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Change to Sarbanes-Oxley Section 404 Requirements in 2012 Likely

  
  
  
  

Magnifying GlassNew legislation is gaining steam that would change the definition of which companies are subjected to an external audit review of their internal controls (e.g., Sarbanes-Oxley Section 404(b)). The bill, called 'H.R.3606 - Reopening American Capital Markets to Emerging Growth Companies Act of 2011,' passed the House by an overwhelming bipartisan vote of 54-1. The bill still has to go through the Senate and then get Presidential approval before it becomes law (you can follow the progress here: http://www.opencongress.org/bill/112-h3606/show). 

HR 3606 would create a new category of issuers, called 'Emerging Growth Companies.' Emerging Growth Companies will be defined as those companies with annual revenues of less than $1 billion and following the initial public offering, less than $700 million in publicly traded shares. Exemptions for these "on-ramp" status companies would end either after five years, or when the company reached $1 billion in revenue or $700 million in public float.

The current Sarbanes-Oxley requirements can be loosely interpreted by management as follows:

404(a) – Management attestation (self-reporting)

  • Management must document, test, and publish internal control assessments quarterly
  • Testing must be performed by an “independent” party

404(b) – External audit of internal controls over financial reporting

  • Applicable to companies with >$75M market cap
  • External auditors must review management’s assessment, complete their own assessment, and publish their results

404(c) - Non-accelerated filers granted a permanent reprieve for 404(b)

  • Those companies with a <$75M market cap (public float) are exempted from 404(b)

SAS 104 - 115 from the AICPA and AS8-AS15 from the PCAOB will likely trump this ruling (as it did with the 404(c) exemption) but that still has yet to be seen. 

So, the question you are likely asking yourself is how does this apply to me or to my clients? Well, if your client is currently a non-accelerated filer, this ruling means nothing, currently. If they are close to becoming a non-accelerated filer, then this ruling could be very important for them as follows:

404(b) – External audit of internal controls over financial reporting

  • Applicable to companies with >$75M >$1 billion market cap
  • External auditors must review management’s assessment, complete their own assessment, and publish their results

404(c) - Non-accelerated filers granted a permanent reprieve for 404(b)

  • Those companies with >$75M <$1 billion revenue or $700 million in public float are exempted from 404(b)

Again, this is not law yet but the current traction shows that it very likely will become law and it could happen this year. So, if you or your client is on the verge of becoming an accelerated filer at the currently defined >$75M market cap, then this could affect your audit fees for 2012.

We will keep you posted on the progress of this bill so stay tuned. You are welcome to submit any questions you may have to tbockwoldt@vibato.com or (415) 240-4867 ext. 2300.

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