For the first time in many years, the Securities and Exchange Commission proposed revisions to independence Rule 2-01, Qualifications of Accountants, under Regulation S-X. The Release, Auditor Independence with Respect to Certain Loans or Debtor-Creditor Relationships, addresses an independence issue identified in a June 2016 “no-action” letter from the SEC Division of Investment Management to Fidelity Management & Research Co. (“FMR”) and its affiliates (“Fidelity Entities”).
In the no-action letter, the SEC responded to concerns FMR raised about loans from certain owners of Fidelity Entities’ equity securities to their auditors. The SEC agreed not to take enforcement action against Fidelity Entities for auditors’ noncompliance with the loan provision of Rule 2-01, which deems any loan between a(n) audit firm or covered person in the firm (and their immediate family) and any of the following parties or entities to impair independence:
- an audit client,
- affiliate of the audit client,
- director or officer of the audit client or its affiliates, or
- record or beneficial owner of more than 10 percent of the audit client or its affiliate’s equity securities.
Subject to other conditions, the letter was valid for a period of eighteen (18) months. In 2017, the SEC extended the no-action relief and added the loan rule to its regulatory agenda.
In summary, the changes would significantly narrow the rule’s application from greater than 10 percent record and beneficial owners of the audit client’s equity securities to include only beneficial owners (known through reasonable inquiry) of an audit client’s equity securities, where the owner has significant influence over the client. The term, audit client, in Rule 2-01 includes affiliates of the audit client, which the SEC broadly defines to include (among others) entities that control, are controlled by or under common control with an audit client, and all entities in an investment company complex (ICC) with an audit client. An ICC can include numerous entities, such as registered investment companies or pooled investment vehicles the audit client manages, investment advisors that control, are controlled by, or under common control with the client and private fund companies.
As the independence challenges of applying the current rule in the investment company industry are particularly acute, the SEC also proposed that when applying the rule to a fund under audit, the term audit client would exclude any other fund that otherwise would be considered an affiliate of the audit client under Rule 2-01.
If adopted, the proposed changes would significantly shrink the pool of shareholders whose loans with an audit firm and its covered persons create independence issues under the current rule.
Why Is the SEC Relaxing the Loan Rule?
The SEC believes that in the current environment, the loan provision is not operating as intended by in most cases identifying lending relationships that do not appear to impact the auditor’s objectivity and impartiality. Highlights from the SEC’s rationale for the amendments follow:
Use of a bright-line test
Currently, the loan provision uses a 10 percent “bright-line test” as a proxy for identifying entities that have a “special and influential role” with the audit client, but the release acknowledges shortcomings and practical challenges in applying that bright-line test. Thus, the proposal advocates use of a broader and more qualitative assessment of whether the lender has significant influence over the audit client. Rule 2-01 already uses the term significant influence in other contexts, which is intended to sync with the Financial Accounting Standards Board (FASB) use of the term in ASC 323, Investments – Equity Method and Joint Ventures, and is generally familiar to auditors.
Owner of record and affiliates of the audit client
After extensive consultations with auditors, funds and operating companies, the SEC concluded that significant compliance challenges exist in applying the loan provision to shareholders who are solely owners of record, including that:
- Record owners may not have control over whether they own more than ten percent of an issuer’s shares.
- Record ownership percentages of open-ended mutual funds may fluctuate widely, and the owner may not know or be able to control such changes.
- In some cases, even diligent monitoring will not indicate when the ten percent threshold had been exceeded until after-the-fact.
- Auditors may be unable to gain access to the information they need to identify owners of record.
For these reasons, the SEC refocused the loan provision on beneficial owners that have significant influence over the audit client. The proposal also allows for a “reasonable inquiry” approach. Under that approach, the auditor would coordinate with the client to analyze whether any of the auditor’s lenders are beneficial owners of the audit client (or affiliate’s) equity securities that have significant influence over the entity’s operating and financial policies. If reasonable inquiry does not identify a lender as a beneficial owner (because for example, the lender owns shares indirectly through a financial intermediary), the SEC believes the auditor’s independence is unlikely to be impacted by the lending relationship.
Exception to the affiliate rule
When an auditor applies the loan provision to an affiliate of the audit client, the impact can be extremely far-reaching, especially in the mutual fund industry where multiple auditors may be engaged to audit various entities within a single ICC. For example, a firm may audit one mutual fund that is affiliated with hundreds of funds in the same ICC. The result? The auditor of that one fund audit client must maintain independence with respect to every other fund (and other entities) in that ICC. The proposed exemption to the affiliate rule for fund audit clients would alleviate this issue.
Firm lending relationships
Auditors use loans for various purposes, including to fund current operations and investments in audit methodologies and technology. Since their loans are often syndicated, auditors tend to have many lenders, increasing the likelihood of impaired independence when lenders are record owners of more than 10 percent of an audit client (or affiliate’s) securities. It is costly for companies and auditors to monitor compliance with the current loan rule and those costs invariably are passed along to shareholders without a discernible corresponding benefit to shareholders.
The SEC will accept comments on its amended loan rule and other elements of Rule 2-01 until July 9, 2018. The proposal provides an excellent opportunity for stakeholders to comment not only on the proposed revision to the loan rule, but on other aspects of the SEC’s independence rules that may be improved upon by more accurately defining the types of relationships or interests that would impair an auditor’s independence in fact or appearance.