Going Concern

BDO Wins New Life as Florida Appeals Court Orders New Trial

Caleb Newquist
June 23, 2010

In what amounts to a HUGE win for BDO, the Florida 3rd District Court of Appeal in Miami has ordered a new trial in the case between BDO and Banco Espirito Santo:

A Florida appeals court has thrown out a $521 million jury verdict and ordered a new trial in a dispute over audits between accounting firm BDO Seidman and a major Portuguese bank.

The Third District Court of Appeal in Miami ruled Wednesday that the 2007 trial was wrongly divided into three phases.

That meant jurors decided BDO Seidman should pay punitive damages too early in the case.

BDO Seidman was sued by Portugal’s Banco Espirito Santmed on a Miami company later exposed as a huge fraud. The bank claimed BDO Seidman was negligent for not detecting the fraud, costing the bank $170 million in losses.

Jurors awarded the bank $170 million in losses plus $351 million in punitive damages.

We reached out to the Steven Thomas, lead counsel for the Banco Espirito for his reaction:

This case has been sent back for another trial because of the procedural ‘bifurcation’ issue. We are pleased that the effort and hard work the jury put into this case was recognized by the appellate court, and we specifically note that the Court did not dispute BDO unethical conflicts of interest or its negligence. The evidence of BDO Seidman’s failures of even the most basic auditing procedures is so overwhelming that we expect a new jury will reach the same conclusion as the original jury. We look forward to trying this case and reminding everyone of BDO Seidman’s neglect of its public duty and the enormous conflict of interest they had.

Despite the overwhelming evidence, undisputed negligence cited by Mr Thomas, the mood inside BDO is one of vindication. From the firm’s press release not yet posted on the firm’s website:

The firm is pleased to announce that the Third District Court of Appeal of the state of Florida has unanimously overturned a 2007 jury verdict against the firm and ordered that the Bankest case be retried in the 11th Circuit Court. The Court of Appeal concluded that:

• The Trial Court erred in its original decision to trifurcate the trial, ruling that it was prejudicial to have allowed the case to be presented in three phases. This made it possible for the jury to find BDO grossly negligent without, at the same time, considering the conduct of other actors, including representatives of Banco Espirito Santo.

• The Appellate Court further concluded that the evidence of reliance on BDO’s audit opinions was insufficient to sustain the claims of the Bankest investors, save for the one individual who testified at trial.

• The Trial Court improperly allowed into evidence prejudicial hearsay testimony and documents that further served to deprive BDO of a fair trial.

The Appellate Court concluded, “We have carefully considered every substantive and procedural authority that might be applied to preserve at least some of the jury’s findings. In this case, no such balm is found.”

“We are very pleased that the Appeals court has reversed the lower court verdict. We have consistently stated that we were confident that the jury’s erroneous verdict in this case would be reversed on appeal. The addition of punitive damages at the time only served to emphasize the injustice that took place at the trial court,” said CEO Jack Weisbaum. “A new trial will be in accordance with the Court of Appeal’s decision and we will prove that BDO acted at all times consistent with its professional obligations and that its audit opinions were based on the proper application of generally accepted auditing standards.”

So we’ve got a new trial with a re-energized BDO and a tenacious plaintiff. It sounds like BDO will stick with its defense strategy of “we did no wrong,” so this should be fun.

Florida Third District Court of Appeal Decision [PDF]

News

California Accountant Had Some Ambitious Career Goals

Caleb Newquist
June 23, 2010

Many of you probably consider yourself to be ambitious. You have aspirations of riches and success in the field of accounting that the likes of Arthur Andersen dared not dream of. You’re a game changer. The profession won’t be the same after you’re done with it.

But Yasith Chhun of Long Beach, CA could not be satisfied with simple pleasures like titles such as Partner or CFO and fabulous wealth simply would not be enough. His life goals were far more lofty than a simple title, salary or home with a three-car garage on a golf course. This was about a revolution!

A California accountant was sentenced to life in prison Tuesday in Los Angeles for orchestrating a failed attempt to overthrow the Cambodian government in 2000.

Yasith Chhun, of Long Beach, was found guilty in 2008 of three counts of conspiracy and one count of engaging in a military expedition against a nation with which the United States is at peace.

Chhun is a U.S. citizen of Cambodian descent who helped lead a handful of rebel fighters in an attack of government buildings in the country’s capital of Phnom Penh. Three of the fighters were killed, and several police and military officers were injured.

Prosecutors said Chhun planned the coup over two years, traveled to the region to assemble a rebel force and held fundraisers for the operation.

So unless you’re willing to engage in guerrilla tactics in order to topple an entire nation that’s friendly with the U.S., we don’t ever want to hear about your career path.

Calif. man in attempted Cambodian coup gets prison [AP]

Announcements

Thanks to This Week’s Advertisers

GoingConcern
June 23, 2010

A quick word of thanks to this week’s advertisers on Going Concern:

• Sunshine Suites

• VideoEgg

• Wiley

If you’re interested in advertising on Going Concern, email us at advertising@breakingmedia.com.

Thanks!

For the Last Time, Only Tim Geithner Can Blame TurboTax and Get Away with It

Caleb Newquist
June 23, 2010

Seriously people. We thought that the fog of confusion around this issue had been lifted. We’ll go over it again for those of you just joining us.

If you are not a well-connected bureaucrat with a fabulous coif, you are not afforded the same privileges as though who are/do.

And tax court debunks the latest attempt to draw some likeness between a regular schmo and T Geith:

We shall address briefly petitioner’s contention that the IRS granted “favorable treatment” in a case involving U.S. Secretary of the Treasury Timothy Geithner, which petitioner described as “incredibly similar” to the instant case. According to petitioner, “there should not be different, or favorable rules for the well-connected”. The record in this case does not establish any facts relating to the case to which petitioner refers involving U.S. Secretary of the Treasury Timothy Geithner. In any event, those facts would be irrelevant to our resolution of the issue presented here. Regardless of the facts and circumstances relating to the case to which petitioner refers involving U.S. Secretary of the Treasury Timothy Geithner, petitioner is required to establish on the basis of the facts and circumstances that are established by the record in his own case that there was reasonable cause for, and that he acted in good faith with respect to, the underpayment for each of his taxable years 2005 and 2006 that is attributable to his failure to report self-employment tax.

Turbo Tax

Tax Court Rejects Geithner/TurboTax Defense [TaxProf]

Fraud
Tax

A Lifetime Prison Sentence Won’t Prevent You from Qualifying for the Homebuyer Tax Credit

Caleb Newquist
June 23, 2010

Oh the glorious first-time homebuyer tax credit. Championed by Congressional Leaders, popular with Americans and ripe with fraud.

No legislation is perfect though, amiright? You’ve got to take the good with the bad. The latest of the bad comes courtesy of everyone’s favorite bureaucratic nagging mother-in-law, the Treasury Inspector General for Tax Administration. The TIGTA has come out with a new report that shows that the FTHBTC program hasn’t really gotten any better at weeding out the unscrupulous activity.

TIGTA estimates that 14,132 individuals received erroneous credits totaling at least $26.7 million. These erroneous credits included:

• 2,555 taxpayers receiving credits totaling $17.6 million for homes purchased prior to the dates allowed by law.

• 1,295 prisoners receiving credits totaling $9.1 million who were incarcerated at the time they reported that they purchased their home. These prisoners did not file joint returns, so their claims could not have been the result of purchases made with or by their spouses. Further, TIGTA found that 241 prisoners were serving life sentences at the time they claimed that they bought new primary residences.

•10,282 taxpayers receiving credits for homes that were also used by other taxpayers to claim the credit. (In one case, TIGTA found that 67 taxpayers were using the same home to claim the credit.) TIGTA auditors have not fully quantified the total of these erroneous credits, but all indications are that the total will be in the tens of millions of dollars.

But wait! There’s good news! Inspector General J. Russell George was happy to report that there has been improvements, “The good news is that the IRS has made significant strides resolving problems associated with this program. For example, no minors received the Credit, according to our report.”

Progress! They’ve managed to keep the under-eighteen crowd under control. But do we prefer this to prisoners doing life getting our tax dollars? Seems like a toss-up.

Errors, Fraud Still Occur in First-Time Homebuyer Credit Program [TIGTA]

Non-Profits are Now Exempt from Political Contribution Rules (Well Three of Them at Least)

Adrienne Gonzalez
June 23, 2010

Out of millions of non-profit organizations in America, three have been hand-picked by the authors of the DISCLOSE Act, a House bill meant to bring transparency to political contributions.

The bill is inspired by a Supreme Court decision that overturned a cap on corporate contributions to political campaigns. So to compromise and soften the hard-ass bill a little bit, they threw in an exemption for certain non-profits that meet specific requirements.

They must have more than 1 million members, be at least 10 years old and receive no more than 15% of their contributions from corporations to receive this exemption. OK, how many non-profits could that be?

The NRA and 2 others (AARP and the Humane Society).

Reform at its finest, I guess.

Just a note, Charity Navigator doesn’t do the NRA for the following reason:

We don’t evaluate National Rifle Association.
Why not? We don’t evaluate 501(c)(4) organizations because they are allowed to spend a substantial portion of their revenue on lobbying our government and not every donation to them is tax-deductible. You may be interested in our evaluation for The NRA Foundation.

If you’re curious, “DISCLOSE” stands for Democracy Is Strengthened by Casting Light On Spending in Elections and I don’t think light is what we need in this situation. Companies, unions and other groups that spend more than $10,000 would be required to disclose donors who have given $1000 or more.

Why does this matter? Should lobbying groups really receive any tax deductions at all?

Adrienne Gonzalez is the founder of Jr. Deputy Accountant, a former CPA wrangler and a Going Concern contributor. You can see more of her posts here.

Accounting News Roundup: New Rule from FASB, IASB Will Bring Leases on Balance Sheet; California’s Latest Revenue Idea; Madoff CFO Released to House Arrest | 06.23.10

Caleb Newquist
June 23, 2010

New Accounting Rules Ruffle the Leasing Market [NYT]
The convergence efforts by the FASB and the IASB have managed to produce a consensus on lease accounting and it has repercussions on both sides of the balance sheet.

“The two boards have come up with a new standard, which will be completed next year and enacted in 2013, that will require companies to book leases as assets and liabilities on their balance sheets. Currently, American and foreign companies list many leases as footnotes in their financial statements. As a result of the change, public companies will have to put some $1.3 trillion in leases on their balance sheets, according to estimates by the See Commission. Because many private companies also follow GAAP accounting, the number could be closer to $2 trillion, experts said.”

Middle-Class Tax Boost Is Broached [WSJ]
Reaction to Steny Hoyer’s call in a speech for Congress to quit lying to themselves was not met with enthusiasm.

The Journal reports that the GOP has different ideas, including House Orange leader John Boehner is quoted in the Journal, “Mr. Hoyer’s speech brought a round of criticism from Republicans, who emphasize spending cuts instead, and oppose allowing any Bush tax cuts to expire. House GOP Leader John Boehner of Ohio said Mr. Hoyer was admitting ‘that he supports raising taxes on the middle class to pay for more government spending.’ “

Rep. Oompa Loompa obviously didn’t hear the part of the speech where Hoyer addressed the “cut spending” broken record, “The eagerness of so many to blast spending in the abstract without offering solutions that come close to measuring up to the size of the problem.”

California could turn license plates into ad revenue space [Silicon Valley/San Jose Business Journal]
The latest out of the brain trust in Sacramento, “As California faces a $19 billion deficit, the Legislature is considering whether to allow license plates to become traveling ad spaces.

When the vehicle is moving the license plate would look like the ones we’re used to now, but when the vehicle stops for more than four seconds a digital ad or other message would flash. The license plate number would always be visible.”

Madoff crony sprung [NYP]
“Earlier yesterday, former Madoff CFO Frank DiPascali Jr. was released to house arrest.

A grizzled-looking DiPascali refused to answer questions about the report in Monday’s Post that Madoff told fellow jailbirds that DiPascali knows the identity of three people the Ponzi king gave money to shortly before his arrest.

A judge initially refused prosecutors’ requests that DiPascali be released so he could assist in their ongoing probe, but in February he won a $10 million bail package based on his extensive cooperation.”

BP confirms Bob Dudley in key Gulf clean-up role [AP]
Knock ’em dead!

Business Leader Slams ‘Hostile’ Policies on Jobs [WSJ]
“In comments marking one of the sharpest breaks between top executives and the Obama White House, [Verizon Communications CEO Ivan] Seidenberg used a speech at Washington’s Economic Club to unleash a list of policy grievances over taxes, trade and financial regulation.

Mr. Seidenberg’s comments are particularly notable because he heads the Business Roundtable, a group encompassing the chief executives of the nation’s largest listed companies whose members have enjoyed frequent access to the president and his top aides. Its leaders have advised the White House on topics from economic recovery to health care to clean energy.”

SEC Self-Funding Is A Mistake! [The Summa]
“In support of SEC self-funding, SEC chairs always argue in public that they lack sufficient and consistent funding to enforce securities laws and regulations. As proof, they point out that Congress occasionally cuts back on SEC funding.

What they don’t mention is that the budgetary review process provides an opportunity for Congressional oversight of the SEC. When the SEC is performing poorly, say due to the atrocious leadership of the Chairs (i.e., Cox and Schapiro), a Congressional budget cut is a natural and effective response. Of course SEC chairs want self-funding, it gives them a pass from oversight. Who wouldn’t want that?”

Quote of the Day

Steny Hoyer Might Be Calling a Lot of His Colleagues Liars

Caleb Newquist
June 23, 2010

“We’re lying to ourselves and our children if we say we can maintain our current levels of entitlement spending, defense spending, and taxation without bankrupting our country.”

~ House Majority Leader Steny Hoyer (D-MD) would prefer that everyone quit lying.

DWB
Salaries

How Accountants Can Get the Salary They Want

Daniel Braddock
June 23, 2010

I’ve always been a nerd.

Not a dork, a nerd. The financial services industry and its incredible economic influence (from tax structuring to secondary industries like cab drivers and event planners) has always interested me. So it should come as no surprise that I am an avid reader of the Wall Street Journal (I have the dual paper/online subscription…obviously).

There was an article in today’s edition that has to do with getting “the salary you want.” If only it was as easy as these five points. For what it’s worth, here’s my summary of, and input on, how these ~~rules~~ suggested guidelines if you are looking to transition out of public accounting:

• Do your research – The article makes a point to research what current salary ranges at the potential place of employment could be. Salary.com, Payscale.com, and Glassdoor.com are all mentioned. My advice – remember to do your research with grains of salt in easy reach. The greater number of employees that contribute their statistics will lead to a more accurate number. (Glassdoor.com lists PwC’s “audit associate” salary average salary as $53,358. Is that accurate? You tell me.)

• Don’t give out the first number – When you get beyond the confusion of that statement, you realize the article is referring to the pay day you would love to receive if given the job. My advice – Don’t give a number. Here’s exactly what you need to say if asked “what is your ideal salary:” “For me the role and opportunity is what is most important.”

Yes, that is a vague statement. But it is your recruiter’s job to fight for your salary; remember their pay day is dependent on yours.

• Don’t lie – Listen to your mother. My advice – this is self-explanatory. Your current salary will be verified. Lying to your recruiter about anything – most notably salary and background check details – is a way to sever ties indefinitely.

• Don’t take the first offer – The article goes back and forth about negotiating salaries, something that you won’t do if you use a recruiter. However, if you are not using a recruiter, I recommend reading this bit. My advice – People typically have two magic numbers in their head: 1) the salary they’ve dreamt of and 2) the number they really need to receive in order to commit to leaving. Be honest with your recruiter. They will fight for you, or they will talk you off the ledge of asinine expectations.

• Once that’s locked in, go for other benefits – The article pretty much shoots itself in the kidney on this one. Read it. It’s 17 seconds you’ll never have back. My advice – consider the benefits part of your total compensation. More or less vacation days? Summer flex programs? Cheaper health benefits? Better 401k? List everything out and compare with your current situation. Due to fair employment practices, companies are usually hand-tied to offering equal employees different (or “better”) benefits.

That’s all I have. Oh and for the record, the difference between dorks and nerds is simple. Dorks read the Journal with coffee. Nerds read the Journal with scotch.

Audit
Fraud

Crowe Horwath Audit Partner Uses “The Tax Department Is on Another Floor” Defense

Caleb Newquist
June 23, 2010

Auditors and audit firms have few options when it comes to defense strategy when they are sued for missing a fraud. If fraud occurs and an auditor partner claims to know everything that one should about his/her client, then the partner was probably in on it. That’s a little tricky.

However, if fraud occurs and the partner claims that he/she had no knowledge of any unscrupulous activity, then that means the audit sage is really just a two-bit glad-hander that couldn’t tell a debit from a credit.

And that appears to be the case of William Brizendine, a Crowe Horwath partner, who is claiming that he didn’t know about the relationship between executives of Peoples Bank of Northern Kentucky and Bill Erpenbeck who were engaged in scheme that artificially inflated the purchase price of model homes. Brizendine claims that he couldn’t possibly known that his client was involved with such a shifty character A) the bank’s execs didn’t tell him until after the shit hit the fan and B) this Erpenbeck character’s name only came up on the tax returns and why on Earth as an audit partner, would he look at those?

The bank’s lead attorney, Ron Parry, tried to establish that Brizendine was in a unique position to expose the fraud before it became large enough to take down the bank. Parry said auditors had to be aware of the business relationship because they also did the taxes of the company Finnan and Menne created with Erpenbeck.

[…]

Brizendine claimed he didn’t know of the relationship because he was just involved in the auditing of the bank and that JAMS tax returns were done by the tax department on another floor of the company’s offices.

Parry was able to show, however, that JAMS tax documents were sometimes sent directly to Brizendine. Brizendine claimed he never looked at those documents since his department didn’t prepare taxes.

Brizendine also admitted on the stand that he was the person who brought in the contract to do JAMS taxes.

News
Tax

Gulf Coast Workers Not Really Down with Taxes on Their BP Payments

Caleb Newquist
June 22, 2010

Wait! You mean we have to pay taxes if we receive cash? When the hell did this happen? What if you’re part of the “self-reliant nonconformists who don’t pay much heed to everyday rules and regulations” community? Does that earn you a pass?

The AP reported on some workers on the Gulf Coast who are simply not aware of the notion of income taxes and would very much like to keep it that way:

Out-of-work Gulf Coast shrimper Todd Pellegal spent his first $2,500 check from BP quickly, paying off bills and buying groceries for his family.

He never even considered putting some of it away for taxes.

Now he’s among the people up and down the Gulf Coast reeling from the oil spill disaster who are surprised — and frustrated — to find out the Internal Revenue Service may take a chunk of the payments BP PLC is providing to help them stay afloat.

Many were already angry about how long the oil giant took to cut the checks. So when they got the money — generally about a few thousand dollars each so far — they spent it fast.

“If they’re going to pay you a lump sum, like for a year, then bam, take the taxes out of the check,” said Pellegal, of Boothville, La. “But a little bit at a time, they shouldn’t.”

Right, because withholding taxes from a paycheck isn’t how it works for every other person in the country who pays income taxes. Whoever heard of “net pay”?? But don’t bother suggesting planning for such a phenomenon as being paid by check:

“They should do a projection of their taxable income and determine if there is going to be a tax liability and have enough to cover that,” said Crystal Faulkner, a partner in the Cincinnati-based accounting firm of Cooney Faulkner & Stevens LLC.

That doesn’t sit well with Cherie Edwards, who is now only working one day a week at her job booking charter fishing trips at Zeke’s Landing in Orange Beach, Ala. The lost hours due to the oil spill are costing her about $270 week.

She said she got her claim number from BP on Thursday and plans to file an application in the coming day. So far, she said, no one has mentioned to her about a potential tax liability.

“I haven’t even thought about taxes. Wow. That makes me mad,” said Edwards, who has one child in college and another in high school. “I’m already losing money, and now I’ve got to figure out how to hold back money to pay taxes?”

Jesus lady, you’re right. Getting used to the $0 tax liability and then all of a sudden learning that you are required by law to pay them would piss off just about anyone.

IRS May Tax Payments to Gulf Coast Victims [AP via Tax Lawyer’s Blog]

CFOs

Rough Year at KV Pharmaceutical Continues as Chairman, CFO Quit

GoingConcern
June 22, 2010

This story is republished from CFOZone, where you’ll find news, analysis and professional networking tools for finance executives.

There’s no shortage of drama at KV Pharmaceutical. Last week Chairman Terry Hatfield, Stephen Stamp, who was named CFO April 13, and board member John Sampson quit, citing “serious concerns” about newly elected board members and senior management.

The previous week, immediately following the company’s annual meeting, the newly elected board ousted interim President and CEO David Van Vilet, who had been in charge since December 2008.

The St. Louis-based company has not named a new CFO.

It also said it is looking for a CEO with extensive pharmaceutical experience. For now, Gregory Divis will be interim president and CEO, while continuing as president of Ther-Rx, the company’s branded pharmaceutical subsidiary.

In their resignation letters, Hatfield and Sampson said they had “serious concerns regarding the ability of the newly constituted board and senior management to provide the required independent oversight of KV’s business during this critical time in the company’s history.”

They noted that only three of the board’s seven nominees for board seats were elected at the annual meeting. The remaining elected members were candidates proposed by shareholders. Among those re-elected to the board was Marc Hermelin, son of the founder, who was ousted as CEO in 2008. Also re-elected was David Hermelin, the son of Marc Hermelin, and a former director of corporate strategy who retained his seat. David Hermelin was among the board’s nominees, Marc was not.

The year has been tumultuous. In February, KV agreed to a $25.8 million settlement with the United States Justice Department. Officials with the company’s subsidiary, Ethex Corp. pleaded guilty to two felony counts of criminal fraud for failing to report it was manufacturing oversized tablets that could be harmful to patients, (some had double the advertised dosage of medicine). In March the company fired 289 employees, or 42 percent of its staff, to lower operating costs.

However, the company’s board still found the cash to pay themselves a hefty raise. According to a recent SEC filing, the board was paid $116,000 in 2009, a $60,000 raise while the company was involved in massive layoffs.

Earlier this month KV closed the sale of the assets of Particle Dynamics for $24.6 million, plus up to an additional $5.5 million in potential earn-out payments over the next four years.

In a prepared statement the company said the board’s primary focus is two-fold: to continue to work with the Food and Drug Administration to reinstate KV to Good Manufacturing Practice compliance, and to continue to explore a variety of financial alternatives as a means to strengthen the company’s cash position.

The company could not be reached for comment.

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