CLOSE X
RSS Feed LinkedIn Instagram Twitter Facebook
Search:
FMG Law Blog Line

Archive for the ‘Coronavirus – Financial Services and Banking’ Category

FINRA In-Person Hearings Further Postponed Until July 31

Posted on: May 20th, 2020

By: Kathleen Cusack and Kirsten Patzer

On Friday, May 15, 2020, amidst continued concern over the potential spread of COVID-19, the Financial Industry Regulatory Authority (FINRA) postponed all in-person arbitration and mediation proceedings until July 31, 2020. FINRA initially postponed in-person meetings beginning in March and extended the suspension several times. 

In its most recent announcement, FINRA also offered to waive the postponement fee if parties agree to reschedule in-person hearings currently scheduled between July 31 and September 4, 2020. All other case deadlines continue to apply. 

As an alternative to in-person meetings, videoconferencing or telephonic meetings are permissible if requested by parties or if mandated by arbitrators. This option is reportedly unpopular and infrequently utilized. And when it has been utilized, the outcomes are subject to scrutiny and may lead to awards being overturned.

A recent FINRA award has resulted in Wunderlich Securities, Inc. filing an action in the U.S. District Court for the Southern District of New York asking that the $11.4 million award issued against them in March be vacated after the final hearing was held via Zoom. According to Wunderlich, the panel had been inattentive throughout the entire proceeding, held over the course of 9 sessions, with the final session being the only one not held in person. During the Zoom videoconference, one arbitrator would look at other screens, typing, and eating during testimony, another arbitrator completely blocked her screen, and during closing arguments, one of the panelists completely walked away from his screen. After the final hearing Wunderlich filed a motion requesting that the panel recuse itself. That motion was unanimously denied by the panel.

The original FINRA arbitration was Dominick & Dickerman LLC, Michael John Campbell v. Wunderlich Securities, Inc., available here. The Petition to Vacate for that case, available here.  

If you have questions or would like more information, please contact Kirsten Patzer at [email protected] or Kathleen Cusack at [email protected]

Additional Information:

The FMG Coronavirus Task Team will be conducting a series of webinars on Coronavirus issues on a regular basis.  Click here to view upcoming webinars.

FMG has formed a Coronavirus Task Force to provide up-to-the-minute information, strategic advice, and practical solutions for our clients.  Our group is an interdisciplinary team of attorneys who can address the multitude of legal issues arising out of the coronavirus pandemic, including issues related to Healthcare, Product Liability, Tort Liability, Data Privacy, and Cyber and Local Governments.  For more information about the Task Force, click here.

You can also contact your FMG relationship partner or email the team with any questions at [email protected].

**DISCLAIMER:  The attorneys at Freeman Mathis & Gary, LLP (“FMG”) have been working hard to produce educational content to address issues arising from the concern over COVID-19.  The webinars and our written material have produced many questions. Some we have been able to answer, but many we cannot without a specific legal engagement.  We can only give legal advice to clients.  Please be aware that your attendance at one of our webinars or receipt of our written material does not establish an attorney-client relationship between you and FMG.  An attorney-client relationship will not exist unless and until an FMG partner expressly and explicitly states IN WRITING that FMG will undertake an attorney-client relationship with you, after ascertaining that the firm does not have any legal conflicts of interest.  As a result, you should not transmit any personal or confidential information to FMG unless we have entered into a formal written agreement with you.  We will continue to produce education content for the public, but we must point out that none of our webinars, articles, blog posts, or other similar material constitutes legal advice, does not create an attorney client relationship and you cannot rely on it as such.  We hope you will continue to take advantage of the conferences and materials that may pertain to your work or interests.**

Considerations For CPAs Dealing With Unpaid Fees

Posted on: April 15th, 2020

By: Nancy Reimer, Nicole Graham, Elizabeth Lowery, Zinnia Khan, and Caroline Wu

Many Certified Public Accountants and accounting firms will likely be increasingly confronted with collecting fees as the COVID-19 health crisis continues.  In dealing with unpaid fees, a CPA must pay close attention to their professional duties and obligations with respect to the release of client records, tax returns and even their own workpapers. 

In every instance, a CPA must adhere not only to the American Institute of CPAs’ (“AICPA”) Code of Professional Conduct and guidance from the Internal Revenue Service (“IRS”), but also to state-specific statutes and regulations.  There are often key differences between the AICPA Code, IRS guidance and state law.  For example, the release of client records, including a tax return or audit report, is left to a CPA’s discretion under the AICPA Code – as it states that a CPA should provide certain records upon a client’s request.  In contrast, IRS Circular 230, § 10.28 provides a CPA must, at the request of a client, promptly return the client’s records.   

Accordingly, it is best to start with the requirements of the AICPA Code of Professional conduct and IRS Circular 230 (for tax returns) and then proceed to examine the obligations set forth under the laws of the state in which the CPA is licensed. 

AICPA Code section 1.400.200.07 governs a client’s request for records or the CPA’s work product in the CPA’s custody or control and which have not previously been provided to the client.  Under section 1.400.200.07, the CPA should respond by providing the prepared records and work product, except that such records may be withheld if fees are due to the CPA for that specific work product.  This language, however, is subject to the rules and regulations of other authorities, including state laws and regulations. 

Under IRS Circular 230, § 10.28, a CPA must, at the request of a client, promptly return any and all records of the client that are necessary for the client to comply with his or her Federal tax obligations.  The existence of a dispute over fees generally does not relieve the CPA of this responsibility.  IRS Circular 230 also defers to requirements under state law.  If the applicable state law permits the retention of a client’s records in the case of a fee dispute or unpaid fees, the CPA need only return those records that must be attached to the taxpayer’s return. 

The laws and regulations concerning the return of client records and other documents for various states are set forth below.  Not coincidentally, the states below are those where Freeman, Mathis & Gary, LLP maintains one or more offices.

California  

Regardless of whether there are unpaid fees, California CPAs are required to return all client’s records. California Board of Accountancy Regulations Article 9 § 68 specifically states that: “Unpaid fees do not constitute justification for retention of client records.  Although, in general the accountant’s working papers are the property of the licensee [CPA]…”  

California’s Business and Professions Code § 5037 goes on to say that the CPA’s “working papers”, “except the reports submitted by the [CPA] to the client…shall remain the property of the [CPA] in the absence of an express agreement.”  But it is unclear what “reports submitted by the [CPA] to the client” means, and whether it includes a CPA’s work product such as prepared returns.  

California Board of Accountancy Regulations Article 9 § 68.1 defines “working papers” as the “[CPA’s] records of the procedures applied, the tests performed, the information obtained and the pertinent conclusions reached in an audit, review, compilation, tax, special report or other engagement” and “include, but are not limited to, audit of other programs, analyses, memoranda, letters of confirmation and representations, abstracts of company documents and schedules or commentaries prepared or obtained by the [CPA].” Thus, the definition of “working papers” arguably includes all of a CPA’s work product.  This makes sense since, in the case of unpaid fees, there is no specific return requirement for any documents other than a client’s own records.

Connecticut                                                        

Conn. Gen. Stat. § 20-281k(b) provides, a CPA shall return a client’s original records to his client or former client upon the client’s request and reasonable notice.  The CPA may make and retain copies of such documents of the client when such documents form the basis for work done by him.  Unlike the AICPA Code, this language imposes a mandatory duty on CPAs to return client records upon request

Florida

Florida’s provides that a CPA must return all of the client’s own records upon request, and can charge reasonable fees for costs incurred in doing so.  Section (c) of the same rule appears to build in the requirement of payment by the client before any work product is released, as it defers to the terms of the engagement between the CPA and client.  Florida’s Regulation of Professions and Occupations, Title XXXII Chapter 473.318 addresses the ownership of working papers, and is almost word for word identical to that of California’s BPC § 5037 quoted above which states that working papers remain the property of the CPA. 

Georgia

In Georgia, section 20-12-.12. of the Rules of the State Board of Accountancy Public Accountancy Act of 2014, states:

A licensee[CPA] shall furnish to his or her client or former client, upon request made within a reasonable time:

(a) Any accounting or other records belonging to, or obtained from or on behalf of, the client which the [CPA] removed from the client’s premises or received for the client’s account, but the [CPA] may make and retain copies of such documents when they form the basis for work done by him or her; and

(b) A copy of the [CPA’s] working papers, to the extent that such working papers include records which would ordinarily constitute part of the client’s books and records and are not otherwise available to the client.

The Georgia State Board of Accountancy issued a Statement of Policy (Policy No. 5) relating to section 20-12-.12. of the rules.  The Statement of Policy explains:

During the course of a professional engagement, a [CPA] may possess certain records of a client, or may have developed certain records without which the Client Records would be incomplete. Retention of Client Records after the client has made a request for them is a violation of Rule 20-12-.12. The [CPA] does not have a lien on these records, and they must be returned regardless of the fact that the fee of the [CPA] may remain unpaid. For purpose of this Rule, the term “Client Records” refers to those journals, ledgers, bank statements and cancelled checks, copies of invoices and similar documentation of the transactions that are reflected in financial statements. It is anticipated that the client will have retained copies of financial statements, income tax returns, and similar documents. A [CPA] is not required to convert records that are not in electronic format to electronic format. However, if the client requests records in a specific format and the [CPA] was engaged to prepare the records in that format, the client’s request should be honored. If a [CPA] is engaged to perform certain work for a client and the engagement is terminated prior to the completion of such work, the [CPA] is required to return or furnish copies of only those records originally given to the [CPA] by the client. Any working papers developed by the [CPA] incident to the performance of the engagement which do not result in changes to the Client Records or are not in themselves part of the records ordinarily maintained by such client, are considered to be solely “accountant’s working papers” and are not the property of the client.  Once the [CPA] has returned the Client Records or furnished the client with copies of such records and/or necessary supporting data, the [CPA] has discharged the obligation in this regard and need not comply with any subsequent requests to again furnish such records. If the [CPA] has retained copies of Client Records already in possession of the client, the [CPA] is not required to return such copies to the client.

Kentucky               

Kentucky Revised Statutes Chapter 325.420(a) requires the licensee[CPA] to return any of the client’s own records upon request. Kentucky Revised Statutes Chapter 325.420(b) then builds in the requirement for payment by the client for services rendered, before the [CPA] is required to provide their work product, which specifically includes tax returns.

Maine

Maine compels the return of client records upon the client’s request.  Me. Rev. Stat. tit. 32, § 12280 states a CPA shall furnish to his client or former client upon request and reasonable notice:

  1. A copy of the CPA’s working papers, to the extent that the working papers include records that would ordinarily constitute part of the client’s records and are not otherwise available to the client; and
  2. Any accounting or other records belonging to, or obtained from or on behalf of, the client that the CPA removed from the client’s premises or received for the client’s account. The CPA may make and retain copies of those documents of the client when they form the basis for work done by him.

Massachusetts

Under 252 C.M.R. 3.03(3), a CPA shall furnish to a client or former client, upon request made within a reasonable time after original issuance of the document in question, if not previously furnished:

  • A copy of the tax return of the client;
  • A copy of any report or other document issued by the CPA to or for such client;
  • Any accounting or other records belonging to, or obtained from or on behalf of the client (but the CPA may make and retain copies of such documents of the client when they form the basis for work done by the CPA); and
  • A copy of the CPA’s workpapers, to the extent that such workpapers include records that would ordinarily constitute part of the client’s books and records and are not otherwise available to the client.

New Hampshire

Pursuant to N.H. Rev. Stat. Ann. § 309-B:19 (II), a CPA shall furnish to the client or former client, upon request and reasonable notice:

  • A copy of the CPA’s working papers, to the extent that such working papers include records that would ordinarily constitute part of the client’s records and are not otherwise available to the client; and
  • Any accounting or other records belonging to, or obtained from or on behalf of, the client that the CPA removed from the client’s premises or received for the client’s account. The CPA may make and retain copies of such documents of the client when they form the basis for work done by the CPA.
  • A copy of computer-prepared client data diskettes containing client ledger data, spread sheet data, client documents and any other such data of the client or former client that would ordinarily constitute part of the client’s records and not otherwise be available to the client.

New Jersey

N.J.A.C. 13:29-3.16 provides:

(a)  A licensee[CPA] or the [CPA’s] firm shall furnish to the [CPA’s] client or former client, upon request made within a reasonable time after original issuance of the document in question:

1.  A copy of a tax return of the client;

2.  A copy of any report, or other document, issued by the [CPA] to or for such client;

3.  Any accounting or other records belonging to, or obtained from or on behalf of, the client which the [CPA] removed from the client’s premises or received for the client’s account, but the [CPA] or the [CPA’s] firm may make and retain copies of such documents when they form the basis for work done by the [CPA]; and

4.  [CPA]-prepared client records that would ordinarily constitute part of the client’s books and records, are contained in the [CPA]’s or his or her firm’s working papers, and are not otherwise available to the client. Copies of such records shall be produced to the client in the same manner, media, and format as the record was created by the [CPA].

(b)  A [CPA] or the [CPA’s] firm shall not withhold client records for the non-payment of fees for services performed.

Pennsylvania 

A CPA shall furnish to its client or former client upon request made within a reasonable time after original issuance of the document in question:

(1) A copy of a tax return of the client.

(2) A copy of any report or other document issued by the [CPA] to or for such client and not formally withdrawn or disavowed by the [CPA] prior to the request.

(3) A copy of the [CPAs] working papers to the extent that such working papers include records that would ordinarily constitute part of the client’s records and are not otherwise available to the client. However, a [CPA] may require that fees due the [CPA] with respect to completed engagements be paid before such information is provided.

(4) Any accounting or other records belonging to, or obtained from or on behalf of, the client that the [CPA] removed from the client’s premises or received for the client’s account. The[CPA]  may make and retain copies of such documents of the client whenever those documents form the basis for work done by him.

(5) If a [CPA] can document compliance with the foregoing requirements, he need not comply with subsequent requests to again provide such information.

63 P.S. s. 9.11(b).

Rhode Island

Rhode Island law does not expressly address the return of client records, though R.I. Gen. Laws Section 5-3.1-22 governs the ownership of such records.  In Rhode Island, all statements, records, schedules, working papers, memoranda, and any other data, including, but not limited to, a data bank, that are retained by a CPA or accounting firm incident to or in the course of professional services rendered to clients are the property of that CPA or accounting firm in the absence of an express agreement to the contrary.

CPAs licensed in Rhode Island must therefore comply with the requirements prescribed by the AICPA code and IRS Circular 230, § 10.28 when examining their obligations to return client records.

Vermont 

Under Vt. Stat. Ann. tit. 26, § 81(c), original copies of client documents in the possession of the CPA are the property of the client and must be returned to the client upon request.  Subsection (a) provides, however, statements, records, schedules, working papers and memoranda made by a CPA are the property of the CPA.

Additional Information:

The FMG Coronavirus Task Team will be conducting a series of webinars on Coronavirus issues on a regular basis. Topics include COVID-19’s impact on finances and loans, the FFCRA, the CARES Act and more. Click here to view upcoming webinars.

FMG has formed a Coronavirus Task Force to provide up-to-the-minute information, strategic advice, and practical solutions for our clients.  Our group is an interdisciplinary team of attorneys who can address the multitude of legal issues arising out of the coronavirus pandemic, including issues related to Healthcare, Product Liability, Tort Liability, Data Privacy, and Cyber and Local Governments.  For more information about the Task Force, click here.

You can also contact your FMG relationship partner or email the team with any questions at [email protected].

**DISCLAIMER:  The attorneys at Freeman Mathis & Gary, LLP (“FMG”) have been working hard to produce educational content to address issues arising from the concern over COVID-19.  The webinars and our written material have produced many questions. Some we have been able to answer, but many we cannot without a specific legal engagement.  We can only give legal advice to clients.  Please be aware that your attendance at one of our webinars or receipt of our written material does not establish an attorney-client relationship between you and FMG.  An attorney-client relationship will not exist unless and until an FMG partner expressly and explicitly states IN WRITING that FMG will undertake an attorney-client relationship with you, after ascertaining that the firm does not have any legal conflicts of interest.  As a result, you should not transmit any personal or confidential information to FMG unless we have entered into a formal written agreement with you.  We will continue to produce education content for the public, but we must point out that none of our webinars, articles, blog posts, or other similar material constitutes legal advice, does not create an attorney client relationship and you cannot rely on it as such.  We hope you will continue to take advantage of the conferences and materials that may pertain to your work or interests.**

The New CARES Act Allows Pandemic Victims to Borrow from Their 401(k)s and IRAs Without Penalty and Defer Required Minimum Distributions

Posted on: March 30th, 2020

By: Greg Fayard

The federal Coronavirus Aid Relief and Economic Security (CARES) Act signed into law March 27, 2020, includes retirement tax relief for victims of the pandemic—namely victims’ 401(k)s and IRAs.

Under section 2202 of the $2 Trillion law (which amends the IRS code), victims under 59 and a half may withdraw up to $100,000 (or the entire balance if less than that) from their retirement accounts (401(k)s and Individual Retirement Accounts (IRAs)) WITHOUT paying the normal 10% penalty as long as they pay back the withdrawn amount within three years.

But who qualifies as a Coronavirus victim and can take advantage of this provision? To qualify, individuals (or their spouse or dependent) needs to be diagnosed with the COVID-19 disease, or experienced adverse financial consequences from being quarantined, furloughed, laid off, having work hours reduced, or being unable to work due to lack of child care stemming from the pandemic. Any early Coronavirus-triggered withdrawals, however, would be taxed depending on the individual’s income and tax bracket, which usually falls in the 20% to 25% range. Hence, while the Coronovirus-sanctioned withdrawals avoid the normal 10% penalty, it does not permit tax-free withdrawals (unless the withdrawal is from a Roth 401(k)). 

Borrowing from your 401(k), however, regardless of the penalty, should be a last resort—especially now, considering the steep decline in retirement account balances resulting from the pandemic. With a turbulent stock market likely in the near future given the extension of the federal “slow the spread” protocols to April 30, 2020, only the most desperate should consider an early 401(k) withdrawal, even if the 10% penalty is temporarily waived for 2020.

There is also tax relief for required minimum distributions under the CARES Act. The recently enacted Setting Every Community Up for Retirement Enhancement (SECURE) Act (enacted December 20, 2019, taking effect January 1, 2020), provides retirees who turned 72 before April 1, 2020, who have traditional IRAs or a 401(k), must take minimum distributions, or RMDs, by the end of the year. If they don’t take their Required Minimum Distribution, they will be penalized 50% of the RMD amount. The RMD is subject to federal income tax. For those who turned 70 and a half in 2019, the RMDs would normally have to be taken by this April. 

Additional Information: 

The FMG Coronavirus Task Team will be conducting a series of webinars on Coronavirus issues on a regular basis.  On April 2, we will discuss the impact of Coronavirus on law enforcement.  Click here to register.

FMG has formed a Coronavirus Task Force to provide up-to-the-minute information, strategic advice, and practical solutions for our clients. Our group is an interdisciplinary team of attorneys who can address the multitude of legal issues arising out of the Coronavirus pandemic, including issues related to Labor & Employment, Healthcare, Product Liability, Tort Liability, Data Privacy, and Cyber and Local Governments. For more information about the Task Force, click here.

You can also contact your FMG relationship partner or email the team with any questions at [email protected].

**DISCLAIMER: The attorneys at Freeman Mathis & Gary, LLP (“FMG”) have been working hard to produce educational content to address issues arising from the concern over COVID-19. The webinars and our written material have produced many questions. Some we have been able to answer, but many we cannot without a specific legal engagement. We can only give legal advice to clients. Please be aware that your attendance at one of our webinars or receipt of our written material does not establish an attorney-client relationship between you and FMG. An attorney-client relationship will not exist unless and until an FMG partner expressly and explicitly states IN WRITING that FMG will undertake an attorney-client relationship with you, after ascertaining that the firm does not have any legal conflicts of interest. As a result, you should not transmit any personal or confidential information to FMG unless we have entered into a formal written agreement with you.  We will continue to produce educational content for the public, but we must point out that none of our webinars, articles, blog posts, or other similar material constitutes legal advice, does not create an attorney client relationship and you cannot rely on it as such. We hope you will continue to take advantage of the conferences and materials that may pertain to your work or interests.** 

Business Continuity Plans in the Age of Coronavirus

Posted on: March 23rd, 2020

By: Jennifer Weatherup

As the Coronavirus, or COVID-19, has caused unprecedented disruptions, including a precipitous decline in the stock market, it is increasingly important for broker-dealers to prepare plans which will allow them to fulfill their responsibilities to customers and continue operations under difficult circumstances. More specifically, broker-dealers should ensure that their business continuity plans allow their businesses to persist in the event of a pandemic such as the Coronavirus. To this end, the Financial Industry Regulatory Authority requires its members to plan ahead in order to meet customer needs in the event of an emergency.  Specifically, FINRA mandates that all broker-dealers “ must create and maintain a written business continuity plan identifying procedures relating to an emergency or significant business disruption… reasonably designed to enable the member to meet its existing obligations to customers [and] address the member’s existing relationships with other broker-dealers and counter-parties.” (FINRA Rule 4370(a).) FINRA further requires that members update their continuity plans in the event of material changes to their operation, and conduct an annual review to identify whether the plan must be modified. (FINRA Rule 4370(b).)

In response to the Coronavirus crisis, FINRA released Regulatory Notice 20-08, “Pandemic-Related Business Continuity Planning, Guidance and Regulatory Relief” on March 9, 2020. This Notice reiterates broker-dealers’ responsibilities under Rule 4370, and recommends that members include pandemic preparedness in their business continuity plans, and evaluate whether their current plans “are sufficiently flexible to address a wide range of possible effects in the event of a pandemic in the United States [including] staff absenteeism, use of remote offices or telework arrangements, travel or transportation limitations and technology interruptions or slowdowns.”  Notably, FINRA recommends that member firms’ business continuity plans include plans to employ remote offices or telework arrangements during a pandemic. In order to ensure that the use of remote work arrangements does not undermine firms’ abilities to satisfy their other professional duties, FINRA also recommends that firms which permit remote work arrangements consider strategies for exercising sufficient supervision over employees who are working remotely, and test the extensive use of telework arrangements by employees before remote work arrangements are broadly implemented at a member firm. FINRA identified other potential issues which could arise in the event of a pandemic, and which should be addressed in a business continuity plan, including the following: increased risk of cybersecurity breaches, emergency office relocations, increased customer call volumes, and challenges in making timely regulatory filings.

As the Coronavirus pandemic has already affected operations, member firms should make it a priority to carefully review their business continuity plans to ensure that they adequately address the potential effects of the Coronavirus; without adequate plans in place, member firms may not only find themselves unable to satisfy obligations to customers, but may face regulatory scrutiny once this crisis is behind us.

Additional information: 

The FMG Coronavirus Task Team will be conducting a series of webinars on Coronavirus issues every day for the next week. We will discuss the impact of Coronavirus for companies in general, but also for business in insurance, healthcare, California specific issues, cybersecurity, and tort. Click here to register.

FMG has formed a Coronavirus Task Force to provide up-to-the-minute information, strategic advice, and practical solutions for our clients. Our group is an interdisciplinary team of attorneys who can address the multitude of legal issues arising out of the Coronavirus pandemic, including issues related to Healthcare, Product Liability, Tort Liability, Data Privacy, and Cyber and Local Governments. For more information about the Task Force, click here.

You can also contact your FMG relationship partner or email the team with any questions at [email protected].

**DISCLAIMER: The attorneys at Freeman Mathis & Gary, LLP (“FMG”) have been working hard to produce educational content to address issues arising from the concern over COVID-19. The webinars and our written material have produced many questions. Some we have been able to answer, but many we cannot without a specific legal engagement. We can only give legal advice to clients. Please be aware that your attendance at one of our webinars or receipt of our written material does not establish an attorney-client relationship between you and FMG. An attorney-client relationship will not exist unless and until an FMG partner expressly and explicitly states IN WRITING that FMG will undertake an attorney-client relationship with you, after ascertaining that the firm does not have any legal conflicts of interest. As a result, you should not transmit any personal or confidential information to FMG unless we have entered into a formal written agreement with you.  We will continue to produce education content for the public, but we must point out that none of our webinars, articles, blog posts, or other similar material constitutes legal advice, does not create an attorney client relationship and you cannot rely on it as such. We hope you will continue to take advantage of the conferences and materials that may pertain to your work or interests.**