The law officially named, “The Public Company Accounting Reform and Investor Protection Act”, was passed into law in 2002 in wake of the numerous corporate scandals that rocked our financial markets. One in particular was the Enron scandal, which before its collapse; Enron was thought of as one of the best companies in the United States. However, it failed to follow Generally Accepted Accounting Practices (GAAP) from as far back as 1997 through 2001.
When the company suddenly collapsed in the latter part of 2001, it lost tens of billions of dollars of its shareholders money (Jickling 2003).
The controls which were supposedly in place, neither internal nor external, did not uncover the financial masquerade. Because of the many corporate and accounting scandals to astonish the U. S. marketplace and its investor, shareholders organized and protested for tougher laws that required a greater degree of corporate accountability.
The act is commonly referred to as the Sarbanes-Oxley Act (SOX), named after Senator Paul Sarbanes and Representative Michael Oxley, who were its main sponsors.
SOX is intended to raise the bar for integrity and competence for publicly traded companies and also to promote a greater degree of accountability within these companies. The act changed corporate governance, including the responsibilities of directors and officers, the regulation of accounting firms that audit public companies, corporate reporting and enforcement. It is organized into eleven categories, called “titles”.
The first being the Public Company Accounting Oversight Board (PACOB), second, Auditors Independence, then, Corporate Responsibility, Enhanced Financial Disclosures, Analyst Conflicts of Interest, Commission Resources and Accountability, Supporting Studies and Reports, Corporate and Criminal Fraud Accountability Document preservation (Whistle-Blower Protection), White-Collar crime penalty, Corporate Tax Returns and Corporate Fraud Accountability. Title I of the Act establishes the Public Company Accounting Oversight Board (PCAOB).
It is an independent, non-governmental board that oversees the audits of publicly traded companies. The purpose was designed to protect the interest of the investors and to promote public confidence and transparency in the independent audit process. The powers of the PCAOB are to register public accounting firms that prepare audit reports for issuers; establish “auditing, quality control, ethics, independence and other standards relating to the preparation of audit reports; and conduct inspections, investigations and disciplinary proceedings of, and take enforcement action against, public accounting firms (Clearly 2003).
Titles II of the act have nine sections. It sets the standard in which the auditors must remain independent to limit their conflicts of interest. Under these sections the auditors have stricter requirements of reporting, they must rotate jobs and they are not allowed to perform other services to the same company they are auditing. Also, as stated in Title I the auditing company must be registered with the PCAOB to perform acceptable audits. Title III of this act speaks to the individual responsibility of the corporate leaders.
Management must certify that the financial statements do not contain any material omissions or untrue statements and those they represent fairly the financial condition of the company. And that all of the internal controls are and have been operating effectively prior to the issuance of the reports. Title IV relates most closely with the accountants and the auditing process. It details the new requirements of the financial reporting process and the certification of the effectiveness of the company’s internal control process.
Section 404 which requires management to assess the internal control procedures and to sign off on its effectiveness and that the procedures are being followed. Section 404 highlights the critical importance of controls related to the financial reporting function of management information systems by requiring a regular assessment of the quality of the financial reporting, because management uses this to manage operations, monitor performance, create forecast and report results to stakeholders (Peters 2012).
Title V, VI and VII are designed to help build the public’s confidence in the markets by promoting transparency and by providing criminal sanctions and monetary penalties to perpetrators. Title VII can be considered a reflection piece, as it looks to examine different factors and how they affect the markets. The SOX act in Title VIII obligates companies to provide a documented whistle-blower protection policy. It is a means to collect, retain and resolve claims regarding accounting, internal accounting controls and auditing matters.
This system must allow for such concerns to be submitted anonymously. SOX provides protection to whistle-blowers and severe penalties to those who retaliate against them. Under this provision violators who destroy, alter, or falsify documents or retaliate against employees who report such going-on are subject to lengthy prison terms. Title IX, X and XI outline the increase penalties for white-collar crimes, such as mail and wire fraud; the requirement that the CEO is responsible for the accuracy and certifying the corporation’s tax return and other financial reports.
The last section institutes guidelines for failure to comply as a criminal offense and gives the SEC the right to freeze monetary transactions if they suspect fraud. Before SOX, the financial world was basically governed by the Securities Laws of 1933 and the establishment of the Securities Exchange Commission (SEC) in 1934. Corporations were only required to report the financial reports periodically to the public and the SEC. It was the public’s responsibility to review the records and form an educated decision on the well-being of the company.
The act also prohibited certain conduct such as insider trading and market manipulation. The exchanges, brokers, transfer agents were responsible for reporting any material changes in the holding of the companies to the SEC. However after the numerous financial scandals such as Enron, WorldCom, Adelphia to mention a few, in which the information presented to public, was fraudulent. They statements were misrepresented by millions and millions of dollars it was felt by the general public, investors and the federal government that there had to be stricter regulations to govern against such corporate behavior.
SOX calls for greater accountability from everyone in charge. It implements rules and requirements from the top-down on accountability. CEO, CFO, directors must sign off on the reliability of the reports; auditors must maintain their independence and are prohibited from performing other services to the company they are auditing; managers and employees are responsible for the internal controls in their departments. And all these actions are punishable if not followed, as addressed in Title XI.
Title XI provides authoritative powers for companies, its leaders, employees and/or auditors to be sued, sanctioned or criminally prosecuted if they are involved in any fraudulent behavior. It also provides the SEC the ability to seize funds and/or impose significant financial penalties for breaking the law. The most significant impact that SOX has had on the accounting world besides the increased criminal prosecution, is Section 404, which outlines the management’s assessment of internal controls over financial reporting and the disclosure of such information.
Internal control over financial reporting, is defined by Guy Lander, as “a process designed by, or under the supervision of, the company’s principal executive and principal financial officers and implemented by the company’s board of directors, management, and other personnel to provide reasonable assurance for the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles.
The independent auditor must also attest to and report on the management’s assessment of the effectiveness of the company’s internal control over financial reporting. ” Each fiscal year, companies must select “audit committees” to perform the assessment of internal controls. In section 404, the auditing requirements have changed drastically. Integrated within the law is now a Code of Ethics which was not there prior to the SOX act. Everyone is now accountable and required by law to do the right thing.
With the implementation of SOX, the spirit of the law is being enforced. God calls us to a higher standard. We are to perform our job to best of our ability and we should maintain our integrity. No law is higher than the laws given to us by God. Management is now required to know more about the system of internal control so that he/she can make an accurate account of its effectiveness. Management must also include a written document in their end of the year manager’s report to attest to the effectiveness of their internal control.
CEO and CFO are required to certify that the financial reports are accurate and they must discuss with the audit committee any significant deficiencies or material weaknesses in the design or operation of internal control in the financial reporting process. The audit committee is required to attest to the integrity of the company’s financial statements; the company’s compliance with legal and regulatory requirements; the qualifications and independence of the independent auditor and the performance of the company’s internal audit function and independent auditor (Cleary 2003).
The independent auditor has an increased responsibility to verify the financial information of the company. The audit firm must attest to the reliability of management’s statement on the effectiveness of their internal control procedures and processes. The SOX act requires increased communication between the auditor and the company’s audit committee. They must communication at least quarterly to discuss management, accounting and/or auditing adjustments, any difficulties or disagreements encountered, or any auditor’s concerns over the quality of the company’s accounting practices or principles (Cleary 2003).
The cost of implementing the required changes associated with SOX, Section 404, Internal Controls has had a significant effect on most small business. Auditing firms increased their fees by an average of 40% to recoup fees associated with the loss of business because of the new guidelines requiring independence. The SOX guidelines limit services allowed by auditing firms to perform for companies they are auditing. Internal costs associated with compliance jumped 62% for companies. In 2007, the SEC formed a committee to determine the impact on smaller businesses.
Their guidelines were business with revenue under $100 million. The impact of compliance with section 404 internal controls were 3. 5 cents for every dollar earned (Michelson 2008). According to a SOX research study by Lord ;amp; Benoit, “the average costs of complying with section 404(a) management assessment for all non-accelerated filers included in the study were $53,724(ranging from as low as $15,000 to as high as $162,000. The range of audit fee increases was from as low as $7,500 to as high as $86,000). Krishnan 2008). Armed with this information the SEC decided to admen its reporting and disclosure requirements for small businesses. In February 2008, the SEC adopted the amendments and issued the Smaller Reporting Company Regulatory Relief and Simplification to provide assistance for smaller firms (Michelson 2008). Smaller companies have received multiple extensions to become fully compliant. It was stated that more than half of all small companies say SOX has made it more difficult to do business.
They have had to make cutbacks in other areas, such as marketing, research and personnel to offset the increase in costs. Also, two-thirds of the small businesses favor a different set of guidelines for smaller companies (Swartz, 2006). Another significant impact on small businesses is the increased turnover of its board members. The new guidelines that require increased independence and conflicts of interest make it more difficult for smaller companies who have higher managerial ownership. Executive directors of companies are less likely to appointed to boards.
KPMG’s Audit committee took a survey and found that directors were concerned with two very important issues, the first being “accountability reform and their legal exposure and the second being “how management is responding to Section 404 of SOX”(KPMG 2004). The Sarbanes-Oxley Act is hailed as the most dramatic change and far-reaching act in the financial market place since the SEC was formed. The SOX act is here to stay and it is long overdue. There have been lists of companies and their improprieties for decades and decades that cheated others out if their fair shares.
People who in charge of a company’s finances and they succumbed to the temptations of greed. As humans we are fallen creatures, we need stipulations in place to keep us in check. We need laws to govern our actions. The SOX act represents a change in corporate accountability and corporate governing. Although it is still changing and adapting to the environment it has had a significant impact on the way people act. It takes into account the Spirit of the Law and not just the letter of the Law. Corporate leaders are being held to a higher standard, which is a step in the right direction.
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