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By Charles Duross and the MoFo FCPA and Global Anti-Corruption Team

In order to provide an overview for busy in-house counsel and compliance professionals, we summarize below some of the most important international anti-corruption developments in the past month with links to primary resources.  December has traditionally been a busy month for the Department of Justice (DOJ) and Securities and Exchange Commission (SEC) as they attempt to wrap up Foreign Corrupt Practices Act (FCPA) cases.  This year was no exception with multiple blockbuster corporate resolutions closing in on nearly $1 billion in penalties and disgorgement combined with a series of guilty pleas from former executives.  Not to be outdone, enforcement agencies around the world also announced major cases and developments.  Here is our December 2014 Top Ten list:

  1. Alstom SA Pleads Guilty and Agrees to a $772 Million Fine. In a press release on December 22, 2014, DOJ announced that Alstom pleaded guilty to a two-count criminal information, which charged the company with FCPA violations arising from the bribery of officials in Indonesia, Saudi Arabia, Egypt, and the Bahamas.  The enforcement action involved a guilty plea by Alstom, which was a publicly traded company until 2004, to violating the accounting provisions of the FCPA and another guilty plea by Alstom’s Swiss subsidiary to violating FCPA’s anti-bribery provisions.  The enforcement action included two separate three-year Deferred Prosecution Agreements (DPAs) for two U.S. subsidiaries of Alstom.  In announcing the resolution, DOJ said Alstom paid more than $75 million in bribes from 2000 to 2011 to secure $4 billion in contracts, which resulted in profits of approximately $300 million.  As a result, Alstom will pay a criminal fine of $772 million to resolve the charges.  This penalty is the biggest criminal fine ever levied for FCPA offenses and the second biggest FCPA enforcement action overall, just behind the $800 million fine and disgorgement in the Siemens case almost exactly six years ago.  The addition of Paris-based Alstom means three of the top ten biggest FCPA cases now involve French companies.
  1. Other Significant Corporate FCPA Resolutions in December:
  • Avon Resolves FCPA Violations with DOJ and SEC for $135 Million.  On December 17, 2014, a Chinese subsidiary of Avon Products, Inc. pleaded guilty in federal court in Manhattan to one count of conspiring to violate the FCPA.  The Chinese subsidiary made $8 million worth of payments in cash, gifts, travel, and entertainment to various Chinese officials.  Avon’s Chinese subsidiary will pay a $67.7 million criminal fine, and Avon itself entered into a three-year DPA and must retain an independent compliance monitor.  Avon also settled with the SEC and agreed to pay an additional $67.4 million in disgorgement and prejudgment interest, bringing the total amount of U.S. criminal and regulatory penalties paid by Avon and its subsidiary to more than $135 million.  The Justice Department’s release did highlight Avon’s cooperation with DOJ, which included conducting an extensive internal investigation, voluntarily making U.S. and foreign employees available for interviews, and collecting, analyzing, translating, and organizing voluminous evidence.  Avon Products, Inc. issued this release in connection with the agreements.  One aspect of the Avon matter not mentioned in the resolution documents was the substantial cost of the internal investigation, which by last year was reported to have exceeded $300 million.
  • Dallas Airmotive Inc. Enters $14 Million DPA with DOJ for FCPA Violations in Latin America.  On December 10, 2014, DOJ announced that Dallas Airmotive agreed to pay a $14 million penalty related to FCPA violations.  Dallas Airmotive, a privately held company, provides aircraft engine maintenance, repair, and overhaul services.  The company, based in Grapevine, Texas, admitted to FCPA anti-bribery violations in connection with bribes paid to Latin American government officials in order to secure lucrative government contracts.  A criminal information was filed in federal court as part of a three-year DPA.  The charges allege that between 2008 and 2013 Dallas Airmotive bribed officials of the Brazilian Air Force, the Peruvian Air Force, the Office of the Governor of the Brazilian State of Roraima, and the Office of the Governor of the San Juan Province in Argentina.  DOJ alleged that Dallas Airmotive used a variety of methods to pay the bribes, which included entering into agreements with front companies tied to foreign officials, making payments to third parties, and directly providing gifts to officials.
  • Bruker Pays $2.4 Million to Settle SEC FCPA Charges.  On December 15, 2014, SEC charged Bruker Corporation with violating the FCPA’s accounting provisions by providing improper payments and non-business related travel to Chinese government officials responsible for buying the company’s products.  Bruker, a publicly traded Massachusetts-based scientific instruments company, self-reported the misconduct and provided cooperation during SEC’s investigation.  According to SEC, Bruker made about $1.7 million in profits from bribe-tainted contracts with state-owned enterprises.  Kara Brockmeyer, Chief of SEC’s FCPA Unit, stated in the release:  “Bruker’s lax internal controls allowed employees in its China offices to enter into sham ‘collaboration agreements’ to direct money to foreign officials and send officials on sightseeing trips around the world.  The company has since taken significant remedial steps to revise its compliance program and enhance internal controls over travel and contract approvals.”  Bruker paid $2.4 million to settle the charges, including disgorgement and prejudgment interest, as well as a $375,000 penalty.  When determining the settlement, the SEC “considered the remedial acts promptly undertaken by Bruker and the significant cooperation it afforded to the Commission staff.”  The full administrative order can be found here.  No DOJ action was announced.
  1. Three Defendants in FCPA-Related Cases Plead Guilty:
  • AsemElgawhary Pleads Guilty in Overseas Corruption Case.  On December 4, 2014, AsemElgawhary, the former Principal Vice President of Bechtel Corporation and General Manager of the Power Generation Engineering and Services Company, pleaded guilty to mail fraud, money laundering, and tax-related charges in connection with a $5.2 million kickback scheme intended to manipulate the bidding process for state-run power contracts in Egypt.  In his plea, Mr. Elgawhary admitted to accepting a total of $5.2 million from three power companies, including kickbacks from Alstom, which were separately referenced in the matter against Alstom.  The kickbacks were paid by the companies to secure inside information on the bidding process, and resulted in a competitive and unfair advantage.  The power companies and their consultants paid more than $5 million into various off-shore bank accounts under the control of Mr. Elgawhary, a portion of which he used to purchase a house for $1.6 million in cash.  He is scheduled to be sentenced in March 2015.
  • Two Former Broker-Dealer Executives Plead Guilty.  On December 17, 2014, the former chief executive officer and an ex-managing director of U.S. broker-dealer Direct Access Partners LLC pleaded guilty to bribing an official of a state-owned Venezuelan bank in exchange for bond trading business.  Benito Chinea and Joseph De Meneses admitted to bribing Maria De Los Angeles Gonzalez De Hernandez, a former senior official in Venezuela’s state economic development bank, BANDES.  After receiving at least $5 million in bribes from 2008-2010, Ms. Gonzalez directed work to Direct Access generating more than $60 million in commissions.  Messrs. Chinea and De Meneses entered their pleas before Judge Denise Cote in the Southern District of New York.  Each pleaded guilty to one count of conspiracy to violate the FCPA and the Travel Act.  Messrs. Chinea and De Meneses have also agreed to pay $3.6 million and $2.7 million in forfeiture, respectively, which amounts represented their earnings from the bribery scheme.  Messrs. Chinea and De Meneses were the fifth and sixth defendants to plead guilty in the matter.  Sentencing is scheduled for March 27, 2015.
  1. Battles Continue in Pending FCPA Cases in Connecticut and New Jersey. While three FCPA-related defendants may have pleaded guilty in December, two defendants continue to contest their charges, and both cases should be followed closely.
  • District Court Denies Former Alstom Executive’s Motion to Dismiss.  On December 29, 2014,{1} in United States v. Hoskins, the Honorable Janet Bond Arterton denied the defendant’s Motion to dismiss, which contained the following arguments: (1) a statute of limitations and withdrawal defense; (2) an argument based on the statutory interpretation of the meaning of the term “agent” in the FCPA; (3) a claim that the FCPA was unconstitutionally vague as applied to the defendant; (4) the lack of extraterritoriality under the FCPA to non-U.S. citizens; and (5) an argument that there was no venue for the money laundering charges in Connecticut.  In rejecting the defendant’s motion to dismiss, however, the district court left open a number of the defendant’s challenges until the evidentiary record is developed at trial.  If the case proceeds to trial, which is scheduled for June 2, 2015, these issues will likely be re-raised at the close of the government’s case-in-chief.
  • Judge Rejects and Defers Arguments by Former PetroTiger Co-CEO.  On December 30, 2014, the Honorable Joseph E. Irenas heard arguments on five motions in United States v. Sigelman case:  the defendant’s motion to suppress (and accompanying motion to seal documents filed in support of the suppression motion), motion to dismiss FCPA charges, motion to dismiss the honest services charges, and motion to strike surplusage from the indictment.  The court denied four of the five motions and deferred its ruling on the motion to dismiss the honest services charges.{2}  Trial is currently set for April 20, 2015.
  1. Foreign Bribery Enforcement Abroad:
  • Brazil Charges Thirty-Six in Connection with Petrobras Corruption Scandal.  On December 11, 2014, Brazilian prosecutors filed criminal charges against 36 people for their alleged involvement in a kickback scheme at Brazil’s largest company, Petrobras, a majority state-owned oil company.  Twenty-three executives from Brazil’s biggest construction companies were among those charged.  The companies involved in the scandal include:  Camargo Corrêa SA, Engevix, GalvãoEngenharia, Mendes Júnior, OAS, and UTC Engenharia S.A.  According to reports, the scheme potentially involves millions in bribes and numerous politicians.  The main informant in the case has also alleged that President DilmaRousseff knew of the scheme and purportedly allowed her political party to benefit from it.  The charges filed against the individuals include corruption, money laundering, and organized crime.  This is definitely a case to watch and certainly highlights Brazil’s increasing anti-corruption efforts.
  • UK Printing Company and Two Employees Convicted After Trial in London.  On December 22, 2014, the Serious Fraud Office (SFO) announced that, following a trial at Southwark Crown Court, Smith &Ouzman and two of its employees, Christopher John Smith (chairman) and Nicholas Charles Smith (sales and marketing director), were convicted of making £395,074 in corrupt payments to officials in Kenya and Mauritania to win contracts.  Two other employees were acquitted.  Sentencing is set for February 12, 2015.  This marks the second conviction at trial for the SFO in 2014 following the convictions of two former Innospec executives in June.  These two trial victories are no doubt good news to Director David Green CB QC in the wake of the SFO’s case collapsing at trial against Victor Dahdaleh a year ago.
  • Rheinmetall AG Reaches $46 Million Settlement with German Prosecutors.  On December 10, 2014, Rheinmetall AG, a German-based auto parts maker and defense contractor released a statement that one of its subsidiaries, RheinmetallDefense Electronics (RDE), reached a $46 million settlement with German prosecutors to resolve allegations of bribery related to arms sales in Greece.  RDE was accused of failing to detect and prevent suspicious payments to sales partners due to inadequate internal controls.  Rheinmetall AG has approximately 21,000 employees and is headquartered in Düsseldorf.
  • Aberdeen-Based Company Pays £172,200 to Scotland’s Prosecution Service for Corrupt Conduct in Kazakhstan.  On December 17, 2014, Scotland’s Prosecution Service announced that its Civil Recovery Unit recovered £172,200 from International Tubular Services Limited (ITS), an Aberdeen-based oil and gas company.  ITS admitted that “it had benefited from corrupt payments made by a former Kazakhstan-based employee to secure additional contractual work from a customer in Kazakhstan.”  In announcing the matter, the Prosecution Service remarked that “{t}he bribery and corruption was discovered when the company was being sold,” highlighting once again the need for appropriate anti-corruption due diligence as part of M&A transactions.
  1. Transparency International Releases its Corruption Perceptions Index for 2014. On December 3, 2014, Transparency International launched its 20th Annual Corruption Perceptions Index (CPI) for 2014.  The Index draws on 12 surveys covering expert assessments and views of business people, and ranks 175 countries/territories by their perceived levels of public sector corruption from 0 (very corrupt) to 100 (very clean).  Highlights from the 2014 Index include the fact that China (with a score of 36), Turkey (45), and Angola (19) saw the biggest decline, with a drop of 4 or 5 points despite average economic growth of more than 4% over the last four years.  Also noteworthy was Denmark’s top performance in 2014 with a score of 92.  North Korea and Somalia shared last place, both scoring 8.
  1. OECD Releases Report on Foreign Bribery.  On December 2, 2014, the Organization for Economic Cooperation and Development (OECD) released its first-ever global analysis of crime and bribery of foreign officials and on December 10, 2014, the OECD, in conjunction with the World Bank and the International Bar Association, hosted a forum discussing it in depth.  The Report measures the crime of transnational corruption based on analysis of data emerging from foreign bribery enforcement actions concluded since the establishment of the OECD Anti-Bribery Convention in 1999.  In total, 427 transnational bribery cases were reviewed.  A few of the key takeaways from the report include:
  • Intermediaries were involved in 3 out of 4 foreign bribery cases.
  • Almost two-thirds of cases occurred in four sectors:  mining (19%); construction (15%); transportation and storage (15%); and information and communications (10%).
  • In most cases (57%), bribes were paid to win public procurement contracts, followed by clearance of customs (6%) and attempts to gain preferential tax treatment (6%).
  • In 41% of cases, management-level employees paid or authorized the bribe, whereas chief executives were involved in 12% of cases.
  • Nearly 70% of the cases studied were settled, often involving a civil or criminal fine.
Charles Duross

Charles Duross

According to the Report, governments around the world should strengthen sanctions, make settlements public, and reinforce protection of whistleblowers as part of greater efforts to tackle bribery and corruption.  The overwhelming use of intermediaries also demonstrates the need for more effective due diligence and oversight of corporate compliance programs.  While the data has a number of limits and the observations will be critiqued in the months to come, the Report was an excellent first step in analyzing enforcement data across countries.

  1. Pemex Sues Hewlett-Packard and its Mexican Subsidiary. On December 2, 2014, PetróleosMexicanos (Pemex) filed a civil RICO lawsuit in the wake of HP’s $108 million FCPA resolution with DOJ and SEC earlier this year.  Pemex is Mexico’s state-owned oil and gas company, and the allegations from HP’s FCPA resolution earlier this year alleged improper conduct involving Pemex officials.  Pemex now seeks damages arising from the allegedly corrupt contracts.  Pemex’s lawyers allege that HP’s faulty internal controls enabled the bribes and corruption, which purportedly routed approximately $6 million in business to HP.  Pemex is seeking disgorgement or restitution and treble damages under the RICO statute, as well as injunctions to bar future FCPA violations by HP and force the company to investigate whether any other contracts were granted as a result of corruption.  This most recent case highlights the risks of civil actions following in the wake of FCPA resolutions with government enforcement agencies.
  1. The World Bank Hosted the Third Biennial Meeting of the International Corruption Hunters Alliance (ICHA). On December 8-10, 2014, the World Bank hosted the ICHA 2014 at its headquarters in Washington, D.C.  As part of his work as President of United for Wildlife, Prince William, the Duke of Cambridge, joined the World Bank Group President, Jim Yong Kim at the opening session.  Prince William addressed more than 300 corruption experts, heads, and senior members of anti-corruption and prosecuting agencies and representatives of international organizations from more than 120 countries.  At the meeting, he announced the founding of a new task force to shut down illegal wildlife trade routes, as he urged action on the illegal wildlife trade, what he called one of the most insidious forms of corruption.  President Kim remarked that corruption is not only a threat to sustainable development, but also to the goals of ending extreme poverty and boosting shared prosperity.  He further added, “Corruption may very well be one of the most blatant expressions of inequality in our society.”
  1. The Potential Perils of FOIA Request after Producing Documents to the Government. On December 8, 2014, a three-judge D.C. Circuit panel heard arguments by Chiquita Brands International Inc. seeking to keep SEC from responding to Freedom of Information Act (FOIA) requests by producing 23 boxes of materials produced to SEC during the course of a foreign bribery investigation a decade earlier.  Chiquita, which is embroiled in a multi-district litigation in the Southern District of Florida brought by 6,000 Colombian citizens under the Alien Tort Act who want to hold the company liable for payments it made to Colombian paramilitary groups, called the payments “extortion” and said they were necessary to keep its workers safe.  Now, the D.C. Circuit must decide if SEC should—or should not—produce the records in response to FOIA requests, which Chiquita claims are exempt from production under 5 U.S.C. § 552(b)(7)(B).  Chiquita resolved an FCPA matter in 2001 involving payments by its subsidiary, through a third-party customs broker, to Colombian customs officials, and later pleaded guilty in 2007 for making payments to the United Self Defense Forces of Colombia, or AUC, a designated terrorist organization.  The case serves as a reminder that, even when confidential treatment is sought, later FOIA requests could lead to disclosure and, therefore, whenever producing materials to government agencies, a company must be circumspect and thoughtful in its approach.

As 2014 comes to an end, and 2015 starts, one thing appears clear:  DOJ and SEC show no signs of slowing down.  A decade into their enhanced enforcement of the FCPA, and in spite of transitions at DOJ’s Criminal Division and SEC’s Division of Enforcement, the 2014 FCPA enforcement record reflects the continuing priority of FCPA enforcement, ever-increasing international cooperation, and sustained efforts to investigate and prosecute companies and businesspeople for FCPA (and related) violations.


Is cash now redundant in western society?



Is cash now redundant in western society? 2

By Daumantas Dvilinskas, CEO and Co-Founder of TransferGo

Research from UK Finance has shown that cash consisted of less than a quarter of all payments in 2019, suggesting that as a method of payment, it was already on the decline before the pandemic struck. Evidently, this means that current negative attitudes towards cash have been compounded by COVID-19 and no doubt suggest that fears are growing over how the use of physical currency could be a possible vehicle for virus transmission. In turn, this has caused a shift in consumer behaviour with those stuck at home turning to digital as the only way to spend, send and save money.

But if the usage and popularity of cash was already on the decline – what factors were driving this? Primarily, it’s been a shift in consumer behaviour towards online shopping, and the increasing speed and convenience offered to end users by contactless payments and new services in the fintech market. An example of the latter is in digital money transfer services, which facilitate the flow of money across borders but without the added fees and hidden exchange rates traditional cash-based businesses have.

But what impact will this behavioural shift have on our society, and what does this mean for the finance industry?

The finance industry’s response

With the pandemic bringing country-wide lockdowns, consumers were forced to turn to digital as trips to banks and post offices to make deposits or collect banknotes became inaccessible. Fintechs, who are digital by default, were particularly well placed to support customers by allowing them to send and spend funds by facilitating online transactions through digital payment services.

Additionally, digital lending firms, who were able to move fast in response to the surge in loan applications as a result of redundancies and businesses shutting down, were much more nimble than physical branches and traditional financial institutions. And the demographic of users has widened too, with digital lending platforms seeing not just tech savvy users, but older users in their 40s and 50s turning to their services.

Prior to the pandemic many people, for reasons such as lack of trust, being technophobes or just being creatures of habit, were hesitant to use digital finance services over cash. We expect to see a continued reversal of that as consumers get used to the ease and accessibility that fintechs have bought to the sector.

Remittance sector has already proved that cash wouldn’t reign supreme

This issue of cash vs digital is especially prevalent amongst the migrant worker community. Migrants are often relied upon by their families for income support, and in some cases are the sole source of income. For example, in 2019 remittances amounted to $554bn according to the World Bank, beating all other forms of cross-border financial flows to poor countries.

Alongside the lockdown, we also had to deal with the issue of closed borders, which prevented migrants arriving home with actual cash. Combine that with the closure of most retail finance operations, options for sending physical cash were basically eliminated. Workers therefore needed to find other ways of ensuring their hard earned money could get to those that needed it at home. Digital finance bridged the gap.

Through the benefits of digital, providers can offer guaranteed and fair exchange rates, ensuring that migrants, who may be undergoing financial difficulties, are not stung by hidden remittance fees. They can also provide consistent and accessible support, for example by offering in-country agents who understand local discourse and issues and can help find appropriate solutions. What’s more, these services can offer a seamless customer experience, increased service reliability and perhaps most importantly security. For example, TransferGo recently announced a partnership with end-to-end ID verification companies SumSub and Veriff, which ultimately means that migrants are able to have their identity verified, quickly and reliably, preventing fraudulent activity, without causing a delay to registering for and using the service.

Was this a result of the pandemic or is cash truly on its last legs?

COVID has undoubtedly caused a huge shift in consumer propensity to use cash. Findings suggest over half of consumers had used digital transfers to give money to friends and family at least once during the first month of lockdown, with 20% doing so more than twice.  When you consider that cross border payments are expected to hit $240 billion by 2024 due to an increasingly global and interconnected economy and TransferGo experienced a 63% growth in transactions in April compared to the same time last year, the future is seemingly evident.

The convenience, speed, improved customer experience and security offered to consumers through digital payments will be difficult to surrender – especially as people become accustomed to new ways of working and living.

At the current pace of technological innovation, I can’t help but feel that this is the irreversible direction of travel. It is incumbent on those of us at the sharp edge of innovation in the industry to ensure it remains secure and fit for purpose as the world continues to change around us.

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FRC’s audit enforcement – more remedial action for auditors?



FRC's audit enforcement - more remedial action for auditors? 3

By Andrew Howell and Georgina Jones.

With recent accounting scandals such as Wirecard, we’re seeing a continuing focus on the role of auditors in detecting fraud and, the importance of confidence in the audit process for corporate reporting.

The Financial Reporting Council (FRC), principal regulator of the profession (and accountants in business), recently published its Annual Enforcement Review 2020. It analyses its enforcement actions and outcomes across the past 12 months, identifying key themes and issues, and sets itself performance objectives for the year ahead.

One of the notable themes coming out of the Review is the FRC’s greater focus on the use of remedial action and non-financial sanctions as a means of driving audit quality within audit firms. It seems to us a sensible development.

Despite being criticised for not being tough enough on audit firms (total fines have come down this year, although the trend of fines in individual cases is on the rise), the FRC has focused on measures aimed at achieving lasting improvements in audit quality. Heavy fines, while inevitable in the more serious cases, mark public censure but do not in themselves change practices, and ultimately can reduce a firm’s resources to invest in audit quality. Audit cases dealt with by the FRC are rarely about intentional conduct by auditors. Far more often, they relate to errors of judgement, points missed in audit work, or inadequate processes. Non-financial sanctions can be a much more direct mechanism to promote investment of time and resource into audit improvement across a firm.

FRC’s enforcement powers

The FRC became the “competent authority” for audit in the UK under the Statutory Auditors and Third Country Auditors Regulations 2016 (SATCAR), which came into force following the EU Audit Regulation and Directive. SATCAR requires that the UK has effective systems of investigations and sanctions to “detect, correct and prevent inadequate execution of statutory audit” – which led to the implementation of the Audit Enforcement Procedure (AEP).

Under the AEP, a statutory auditor and/or statutory audit firm may be liable to enforcement action where there has been a breach of the Relevant Requirements of SATCAR 2016, the EU Audit Regulation or the Companies Act 2006. This creates a very low hurdle for regulatory sanction. Any breach of any auditing standard can be sanctioned, however trivial, although the FRC has increasingly been willing to handle the more minor cases through constructive engagement.

The FRC has a wide remit of sanctions at its disposal, which can be imposed singly or in combination. Possible sanctions include permanent or temporary prohibitions on the auditor performing statutory audits or signing audit opinions; exclusion of the auditor as a member of a recognised supervisory body; financial sanctions; declarations that the statutory audit report did not satisfy the relevant requirements; requiring the auditor or firm to cease or abstain from certain conduct  and ordering a waiver or repayment of client fees.

While the FRC may have a greater remit for enforcement action under the AEP than the former Accountancy Scheme, its purpose in imposing sanctions is not to punish, but to protect the public and the whole public interest. The public is after all better served by higher quality audits which lead to higher investor confidence in the company’s financial statements.

Financial sanctions will continue to have an important role in the FRC’s enforcement strategy, particularly with regard the deterrence of future breaches; however, the use of non-financial sanctions continues to increase significantly. Non-financial sanctions are used at all stages of the enforcement process, whether that is as part of its early resolution of cases via the Constructive Engagement process, settlement, or following conclusion of a Tribunal hearing.

Constructive Engagement and remedial action

Constructive Engagement is a process introduced by the AEP for resolving cases where the audit quality concerns can be addressed without full enforcement action. The FRC’s guidance provides that it will be suitable for cases where there has been a minor, technical breach, and there is no real concern about harm to the public or a loss of confidence in the audit process.

Constructive Engagement is a more flexible process, aimed at ensuring that the breach is rectified quickly, and not repeated. It may take any form including written advice, warning letters, discussions or correspondence with the auditor and/or audit firm. Unless the FRC is satisfied that the conduct leading to the breach has already been sufficiently addressed to prevent the risk of recurrence, the outcome of constructive engagement will usually be for the firm to carry out remedial actions (if a breach is identified).

The remedial actions imposed in each case are bespoke to the particular circumstances of the breach, and will often involve amendments to a firm’s audit procedures and/or training and guidance across the firm. Remedial actions are often firm wide rather than limited to the particular audit process, or team, in order to reduce the risk of reoccurrence of the conduct that lead to the breach.

The FRC dealt with 33 cases in Constructive Engagement over the past year, an increase of 73% compared to 2019.

Remedial actions were imposed in 27 of those cases, and were predominantly focused on ways audit firms could improve audit procedure and technical knowledge in problematic areas. For example, firms were required to implement measures requiring audit teams to consult with a firm’s technical team on particular issues such as:

  • require enhanced work to be carried out by specialists such as tax and actuarial specialists;
  • implement better procedures for communication between audit teams and specialists;
  • implement additional audit procedures and training on complex areas;
  • implement guidance for improving the level of documentation on the rationale for conclusions reached.

A recurring problem with FRC investigations is that they take too long. Constructive Engagement provides the FRC with the flexibility to resolve cases more quickly: the average time taken to conclude a matter through Constructive Engagements is eight months, compared to an average of 48 months for the FRC to conclude a case through to a hearing before the Tribunal. The firm can then implement the remedial actions imposed more swiftly, while the FRC can direct its resources to cases involving more serious breaches which warrant full investigation. We expect the trend towards Constructive Engagement to continue in the coming year.

Investigations resulting in sanctions

Over the past year, the FRC imposed sanctions in nine cases in relation to audit matters, 11 of which were financial, as compared to 27 non-financial sanctions. All but one of the cases resulting in sanctions in the past year was a result of settlements.

The total amount of financial sanctions on audit firms alone (pre-discount) was £15.9 million. Financial sanctions were also imposed against six audit partners, totalling £0.7 million (pre-discount). Where financial sanctions were imposed, 30-35% reductions were applied for early admissions and settlement.

The use of non-financial sanctions is clearly a key part of the FRC’s enforcement strategy. Measures imposed over the last year included increased use of reprimands and severe reprimands, requirements for firms to undertake firm wide training, requirements for firms to produce written reports to the FRC on quality performance reviews, requiring firms to implement an ethics board, and increasing the monitoring and support of regional offices.

If firms carry out enough remedial work prior to the conclusion of the matter, further non-financial sanctions may not be required.

The FRC reminds firms in this Review that a further way that they reduce any financial sanction imposed is by providing an “exceptional” level of cooperation with the FRC’s investigation, for example, by self-reporting.

The year ahead

The FRC remains in a state of flux. Following Sir John Kingman’s review in December 2018 and the Brydon and CMA Reviews in 2019, a number of recommendations have been made to the government for the overhaul of audit profession which, if adopted, will have a significant impact on the regulation of audit in the UK. The FRC itself is due to be renamed as the Audit, Reporting and Governance Authority (ARGA). There has been little progress on the legislative front however, with no shortage of recent other distractions on parliamentary time.

The FRC has been recruiting heavily, notably to increase its ability to monitor audit work, which will then feed into more cases for Enforcement. It has also conducted a review of the AEP, and a consultation on proposed amendments to the procedure is expected later this year. It will be interesting to see what changes are proposed to its enforcement strategy. Beyond that, we may see significant upheaval in audit regulation once we return to normal business.

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How to prepare for the Off-Payroll legislation



How to prepare for the Off-Payroll legislation 4

By Dave Chaplin is CEO of IR35 compliance solution IR35 Shield

We now know for certain that the Off-Payroll legislation will take effect from April 2021.  Whether you’re a client, an agency or a contractor, it is vital that you take steps now to mitigate against the damaging impact and costs of the new rules so that all parties can continue to enjoy the mutual benefits of flexible working.  Dave Chaplin is CEO of IR35 compliance solution IR35 Shield and author of IR35 & Off-Payroll Explained  and here he explains how best to prepare.

Preparing for the reform – hiring firms

The Off-Payroll legislation requires hiring firms to determine whether thousands of contractors can continue to operate as they have for decades. The new rules require hirers to conduct an IR35 status assessment of contractors and inherit a degree of tax risk depending on whether they have taken reasonable care in reaching their conclusion. However, the impact of the Off-Payroll legislation for hiring firms stretches far beyond this.

Hirers will, under these new tax rules, be required to pay the employment taxes due on the earnings of ‘inside IR35’ contractors because agencies simply won’t have the financial resources to cover these extra taxes. When you consider that roughly 80% of the additional tax now due from an ‘inside IR35’ engagement under the Off-Payroll legislation is composed of employment taxes, this is a significant cost to bear.

Inability or failure to offer contracts on an outside IR35 basis also threatens:

  • Contractors increasing their rates to counter their own tax loss
  • Employment rights claims from contractors deemed ‘employed for tax purposes’
  • Struggles to attract talent as contractors look elsewhere for outside IR35 contracts

Firms are also required by the legislation to demonstrate ‘reasonable care’ in reaching the conclusions in their status assessments, which is actually the easiest of the challenges to overcome.

Establish your firm’s IR35 risk

The first step is to acknowledge that Off-Payroll compliance will create an ongoing administrative overhead which your firm will have to plan for, whether status assessments are outsourced or conducted in-house.

The second step is to establish your firm’s IR35 risk by assessing your contingent workers.

The significant compliance challenge posed by the Off-Payroll legislation has necessitated innovation by way of automation. Firms tasked with assessing status and maintaining compliance for vast numbers of engagements need solutions that provide immediate assessments and assistance with the more trivial tasks.

When considering online solutions, bear in mind:

  1. Are the Status Determination Statements (SDS) detailed and comprehensive?
  2. Does the solution continue to monitor ‘outside IR35’ engagements throughout the contract for added protection?
  3. Is the service insurance-backed?
  4. Does the provider have demonstrable expertise in IR35 and employment status case law?
  5. Are the solution’s assessments demonstrably consistent with historical IR35 tribunal outcomes?
  6. Can assessments be instantly turned around?
  7. Can the solution provide real-time tax calculations to enable hirers and agencies to understand their impact?
  8. Does the solution make evidence gathering easier?

It is important to establish the credentials of any provider. Almost overnight, a new market for IR35 expertise has sprung up, populated by many unqualified providers without the essential pedigree of legal expertise required.

The importance of enlisting a quality compliance solution or service provider can’t be underestimated. Remember, to gain access to the best contracting talent, you will need to engage contractors on an outside IR35 basis. It’s imperative that any chosen provider doesn’t present a risk to your organisation.

Create contracts and working arrangements that mitigate IR35 risk

Once you have established the greatest risk factors threatening the outside IR35 status of your contractors, these need to be addressed in the contracts and working arrangements. Mitigating these risks reduces the chances of contractors withdrawing from a proposed contract over IR35 status while further minimising your risk of tax liability.

The working arrangements must reflect the written contract and reality. Past tribunal cases have exposed sham contracts, the unrealistic clauses in which are often referred to as ‘window dressing’. If an engagement is firmly caught by IR35 and the proposed contractual amendments aren’t realistic in practice, you will have to accept that the position can’t be rectified.

Insure yourself

At this stage, you will have addressed the assessment status, helping to fulfil the ‘reasonable care’ requirement while mitigating your tax liability risk if HMRC investigates. However, for stronger protection, make sure the provider you work with can offer access to insurance policies for ‘outside IR35’ determinations.

Watertight IR35 compliance practices won’t necessarily deter HMRC from fishing via an investigation, so taking out appropriate insurance will ensure that any investigation costs and liabilities required to defend an investigation by HMRC are covered.

Ongoing monitoring

Ongoing monitoring and evidence gathering throughout the engagement are other crucial compliance processes. With the Off-Payroll legislation effectively dictating that IR35 status assessments be conducted prior to the beginning of the contract; parties must take measures to ensure that the working arrangement continues to reflect the original status determination.

Preparing for the reform – agencies

The preparation required by recruitment agencies is two-tiered. On one hand, as the intermediary, agencies will be expected to contribute to the IR35 compliance process and help negotiate compliant outside IR35 assignments. On the other, agencies will need to identify and implement processes to calculate, pay and report taxes for contractors deemed caught by the legislation.

Though hiring firms are ultimately tasked with assessing the IR35 status of their contractors, they will rely on recruitment agencies to help develop a solution. The input of agencies into this process is especially important, given most engagements consist of two contracts, both of which the agency is involved in – the upper-level contract between the hirer and agency and the lower-level contract between the agency and contractor.

Assist in addressing IR35 risk

Though it is ultimately the hiring firm that decides the IR35 compliance processes to be applied, they may be open to recommendations. The hirer will generally have no prior experience of IR35 and will be relying heavily on the agency to help complete any negotiations. Though they wouldn’t be considered IR35 experts by any means, most recruiters will have handled requests from contractors to make IR35-friendly alterations to arrangements in the past, and so will have some degree of understanding.

All parties stand the best chance of securing a legitimately ‘outside IR35’ arrangement where there is cooperation and clarity throughout the supply chain, and where hirer, agency and contractor are all involved.

Protect yourself with insurance

Though the hirer is responsible for determining the contractor’s IR35 status, agencies face the primary tax liability risk in the event that HMRC challenges an assessment – that is unless the hiring firm has failed to take ‘reasonable care’ when conducting the status assessment. In the public sector, fears over tax liability risk left many agencies reluctant to engage contractors outside of IR35.

However, this is an unhelpful approach which benefits no one. In any case, agencies needn’t be concerned provided they have assisted in ensuring that the necessary measures have been taken to accurately assess IR35. Agencies can gain another layer of protection by securing tax investigation insurance, which provides the expertise and costs necessary to mount a strong defence in the event of an HMRC investigation.

Agencies suffer disproportionately from the Off-Payroll legislation and the issue of administrative costs is probably the most difficult to tackle fairly, which makes it all the more important that agencies play their part in negotiating legitimate outside IR35 arrangements.

Renegotiate margins to accommodate employment taxes

Finally, agencies will also have to consider the cost of employment taxes on fees paid to ‘inside IR35’ contractors and work out with the hiring firm how these are going to be accommodated. This is another liability which really shouldn’t rest with the agency. Being the party that deemed the contractor ‘employed for tax purposes’, the hirer is for all intents and purposes the ‘deemed employer’.

Nonetheless, the legislation dictates that the agency is ultimately liable. As a reminder, employment taxes consist of employer’s NICs (13.8%) and the Apprenticeship Levy (0.5%). This sum is due on top of the contract fee. This is a rather unreasonable cost for a recruitment agency to pay and will therefore need to be sourced elsewhere.

With the rate the agency charges being fixed, one option is to reduce the pay rate being quoted to the contractor. Hirers will need to understand that paying by offering a lower pay rate than before, they are unlikely to be able to attract the same calibre of worker.

The alternative is to increase the rate charged to the hirer so that they at least contribute towards this cost. This could prove awkward, and you will no doubt encounter hiring firms that are reluctant to pay more for what they see as the same resource.

Ultimately, hirers that wish to hire contractors and treat them like employees will need to accept the accompanying additional cost burden.

Preparing for the reform – contractors

Although contractors have few statutory responsibilities when it comes to the Off-Payroll legislation, choosing to take preparatory steps will impact on whether you can continue operating on an outside IR35 basis beyond April 2021. There is no tax risk for the contractor under the new rules, provided they haven’t committed fraudulent activity, but to secure an outside IR35 engagement you must play an active role in the compliance process.

The immediate threat that the Off-Payroll legislation imposes on hirers and agencies is the chance of being investigated by HMRC, and possible tax liability risk. As the public sector reforms have shown, this can prove very effective in seeing parties taking non-compliant, evasive action by conducting and facilitating blanket status assessments, so all contractors are deemed ‘inside IR35’ by default.

As a contractor, it’s your job to help prevent this, and there are plenty of reasons for the hirer and agency to fulfil their compliance requirements. The first of which is the faact that taking ‘reasonable care’ is the necessary requirement for hiring firms to rid themselves of any tax risk. In an Off-Payroll context, this essentially means taking care to ensure that you have arrived at a correct status determination.  Contractors need to make everyone realise that.  The message is clear – start talking to hirers now.

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