that one person booked it, and then, not realizing that it had been booked before … he [duplicated it], and booked again,” Malhance said. But Abbasi, who was laid off from his county job when the Preckwinkle administration took office in February, said he is simply a scapegoat for the mistake. The idea that he alone could have caused such an error is “a bunch of hogwash and smoke and mirrors,” Abbasi said. “You can’t just put in a $20 million or $30 million dollar entry without the external auditors looking at it.,” he told WBEZ on Friday.

Vote to end ethanol subsidies revives Coburn-Norquist tax revenue battle [The Hill]
Coburn successfully pushed for a Tuesday vote on a measure to cut subsidies for ethanol, a proposal that the Oklahoma Republican and Norquist, the anti-tax crusader, feuded over earlier this year. Both Coburn and Norquist have said they opposed a tax credit that gives refiners and gasoline blenders 45 cents for every gallon of ethanol bought and combined with gasoline – a policy the Government Accountability Office says cost about $5.4 billion in 2010.

Yes, the SEC *Has* Heard About the Trend of Accounting Problems at Reverse Merger Companies

The Securities and Exchange Commission warned investors about the risk of fraud, accounting problems and other abuses at companies that obtain stock listings through so-called reverse mergers.

The warning on Thursday comes amid a rash of accounting scandals involving China-based companies listed on U.S. exchanges through reverse mergers, or mergers with U.S. shell companies. “Many companies either fail or struggle to remain viable following a reverse merger,” the SEC said in an investor bulletin. Investors should be especially wary of reverse merger operating companies that are “nonreporting,” meaning they are not required to file reports with the SEC, the agency said. “Keep in mind that information from online blogs, social networking sites and even a company’s own website may be inaccurate and sometimes intentionally misleading,” the SEC said. [Reuters]

You May Have Noticed People in Deloitte T-Shirts Running Around Your City Today

That’s because it’s Deloitte IMPACT Day which means no one is actually “billing” but instead providing services and time pro bono at 800 events across the country.

Three-quarters of the firm’s people are participating in various events including some in Boston working on fund Dana-Farber Cancer Institute and the Memphis Botanic Garden. Surely some people just called in sick and started drinking at noon but let’s not focus on that. If you’ve got pics or other stories to share from your event, get in touch. [Deloitte]

There’s Some Fuss About Groupon’s Revenue…or Profits…or Something

You may have heard that the company that encourages people to go broke by saving money, Groupon, filed a S-1 with the SEC last week to go public. It’s been a matter of hot debate as to whether this company is the real deal or simply another house of coupons. One matter that has several people sc is how the company accounts for its revenue. A reader dropped us this note yesterday:

Caleb

I am not one to bring up accounting questions on your blog as its not your web site’s background [Ed. note: Uh, you mean, accounting?]. I was wondering if you could post one question and make an exception as it relates to Groupon. How on earth did Groupon get away with Gross Revenue treatment and not net revenue? All my accounting friends from the Big 4 and even people who do not work on the Groupon audit at E&Y are stumped. All the literature points to net revenue which means they would not report gross revenue of 900 million but rather 200 million or so which represents their cut. Given how companies are valued on multiple of revenue this seems like a big issue. Any help would be appreciated by your readers.

Now it’s not exactly clear what our reader is referring to (feel free to comment below if you understand) but here’s a clip from the S-1:

Sorry for the squishiness. As you can see, Groupon is reporting revenue for 2010 of over $700 million (not sure about $900 million). They have a cost of revenue (aka cost of goods sold) of over $400 million with a “gross profit” of $279 million. Now, if you’re thinking “gross profit” should be “net revenue” you’re not alone.

From CNBC, there appears to be a debate over semantics:

Groupon accounts for its revenue differently than say eBay, and in a way that some say is misleading to potential investors. The company defines revenue as “the purchase price paid by customers.” Then there’s the issue of “the cost of revenue,” leaving the company with what it calls “gross profit,” which is “the amount of revenue we retain after paying an agreed upon percentage of the purchase price to the featured merchant.”

Here’s the thing: Many companies like eBay […], which also take a fee for transactions, would consider that “gross profit” number a “net revenue number.” UCLA Anderson School’s accounting lecturer Gordon Klein says the S-1 uses terms in a way he’s never used them before, and this unusual accounting tells him that investors should “run from the stock.” Others say this is a non-issue: Wedbush securities analyst Lou Kerner says that the company has done a totally adequate job outlining its accounting approach. Kerner says whether the company reports its revenue before or after direct costs should have zero impact on investors evaluation of the company.

And co-founder Andrew Mason admits that Groupon does things a little differently. Under a section entitled “We don’t measure ourselves in conventional ways” he writes, “we track gross profit [as a metric], which we believe is the best proxy for the value we’re creating.” But that’s all the explanation he gives. Later the filing states, “We believe gross profit is an important indicator for our business because it is a reflection of the value of our service to our merchants.” And under “How we measure our business” things are equally vague:

Gross profit. Our gross profit is the amount that we retain after paying our merchants an agreed upon percentage of the purchase price to the featured merchant. We believe gross profit is an important indicator for our business because it is a reflection of the value of our service to our merchants. Gross profit is influenced by the mix of deals we offer. For example, gross profit can vary depending on the category of product or service offered in a particular deal. Likewise, gross profit can be adversely impacted by offers that we make for the principal purpose of acquiring new subscribers or establishing our brand and building scale in a new market.

Throughout the S-1, the term “gross profit” is used 52 times. If you’re used to reading SEC Filings, the term may throw you off but ultimately the numbers are what theyare and the terms used seem secondary. If you believe “gross profit” is a bullshit metric for this business, fine that’s one thing but if they choose to use slightly unorthodox terminology, does that mean investors should ‘run from the stock’? Personally, I don’t happen to be customer of any of the banks underwriting this thing, so this of little consequence but accountants like to sweat the details, so feel free to make a case either way in the comments.

Confirmed: There Is a Shortage of Good Accountants in the Sex Industry

Way back in March of 2010, we shared with you a plight in our country: there simply are not enough good accountants serving professionals working in the sex industry. At the time we learned of Companions (NSFW unless looking at semi-nude women is kosher), an escort service in Salt Lake City whose proprietors slightly underreported their income which resulted in a tax evasion conviction. We wondered if this particular industry was dry of good accountants and tax advisors who might be able to assist entrepreneurs such as these and the professionals they employ to avoid similar situations.

As happens from time to time, someone with direct knowledge reached out to us and we now have at least one person on record confirming our suspicions:

Hello Caleb,

I came across your March 23, 2010 article, Is the Shortage of Good Accountants in the Sex Industry an Opportunity? and felt compelled to write. You see, I am a tax preparer that has been servicing the adult industry since 2006, doing my best to help those in the industry with knowledge and compassion. What began as helping a few phone sex operators and dancers file their tax returns with dignity has grown into a big part of my business. So, the answer to your question is, yes, the shortage of good accountants in the Sex Industry is indeed an opportunity – for those who wish to practice with ethics and respect. If you wish, you may find more about me and what I do from my website www.taxdomme.com.

I am now eager to peruse the rest of your website.

Best,
Lori, The Tax Domme

For anyone in need of services, the Tax Domme has a new office location in downtown Seattle and if you’re looking to carve out your own niche practice, you can get in touch with Lori for tips on anything you might want to know. For example, what happens when a well-to-do john needs a companion on a round-the-world trip? If animals are a regular part of the business, is it better to lease or buy? Would whips, chains, spreaders, etc. purchased by dominatrix be eligible for a §179 deduction? All relevant questions that have no doubt come up in the world of the Tax Domme.

So here’s an opportunity to be had people. As long as you manage to keep things professional you can cater to a virtually recession-proof industry. Can’t say we never told you.

Ernst & Young Didn’t Appreciate the Threat of ‘Action’ By Audit Client Who Wanted Rubber-Stamped Financial Statements

Some clients treat their auditors like dirt. Given. To these haters, the financial statement audit is an onerous task that is mandated by the SEC and it amounts to an assault on liberty, capitalism and Ayn Rand’s genius. Accordingly, some clients try to push auditors around because typically they can. Today we bring you a rare example of a pushy-ass client going too far and an auditor standing up for themselves.

Ernst & Young resigned at the auditor of Life Partners Holdings Inc. in a letter dated June 6, 2011 after the CEO, Brian Pardo, WROTE IN A MEMO that he would “take action” against the firm if they did not sign off on the financial statement committee got wind of this little soapbox moment and promptly told E&Y about it.

From the 8-K Filing:

On June 6, 2011, Life Partners Holdings, Inc. (“we” or “Life Partners”) received a letter from Ernst & Young LLP (“Ernst & Young”) addressed to the Chairman of our Audit Committee (the “Resignation Letter”) confirming that it had resigned effective June 3, 2011, as our independent registered public accounting firm, as had been orally communicated to the Chairman of the Audit Committee on June 3, 2011. The resignation means that Ernst & Young will not certify our financial statements for the fiscal year ended February 28, 2011 (“Fiscal 2011”), which is necessary for completing and filing our Annual Report on Form 10-K for Fiscal 2011 (the “2011 Annual Report”).

The resignation follows a letter from Mr. Brian Pardo, our Chairman and CEO, to our licensee network (persons who refer purchasers to us) commenting upon the delayed filing of our 2011 Annual Report. The letter stated that it was Mr. Pardo’s position that we would “take action” against Ernst & Young if it did not promptly complete its audit and sign off on our financial statements without adjustment. Our Audit Committee wrote to Ernst & Young disclaiming the letter’s statements and asserting that the letter did not speak for the Audit Committee. Notwithstanding the Audit Committee’s disclaimer, Ernst & Young stated that the letter compromised its independence, and when considered with other recent developments, that it was no longer able to rely upon management’s representations, and that it was unwilling to be associated with the financial statements prepared by management.

Just for good measure, E&Y also stated that the company’s revenue recognition policy sucks, needs revised and they pulled their unqualified opinion over the 2010 financial statements. How’s that for “action”?

8-K [SEC via WSJ]

UPDATE:
As noted by the first comment below, the second comment on a post over at Deal Journal has what appears to be the memo in question from Brian Pardo.

Message From Brian Pardo

Yesterday we filed for an extension of the time to file our annual10K which should have been filed by May 15th because the Auditors have not yet completed their part. Quite frankly I am confident that the SEC is interfering with us by trying to unnerve the Auditors (by asking frivolous questions) which has added to the delay in getting out the 10K which is done and ready to release. They are trying to force us to “restate” our revenue recognition criteria; one that has been in use for ten years now.

Restating for any period, for any reason is viewed by the market as an implicit admission that prior quarters were probably misstated, which they were not. We do expect to file shortly, but the WSJ called last night to print another negative article.

There is no reason to restate because any proposed adjustment is immaterial under GAAP guidelines. E&Y signed off on our revenue recognition criteria policy last year and every other audit firm has as well since we went public in 2000. However some of your clients will probably read about it in the WSJ or in some other supposedly legitimate news media. And, the shorts will no doubt make a big deal about it.

My position is we either ratify the 10k as is very soon or we will take action against E&Y as well as with the SEC in Washington. It is time to put an end to this nonsense! I believe E&Y is trying to mitigate problems they may have with the SEC at our expense. For instance, we were never told by E&Y that they audited at least one large organization in the Madoff matter.

We are well within GAAP boundaries regarding every of aspect of our financial statements including all materials created, used or reviewed in relation to our published financial statements. We have ten years of doing this the exact same way and every Auditor from every firm for the entire time has signed off on every single 10k over those last 10 years.

Brian D. Pardo

PS You are authorized to share my statement with concerned clients and Licensees, but, not the press although the matter is in the public domain now.

Going Concern at the ACFE Fraud and Conference Exhibit

Next week I’ll be attending the ACFE Fraud and Conference Exhibit in San Diego where many forensic and fraud sleuths will be enjoying each other’s company and one-upping each other with stories on how many criminals they’ve busted over the years. It looks like you can still register so if my presence is the dealmaker for you, then I suggest you get on this.

John Walsh, the host of America’s Most Wanted will be giving a keynote although I’m a little confused as to what he’ll share with people that comb through ledgers for a living. Anyway, if you want to get in touch with me at the conference or while I’m in San Diego, you can email me, DM or @ me on Twitter or shoot me a message on LinkedIn or Facebook. I promise I’ll respond at some point especially if you offer to drive me to the beach or buy me an old fashioned in the Gaslamp Quarter.

And if you’re not in San Diego or attending the conference, don’t worry, I’ll be on a regular posting schedule so there will be the regular dose of inflammatory nonsense coming your way.

Accounting News Roundup: Chinese Blowups Lead to Auditor Lawsuits; Nixing Tax Strategy Patents; Helmsley Canine Heir Goes to Heaven | 06.10.11

Troubled Audit Opinions [NYT]
On one side is an assessment of a company with a clean audit opinion from the Toronto office of Ernst & Young, and with bonds rated just below investment grade by Standard & Poor’s and Moody’s. It has raised billions in capital markets. On the other is an investment research firm using the name Muddy Waters Research. It says the company, the Sino-Forest Corporation, is a fraud, and that its shares are worthless. As this is written, there is no definitive answer as to who is right. But the initial reaction of the markets seemed to be that they had more trust in the short-seller — a company whose Web site gives no the auditor’s opinion.

Auditors face suits over Chinese blowups in U.S. [Reuters]
Investors who have suffered a drubbing from accounting scandals at U.S.-listed Chinese companies are starting to sue the auditors who blessed their financial statements, but it will be tough for them to win in American courts. Shareholders already have sued a string of China-based, U.S.-listed companies for fraud, saying they lost money when stocks tanked after financial scandals emerged. They contend companies invented sham businesses, inflated revenue or gave vastly different information to U.S. and Chinese regulators.

$100 Million Claim Against Deloitte & Touche [CNS]
SBP Capital, formerly known as Ameriquest Capital, claims Deloitte & Touche cost it $100 million by giving it bum advice on “tax issues related to Ameriquest’s securitizations” of mortgage lending and “related activities.”

Is Groupon’s Business Model Sustainable? [DealBook]
In its less than three years of existence, Groupon has established itself as the king of social buying sites. As feverish speculation mounted about its impending initial public offering, analysts and investors could only await further details of how much money it was minting. But with its I.P.O. filing now public, Groupon faces significant questions about the sustainability of its business model. A look at the company’s overall financials shows a steep decline in how much money it is wringing from its fast-growing subscriber base.

Bill Aims at Tax-Strategy Patent [WSJ]
U.S. patent No. 7,698,194 isn’t an ingenious new machine or a break-through medical treatment. It is a method of analyzing taxes related to college-savings plans. It also is one of 144 patented tax strategies and 162 pending applications, as of late May, that tax preparers say have burdened their job and made it harder for citizens to pay their taxes. Consumer and tax groups have pushed since 2007 to get such patents banned. When it returns from recess this week, the U.S. House is expected to vote on an overhaul of the patent system that would effectively prohibit patenting tax strategies.

Leona Helmsley’s rich dog is dead [DMWT]
No more Trouble.

Retief Goosen Birdies at FedEx St. Jude Classic, Bogeys in Tax Court [TaxProf]
Swapping a caddy for a CPA could be an option.

Payroll-Tax Break Said to Be Discussed by Obama Aides Amid Slowing Economy [Bloomberg]
President Barack Obama’s advisers have discussed seeking a temporary cut in the payroll taxes businesses pay on wages as they debate ways to spur hiring amid signs that the recovery is slowing, according to people familiar with the matter. The idea, which is in preliminary stages of discussion, is among several being talked about at the White House as the economy holds center stage for the administration and Congress, the people said on condition of anonymity to discuss internal deliberations.

What Divorce Means For Your Taxes [SmartMoney]
Divorce has no season.

Thanks to the IRS, Republican Presidential Candidate Herman Cain Only Made Enough Money to ‘Buy New Golf Clubs and Move to Atlanta’

Soon-to-be failed Presidential candidate Herman Cain is best known for being the former CEO of Godfather’s Pizza. When he took the job in 1986, the Journal reports “Mr. Cain cut costs and closed unprofitable locations and said that he returned the business to profitability in just 14 months.” An impressive feat to be sure and he continued to sling pie as the CEO until 1996 when he presumably figured he could cash in nicely.

Unfortch for Cain things didn’t really work out. And whose fault would that be? The IRS, of course!

Mr. Cain said that in 1996 he struck a deal to sell his stake in Godfather’s to his partners. That’s when the IRS showed up and commenced an audit of his tax return for the year 1994, coincidentally the year he publicly challenged President Clinton on the impact of his health-care reform plan. Simultaneous audits of Godfather’s and Mr. Cain’s partners were quickly concluded, but Mr. Cain said that the audit of his personal finances dragged on until 1999.

When he finally concluded the sale of his Godfather’s stake, Mr. Cain said that its value had fallen by 75% and yielded only enough money for him to “buy new golf clubs and move to Atlanta.” As for the IRS, they claimed he owed $1.8 million in back taxes, but he said that as soon as he appealed this decision, they immediately dropped the claim and asked only for $40,000 to cover interest on “the money I didn’t owe.” Outraged, he nevertheless paid the bill to resolve the matter. He said that such treatment at the hands of the IRS happens all the time.

Godfather vs. Tax Man [WSJ]

Weikang Bio-Technology Felt Compelled to Issue a Press Release Announcing that Grant Thornton Successfully Verified Their Cash Balances with Bank Statements

Chinese companies certainly have had their share of problems with financial reporting in the U.S. but I had no idea that it would come to this.

The Audit Committee of the Board of Directors of Weikang Bio-Technology Group Co., Inc. (OTC Markets: WKBT.PK – News) (“WKBT,” “Weikang” or the “Company”), a leading developer, manufacturer and marketer of Traditional Chinese Medicine (TCM), Western prescription and OTC pharmaceuticals and other health and nutritional products in the People’s Republic of China, today announced that Grant Thornton (“GT”), one of the world’s leading organizations of independently owned and managed accounting and consulting firms, has verified that the cash amounts listed on the Company’s SEC filings for 2010 and the first quarter of 2011 are consistent with account statements obtained from WKBT’s banks directly by GT.

“Given the recent change in auditors and my new chairmanship of the WKBT Audit Committee, we authorized the Grant Thornton review to take place last week, and are now releasing the results,” said Jeffery Chuang, independent director and Chairman of the Audit Committee of WKBT. “Weikang continues to advance as a U.S. publicly-traded company and we are committed to high standards in the thoroughness of our financial information,” said Mr. Chuang, a U.S. CPA who is based in Southern California.

Obviously this is completely harmless compared to, say, threatening to take auditors hostage but as far as giant wastes of time go, it’s right near the top.