A&M Tax Advisor Weekly Proudly Introduces Eye on Tax,
A Free CPE Webcast Series
Topic: Changes in Transaction Cost Analyses — What You Should Know
Date: July 28, 1 p.m. ET
To register please visit: https://event.on24.com/eventRegistration/EventLobbyServlet?target=registration.jsp&eventid=336494&sessionid=1&key=970F5B9FFD4D77801CCE4A2027CAD9BE&sourcepage=register
In October 2010, we made reference to Section 989G(b) of the Dodd-Frank Act. This section required the SEC to conduct a study to determine how the commission could reduce the burden of complying with Section 404(b) of the Sarbanes-Oxley Act for companies whose market capitalization is between $75 million and $250 million, while maintaining investor protections for such companies (see Tax Advisor Weekly, Issue 43, “SOX — Staying Current?” October 27, 2010). Section 989G(b) also required the study to consider whether reducing the compliance burden — or even a complete exemption from Section 404(b) compliance — would encourage such companies to list on exchanges in the United States in their initial public offerings. This study was to address only the auditor attestation requirement with respect to an issuer‘s internal control over financial reporting. It did not address management‘s continued responsibility for reporting on the effectiveness of internal controls over financial reporting (“ICFR”) pursuant to Section 404(a).
The research discussed in the study, which was completed this past April, primarily focuses on findings related to accelerated filers. The study confirmed what the SEC believed to be true: that investors generally view the auditor’s attestation on ICFR to be beneficial; and that financial reporting is more reliable when the auditor is involved with ICFR assessments. Interestingly enough, the findings also put to rest the perception that companies may choose to list overseas or delist from U.S. exchanges as a result of the onerous requirements of and costs associated with SOX compliance. The study concluded that “there is not conclusive evidence linking the requirements of Section 404(b) to listing decisions of the studied range of issuers.” Predictably, and to the dismay of many hopeful accelerated filers, the study’s two principal recommendations did not include a complete exemption from the requirements of Section 404(b) for accelerated filers, but encouraged activities that have the potential to further improve both the effectiveness and efficiency of Section 404(b) implementation.
Upon perusing some of the tax-related material weaknesses disclosed after the 2010 year-end and first-quarter 2011 filing seasons, we are sticking with last October’s theme. The harsh reality remains that despite the existence of SOX rules for many years, tax-related material weaknesses are alive and kicking in 2011. As a result, it’s worth rehashing what continue to be the prominent culprits that can result in material weaknesses, as well as some best practices for successfully navigating these risks.
Below is a representative sample disclosure of a tax-related material weakness taken from a year-end 2010 10-K filing:
“The principal factors contributing to the material weakness were: 1) inadequate staffing and technical expertise within the company related to taxes, 2) ineffective review and approval practices relating to taxes, 3) inadequate processes to effectively reconcile income tax accounts and 4) inadequate controls over the preparation of the quarterly tax provision.”
Not surprisingly, personnel, staffing and oversight issues continue to be among the most prevalent culprits when a material weakness label is placed on a company’s tax-related internal controls. In some cases, these weaknesses resulted from inadequate resources in the corporate tax department — for example, insufficient personnel or a lack of specific expertise, such as experience with ASC 740 or international tax issues. Additionally, inadequate oversight or a lack of understanding by management of complex tax calculations prepared by the tax department caused material weaknesses in many cases. This type of weakness was also reported in cases where the tax function was outsourced, with inadequate oversight of the third-party tax consultant or a lack of understanding of the calculations prepared by the third-party tax consultant. Furthermore, for corporations with complex structures or with overseas operations, lack of proper oversight in tax reporting by domestic and foreign subsidiaries often resulted in a material weakness.
So what kinds of things are companies doing to beef up their tax controls?
Historically, the tax function of a company has not always received the attention it is due when compared with other areas of a business. But with the steady flow of material weaknesses in tax being reported by SEC registrants as well as increased scrutiny by taxing authorities and the investor community, a company’s tax affairs have quickly become a staple on the board’s monthly meeting agenda. Unfortunately, the road to recovery from material weakness can be a long one. Although you might be confident that your company’s internal controls over income tax accounting are adequate, we encourage you to use the examples cited above in committing to the continued assessment and enhancement of your internal control processes and procedures, especially in situations where complex tax planning has been undertaken at your company.
Paul Helderman
Managing Director, New York
212-763-9760
Email | Profile
Stephanie DeYoung, Senior Director, contributed to this article
Layne Albert
Managing Director, New York
212-763-9655
Email | Profile
James Eberle
Managing Director, Washington, D.C.
202-688-4211
Email | Profile
Robert Filip
Managing Director, Seattle
206-664-8910
Email | Profile
Gregory Gunderson
Managing Director, Dallas
214-438-8410
Email | Profile
Charles Henderson
Managing Director, Atlanta
404-720-5226
Email | Profile
Sean Menendez
Managing Director, Miami
305-704-6688
Email | Profile
| 06/17/2011 | Wow! PCAOB Looks Set to Have a Very Busy Summer |
| 12/03/2010 | Are You Happy With How Your Spreadsheet Application Handles Your Income Tax Provision? |
| 10/27/2010 | SOX — Staying Current |
We would like to hear from you.
Click here to provide your feedback.
As provided in Treasury Department Circular 230, this publication is not intended or written by Alvarez & Marsal Taxand, LLC, (or any Taxand member firm) to be used, and cannot be used, by a client or any other person or entity for the purpose of avoiding tax penalties that may be imposed on any taxpayer.
The information contained herein is of a general nature and based on authorities that are subject to change. Readers are reminded that they should not consider this publication to be a recommendation to undertake any tax position, nor consider the information contained herein to be complete. Before any item or treatment is reported or excluded from reporting on tax returns, financial statements or any other document, for any reason, readers should thoroughly evaluate their specific facts and circumstances, and obtain the advice and assistance of qualified tax advisors. The information reported in this publication may not continue to apply to a reader's situation as a result of changing laws and associated authoritative literature, and readers are reminded to consult with their tax or other professional advisors before determining if any information contained herein remains applicable to their facts and circumstances.
Alvarez & Marsal Taxand, an affiliate of Alvarez & Marsal (A&M), a leading global professional services firm, is an independent tax group made up of experienced tax professionals dedicated to providing customized tax advice to clients and investors across a broad range of industries. Its professionals extend A&M's commitment to offering clients a choice in advisors who are free from audit-based conflicts of interest, and bring an unyielding commitment to delivering responsive client service. A&M Taxand has offices in major metropolitan markets throughout the US., and serves the U.K. from its base in London.
Alvarez & Marsal Taxand is a founder of Taxand, the world's largest independent tax organization, which provides high quality, integrated tax advice worldwide. Taxand professionals, including almost 400 partners and more than 2,000 advisors in nearly 50 countries, grasp both the fine points of tax and the broader strategic implications, helping you mitigate risk, manage your tax burden and drive the performance of your business.
To learn more, visit www.alvarezandmarsal.com or www.taxand.com.
© Copyright 2011 Alvarez & Marsal Holdings, LLC. All Rights Reserved.
Alvarez & Marsal Taxand | 125 Park Avenue | Suite 2500 | New York | NY | 10017