Comments On The AICPA s Omnibus Proposal From The Professional Ethics Executive Committee (Released June 29, 2012)

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1 Deloitte LLP 30 Rockefeller Plaza New York, NY USA Tel: Fax: November 30, 2012 VIA Lisa A. Snyder Director Professional Ethics Division, AICPA 1211 Avenue of the Americas New York, NY Re: Comments On The AICPA s Omnibus Proposal From The Professional Ethics Executive Committee (Released June 29, 2012) Dear Ms. Snyder: Deloitte LLP is pleased to respond to the request from the AICPA Professional Ethics Executive Committee ( PEEC ) for comments on the June 29, 2012 Exposure Draft ( Exposure Draft ). 1 We strongly support the AICPA and the PEEC s ongoing efforts to help ensure high ethical standards in the profession. The Exposure Draft sets forth several proposals that would revise Interpretation No of Rule 101 in the AICPA Code of Professional Conduct ( Code ). Our comments are directed to the first proposal the cumulative effect proposal and the third proposal, involving internal audit assistance services. I. Cumulative Effect The cumulative effect proposal would require members to consider whether the performance of multiple (otherwise permitted) nonattest services in the aggregate would create a significant threat to independence. Exp. Draft at 6. It also would require members to determine what, if any, safeguards could be applied to eliminate or reduce the threat to an acceptable level. Exp. Draft at 6. The PEEC states that this proposal is consistent with current paragraph.05(1) of Section of the Code, which provides that threats should be identified and evaluated both individually and in the aggregate, because threats can have a cumulative effect on a member s independence. 1 As used in this document, Deloitte means Deloitte LLP and its subsidiaries. Please see for a detailed description of the legal structure of Deloitte LLP and its subsidiaries. 1

2 We support the cumulative effect proposal, and we have several suggestions to improve it. Among other things, we believe the proposal should more closely track the code of ethics of the International Ethics Standards Board for Accountants ( IESBA ). Adopting that approach will build on an existing rule known to the profession, and also help in articulating both the threat that is presented by cumulative services and the safeguards that can address this threat. We also suggest model questions and answers that the PEEC should adopt to facilitate implementation of the new rule. A. The IESBA Code Provides An Appropriate Model For Addressing Cumulative Effect Concerns The PEEC should more closely follow the rule adopted by IESBA that relates to this topic, which is set forth in IESBA s Handbook of the Code of Ethics for Professional Accountants ( IESBA Code ). Specifically, the IESBA Code states that: Before the firm accepts an engagement to provide a non-assurance service to an audit client, a determination shall be made as to whether providing such a service would create a threat to independence. In evaluating the significance of any threat created by a particular non-assurance service, consideration shall be given to any threat that the audit team has reason to believe is created by providing other related non-assurance services. IESBA Code The IESBA rule, like the cumulative effect proposal, is aimed at the risk to independence that may exist where multiple nonattest services are provided to attest clients. The PEEC proposal, however, does not specify what type of threat is posed by the aggregation of nonattest services. This is a key omission. The effectiveness of a safeguard depends in part on the type of threat it is attempting to combat. See Code Without specifying the nature of the threat, the proposal would leave members without adequate guidance for analyzing which types of safeguards would best mitigate the threat. The IESBA Code does identify the types of threat posed by providing non-assurance services: it states that the threats are most often self-review, self-interest and advocacy threats. IESBA Code The IESBA rule also usefully states that audit team consideration of the threat is a key safeguard. Other safeguards, of course, also may be effective. More specifically, the IESBA rule incorporates two key concepts. First, the IESBA rule makes the inquiry dependent on what the audit team has reason to believe with respect to threats to independence. This appropriately places the focus on the audit team, which is in the best position to evaluate threats to independence. By focusing on the audit team, the IESBA rule also emphasizes the importance of professional judgment. (To be sure, the proposal also contemplates the exercise of professional judgment, by stating that a member should consider cumulative effect. Exp. Draft at 9. But the IESBA rule makes the importance of professional 2 The IESBA Code uses the term non-assurance services, while the AICPA Code uses the term nonattest services, which are a subset of non-assurance services. We do not think that this slight difference undermines the usefulness of the IESBA Code as a model. 2

3 judgment explicit.) Second, the IESBA Code observes that the threats to independence are created by other related non-assurance services. This recognizes that not all non-assurance services rationally factor into an analysis of the cumulative threat to independence. The IESBA rule is also preferable because it mitigates the risk of inconsistent application that may arise from firms different approaches to evaluating the cumulative effect threats to independence. The IESBA Code addresses this issue through its emphasis on the audit team s judgment as the appropriate compliance measure. Another concern is that the proposal as drafted could lead to rigid application as members resort to numerical calculations and ratios, because of a lack of clarity regarding how to ascertain the presence of a threat. Again, the IESBA Code addresses this issue by focusing on what the audit team has reason to believe may constitute a threat, rather than some inflexible calculation. IESBA thus upholds the appropriate application of professional judgment in the threats and safeguards framework. 3 The IESBA rule is the product of a thorough rulemaking process that included public comment. Members firms are already familiar with the IESBA rule, and there is no evidence that it is not effective. It is thus unnecessary for the PEEC to adopt its own rule one with the same end as the IESBA rule but somewhat different provisions thereby requiring members and members firms to institute an additional layer of compliance. B. Clarifying Questions and Answers As noted, we believe the PEEC should change the cumulative effect proposal to more closely follow the rule adopted by IESBA. In any event, the PEEC should adopt the following questions and answers to certain foreseeable questions of application. 1. Effective Safeguards Question: What safeguards would eliminate a significant threat to independence from the cumulative effect of providing multiple nonattest services? Answer: The PEEC believes that, among other things, the use of different team members to provide a nonattest service, from those who provide an attest service, would eliminate a significant threat to independence from the cumulative effect of providing multiple nonattest services. See Code (6) (stating that [t]he use of different partners and engagement teams that have separate reporting lines in the delivery of permitted nonattest services to an attest 3 We note that for public companies there is a framework in place that effectively serves to evaluate these types of threats. In the Sarbanes-Oxley Act of 2002, Congress expressly delegated to a public company s audit committee the power to approve the provision of certain nonattest services by auditors. See 15 U.S.C. 78j-1(g)-(h). The SEC promulgated rules that established processes for audit committee pre-approval of services. See 17 C.F.R (c). The PCAOB also has instituted a supporting regime that identifies for audit committees independence concerns raised by, among other things, the provision of nonattest services. See, e.g., PCAOB Rule 3526, Communication with Audit Committees Concerning Independence, 73 Fed. Reg (2008), superseding Independence Standards Board Standard No. 1. The audit committee pre-approval process operates to satisfy the analysis called for under the IESBA rule. 3

4 client is a safeguard ). The PEEC also believes that audit team consideration and approval of the nonattest services would eliminate a significant threat to independence from the cumulative effect of multiple nonattest services. 2. Reliance On Professional Judgment Question: Is there a numerical level of nonattest services or a ratio of attest to nonattest services that would automatically create a significant threat to independence? Answer: No. The PEEC does not believe that the evaluation of the threat to independence, if any, of the cumulative effect of providing multiple nonattest services should be based on numerical calculations. Instead, it is a question of professional judgment for the audit team. Although one could imagine a hypothetical ratio that is so extreme that it would give rise to serious concern, the PEEC is confident that in practice the application of professional judgment will keep such situations from arising. 3. Time Period Question: When considering cumulative effect, does the PEEC intend for members to consider those nonattest services performed during a particular time period? Answer: No. The provision does not include any time periods on its face, which reflects the PEEC s conclusion that this is a matter of professional judgment. As a general matter, we would expect that an audit team would consider those nonattest services performed over the course of the client s fiscal year; however, the determination of the appropriate time period for evaluating the cumulative effect of services is left to the audit team. II. Internal Audit Assistance Services The internal audit assistance services proposal states that [i]nternal audit services, including separate evaluations to determine whether client controls are present and functioning effectively, that do not result in performing ongoing evaluations... would generally not create a significant threat to independence. Exp. Draft at 11. It also states, however, that members should use judgment in determining whether the internal audit services performed may be equivalent to performing ongoing evaluations. Exp. Draft at 11. We do not believe that this proposed requirement is necessary. Separate evaluations are intrinsically different from ongoing evaluations: separate evaluations are objective assessments of the internal controls of a client, while ongoing evaluations involve continuous monitoring activities. Only the latter create a threat of assuming a management responsibility. Accordingly, the aggregate effect on threats to independence of separate evaluations should not be viewed as equivalent to the threat to independence that arises from ongoing evaluations. In addition, the internal audit assistance services proposal would be redundant of the cumulative effect proposal, discussed above. The cumulative effect proposal would require members to consider the cumulative effect of providing multiple nonattest services to an attest client. Because internal audit services such as separate evaluations are nonattest services, a member would need in any event to consider the effect of separate evaluations under the 4

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