[Federal Register Volume 71, Number 48 (Monday, March 13, 2006)]
[Notices]
[Pages 12720-12736]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-2365]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-53427; File No. PCAOB-2006-01]


Public Company Accounting Oversight Board; Notice of Filing of 
Proposed Ethics and Independence Rules Concerning Independence, Tax 
Services, and Contingent Fees

March 7, 2006.
    Pursuant to Section 107(b) of the Sarbanes-Oxley Act of 2002 (the 
``Act''), notice is hereby given that on August 2, 2005, the Public 
Company Accounting Oversight Board (the ``Board'' or the ``PCAOB'') 
filed with the Securities and Exchange Commission (the ``Commission'' 
or ``SEC'') the proposed rule described in Items I, and II below, which 
items have been prepared by the Board. On November 22, 2005, the Board 
adopted certain technical amendments to the rule and amended its filing 
on November 23, 2005. The Commission is publishing this notice to 
solicit comments on the proposed rule from interested persons.

I. Board's Statement of the Terms of Substance of the Proposed Rule

    On July 26, 2005, the Board adopted Rules 3501--Definitions of 
Terms Employed in Section 3, Part 5 of the Rules; 3502--Responsibility 
Not to Cause Violations; 3520--Auditor Independence; 3521--Contingent 
Fees; 3522--Tax Transactions; 3523--Tax Services for Persons in 
Financial Reporting Oversight Roles; and 3524--Audit Committee Pre-
approval of Certain Tax Services (``the proposed rules''). On November 
22, 2005, the Board adopted certain technical amendments to Rule 3502, 
including its title, and Rule 3522. The proposed rule text is set out 
below.

SECTION 3. PROFESSIONAL STANDARDS--Part 5--Ethics

Rule 3501. Definitions of Terms Employed in Section 3, Part 5 of the 
Rules

    When used in Section 3, Part 5 of the Rules, unless the context 
otherwise requires:
(a)(i) Affiliate of the Accounting Firm
    The term ``affiliate of the accounting firm'' (or ``affiliate of 
the registered public accounting firm'' or ``affiliate of the firm'') 
includes the accounting firm's parents; subsidiaries; pension, 
retirement, investment or similar plans; and any associated entities of 
the firm, as that term is used in Rule 2-01 of the Commission's 
Regulation S-X, 17 CFR 210.2-01(f)(2).
(a)(ii) Affiliate of the Audit Client
    The term ``affiliate of the audit client'' means--
    (1) An entity that has control over the audit client, or over which 
the audit client has control, or which is under common control with the 
audit client, including the audit client's parents and subsidiaries;
    (2) An entity over which the audit client has significant 
influence, unless the entity is not material to the audit client;
    (3) An entity that has significant influence over the audit client, 
unless the audit client is not material to the entity; and
    (4) Each entity in the investment company complex when the audit 
client is an entity that is part of an investment company complex.
(a)(iii) Audit and Professional Engagement Period
    The term ``audit and professional engagement period'' includes 
both--
    (1) The period covered by any financial statements being audited or 
reviewed (the ``audit period''); and
    (2) The period of the engagement to audit or review the audit 
client's financial statements or to prepare a report filed with the 
Commission (the ``professional engagement period'')--
    (A) The professional engagement period begins when the registered 
public accounting firm either signs an initial engagement letter (or 
other agreement to review or audit a client's financial statements) or 
begins audit, review, or attest procedures, whichever is earlier; and
    (B) The professional engagement period ends when the audit client 
or the registered public accounting firm notifies the Commission that 
the client is no longer that firm's audit client.
    (3) For audits of the financial statements of foreign private 
issuers, the ``audit and professional engagement period'' does not 
include periods ended prior to the first day of the last fiscal year 
before the foreign private issuer first filed, or was required to file, 
a registration statement or report with the Commission, provided there 
has been full compliance with home country independence standards in 
all prior periods covered by any registration statement or report filed 
with the Commission.
(a)(iv) Audit Client
    The term ``audit client'' means the entity whose financial 
statements or other information is being audited, reviewed, or attested 
and any affiliates of the audit client.
(c)(i) Confidential Transaction
    The term ``confidential transaction'' means--
    (1) In general. A confidential transaction is a transaction that is 
offered to a taxpayer under conditions of confidentiality and for which 
the taxpayer has paid an advisor a fee.
    (2) Conditions of confidentiality. A transaction is considered to 
be offered to a taxpayer under conditions of confidentiality if the 
advisor who is paid the fee places a limitation on disclosure by the 
taxpayer of the tax treatment or tax structure of the transaction and 
the limitation on disclosure protects the confidentiality of that 
advisor's tax strategies. A transaction is treated as confidential even 
if the conditions of confidentiality are not legally binding on the 
taxpayer.

[[Page 12721]]

A claim that a transaction is proprietary or exclusive is not treated 
as a limitation on disclosure if the advisor confirms to the taxpayer 
that there is no limitation on disclosure of the tax treatment or tax 
structure of the transaction.
    (3) Determination of fee. For purposes of this definition, a fee 
includes all fees for a tax strategy or for services for advice 
(whether or not tax advice) or for the implementation of a transaction. 
These fees include consideration in whatever form paid, whether in cash 
or in kind, for services to analyze the transaction (whether or not 
related to the tax consequences of the transaction), for services to 
implement the transaction, for services to document the transaction, 
and for services to prepare tax returns to the extent that the fees 
exceed the fees customary for return preparation. For purposes of this 
definition, a taxpayer also is treated as paying fees to an advisor if 
the taxpayer knows or should know that the amount it pays will be paid 
indirectly to the advisor, such as through a referral fee or fee-
sharing arrangement. A fee does not include amounts paid to a person, 
including an advisor, in that person's capacity as a party to the 
transaction. For example, a fee does not include reasonable charges for 
the use of capital or the sale or use of property.
    (4) Related parties. For purposes of this definition, persons who 
bear a relationship to each other as described in section 267(b) or 
707(b) of the Internal Revenue Code will be treated as the same person.
(c)(ii) Contingent Fee
    The term ``contingent fee'' means--
    (1) Except as stated in paragraph (2) below, any fee established 
for the sale of a product or the performance of any service pursuant to 
an arrangement in which no fee will be charged unless a specified 
finding or result is attained, or in which the amount of the fee is 
otherwise dependent upon the finding or result of such product or 
service.
    (2) Solely for the purposes of this definition, a fee is not a 
``contingent fee'' if the amount is fixed by courts or other public 
authorities and not dependent on a finding or result.
(f)(i) Financial Reporting Oversight Role
    The term ``financial reporting oversight role'' means a role in 
which a person is in a position to or does exercise influence over the 
contents of the financial statements or anyone who prepares them, such 
as when the person is a member of the board of directors or similar 
management or governing body, chief executive officer, president, chief 
financial officer, chief operating officer, general counsel, chief 
accounting officer, controller, director of internal audit, director of 
financial reporting, treasurer, or any equivalent position.
(i)(i) Immediate Family Member
    The term ``immediate family member'' means a person's spouse, 
spousal equivalent, and dependents.
(i)(ii) Investment Company Complex
    (1) The term ``investment company complex'' includes--
    (i) An investment company and its investment adviser or sponsor;
    (ii) Any entity controlled by or controlling an investment adviser 
or sponsor in paragraph (i) of this definition, or any entity under 
common control with an investment adviser or sponsor in paragraph (i) 
of this definition if the entity--
    (A) Is an investment adviser or sponsor; or
    (B) Is engaged in the business of providing administrative, 
custodian, underwriting, or transfer agent services to any investment 
company, investment adviser, or sponsor; and
    (iii) Any investment company or entity that would be an investment 
company but for the exclusions provided by section 3(c) of the 
Investment Company Act of 1940 (15 U.S.C. 80a-3(c)) that has an 
investment adviser or sponsor included in this definition by either 
paragraph (i) or (ii) of this definition.
    (2) An investment adviser, for purposes of this definition, does 
not include a sub-adviser whose role is primarily portfolio management 
and is subcontracted with or overseen by another investment adviser.
    (3) A sponsor, for purposes of this definition, is an entity that 
establishes a unit investment trust.

Rule 3502. Responsibility Not To Knowingly or Recklessly Contribute to 
Violations

    A person associated with a registered public accounting firm shall 
not take or omit to take an action knowing, or recklessly not knowing, 
that the act or omission would directly and substantially contribute to 
a violation by that registered public accounting firm of the Act, the 
Rules of the Board, the provisions of the securities laws relating to 
the preparation and issuance of audit reports and the obligations and 
liabilities of accountants with respect thereto, including the rules of 
the Commission issued under the Act, or professional standards.

Subpart 1--Independence

Rule 3520. Auditor Independence

    A registered public accounting firm and its associated persons must 
be independent of the firm's audit client throughout the audit and 
professional engagement period.

    Note 1: Under Rule 3520, a registered public accounting firm or 
associated person's independence obligation with respect to an audit 
client that is an issuer encompasses not only an obligation to 
satisfy the independence criteria set out in the rules and standards 
of the PCAOB, but also an obligation to satisfy all other 
independence criteria applicable to the engagement, including the 
independence criteria set out in the rules and regulations of the 
Commission under the federal securities laws.


    Note 2: Rule 3520 applies only to those associated persons of a 
registered public accounting firm required to be independent of the 
firm's audit client by standards, rules or regulations of the 
Commission or other applicable independence criteria.

Rule 3521. Contingent Fees

    A registered public accounting firm is not independent of its audit 
client if the firm, or any affiliate of the firm, during the audit and 
professional engagement period, provides any service or product to the 
audit client for a contingent fee or a commission, or receives from the 
audit client, directly or indirectly, a contingent fee or commission.

Rule 3522. Tax Transactions

    A registered public accounting firm is not independent of its audit 
client if the firm, or any affiliate of the firm, during the audit and 
professional engagement period, provides any non-audit service to the 
audit client related to marketing, planning, or opining in favor of the 
tax treatment of, a transaction--
    (a) Confidential Transactions--that is a confidential transaction; 
or
    (b) Aggressive Tax Position Transactions--that was initially 
recommended, directly or indirectly, by the registered public 
accounting firm and a significant purpose of which is tax avoidance, 
unless the proposed tax treatment is at least more likely than not to 
be allowable under applicable tax laws.

    Note 1: With respect to transactions subject to the United 
States tax laws, paragraph (b) of this rule includes, but is not 
limited to, any transaction that is a listed transaction within the 
meaning of 26 CFR 1.6011-4(b)(2).


    Note 2: A registered public accounting firm indirectly 
recommends a transaction when an affiliate of the firm or another 
tax advisor, with which the firm has a formal agreement or other 
arrangement related to the

[[Page 12722]]

promotion of such transactions, recommends engaging in the 
transaction.

Rule 3523. Tax Services for Persons in Financial Reporting Oversight 
Roles

    A registered public accounting firm is not independent of its audit 
client if the firm, or any affiliate of the firm, during the audit and 
professional engagement period provides any tax service to a person in 
a financial reporting oversight role at the audit client, or an 
immediate family member of such person, unless--
    (a) The person is in a financial reporting oversight role at the 
audit client only because he or she serves as a member of the board of 
directors or similar management or governing body of the audit client;
    (b) The person is in a financial reporting oversight role at the 
audit client only because of the person's relationship to an affiliate 
of the entity being audited--
    (1) Whose financial statements are not material to the consolidated 
financial statements of the entity being audited; or
    (2) Whose financial statements are audited by an auditor other than 
the firm or an associated person of the firm; or
    (c) The person was not in a financial reporting oversight role at 
the audit client before a hiring, promotion, or other change in 
employment event and the tax services are
    (1) Provided pursuant to an engagement in process before the 
hiring, promotion, or other change in employment event; and
    (2) Completed on or before 180 days after the hiring or promotion 
event.

Rule 3524. Audit Committee Pre-Approval of Certain Tax Services

    In connection with seeking audit committee pre-approval to perform 
for an audit client any permissible tax service, a registered public 
accounting firm shall--
    (a) Describe, in writing, to the audit committee of the issuer--
    (1) The scope of the service, the fee structure for the engagement, 
and any side letter or other amendment to the engagement letter, or any 
other agreement (whether oral, written, or otherwise) between the firm 
and the audit client, relating to the service; and
    (2) Any compensation arrangement or other agreement, such as a 
referral agreement, a referral fee or fee-sharing arrangement, between 
the registered public accounting firm (or an affiliate of the firm) and 
any person (other than the audit client) with respect to the promoting, 
marketing, or recommending of a transaction covered by the service;
    (b) Discuss with the audit committee of the issuer the potential 
effects of the services on the independence of the firm; and
    (c) Document the substance of its discussion with the audit 
committee of the issuer.
* * * * *

II. Board's Statement of the Purpose of, and Statutory Basis for, the 
Proposed Rule

    In its filing with the Commission, the Board included statements 
concerning the purpose of, and basis for, the proposed rule and 
discussed any comments it received on the proposed rule. The text of 
these statements may be examined at the places specified in Item IV 
below. The Board has prepared summaries, set forth in sections A, B, 
and C below, of the most significant aspects of such statements.

A. Board's Statement of the Purpose of, and Statutory Basis for, the 
Proposed Rule

(a) Purpose
    Section 103(a) of the Act directs the Board, by rule, to establish 
``ethics standards to be used by registered public accounting firms in 
the preparation and issuance of audit reports, as required by th[e] Act 
or the rules of the Commission, or as may be necessary or appropriate 
in the public interest or for the protection of investors.'' Moreover, 
Section 103(b) of the Act directs the Board to establish such rules on 
auditor independence ``as may be necessary or appropriate in the public 
interest or for the protection of investors, to implement, or as 
authorized under, Title II of th[e] Act.''
    As discussed more fully in Exhibit 3, two types of tax services 
have raised serious concerns among investors, auditors, lawmakers, and 
others relating to the ethics and independence of accounting firms that 
provide both auditing and tax services--
    1. The marketing to public company audit clients of questionable 
tax transactions used improperly to avoid paying taxes or to manipulate 
financial statements in order to make such statements appear more 
favorable to investors, and
    2. The provision of tax services, including tax shelter products, 
to executives of public company audit clients who are involved in the 
financial reporting process at such companies.
    Accordingly, the Board adopted a set of rules designed to establish 
a framework for addressing the concerns that have arisen in connection 
with auditors' provision of tax services to their public company audit 
clients. Specifically, the proposed rules are designed, among other 
things, to prevent auditors from providing (1) certain aggressive tax 
shelter services to public company audit clients, (2) any other service 
to a public company audit client for a contingent fee, which is a fee 
arrangement often used in tax work, and (3) any tax service to certain 
persons who serve in financial reporting oversight roles at a public 
company audit client. The rules also codify, in an ethics rule, the 
principle that persons associated with a registered public accounting 
firm should not cause the firm to violate relevant laws, rules, and 
standards, and introduce a foundation for the independence component of 
the Board's ethics rules. Finally, the rules implement the requirements 
of the Act and the SEC's independence rules when an auditor seeks audit 
committee pre-approval to provide tax services that are not prohibited 
by the Board's or the SEC's rules.
(b) Statutory Basis
    The statutory basis for the proposed rule is Title I of the Act.

B. Board's Statement on Burden on Competition

    The Board does not believe that the proposed rules will result in 
any burden on competition that is not necessary or appropriate in 
furtherance of the purposes of the Act. The proposed rules would apply 
equally to all registered public accounting firms and their associated 
persons. Although some of the proposed rules would prohibit a 
registered public accounting firm from providing certain non-audit 
services to its audit clients, they would not restrict the provision of 
these same services to other companies.

C. Board's Statement on Comments on the Proposed Rule Received From 
Members, Participants or Others

    The Board released the proposed rules for public comment in PCAOB 
Release No. 2004-015 (December 14, 2004). A copy of PCAOB Release No. 
2004-015 and the comment letters received in response to the PCAOB's 
request for comment are available on the PCAOB's Web site at http://www.pcaobus.org. The Board received 807 written comments. The Board has 
modified certain aspects of the proposed rules in response to comments 
it received, as discussed below.
    When the Board adopted the rules on July 26, 2005, it stated the 
following: \1\
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    \1\ As discussed above, the Board adopted technical amendments 
to the rules on November 22, 2005. These amendments are discussed 
under The Technical Amendments, below.

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[[Page 12723]]

Rule 3502--Responsibility Not to Cause Violations
    Rule 3502, as proposed, provided that a person associated with a 
registered public accounting firm shall not cause that firm to violate 
the Act, the Rules of the Board, the provisions of the securities laws 
relating to the preparation and issuance of audit reports and the 
obligations and liabilities of accountants with respect thereto, 
including the rules of the Commission issued under the Act, or 
professional standards, due to an act or omission the person knew or 
should have known would contribute to such violation. The Board 
proposed the rule to codify the ethical obligation of associated 
persons of registered firms not to cause registered firms to commit 
such violations. Proposed Rule 3502 also made clear that an associated 
person's ethical obligation is not merely to refrain from knowingly 
causing a violation but also to act with sufficient care to avoid 
negligently causing a violation.
    The Board received a number of comments on proposed Rule 3502. 
Several commenters supported the rule as proposed and noted that they 
saw the rule as essential to the Board's ability to carry out its 
disciplinary responsibilities under the Act. Other commenters, however, 
including the largest accounting firms and an accounting trade 
association, did not support the rule as proposed. In general, these 
commenters objected to the proposed rule's use of a negligence standard 
in light of the complex regulatory requirements with which auditors 
must comply. Some of these commenters also questioned the Board's 
authority to adopt the proposed rule, or at least the proposed rule 
with a negligence standard.
    The Board has carefully considered these comments and determined to 
adopt Rule 3502, with some modifications. The Board continues to 
believe that it is authorized to adopt the rule. Section 103(a) of the 
Act directs the Board to, ``by rule, establish * * * such ethics 
standards to be used by registered public accounting firms in the 
preparation and issuance of audit reports, as required by this Act or 
the rules of the Commission, or as may be necessary or appropriate in 
the public interest or for the protection of investors.'' The Board 
believes that the rule is an appropriate exercise of this authority to 
set ethical standards for accountants subject to the Board's 
jurisdiction.
    Under the Act and Board rules, both registered firms and their 
associated persons must comply with PCAOB rules and standards, as well 
as related laws. When an associated person with such a responsibility 
causes the firm with which he or she is associated to violate such 
rules, standards or laws, this conduct operates to the detriment of the 
protection of investors and the public interest and may bear on the 
ethics of the responsible associated person. When such a person engages 
in this conduct with knowledge that, or in reckless disregard of 
whether, it would directly and substantially contribute to the firm's 
violation, the Board believes this conduct plainly reflects an ethical 
lapse by the responsible person and, therefore, is within the Board's 
authority--and indeed responsibility--to proscribe.
    At least one commenter asserted that the proposed rule was not a 
proper exercise of the Board's ethics standards-setting authority 
because it reached a range of conduct, rather than delineating 
``particular impermissible conduct.'' The Board disagrees and believes 
the type of conduct addressed by the rule is plainly the type of 
conduct the Board's ethics rules can and should address. In fact, the 
accounting profession's existing ethical code at the time of enactment 
of the Act reaches any act that may ``discredit[]'' the profession--
thereby reaching ranges of conduct, including violations of certain 
laws, rather than just specifying ``particular impermissible conduct.'' 
\2\ When Congress vested the authority to set ethics standards in the 
Board, the Board believes it intended for this authority to be at least 
as broad as the scope of the existing ethics rules, at least as to 
matters within the Board's jurisdiction. This authority, in the Board's 
view, plainly includes the ability to require that persons subject to 
the Board's jurisdiction, as an ethical obligation, not cause a 
violation of relevant laws.
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    \2\ See AICPA Code of Professional Conduct, ET section 
(``sec.'') 501, ``Acts Discreditable'' (``A member shall not commit 
an act discreditable to the profession.''). Interpretations of this 
part of the ethical code provide that an accountant member will be 
considered to have committed a discreditable act if, among other 
things, he or she: ``fails to comply with applicable federal, state 
or local [tax] laws or regulations,'' ET sec. 501.08, Interpretation 
501-7; fails to follow applicable requirements of a governmental 
body, such as the SEC, in performing accounting services, ET sec. 
501.06, Interpretation 501-5; or fails to follow government audit 
standards and rules in conducting a governmental audit, ET sec. 
501.04, Interpretation 501-3.
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    Commenters opposed to the proposed rule also sought to analogize 
the rule to a theory of liability that the Supreme Court rejected in 
Central Bank of Denver, N.A. v. First Interstate Bank of Denver, 
N.A.\3\ In Central Bank, the Supreme Court held that that there is no 
private right of action for aiding and abetting a violation of Section 
10(b) of the Securities Exchange Act of 1934 (``Exchange Act''). That 
decision turned on the fact that the text of Section 10(b) does not 
provide for aiding-and-abetting liability.\4\ The Board does not 
believe this decision affects the scope of the Board's explicit 
authority to set ethics standards under Section 103 of the Act.\5\ 
Again, the Board notes that the profession's existing ethics code also 
reaches what can be characterized as ``secondary'' conduct contributing 
to a violation.\6\
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    \3\ 511 U.S. 164 (1994).
    \4\ See id. at 190 (``Because the text of Sec.  10(b) does not 
prohibit aiding and abetting, we hold that a private plaintiff may 
not maintain an aiding and abetting suit under Sec.  10(b).'').
    \5\ Rule 3502, of course, differs from an aiding-and-abetting 
cause of action in important respects. Among other things, the rule 
does not apply whenever an associated person causes another to 
violate relevant laws, rules and standards. Rather, Rule 3502 
applies only when an associated person causes a violation by the 
registered firm with which the person is associated.
    \6\ See AICPA Code of Professional Conduct, paragraph .02(2) of 
ET sec. 91, ``Applicability'' (``A member shall not knowingly permit 
a person, whom the member has the authority or capacity to control, 
to carry out on his or her behalf, either with or without 
compensation, acts which, if carried out by the member, would place 
the member in violation of the rules. Further, a member may be held 
responsible for the acts of all persons associated with him or her 
in the practice of public accounting whom the member has the 
authority or capacity to control.''); see also ET sec. 102.02, 
Interpretation 102-1(c) (violation of ethics rules not just to sign, 
but to ``permit[] or direct[] another to sign a document containing 
materially false and misleading information'') (adopted as a Board 
interim ethics rule in Rule 3500T).
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    The power to adopt Rule 3502 also is inherent in, and necessary to, 
the Board's authority to enforce PCAOB standards, rules, and related 
laws against both registered firms and their associated persons. 
Section 105 authorizes the Board to investigate and, when appropriate, 
discipline registered firms and their associated persons. Certain types 
of violations, by their nature, may give rise to direct liability only 
for a registered public accounting firm. Such firms, however, can only 
act through the natural persons that comprise them, many of whom are 
``associated persons'' subject to the Board's ethics standards and 
disciplinary authority. When one or more of those associated persons 
has caused that firm to violate PCAOB standards, rules, or related laws 
with the requisite state of mind, it is appropriate, and consistent 
with the Board's duty to discipline registered

[[Page 12724]]

firms and their associated persons under Section 101(c)(4) of the Act, 
that the Board be able to discipline the associated person for that 
misconduct.\7\
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    \7\ Some commenters suggested that the reference to ``any act, 
or practice * * * in violation of this Act'' in Section 105(c)(4)--
the part of the Act authorizing the Board to impose certain 
sanctions--was inconsistent with the proposed rule. The Board notes, 
however, as it did in the proposing release, that Section 105(c)(5) 
expressly provides that the more severe of these sanctions may be 
imposed when intentional, knowing, or reckless conduct, or repeated 
instances of negligent conduct, ``results in'' violation of law, 
regulations, or professional standards.
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    After carefully considering the comments received, the Board has 
determined, however, to modify the scope of Rule 3502 to apply only 
when an associated person causes the registered firm's violation due to 
an act or omission the person ``knew, or was reckless in not knowing, 
would directly and substantially contribute to such violation.'' This 
revised formulation reflects two changes to the rule as proposed.
    First, the Board has determined to change the state-of-mind 
requirement in the rule. Specifically, Rule 3502, as adopted, will 
apply to ``an act or omission the [associated] person knew, or was 
reckless in not knowing,'' would cause the violation. While the Board 
believes it has the authority to adopt a negligence standard,\8\ the 
Board believes the revised standard strikes the right balance in the 
context of this rule. The Board believes that the phrase ``knew, or was 
reckless in not knowing'' is a well-understood legal concept, and the 
Board intends for the phrase to be given its normal meaning.
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    \8\ A number of commenters argued that Section 105(c) of the Act 
prevents the Board from imposing discipline based on a negligence 
standard. The Board's determination to change the rule's state-of-
mind requirement to recklessness moots these comments. The Board 
notes, however, that Section 105(c)(5) identifies a range of 
sanctions that the Board may not impose in the absence of knowing 
conduct, reckless conduct, or repeated instances of negligent 
conduct. The Act does not similarly limit the Board's authority to 
impose certain other sanctions.
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    Second, the Board has determined to modify the phrase used to 
describe the connection between the associated person's conduct and the 
violation. Specifically, Rule 3502, as adopted, provides that the 
associated person's act or omission must ``directly and substantially 
contribute to [the firm's] violation.'' In particular, 
``substantially'' in this context means that the associated person's 
conduct (i.e., an act or omission) contributed to the violation in a 
material or significant way. The term ``substantially'' also means, 
however, that the associated person's conduct does not need to have 
been the sole cause of the violation. ``Directly'' means that the 
associated person's conduct either essentially constitutes the 
violation--even though it is the firm and not the individual that 
actually commits the violation--or is a reasonably proximate 
facilitating event of, or a reasonably proximate stimulus for, the 
violation. ``Directly and substantially'' does not mean that the 
associated person's conduct must be the sole cause of the violation, 
nor that it must be the final step in a chain of actions leading to the 
violation. In addition, the term ``directly'' should not be 
misunderstood to excuse someone who knowingly or recklessly engages in 
conduct that substantially contributes to a violation, just because 
others also contributed to the violation, or because others could have 
stopped the violation and did not. At the same time, the term does not 
reach an associated person's conduct that, while contributing to the 
violation in some way, is remote from, or tangential to, the firm's 
violation.
    A number of commenters expressed concern that adoption of a 
negligence standard would allow the Board, or the SEC, to proceed 
against associated persons who in good faith, albeit negligently, have 
caused a registered firm to violate applicable laws or standards. For 
example, commenters suggested that the proposed rule could be used 
against compliance personnel within a firm who inadvertently design a 
firm's compliance system in a flawed manner. Commenters also expressed 
concern that, because the SEC can enforce PCAOB rules under Section 3 
of the Act, the Board's rule could have the practical effect of 
altering the state-of-mind requirement applicable in SEC enforcement 
proceedings against accountants.
    It was not the Board's intention to establish a new standard for 
SEC enforcement of the securities laws and related applicable rules. 
The Board also recognizes that persons subject to its jurisdiction must 
comply with complex professional and regulatory requirements in 
performing their jobs. The Board does not seek to create through this 
rule a vehicle to pursue compliance personnel who act in an 
appropriate, reasonable manner that, in hindsight, turns out to have 
not been successful. Nor does the Board seek to reach those whose 
conduct, unbeknownst to them, remotely contributes to a firm's 
violation. At the same time, the Board continues to believe that it is 
necessary and appropriate for its ethics rules to apply when an 
associated person has engaged in an act or omission with knowledge 
that, or in reckless disregard of whether, it would directly and 
substantially contribute to a violation.\9\
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    \9\ While the Board's proposed rule tracked some of the language 
of Section 21C of the Securities Exchange Act of 1934 (``Exchange 
Act''), the rule, as adopted, differs significantly from, and should 
not be interpreted in pari material with, that statutory provision.
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    The Board also believes that, because the rule is essential to the 
functioning of the Board's independence rules, this rulemaking provides 
the appropriate forum to adopt the rule. For example, Rule 3521 
provides, in part, that a registered firm is not independent of its 
audit client if the firm provides that audit client with a service for 
a contingent fee. When an associated person causes, in a manner 
consistent with the discussion above, the registered firm to provide 
that service for a contingent fee, Rule 3502 would allow the Board to 
discipline the associated person for that conduct.\10\
---------------------------------------------------------------------------

    \10\ Rule 3502, of course, is not the exclusive means for the 
Board to enforce applicable Board rules and standards against 
associated persons. Among other provisions, Rules 3100 and 3200T 
through 3600T directly require associated persons to comply with 
certain auditing and related professional practice standards. In 
addition, PCAOB standards generally contain directives to the 
``auditor.'' The term ``auditor'' is defined in PCAOB Rule 
1001(a)(xii) to include both registered firms and their associated 
persons. Accordingly, an associated person of a registered firm that 
does not comply with such a directive may be charged with violations 
of such other standards, independent of any charges under Rule 3502.
---------------------------------------------------------------------------

Rule 3520--The Fundamental Independence Requirement
    Rule 3520 sets forth the fundamental ethical obligation of 
independence: a registered public accounting firm and its associated 
persons must be independent of the firm's audit client throughout the 
audit and professional engagement period. This requirement encompasses 
the independence requirements set out in PCAOB Rule 3600T and goes 
further, as a matter of the auditor's ethical obligation, to encompass 
any other independence requirement applicable to the audit in the 
particular circumstances. Accordingly, in the case of an audit client 
subject to the financial reporting requirements of the securities laws 
and the SEC's rules, the ethical obligation under Rule 3520 requires 
the firm and its associated persons to maintain independence consistent 
with the SEC's requirements.\11\
---------------------------------------------------------------------------

    \11\ 17 CFR 210.2-01.
---------------------------------------------------------------------------

    By giving this scope to Rule 3520, the Board is not promulgating 
any new independence requirement. The Commission's independence 
requirements exist independently of Rule 3520 and are subject to change 
at the discretion of the Commission, without Rule 3520 purporting 
separately

[[Page 12725]]

to lock in place any aspect of those requirements. Instead, Rule 3520 
is based on the simple premise that ethical standards for auditors can 
and should encompass a duty by the auditor to maintain independence 
necessary to ensure compliance with independence requirements in the 
circumstances of the particular engagement.
    A note to the rule emphasizes the scope of the obligation in the 
rule by pointing out that, even in circumstances to which the 
Commission's Rule 2-01 applies, a registered public accounting firm and 
its associated persons still may need to comply with other independence 
requirements, including those requirements separately established by 
the Board. Using this foundation, the Board may adopt additional rules 
in the ``Independence'' subpart of the ethics rules that effectively 
set out additional requirements. As described below, with the new rules 
adopted today, the Board's independence rules include contingent fee 
arrangements and tax services.
    After carefully considering the comments on proposed Rule 3520, the 
Board has determined to adopt the rule, with only one change. Most 
commenters supported the scope and content of the proposed rule. A few 
commenters, however, asked the Board to add text to the proposed rule 
to clarify or emphasize that the rule incorporates certain concepts in 
the existing independence requirements. While these comments are 
discussed in more detail below, the Board did not adopt these 
suggestions, as a general matter, because of the purpose of Rule 3520. 
Rule 3520 was simply intended to require, by Board rule, compliance 
with applicable independence requirements. The rule was not intended 
to, and does not, add to--or subtract from--these existing 
requirements. Nor is it intended to reflect the Board's conceptual 
approach to independence issues. Accordingly, while the Board does not 
necessarily disagree with the intent of the commenters who suggested 
adding text to the proposed rule, it does not believe it is necessary 
or appropriate to modify the rule to reflect their specific 
suggestions.
    Three commenters suggested that Rule 3520 expressly require that 
auditors maintain independence from their audit client ``both in fact 
and appearance.'' As proposed, the rule already requires auditors to 
maintain independence both in fact and appearance, because the SEC's 
independence rules--which are incorporated in Rule 3520, as discussed 
above--are``designed to ensure that auditors are qualified and 
independent of their audit clients both in fact and in appearance.'' 
\12\ In addition, Statement on Auditing Standard (``SAS'') No. 1, 
Codification of Auditing Standards and Procedures, adopted by the Board 
as an interim standard, requires that auditors ``not only be 
independent in fact; [but also] avoid situations that may lead 
outsiders to doubt their independence.'' \13\ Therefore, the Board does 
not believe it is necessary to include this additional language in Rule 
3520 to preserve these existing principles.
---------------------------------------------------------------------------

    \12\ 17 CFR 210.2-01, Preliminary Note 1; accord United States 
v. Arthur Young & Co., 465 U.S. 805, 819 n.15 (1984).
    \13\ SAS No. 1, Codification of Auditing Standards and 
Procedures, paragraph .03 of AU sec. 220. The standard further 
states that ``[p]ublic confidence would be impaired by evidence that 
independence was actually lacking, and it might also be impaired by 
the existence of circumstances which reasonable people might believe 
likely to influence independence.'' Id.
---------------------------------------------------------------------------

    Some commenters also recommended that Rule 3520 expressly include 
the SEC's four overarching independence principles that it will look to 
in determining whether a particular service or client relationship 
impairs the auditor's independence.\14\ Other commenters asked the 
Board to explicitly note in the rule that certain tax services are 
consistent with the SEC's four principles. For the reasons described 
above, the Board has decided not to change the rule in response to 
either of these suggestions. The Board notes, however, that the SEC's 
independence rules already refer to the four principles, and these 
rules must be complied with under Rule 3520.
---------------------------------------------------------------------------

    \14\ See 17 CFR 210.2-01, Preliminary Note 2. Specifically, 
under those principles, the SEC looks to whether a relationship or 
the provision of a service: (a) Creates a mutual or conflicting 
interest between the accountant and the audit client; (b) places the 
accountant in the position of auditing his or her own work; (c) 
results in the accountant acting as management or an employee of the 
audit client; or (d) places the accountant in a position of being an 
advocate for the audit client.
---------------------------------------------------------------------------

    Two commenters suggested that Rule 3520 include the text of the 
American Institute of Certified Public Accountants' (``AICPA'') Ethics 
Rule 102, which provides, in pertinent part, that members of the AICPA 
should avoid any subordination of their judgment.\15\ Although the 
Board shares these commenters' view about the importance of this 
principle, the Board has already adopted Ethics Rule 102 as part of its 
interim ethics rule, Rule 3500T. Accordingly, this rule is already part 
of the Board's ethical standards and need not be separately repeated in 
Rule 3520 to be enforced by the Board.
---------------------------------------------------------------------------

    \15\ See AICPA Code of Professional Conduct, ET sec. 102, 
``Integrity and Objectivity''.
---------------------------------------------------------------------------

    Two firms suggested that Rule 3520, as proposed, might have the 
effect of precluding use of exceptions in the SEC's existing 
independence rules and asked the Board to avoid that result. Other than 
creating a requirement in a Board rule to comply with existing and 
applicable independence requirements, it does not add to, or detract 
from, the scope and substantive effect of these existing requirements 
in any respect.
    The Board has, however, as suggested by a commenter, added 
``associated persons'' to the rule. While the independence requirements 
added to the Board's rules through this rulemaking apply to the firm, 
other independence requirements covered by Rule 3520 are directed to 
individual accountants within auditing firms. Most notably, certain of 
the SEC's independence rules impose independence requirements directly 
on individual accountants.\16\ Accordingly, the Board believes it is 
appropriate for the rule to apply to associated persons, as well as 
registered firms themselves. At the same time, the Board has added a 
new note to the rule to make clear that the rule applies only to those 
associated persons of a registered public accounting firm that are 
required to be independent of the firm's audit client by standards, 
rules, or regulations of the Commission or other applicable 
independence criteria.\17\ Accordingly, the rule does not impose 
independence requirements on persons not already subject to them, and 
does not impose new independence requirements on any associated person. 
Rather, Rule 3520 only requires associated persons who are otherwise 
subject to independence requirements to comply, as an ethical 
obligation, with those requirements.
---------------------------------------------------------------------------

    \16\ See, e.g., Rule 2-01(c)(1), 17 CFR 210.2-01(c)(1). See also 
PCAOB Rule 3600T.
    \17\ Other applicable independence criteria include any rules of 
the PCAOB, other than Rule 3520, that contain independence 
requirements directly applicable to associated persons of the firm, 
such as Rule 3600T.
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Rule 3521--Contingent Fees
    The Board also has determined to adopt Rule 3521 as proposed. There 
was widespread support among commenters for the Board's view, expressed 
in the proposal, that certain fee arrangements used for the provision 
of tax services create per se conflicts of interest that impair 
auditors' independence from their audit clients. As discussed more 
fully in the proposing release, when an accounting firm provides a 
service to an audit client for a contingent fee, the firm's economic 
interests become

[[Page 12726]]

aligned with the interests of its audit client in a manner that is 
inconsistent with the firm's role as independent auditor. The Board's 
rule was adapted from the SEC's rule prohibiting contingent fee 
arrangements \18\ and thus treats registered firms as not independent 
if they enter into contingent fee arrangements with audit clients.
---------------------------------------------------------------------------

    \18\ See 17 CFR 210.2-01(c)(5).
---------------------------------------------------------------------------

    Specifically, Rule 3521 provides that a registered public 
accounting firm is not independent of its audit client \19\ if the 
firm, or any affiliate of the firm,\20\ during the audit and 
professional engagement period,\21\ provides any service or product to 
the audit client for a contingent fee or a commission, or receives from 
the audit client, directly or indirectly, a contingent fee or 
commission. The Board's definition of a contingent fee is ``any fee 
established for the sale of a product or the performance of any service 
pursuant to an arrangement in which no fee will be charged unless a 
specified finding or result is attained, or in which the amount of the 
fee is otherwise dependent upon the finding or result of such product 
or service.'' \22\
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    \19\ Rule 3501(a)(iv) defines ``audit client'' as ``the entity 
whose financial statements or other information is being audited, 
reviewed, or attested and any affiliates of the audit client.''
    \20\ Rule 3501(a)(ii) defines ``affiliate of the accounting 
firm'' as ``the accounting firm's parents; subsidiaries; pension, 
retirement, investment or similar plans; and any associated entities 
of the firm, as that term is used in Rule 2-01 of the Commission's 
Regulation S-X, 17 CFR 210.2-01(f)(2).''
    \21\ Rule 3501(a)(iii) adapts the definition of ``audit and 
professional engagement period'' from the definition of that term in 
the Rule 2-01 of the SEC's Regulation S-X, which includes both the 
period covered by the financial statements under audit or review and 
the period beginning when a registered public accounting firm signs 
an initial engagement letter (or when such a firm begins audit, 
review or attest procedures, whichever is earlier) and ends when the 
audit client notifies the SEC that the engagement has ceased. See 17 
CFR 210.2-01(f)(5).
    \22\ Rule 3501(c)(ii). As discussed in the Board's proposing 
release, the term ``contingent fee'' includes the aggregate amount 
of compensation for a service, including any payment, service, or 
promise of other value, taking into account any rights to 
reimbursements, refunds, or other repayments that could modify the 
amount received in a manner that makes it contingent on a finding or 
result.
---------------------------------------------------------------------------

    Fees fixed by courts or other public authorities and not dependent 
on a finding or result are excluded from this definition to permit 
contingencies that do not pose a risk of establishing a mutual interest 
between the auditor and the audit client. In the proposing release, the 
Board cited, as an example of such a permissible fee, fees approved by 
a bankruptcy court, as required under U.S. Federal bankruptcy law.\23\ 
The Board also sought comment on whether there are courts or other 
public authorities that fix fees that are not dependent on a finding or 
result, other than bankruptcy courts, such that the term ``courts or 
other public authorities'' is necessary.
---------------------------------------------------------------------------

    \23\ 11 U.S.C. 328(a) (providing that, with a court's approval, 
a bankruptcy trustee may employ a professional person ``on any 
reasonable terms and conditions of employment, including on a 
retainer, on a fixed or percentage fee basis, or on a contingent fee 
basis'').
---------------------------------------------------------------------------

    In response to this request, several commenters noted that they are 
not aware of any such authorities and encouraged the Board to eliminate 
the reference to ``other public authorities'' from the proposed rule. 
Other commenters suggested that the Board retain the phrase, even 
though they did not identify other contexts in which fees that are not 
contingent on a result of a ``product or service'' are nevertheless 
subject to approval by a court or other public authority.\24\ After 
considering these comments, the Board has decided to retain the 
exception for fees that require approval of ``courts or other public 
authorities.'' The Board envisions that there may be fee approval 
schemes outside the U.S. that are analogous to U.S. bankruptcy law.
---------------------------------------------------------------------------

    \24\ One commenter suggested that arbitration panels should be 
captured in the final rule as an example of ``courts or other public 
authorities'' that may approve auditor fees. The Board is not aware, 
and the commenter did not appear to suggest, that any arbitration 
panels currently have authority, by contract or law, to approve the 
payment of fees to accountants. Therefore, the Board has not 
expanded the exception to include fees fixed by arbitration panels. 
Nevertheless, if an arbitration panel were by contract given the 
authority to approve accountants' fees, such fees would be 
permissible under the Board's rule so long as the determination of 
the fee was not contingent on the result of a product or service.
---------------------------------------------------------------------------

    Although Rule 3521 and the related definition of ``contingent fee'' 
are modeled on the SEC's independence rules, as discussed in the 
Board's proposing release, they differ from those rules in that the 
Board's rules do not include the SEC's exception for fees ``in tax 
matters, if determined based on the results of judicial proceedings or 
the findings of governmental agencies.'' \25\ As discussed in the 
Board's proposing release, this exception may have been misinterpreted 
in the past and is largely redundant of the exception for fees fixed by 
courts or other public authorities.\26\ For these reasons, proposed 
Rule 3521 would eliminate this exception. The few commenters who 
addressed this issue agreed with the Board's reasoning and the 
elimination of this exception. Therefore, the Board's final rule does 
not include an exception for tax matters in which an auditor's fee 
agreement is based on the results of judicial proceedings or the 
findings of governmental agencies.
---------------------------------------------------------------------------

    \25\ 17 CFR 210.2-01(f)(10). By eliminating this exception from 
its rule, the Board expresses no view on any firm's compliance with 
Rule 2-01 of the Commission's Regulation S-X. See 17 CFR 210.2-
01(c)(5).
    \26\ As the SEC Chief Accountant has stated, the SEC's ``tax 
matters'' exception only permits fee arrangements where the 
determination of the fee is ``taken out of the hands of the 
accounting firm and its audit client * * *., with the result that 
the accounting firm and client are less likely to share a mutual 
financial interest in the outcome of the firm's advice or service.'' 
Letter from Donald T. Nicolaisen, Chief Accountant, U.S. Securities 
and Exchange Commission, to Bruce P. Webb, Professional Ethics 
Executive Committee Chair, American Institute of Certified Public 
Accountants (May 21, 2004), available at http://www.sec.gov/info/accountants/staffletters/webb052104.htm (hereinafter ``Nicolaisen 
Letter'').
---------------------------------------------------------------------------

    In addition, Rule 3521 treats a firm as not independent of an audit 
client if it receives a contingent fee or commission from that client 
``directly or indirectly.'' The rule's use of the term ``indirectly'' 
is meant to prevent arrangements for a fee from any person that is 
contingent on a finding or result attained by the audit client. The 
Board's determination to include such fees within the prohibition is 
based on the principle that, regardless of who pays the contingent fee, 
such a contingency gives an auditor a stake in the audit client 
attaining the finding or result. Accordingly, under Rule 3521, it does 
not matter who pays the contingent fee, if it is contingent on a 
finding or result attained by the audit client or otherwise related to 
the firm's services for the audit client. That is, while use of an 
intermediary to disguise an audit client's agreement to a contingent 
fee is certainly prohibited, the rule is not limited to circumstances 
in which a contingent fee may be traced (e.g., through an intermediary) 
to an agreement or payment by an audit client.
    Comparable to the SEC's independence rules, proposed Rule 3521 
treats contingent fee arrangements between a registered firm's 
affiliates and the registered firm's audit clients as relevant to the 
firm's independence.\27\

[[Page 12727]]

The inclusion of such affiliates within the scope of those persons 
whose activities may impair the independence of a firm from an audit 
client is intended to prevent frustration of the rule's purpose through 
the use of firm subsidiaries and other affiliates.\28\ The rule is not 
intended to, and does not, impose any requirements on affiliates of 
firms per se. Nonetheless, the conduct of an affiliate of the firm can 
cause the registered firm not to be independent in the situations 
specified in the rules.
---------------------------------------------------------------------------

    \27\ The rule does so by providing that the firm is not 
independent if it ``or any affiliate of the firm * * * provides any 
service or product to the audit client for a contingent fee or a 
commission, or receives from the audit client, directly or 
indirectly, a contingent fee or commission.'' The scope of the rule 
is intended to be the same as the scope of the Commission's rule, 
which defines the terms ``accountant'' and ``accounting firm'' to 
include such affiliates. Because registration with the Board is the 
basis for the Board's authority over an accountant, the rules would 
treat those persons that are related to a registered public 
accounting firm and satisfy the Commission's definition of 
``accounting firm,'' but are not registered firms themselves, as 
``affiliates of the accounting firm.'' Thus, Rule 3501(a)(i) would 
adapt the Commission's definition of the term ``accounting firm'' to 
define the term ``affiliate of the accounting firm'' as ``the 
accounting firm's parents, subsidiaries, pension, retirement, 
investment or similar plans, and any associated entities of the 
firm, as that term is used in Rule 2-01 of the Commission's 
Regulation S-X, 17 CFR 210.2-01(f)(2).''
    \28\ See, e.g., In re PricewaterhouseCoopers LLP, & 
PricewaterhouseCoopers Securities LLC, Exchange Act Release No. 
46216 (July 17, 2002), available at http://www.sec.gov/litigation/admin/34-46216.htm (finding an auditing firm and an affiliate under 
the control of the firm in violation of Commission requirements 
because the affiliate performed investment banking services for the 
firm's audit clients for contingent fees); In KPMG, LLP v. 
Securities & Exch. Comm'n, 289 F.3d 109 (D.C. Cir. 2002), the D.C. 
Circuit Court declined to find KPMG in violation of the AICPA's rule 
against contingent fees, where KPMG only indirectly received a 
contingent royalty from an audit client, through an associated 
entity of the firm. The Board's rules should be understood, however, 
to treat such an arrangement as an impairment of a registered firm's 
independence.
---------------------------------------------------------------------------

    Finally, one accounting firm commented that Rule 3521 should 
prohibit value-added fees because such fees could be used in lieu of 
contingent fees to achieve a similar effect as contingent fees. Fees 
that function as contingent fee arrangements are already prohibited 
under the SEC's rule against contingent fees,\29\ and thus under the 
Board's final rule as well, whether such fees are labeled contingent 
fees, value-added fees, or otherwise. The SEC has indicated that it 
will closely monitor the use of value-added fees ``to determine whether 
a fee labeled a ``value added'' fee is in fact a contingent fee, such 
as where there are side letters or other evidence that ties the fee to 
the success of the services rendered,'' \30\ and the Board intends to 
do so as well before, if necessary, considering additional rulemaking.
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    \29\ See Revision of the Commission's Auditor Independence 
Requirements, SEC Release No. 33-7919, Sec.  IV.D.5 (Nov. 21, 2000), 
17 CFR parts 210 and 240. Indeed, the SEC staff has cautioned audit 
committees against approving-- any agreement `` from a direct 
contract provision to ``a wink and a nod''--that provides for the 
possible additional payment of a `value added' fee based on the 
results of an accounting firm's performance of a tax or other 
service [that] would be viewed as impairing the firm's independence. 
In addition, an audit committee should consider carefully the impact 
on an accounting firm's independence of the possibility of even a 
completely voluntary payment of a ``value added'' fee by an audit 
client to the firm.
    Nicolaisen Letter, supra note 25.
    \30\ See Revision of the Commission's Auditor Independence 
Requirements, SEC Release No. 33-7919, Sec.  IV.D.5 (Nov. 21, 2000), 
17 CFR parts 210 and 240.
---------------------------------------------------------------------------

Rule 3522--Aggressive Tax Positions
    Rule 3522 is intended to describe a class of tax-motivated 
transactions that present an unacceptable risk of impairing an 
auditor's independence if the auditor markets, plans, or opines in 
favor of, such a transaction. As discussed in the Board's proposing 
release, such conduct has seriously damaged investors' confidence in 
the judgment, objectivity, and ethics of firms that engage in such 
transactions. Further, aggressive tax positions carry a high risk that 
taxing authorities will not allow the position taken by the auditor and 
the audit client. As the SEC Chief Accountant noted in the context of 
contingent fees, ``the fact that a government agency might challenge 
the amount of the client's tax savings * * * heightens * * * the 
mutuality of interest between the firm and client.'' \31\
---------------------------------------------------------------------------

    \31\ Nicolaisen Letter, supra 25.
---------------------------------------------------------------------------

    As proposed, Rule 3522 treated a firm as not independent of its 
audit client if the firm, or an affiliate of the firm, provided 
services related to planning, or opining on the tax consequences of a 
transaction that is a listed or confidential transaction under U.S. 
Department of Treasury (``Treasury'') regulations or that promoted an 
interpretation of applicable tax laws for which there is inadequate 
support. In order to describe such transactions in a manner that is 
clear and consistent with existing constructs for analyzing tax-
oriented transactions, the rule is adapted from certain Treasury 
regulations and from the SEC's release accompanying its 2003 
independence rules.
    Commenters generally supported the notion that auditors should not 
provide tax services involving aggressive tax positions to their audit 
clients. They also supported the scope of Rule 3522, which as proposed 
covered listed transactions, confidential transactions, and other 
aggressive transactions. A number of commenters made suggestions to 
make the rule text clearer, however, and after considering such 
comments the Board has modified the rule in several respects.
    First, several commenters suggested that the rule should make clear 
that it does not prohibit auditors from advising audit clients not to 
engage in an aggressive transaction. Rule 3522 was not intended to 
prevent such advice, so in response to these comments the Board has 
modified the rule to make clear the prohibition on opining on 
aggressive transactions is limited to ``opining in favor of the tax 
treatment of'' such transactions (emphasis added). Thus, auditors are 
permitted to advise against an audit client's execution of an 
aggressive tax transaction.\32\ However, Rule 3522 prohibits an opinion 
that a transaction does not satisfy the more-likely-than-not standard 
but does satisfy a lower standard of confidence. Similarly, the rule 
prohibits advice that an audit client will ``probably'' lose an 
argument in favor of a tax treatment, because such advice can imply up 
to a 49-percent chance of success.
---------------------------------------------------------------------------

    \32\ In addition, a number of commenters asked for clarification 
of the scope of Rule 3522's prohibition against ``opining'' on an 
aggressive transaction. The Board does not intend the rule to 
encompass the auditor's opinion on the fairness of financial 
statements that reflect the accounting for a transaction that an 
audit client has executed. Rather, Rule 3522 is intended to prevent 
auditors from facilitating clients' execution of aggressive 
transactions by, among other things, providing auditors' written tax 
opinions that protect the audit client from the assertion of 
penalties by tax authorities or courts.
---------------------------------------------------------------------------

    In addition, as recommended by one commenter, given recent concerns 
about accounting firms establishing marketing centers to sell tax 
shelter products, the Board has added the term ``marketing'' to the 
list of activities that compromise an auditor's independence. That is, 
under Rule 3522, as adopted, an auditor may not market an aggressive 
tax transaction to an audit client, in addition to being prohibited 
from ``planning, or opining in favor of the tax treatment of,'' such a 
transaction.
    Finally, proposed Rule 3522(a)'s prohibition on auditors' 
involvement in listed transactions has been moved to become a part of 
the prohibition on involvement in aggressive tax position transactions, 
in light of the overlap of the two provisions and also in light of 
questions regarding whether the prohibition on listed transactions 
could apply in the context of a non-U.S. tax regime. Accordingly, Rule 
3522 now provides for two categories of prohibitions related to 
aggressive tax transactions, whereas, as proposed, it had provided for 
three such categories. These two categories, as well as modifications 
of their proposed versions, are discussed below.
Rule 3522(b)--Aggressive Tax Position Transactions \33\
---------------------------------------------------------------------------

    \33\ As proposed, this provision was entitled ``aggressive tax 
positions.'' One commenter questioned whether this title was 
intended to expand the scope of this provision beyond transactions. 
In addition, the commenter noted that the term ``transaction'' was 
consistent with Treasury regulations. In response to this comment, 
the Board has re-titled this provision to be ``aggressive tax 
position transactions.''
---------------------------------------------------------------------------

    Rule 3522(b) would treat a registered firm as not independent if 
the firm, or

[[Page 12728]]

an affiliate of the firm, provided an audit client any service related 
to marketing, planning, or opining in favor of the tax treatment of, a 
transaction that satisfies three criteria--
     The transaction was initially recommended, directly or 
indirectly, by the firm;
     A significant purpose of the transaction is tax avoidance; 
and
     The proposed tax treatment of the transaction is not at 
least more likely than not to be allowed under applicable tax laws.
    Rule 3522(b) is adapted from the SEC's guidance to audit committees 
in its release accompanying its 2003 independence rules, which 
cautioned that audit committees should ``scrutinize carefully'' the 
retention of the auditor ``in a transaction initially recommended by 
the accountant, the sole business purpose of which may be tax avoidance 
and the tax treatment of which may be not supported in the Internal 
Revenue Code and related regulations.'' \34\ The rule builds on this 
guidance from the perspective of the auditor, by providing that a 
registered firm is not independent of its audit client if the firm, or 
an affiliate of the firm, participates in such a transaction.
---------------------------------------------------------------------------

    \34\ Strengthening the Commission's Requirements Regarding 
Auditor Independence, at Sec.  II.B.11 (Jan. 28, 2003).
---------------------------------------------------------------------------

    The first prong of the rule's test looks for transactions that the 
auditing firm--directly or indirectly, e.g., through an affiliate, 
through or with another tax advisor with which the firm has an 
arrangement, or otherwise--initially recommended to the audit client. 
In this manner, the rule excludes from its scope those transactions 
that the audit client itself, or a party other than a tax advisor with 
which the firm has an arrangement \35\ (e.g., an acquiring 
corporation), initiated. The term ``initially recommended'' is intended 
to be a test based on fact. Thus, the prong would be satisfied, 
notwithstanding a representation from the audit client that the audit 
client initiated the development of the transaction,\36\ if the auditor 
had knowledge that the auditor, its affiliate, or another tax advisor 
with which the firm has an arrangement, initially recommended it. As 
proposed, the rule would have looked for transactions that were 
``initially recommended by the registered public accounting firm or 
another tax advisor.'' Some commenters expressed concern that an 
auditor might not be in a position to know whether another tax advisor 
with no relationship to the auditor had recommended a transaction. In 
response to these comments, the Board has modified the first prong of 
Rule 3522(b) to make clear that auditors are only responsible for 
ascertaining whether the firm, one of its affiliates, or another tax 
advisor with which the firm has a formal agreement or other arrangement 
related to the promotion of such a transaction, initially recommended 
the transaction.\37\
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    \35\ The term ``tax advisor'' is not intended to denote a group 
with a certain license or professional status, but rather to cover 
any person, other than the client, that recommends a tax transaction 
to the client.
    \36\ Two commenters indicated that, as they interpreted the term 
``transaction,'' an auditor's tax services in connection with, for 
example, a merger transaction that was initiated by the client or 
another company, would not come within the ambit of Rule 3522(b), 
because the auditor would not have recommended the merger 
transaction itself. This is not a fair interpretation of the rule 
and indeed would thwart its purpose.
    \37\ See Rule 3522(b), Note 2. The term ``formal agreement or 
other arrangement'' in Note 2 relates only to relationships a 
registered firm may have with a tax advisor that is not already an 
affiliate of the firm.
---------------------------------------------------------------------------

    The second and third prongs of Rule 3522(b) incorporate concepts 
that have existing meaning and relevance to tax advisors. The second 
prong of the test set forth in Rule 3522(b) uses the phrase 
``significant purpose of which is tax avoidance,'' adapted from the 
Internal Revenue Code.\38\ The term ``tax avoidance'' should be 
understood to include acceleration of deductions into earlier taxable 
years and deferral of income to later taxable years. A few commenters 
noted that the test whether a significant purpose of a transaction is 
tax avoidance appears to be a low threshold that could encompass any 
plan to reduce taxes, and some of those commenters suggested that the 
Board raise that threshold. The Board intends for the threshold to be 
low, however, and therefore has not used terms that might seem to 
establish a higher threshold, such as requiring an evaluation of 
whether the ``sole purpose'' of a transaction is tax avoidance.
---------------------------------------------------------------------------

    \38\ The Internal Revenue Code treats transactions with respect 
to which a ``significant purpose * * * is the avoidance or evasion 
of Federal income tax'' as tax shelters, for purposes of determining 
whether an adequate disclosure defense is available for the 
substantial understatement penalty. See 26 U.S.C. 6662(d)(2)(C) 
(amended by the Jobs Act; see also 26 U.S.C. 6662A(b)(2)(B) 
(imposing 20-percent penalty on understatements of tax in connection 
with ``any reportable transaction (other than a listed transaction) 
if a significant purpose of such transaction is the avoidance or 
evasion of Federal income tax'').
---------------------------------------------------------------------------

    In addition, the rule uses the term ``more likely than not to be 
allowable under applicable tax laws,'' which is the standard certain 
taxpayers must meet, under Treasury regulations, to avoid penalties for 
substantial understatement of income tax in connection with a tax 
shelter.\39\ This test is based, in part, on the Board's observation of 
some firms' policies that rely on the ``more likely than not'' standard 
to approve the firm's involvement in providing tax services relating to 
a transaction initiated by the firm. The rule also uses this standard 
because a tax treatment that is not ``more likely than not'' to be 
allowed poses a significantly higher risk of being challenged by taxing 
authorities, such that a mutuality of interest between the auditor and 
the audit client could arise.\40\ Moreover, the rule uses this 
standard, as opposed to a higher standard, in recognition of the fact 
that tax laws may often be complex and subject to differing good faith 
interpretations.\41\
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    \39\ See 26 CFR 1.6664-4(f).
    \40\ Some commenters noted that, while the term ``more likely 
than not'' is well-understood in the context of evaluating U.S. tax 
advice, it has not been used in non-U.S. contexts. One of these 
commenters also noted that this standard may be hard to judge in 
jurisdictions in which the rule of law does not always prevail. 
After considering these comments, the Board has determined to 
maintain the ``more likely than not standard,'' because it is an 
objective standard that may be applied in contexts outside the U.S. 
even where it has not applied to-date. Further, the Board notes that 
foreign private issuers ordinarily file U.S. tax returns and 
therefore are already expected to comply--and be familiar with--U.S. 
tax laws and regulations.
    \41\ A few commenters recommended that the Board use a standard 
higher than ``more likely than not,'' on the ground that there is 
some evidence that some accounting firms that used the ``more likely 
than not'' standard in the past have not adhered to it. While the 
Board is concerned about the record on this issue, the Board has 
determined not to use a higher standard at this time. The Board 
intends to monitor compliance with the rule through its inspections 
of registered public accounting firms and will consider revising the 
rule in the future, if that monitoring or other evidence reveals 
that the rule is not achieving its intended purpose.
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    In order to satisfy Rule 3522(b)'s ``more likely than not'' 
standard, a registered public accounting firm must establish, based on 
an analysis of the pertinent facts and authorities, that there is a 
greater than 50-percent likelihood that the tax treatment of the 
transaction would, if challenged, be upheld.\42\ To satisfy this test, 
an auditor's analysis must be objectively reasonable and well-founded 
at the time the analysis is conducted. The Board would not, however, 
treat an auditor as

[[Page 12729]]

not independent if the law changed after the service was provided or if 
the tax treatment simply turned out to be not allowed, despite the 
auditor's reasonable judgment before the ultimate resolution of a tax 
claim or other dispute.
---------------------------------------------------------------------------

    \42\ Cf. 26 CFR 1.6664-4(f)(2)(i)(B)(1) (incorporating by 
reference methodology set forth in 26 CFR 1.6662-4(d)(3)(ii) for 
analysis of whether a tax treatment has ``substantial authority'' 
or, in the case of tax shelters, is ``more likely than not'' the 
proper treatment, for purposes of determining whether a penalty may 
be due on a substantial understatement of income tax).
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    Rule 3522(b) does not require a registered public accounting firm 
to obtain a third-party opinion that a tax treatment is ``more likely 
than not'' to be allowed under applicable tax laws. On the contrary, 
while a firm may decide for its own reasons to obtain a third-party 
opinion, such an opinion would not relieve the firm of its obligation 
to form its own judgment on the likelihood of a proposed tax treatment 
to be allowed.\43\
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    \43\ Treasury regulations permit corporations to avoid penalties 
for substantial understatement of income taxes in connection with 
tax shelters if they ``reasonably rel[y] in good faith on the 
opinion of a professional tax advisor, if the opinion is based on 
the tax advisor's analysis of the pertinent facts and authorities * 
* * and unambiguously states that the tax advisor concludes that 
there is a greater than 50-percent likelihood that the tax treatment 
of the item will be upheld if challenged by the Internal Revenue 
Service.'' 20 CFR 1.6664-4(f)(2)(i)(B)(2). Rule 3522(b) would not 
permit registered public accounting firms, who themselves serve as 
tax advisors, to rely on other tax advisors to satisfy the rule's 
standard because registered firms that provide tax services are 
themselves in a position to perform such an analysis.
---------------------------------------------------------------------------

    Finally, although the SEC's release accompanying its 2003 
independence rules cautioned audit committees to scrutinize situations 
in which a proposed tax treatment might not be supported ``in the 
Internal Revenue Code and related regulations,'' the proposed rule 
would use the term ``applicable tax laws'' in recognition of the 
variety of tax laws and regulations, including Federal, state, local, 
foreign, and other tax laws, that may be the subject of tax services. 
For this reason, and in response to questions from several commenters, 
the Board also incorporated its proposed prohibition on auditors 
providing tax services in connection with transactions that are listed 
by the IRS into Rule 3522(b). That is, IRS listing is one example of 
aggressive tax transactions covered by the rule.
    Accordingly, the prohibition on advising in favor of listed 
transactions, which was proposed as Rule 3522(a), has been moved to a 
note to what is now Rule 3522(b). Specifically, Note 1 to Rule 3522(b) 
treats a registered public accounting firm as not independent of its 
audit client if the firm, or any affiliate of the firm, provided 
services related to marketing, planning, or opining in favor of the tax 
treatment of, a listed transaction. Under Treasury regulations, a 
listed transaction is ``a transaction that is the same as or 
substantially similar to one of the types of transactions that the IRS 
has determined to be a tax avoidance transaction and identified by 
notice, regulation, or other form of published guidance as a listed 
transaction.'' \44\ The IRS uses its listing process to identify and 
publish a list of transactions that tax promoters and advisors have 
developed and sold to clients but that, in the IRS's view, do not 
comply with applicable laws. Thus, the Treasury's regulation on 
``listed transactions'' identifies a class of transactions that, in the 
Board's view, carries an unacceptable risk of disallowance, which in 
turn create an unacceptable risk of establishing a mutuality of 
interest between the auditor and the audit client if the auditor 
participated in marketing, planning, or opining in favor of the tax 
treatment of a transaction that impairs independence. By referring to 
this class of transactions, Note 1 to Rule 3522(b) incorporates an 
existing framework that auditors who serve as tax advisors already 
follow in their tax practices and that is highly likely to remain 
current since the Treasury and the IRS regularly update guidance 
related to listed transactions.\45\
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    \44\ See, e.g., 26 CFR 1.6011-4(b)(2).
    \45\ The IRS updates the list of listed transactions by issuing 
a listing notice, both adding to and removing transactions from the 
list of listed transactions. See, e.g., IRS Notice No. 2004-67, 
2004-41 I.R.B. 600. Some commenters questioned whether the Board 
should effectively incorporate the IRS's changes to its list into 
the Board's rule on aggressive transactions. This is, indeed, the 
Board's intention. To freeze the IRS's list as of the date of the 
Board's final rule, or to establish a system of reviewing the IRS's 
list as it is updated, might permit auditors to provide tax services 
in favor of listed transactions notwithstanding that the IRS had 
identified those transactions as potentially abusive. Such a system 
would thwart the underlying intent of the Board's rule.
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    As discussed above, the Board's proposed prohibition on auditor 
involvement in transactions that are ``listed'' by the IRS has been 
moved to a note to Rule 3522(b). By definition, a listed transaction is 
not ``more likely than not to be allowable under applicable tax laws'' 
at the time the auditor advises on it. Because the risk of IRS or other 
scrutiny of listed transactions, including transactions that are 
substantially similar to listed transactions,\46\ is high, tax advisors 
and taxpayers tend not to enter into such transactions once they are 
listed. In light of this fact, when it proposed this rule, the Board 
sought comment on whether the rule should treat an auditor as not 
independent if a transaction planned or opined on by the auditor 
subsequently became listed. In general, commenters recommended against 
adopting a per se rule that subsequent listing of such a transaction 
impaired an auditor's independence with respect to either the period in 
which the transaction was executed or in subsequent periods. The Board 
agrees that such a per se rule would not be appropriate, but as 
discussed below, firms should nevertheless be cautious in participating 
in transactions that they believe could become listed.
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    \46\ By its terms, the Treasury regulation requiring reporting 
of listed transactions makes clear that the definition of ``listed 
transaction'' includes transactions that have been listed by the IRS 
as well as transactions that are ``substantially similar'' to such 
transactions. By expressly referring to the Treasury's regulation on 
listed transactions, the Board intends Rule 3522(b) to encompass 
such substantially similar transactions that are included in the 
Treasury's regulation.
---------------------------------------------------------------------------

    Even if a firm were independent at the time a transaction was 
executed, because it reasonably and correctly concluded the transaction 
was not the same as, or substantially similar to, a listed transaction, 
once a transaction is actually listed (or a substantially similar 
transaction becomes listed), a firm that has participated in the 
transaction may find its independence impaired due to the mutuality of 
interest caused by the listing. That is, depending on the 
circumstances, a firm's independence may become impaired in some cases 
after a transaction planned or opined on by the firm becomes listed. In 
such cases, the auditor should carefully consider the potential 
impairment of its independence with the audit committee of its audit 
client.\47\ For example, once a transaction is listed, either the audit 
client or the firm, or both, may be required to defend the tax 
treatment of the transaction and, in some cases, pay penalties. In 
addition, the firm may face liability to the audit client related to 
the firm's tax advice. The auditor's judgment regarding appropriate 
financial reporting and disclosure concerning a transaction that 
becomes listed could become biased by the auditor's vested interests in 
defending its tax advice.
---------------------------------------------------------------------------

    \47\ According to ISB Standard No. 1, which is incorporated in 
the Board's Rule 3600T interim independence standards, at least 
annually, an auditor must ``disclose to the audit committee of the 
company (or the board of directors if there is no audit committee), 
in writing, all relationships between the auditor and its related 
entities and the company and its related entities that in the 
auditor's professional judgment may reasonably be thought to bear on 
independence.''
---------------------------------------------------------------------------

    Some auditors commented that they would prefer a bright-line rule 
providing that, so long as a transaction recommended by the firm was 
not listed at the time it was executed, subsequent listing cannot 
impair an auditor's independence later in time, when the auditor is 
called on to defend its earlier

[[Page 12730]]

tax advice. Such a bright-line rule, however, would do little to 
address circumstances in which, because of IRS scrutiny after execution 
of the transaction, the auditor's interest in the client's successful 
defense of the transaction becomes heightened to the point where the 
auditor can no longer be impartial about the financial statement 
presentation of the transaction. That said, as some commenters noted, 
existing independence requirements address these kinds of 
circumstances, and thus the Board has determined not to expand Rule 
3522(b) either to retroactively deem an auditor not independent upon 
subsequent listing of a transaction or to deem an auditor not 
independent per se in the period in which such a transaction becomes 
listed.
Rule 3522(a)--Confidential Transactions
    The Treasury has identified transactions with tax-advisor imposed 
conditions of confidentiality as potentially abusive. By regulation, 
the Treasury requires taxpayers to disclose to the IRS transactions in 
which a tax advisor ``places a limitation on disclosure by the taxpayer 
of the tax treatment or tax structure of the transaction and the 
limitation on disclosure protects the confidentiality of that advisor's 
tax strategies.'' \48\ Tax-advisor imposed confidentiality may also be 
indicative of a tax product that a tax advisor intends to market to 
multiple customers, thus necessitating commitments by customers to 
treat the tax treatment or structure of the advisor's product as 
confidential.
---------------------------------------------------------------------------

    \48\ 26 CFR 1.6011-4(b)(3)(ii).
---------------------------------------------------------------------------

    As discussed in the proposing release, the Board is concerned that 
marketing, planning, or opining in favor of tax products that require 
confidentiality in order that they may be offered to multiple clients 
contributes to the erosion of public confidence in the ethics and 
integrity of such firms. A reasonable investor easily could infer that 
the auditor has a vested interest in advocating to the IRS the tax 
treatment it promoted, or helped to promote, to multiple clients and 
perpetuating that treatment in the audit client's financial statements. 
Based on these concerns, Rule 3522(a) treats a registered public 
accounting firm as not independent of its audit client if the firm, or 
an affiliate of the firm, provided services related to marketing, 
planning, or opining in favor of the tax treatment of a transaction for 
an audit client under terms that satisfy the definition of 
``confidential transaction,'' as defined by Rule 3501(c)(i), which is 
adapted from the Treasury's regulation requiring tax advisors to report 
confidential transactions.\49\
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    \49\ 26 CFR 1.6011-4(b)(3) (2005). The proposed version of this 
rule incorporated the Treasury's definition of the term 
``confidential transaction'' by reference. A number of commenters 
noted generally that incorporation of this Treasury regulation by 
reference could lead to unintended changes to the Board's rules if 
the Treasury amends those regulations (or the IRS amends its list of 
listed transactions). As discussed above, the Board intends for its 
prohibition on auditors' involvement as tax advisors in audit 
clients' execution of listed transactions to be kept current by 
changes to the IRS's list. Upon further consideration, unlike the 
Board's prohibition on listed transactions, the Board has determined 
that it may not be appropriate for any changes the Treasury may make 
to its definition of ``confidential transaction'' to automatically 
be reflected in the Board's prohibition on auditors' involvement in 
such a transaction. The definition of ``confidential transaction'' 
in Rule 3501(c)(i) is intended to be the same as the current 
Treasury regulation, except for the minimum fee requirement.
    The proposed version of the rule did not incorporate the 
Treasury's minimum fee exception to its regulation on confidential 
transactions. That is, Treasury Regulation 1.6011-4(b)(3)(i) 
provides that ``a confidential transaction is a transaction that is 
offered to a taxpayer under conditions of confidentiality and for 
which the taxpayer has paid an advisor a minimum fee.'' 26 CFR 
1.6011-4(b)(3) (2005). Under the regulation, the ``minimum fee'' is 
$250,000 for corporate taxpayers (and partnerships and trusts in 
which all of the owners or beneficiaries are corporations) and 
$50,000 for all other transactions. Id. 26 CFR 1.6011-4(b)(3)(iii). 
Although some commenters suggested that the Board should adopt the 
minimum fee exception, the Board understands the IRS disclosure 
rules to serve a different purpose than Rule 3522(a). Accordingly, 
the Board has not adopted a minimum fee exception in its final rule 
either.
---------------------------------------------------------------------------

    It should be noted that, Rule 3501(c)(i) defines confidential 
transactions in terms of confidentiality restrictions imposed by tax 
advisors generally, not specifically auditors. Therefore, whereas under 
Rule 3522(b) a transaction that is initially recommended by a tax 
advisor other than the auditor or an affiliate of the auditor unless 
the tax advisor has an arrangement with the auditor does not fall 
within the first prong of the rule, Rule 3522(a) prohibits an auditor 
from marketing, planning, or opining in favor of a confidential 
transaction whether the applicable terms of confidentiality are imposed 
by the auditor or by another tax advisor, acting independently of the 
auditor.
    Commenters generally supported the Board's proposed prohibition on 
confidential transactions. Although some commenters expressed the view 
that tax advisors might impose conditions of confidentiality for 
reasons other than the ability to market the proposed transaction to 
multiple clients, other commenters agreed that auditors should not 
become involved in transactions subject to tax-advisor imposed 
confidentiality restrictions. One accounting firm commenter also noted 
that, even if a transaction were not potentially abusive, the fact that 
there is a disclosure limitation is likely to create a negative 
impression concerning the objectivity of the auditor.
    In addition, a few commenters suggested that the rule be limited to 
circumstances in which terms of confidentiality are imposed with 
respect to the U.S. tax treatment of a transaction. After carefully 
considering these comments, the Board has determined not to modify the 
scope of the rule. Tax-advisor imposed conditions of confidentiality 
facilitate aggressive selling of novel tax ideas that pose too great a 
risk of impairing the objectivity of auditors who market, plan, or 
opine in favor of them. Further, the rule continues to permit audit 
clients themselves to impose conditions of confidentiality in 
connection with transactions on which auditors may provide tax advice, 
and this fact appears to adequately serve audit clients' needs to 
maintain appropriate confidentiality. Finally, there does not appear to 
be a reasoned basis to limit the prohibition on confidential 
transactions to proposed tax treatments under U.S. tax laws.
Rule 3523--Tax Services for Persons in Financial Reporting Oversight 
Roles
    Rule 3523 provides that a registered public accounting firm is not 
independent of an audit client if the firm, or any affiliate of the 
firm, during the audit and professional engagement period, provides any 
tax service to a member of management in a financial reporting 
oversight role at the audit client.\50\ As discussed in the Board's 
proposing release, this rule addresses concerns that performing tax 
services for certain individuals involved in the financial reporting 
processes of an audit client creates an appearance of a mutual

[[Page 12731]]

interest between the auditor and those individuals.
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    \50\ The rule's use of the term ``financial reporting oversight 
role'' is based on the Commission's definition of ``financial 
reporting oversight role,'' which includes any person who has direct 
responsibility for oversight over those who prepare the issuer's 
financial statements and related information (for example, 
management's discussion and analysis) that are included in filings 
with the Commission. See Strengthening the Commission's Requirements 
Regarding Auditor Independence, at Sec.  II.A. The Commission uses 
the term ``financial reporting oversight role'' to describe those 
positions that are covered by the Act's ``cooling off'' period, 
during which a public company would not be independent from its 
audit firm if a member of the engagement team for the audit of that 
company assumed such a position. See Sarbanes-Oxley Act of 2002, 
Sec.  206, 17 CFR 210.2-01(f)(3)(ii). The term ``financial reporting 
oversight role'' as defined in Rule 3501(f)(i) mirrors verbatim the 
SEC's definition of the same term in Rule 2-01 of Regulation S-X. 17 
CFR 210.2-01(f)(3)(ii).
---------------------------------------------------------------------------

    The Board received varied comments on Rule 3523. Some commenters, 
including groups representing investors and issuers, as well as several 
large accounting firms, supported the proposed rule on the ground that 
it is necessary to preserve the objectivity, and the appearance of 
objectivity, of auditors. Other commenters, however, including a number 
of smaller accounting firms, accounting associations, and a few 
issuers, claimed that the rule is not necessary, that these services 
have long been provided, and that auditors should be allowed to provide 
senior financial management of issuers with the same types of tax 
services the auditor may provide the issuer. After carefully 
considering these comments, the Board has determined to adopt the rule, 
with a few modifications. The Board continues to believe that the 
provision of tax services by the auditor to the senior management 
responsible for the audit client's financial reporting creates an 
unacceptable appearance of the auditor and such senior management 
having a mutual interest.
    The Board also received a number of comments on specific aspects of 
the proposed rule. For example, some commenters expressed confusion as 
to whether Rule 3523 is intended to apply to directors, in part because 
the definition of ``financial reporting oversight role'' includes 
directors. In response to these comments, the Board has modified the 
rule to exclude directors more explicitly. Thus, the rule no longer 
uses the term ``officer''--which is how the proposed rule narrowed the 
scope to exclude directors--and instead includes an explicit exception 
for any person who serves in a financial reporting oversight role 
``only because he or she serves as a member of the board of directors 
or similar management or governing body of the audit client.'' \51\
---------------------------------------------------------------------------

    \51\ Rule 3523(a).
---------------------------------------------------------------------------

    The Board also included a second exception in Rule 3523(b) in 
response to comments regarding whether the rule should apply to persons 
who serve in a financial reporting oversight role at an affiliate of an 
issuer. After considering these comments, the Board has determined not 
to restrict auditors' provision of tax services to employees in a 
financial reporting oversight role at an affiliate of an audit client, 
so long as the financial statements of the affiliate are not material 
to the financial statements of the audit client or are audited by an 
auditor other than the firm or an associated person of the firm. This 
exception is intended to exclude executives of affiliates that do not 
contribute to the consolidated financial statements of the audit 
client. The Board does not believe that auditors' relationships with 
executives of immaterial affiliates, or affiliates whose financial 
statements are audited by an auditor other than the firm or an 
associated person of the firm, pose as great a risk to auditors' 
impartiality regarding an audit clients' consolidated financial 
statements as do auditors' provision of tax services to executives 
involved in the consolidated financial reporting of the client.
    The first part of this exception, Rule 3523(b)(i), excludes persons 
in a financial reporting oversight role at immaterial affiliates of the 
entity being audited. This exception would encompass, among others, 
executives of most affiliates within the same investment company 
complex as the audited entity and executives of up-stream affiliates of 
the audited entity. The second part of this exception, Rule 
3523(b)(ii), excludes executives in financial reporting oversight roles 
of a subsidiary of an audit client that is not audited by the firm or 
any firm that is an associated person of the firm, as defined by PCAOB 
Rule 1001. On the other hand, executives in financial reporting 
oversight roles at a material subsidiary whose financial statements are 
audited by a firm that is an associated person of the registered firm 
would be subject to Rule 3523. For purposes of Rule 3523(b)(ii), the 
term ``audited'' should be understood to include audit procedures that 
contribute to the firm's preparation or issuance of an audit report on 
an audit client's consolidated financial statements, whether or not 
such procedures result in an audit opinion on the affiliate's financial 
statements.
    Some commenters also expressed concern that the rule could impose 
an undue hardship on persons who become subject to the rule because 
they are hired or promoted into a financial reporting oversight role at 
an audit client. To address that concern, the Board determined to 
create a time-limited exception to the rule to cover such situations. 
Specifically, the Board has determined to add a new exception to the 
rule that applies to a person who was not in a financial reporting 
oversight role at the audit client before a hiring, promotion, or other 
change in employment event, when the tax services are both: (1) 
Provided pursuant to an engagement that was in process before the 
hiring, promotion, or other change in employment event; and (2) 
completed on or before 180 days after the hiring or promotion 
event.\52\ The Board will treat engagements as ``in process'' if an 
engagement letter has been executed and substantive work on the 
engagement has commenced; the Board will not treat engagements as ``in 
process'' during negotiations on the scope and fee for a service.
---------------------------------------------------------------------------

    \52\ Rule 3523(c).
---------------------------------------------------------------------------

    Some commenters also suggested that, as proposed, Rule 3523 could 
invite persons subject to the rule to evade the rule by using the 
auditor's tax services through an immediate family member or through an 
entity controlled by the person. In response to this comment, the Board 
has added to the scope of the rule immediate family members of persons 
who are covered by the rule.\53\
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    \53\ The Board also has added a definition of ``immediate family 
member,'' adapted from the SEC's definition in its independence 
rules. Compare Rule 3501(i)(i) with 17 CFR 210.2-01(f)(13). The 
Board has not included entities controlled by persons in financial 
reporting oversight roles, such as trusts and investment 
partnerships. The Board notes, however, that an auditor who provides 
services to an entity controlled by a person in a financial 
reporting oversight role of an audit client should consider whether, 
under ISB Standard No. 1, it is necessary to notify the client's 
audit committee of such services.
---------------------------------------------------------------------------

    In addition, some commenters suggested that the rule be expanded to 
cover all non-audit services, such as services involving investment, 
personal financial planning, and executive compensation, on the ground 
that any such services provided to those in a financial reporting 
oversight role create a perception of a mutuality of interest between 
auditors and those members of management who receive such services.\54\ 
Other commenters suggested that the rule be expanded to include persons 
who do not play a financial reporting oversight role but nevertheless 
play a key role in operations, such as vice presidents of sales.\55\ 
Other

[[Page 12732]]

commenters recommended the rule cover audit committee members. Still 
other commenters, however, disagreed with these commenters and noted 
that applying the rule to audit committee members might serve as a 
practical disincentive to audit committee service.
---------------------------------------------------------------------------

    \54\ Some commenters asked for clarification of whether persons 
in a financial reporting oversight role could seek the assistance of 
the registered public accounting firm that prepared the original tax 
return to assist them in responding to an IRS or other governmental 
agency examination regarding that specific tax return after Rule 
3523 becomes effective. If a registered firm prepared such a tax 
return before the rule's effective date, the rule does not operate 
to prohibit that person from answering questions and providing 
assistance when that tax return is under examination by a taxing 
authority after the rule's effective date, Such assistance, of 
course, must be otherwise consistent with Board and SEC auditor 
independence rules, including the requirement the auditor not become 
an advocate for its audit client.
    \55\ A few commenters suggested that the Board use the list of 
officers in section 16 of the Exchange Act, rather than relying on 
the defined term ``financial reporting oversight role.'' The 
``financial reporting oversight role'' term, however, includes those 
individuals at an audit client that, because of their oversight of 
the company's financial reporting process, raise special concerns 
when they have certain relationships with the auditor. For this 
reason, the Board continues to believe this is the appropriate group 
to include in this rule.
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    The Board has determined not to expand the final rule to include 
all non-audit services, directors or persons outside the definition of 
``financial reporting oversight role.'' To date, the concerns that have 
arisen in this area have related to auditors' provision of tax services 
to executives of public companies. Accordingly, the Board believes it 
is appropriate, at this time, to limit the rule to address this 
problem. The Board intends to monitor implementation of the rule, 
however. In addition, to the extent that issuers pay for non-audit 
services provided to any individuals, audit committees can and should 
be scrutinizing the potential effects on the auditor's independence due 
to such services. Further, as discussed in the proposing release, 
although accounting firms are not now required to seek pre-approval for 
executive tax services paid directly by the employee, auditors should 
consider under Independence Standards Board (``ISB'') Standard No. 1 
whether it is necessary to notify the audit committee of these services 
\56\ or whether it is otherwise advisable to inform audit committees of 
such services.\57\ In this regard, while the Board is reluctant to 
establish a per se prohibition on auditors' provision of tax services 
to directors of their audit clients, the Board notes that firms can--
and some have--adopted procedures to notify the audit committee of such 
services so it may evaluate the potential effect of such services on 
the auditor's independence.\58\
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    \56\ See ISB Standard No. 1; see also Memorandum from Scott A. 
Taub, Deputy Chief Accountant, Office of the Chief Accountant, U.S. 
Securities and Exchange Commission to William H. Donaldson, 
Chairman, Securities and Exchange Commission at 5 (June 24, 2003) 
(attached to letter from Chairman William H. Donaldson, U.S. 
Securities and Exchange Commission, to Five Consumer Groups) (July 
11, 2003), available at http://www.sec.gov/info/accountants/staffletters/taub071103.pdf (hereinafter ``Taub Memo'').
    \57\ For example, the SEC staff has recommended that audit 
committees scrutinize audit firms' provision of these services--The 
provision of tax services to the executives of an audit client is 
not expressly addressed in the Act or in the Commission's rules. 
Nonetheless, an audit committee should review the provision of those 
services to assure that reasonable investors would conclude that the 
auditor, when providing such services, is capable of exercising 
objective and impartial judgment on all issues within the audit 
engagement.
    Taub Memo, supra note 55, at 5.
    \58\ See, e.g., Remarks of Scott Bayless, Deloitte & Touche LLP, 
Auditor Independence Roundtable on Tax Services (July 14, 2004) at 
152 (indicating that even when ``the company does not pay for those 
services * * * there is a notification procedure to ensure that the 
audit committee has the ability to take control of that relationship 
if they so desire'').
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Rule 3524--The Auditor's Responsibilities in Connection With Audit 
Committee Pre-approval of Tax Services
    Under Section 10A(h) of the Exchange Act, as amended by Section 202 
of the Sarbanes-Oxley Act, all non-audit services that the auditor 
proposes to perform for an issuer client ``shall be pre-approved by the 
audit committee of the issuer.'' The SEC's 2003 independence rules 
implemented the Act's pre-approval requirement by adopting a provision 
on audit committee administration of the engagement.\59\ Rule 3524 
implements the Act's pre-approval requirement further by strengthening 
the auditor's responsibilities in seeking audit committee pre-approval 
of tax services. Specifically, Rule 3524 requires a registered public 
accounting firm that seeks pre-approval of an issuer audit client's 
audit committee \60\ to perform tax services that are not otherwise 
prohibited by the Act or the rules of the SEC or the Board to--
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    \59\ See 17 CFR 210.2-01(c)(7).
    \60\ Proposed Rule 3524 used the term ``audit committee of the 
audit client,'' which some commenters interpreted to mean that the 
rule would require auditors to make the required communications in 
connection with proposed tax services for affiliates of an audit 
client that are not consolidated as subsidiaries with the audit 
client for financial statement purposes. One commenter noted that 
the Commission's Rule 2-01(c)(7) requires only that ``[b]efore the 
accountant is engaged by the issuer or its subsidiaries, or the 
registered investment company or its subsidiaries, to render audit 
or non-audit services, the engagement [be] approved by the issuer's 
or registered investment company's audit committee.'' By using the 
phrase ``in connection with seeking audit committee pre-approval,'' 
the Board intends Rule 3524 to apply only when the SEC's Rule 2-
01(c)(7) requires such approval. Accordingly, the rule does not 
require registered firms to make the specified communications or to 
seek audit committee pre-approval in any situations in which audit 
committee pre-approval is not already required by the SEC's rules. 
Nor should the rule be understood to require pre-approval by any 
committee other than the committee required to provide pre-approval 
by the SEC's rules. To clarify this issue, the Board has also 
modified Rule 3524 to more clearly track the language of section 
10A(h) of the Exchange Act and the SEC's Rule 2-01(c)(7).
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     Describe, in writing, to the audit committee the nature 
and scope of the proposed tax service;
     Discuss with the audit committee the potential effects on 
the firm's independence that could be caused by the firm's performance 
of the proposed tax service; and
     Document the firm's discussion with the audit committee.
    These requirements are intended to buttress the pre-approval 
processes established by the Act and the Commission's rules. Whether an 
audit committee pre-approves a non-audit service on an ad hoc basis or 
on the basis of policies and procedures, the Commission staff has 
stated that ``detailed backup documentation that spells out the terms 
of each non-audit service to be provided by the auditor'' should be 
provided to the audit committee.\61\ Indeed, the SEC staff has 
indicated ``[s]uch documentation should be so detailed that there 
should never be any doubt as to whether any particular service was 
brought to the audit committee's attention and was considered and pre-
approved by that committee.'' \62\
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    \61\ Taub Memo, supra note 55, at 3; see also SEC Office of the 
Chief Accountant: Application of Commission's Rules on Auditor 
Independence Frequently Asked Questions, Audit Committee Pre-
approval, Question 5, (issued August 13, 2003), available at http://www.sec.gov/info/accountants/ocafaqaudind121304.htm (hereinafter 
``FAQs'').
    \62\ Taub Memo, supra note 55, at 3; see also FAQs, supra note 
60, Audit Committee Pre-approval, Question 5 (issued August 13, 
2003). The SEC staff FAQ answer states that (``[p]re-approval 
policies must be designed to ensure that the audit committee knows 
precisely what services it is being asked to pre-approve so that it 
can make a well-reasoned assessment of the impact of the service on 
the auditor's independence. For example, if the audit committee is 
presented with a schedule or cover sheet describing services to be 
pre-approved, that schedule or cover sheet must be accompanied by 
detailed back-up documentation regarding the specific services to be 
provided'').
---------------------------------------------------------------------------

    Rule 3524 implements the Act's pre-approval requirement further by 
requiring that registered firms provide the audit committee of an 
issuer audit client a description of proposed tax services engagements 
that includes descriptions of the scope of any tax service under review 
and the fee structure for the engagement.\63\ Some commenters suggested 
significant changes to the scope of the proposed rule. One group of 
commenters recommended that the rule be broadened to apply to all non-
audit services, rather than only tax services. Other commenters 
expressed concern that the rule appeared to impose restrictions on 
audit committee pre-approval in excess of the SEC's requirements and, 
for that reason,

[[Page 12733]]

recommended that the Board narrow or eliminate the rule. The Board has 
determined not to change the scope of the rule in response to these 
comments. While auditors and audit committees may find the procedures 
in Rule 3524 to be useful for purposes of considering non-audit 
services generally, the Board adopts these rules only after having 
engaged in a substantial effort to obtain facts and views of interested 
persons on appropriate procedures for considering proposed tax 
services. Before considering broadening the rule, the Board would seek 
additional information, based, among other things, on experience with 
this rule, inspections of registered firms, and additional public 
input. On the other hand, notwithstanding the concerns of some 
commenters that Rule 3524 requires more than the parallel SEC rule, the 
Board has determined not to narrow or eliminate the rule. The Board 
continues to believe that the rule is an appropriate complement to the 
SEC's pre-approval rule. Rule 3524 supports the procedure under the SEC 
rule, by requiring the auditor--who is in the best position to describe 
a proposed engagement--to gather the information required to be 
presented to the audit committee by the SEC rule. Indeed, it is the SEC 
rule and staff interpretations of what information audit committees 
need that have informed the Board's development of the rule.
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    \63\ See Rule 3524(a)(1). Audit committees may ask auditors for 
other materials not identified in the rule, to assist them in their 
determinations whether to pre-approve proposed tax services. Rule 
3524 should not be understood to limit the information or materials 
that an audit committee may request, or that a registered firm may 
decide to provide, in connection with the pre-approval of tax 
services.
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    The Board has made certain modifications to the proposed rule, 
however. As proposed, the rule would have required auditors to provide 
audit committees copies of all engagement letters for proposed tax 
services. While some commenters supported this proposal as a way to 
ensure that audit committees received adequate information on which to 
base their judgments, other commenters expressed concern that the rule 
could result in audit committees being provided voluminous stacks of 
engagement letters--some in foreign languages--that would obscure 
rather than elucidate the nature of the tax services proposed. On the 
basis of this information, and because the underlying purpose of the 
proposed requirement was to establish a manageable collection of 
information on which audit committees could make their determinations 
to pre-approve tax services, the Board has determined to eliminate the 
proposed rule's requirement to supply the audit committee a copy of 
each tax service engagement letter. Instead, the rule requires auditors 
to describe for audit committees, in writing, the scope of the proposed 
service, the proposed fee structure for the service, and the potential 
effect of the service on the auditor's independence. The Board believes 
requiring such a description of a proposed service better meets the 
Board's goal to improve the quality of information auditors provide 
audit committees about proposed tax services.
    The rule also requires the auditor to describe for the audit 
committee any amendment to the engagement letter or any other agreement 
relating to the service (whether oral, written, or otherwise) between 
the firm and the audit client.\64\ While the Board does not expect or 
encourage auditors to enter into side agreements relating to tax 
services, the Board understands that, in the past, some accounting 
firms have entered into such agreements.\65\ To the extent firms do so, 
they must disclose those agreements to the audit committee.
---------------------------------------------------------------------------

    \64\ Id. One commenter expressed concern that Rule 3524(a)'s 
requirement to describe an ``other agreement'' could be understood 
to require the auditor to submit to the audit committee 
documentation concerning ``essentially every communication with the 
audit client.'' The Board believes this comment is misplaced. Rule 
3524 does not require that the auditor describe all communications 
with the audit client, but rather all agreements with the audit 
client that relate to the proposed service.
    \65\ See, e.g., In re PricewaterhouseCoopers LLP, & 
PricewaterhouseCoopers Securities LLC, supra note 27 (``through side 
letters or oral understandings, the parties created contingent fee 
arrangements''). In addition, some commenters have expressed concern 
that Rule 3524 requires disclosure to the audit committee of fee 
arrangements that are prohibited by Rule 3521 (or by professional 
association membership requirements, such as certain referral 
agreements and fees). Those commenters have asked the Board to 
clarify that Rule 3524 does not operate to permit such fee 
structures that are otherwise prohibited by the Board's rules or to 
endorse fee structures that are prohibited or discouraged by 
professional ethics rules. It is the case that Rule 3524 does not 
permit or otherwise endorse such fees.
---------------------------------------------------------------------------

    In addition, to the extent that a firm receives fees or other 
consideration from a third party in connection with promoting, 
marketing, or recommending a tax transaction, Rule 3524 requires the 
firm to disclose those fees or other consideration to the audit 
committee. Specifically, Rule 3524(a)(2) requires that the firm 
disclose to the audit committee ``any compensation arrangement or other 
agreement, such as a referral agreement, a referral fee or fee-sharing 
arrangement, between the registered public accounting firm (or an 
affiliate of the firm) and any person (other than the audit client) 
with respect to the promoting, marketing or recommending of a 
transaction covered by the service.'' This provision is adapted from 
the IRS's rules of practice, which require tax advisors to disclose 
such arrangements to taxpayer clients.\66\
---------------------------------------------------------------------------

    \66\ See 31 CFR 10.35(e)(1) (2005), available at http://www.irs.gov/pub/irs-pdf/pcir230.pdf.
---------------------------------------------------------------------------

    Rule 3524(b) also requires registered public accounting firms to 
discuss with audit committees of their issuer audit clients the 
potential effects of any proposed tax services on the firm's 
independence. Even if a non-audit service does not per se impair an 
auditor's independence, the Commission's independence rules 
nevertheless deem an auditor not to be independent if--

the accountant is not, or a reasonable investor with knowledge of 
all relevant facts and circumstances would conclude that the 
accountant is not, capable of exercising objective and impartial 
judgment on all issues encompassed within the accountant's 
engagement.\67\
---------------------------------------------------------------------------

    \67\ 17 CFR 210.2-01(b).

    Rule 3524(b) is intended to provide audit committees a robust 
foundation of information upon which to determine whether to pre-
approve proposed tax services. Some commenters have asked for guidance 
as to the scope of the discussions intended by the rule. The Board 
intends that the scope of such discussions remain flexible, to address 
the matters that are pertinent in the judgment of the audit committee, 
as informed by Commission requirements. While the Act's legislative 
history makes clear that the Act ``does not require the audit committee 
to make a particular finding in order to pre-approve an activity,'' 
\68\ the Commission's staff expects a robust review of proposed non-
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audit services--

    \68\ S. Rep. No. 107-205, at 19 (2002).

    The audit committee must take its role seriously and perform 
diligent analyses and reviews that allow the committee to conclude 
that reasonable investors would view the auditor as capable of 
exercising objective and impartial judgment on all matters brought 
---------------------------------------------------------------------------
to the auditor's attention.\69\

    \69\ Taub Memo, supra note 55, at 7-8; see also FAQs, supra note 
60, Audit Committee Pre-approval, Question 5 (issued August 13, 
2003).
---------------------------------------------------------------------------

    To be clear, the rule does not prescribe any test for audit 
committees or require audit committees to make legal assessments as to 
whether proposed services are prohibited or permissible. Nor is the 
rule intended to limit an audit committee's discretion to establish its 
own more stringent pre-approval procedures. Rather, the rule directs 
registered firms to present detailed information and analysis to audit 
committees for audit committees' consideration, in their own judgment, 
of

[[Page 12734]]

the best interests of the issuer and its shareholders.
    In addition, through the discussion required by Rule 3524(b), the 
Board expects registered firms to convey to the audit committee 
information sufficient to distinguish between tax services that could 
have a detrimental effect on the firm's independence and those that 
would be unlikely to have a detrimental effect. Some commenters 
expressed concern that an example of such a distinction that the Board 
provided in the proposing release could be understood to suggest that 
audit committees should not permit an auditor to provide any tax 
services unless the company had an internal tax department and/or a tax 
director who could make sound management decision in the best interest 
of the company. The Board did not intend to suggest that particular 
functional departments or managers must exist at a company before its 
auditor may provide it tax services. Rather, the inquiry the auditor 
should engage in when proposing to provide tax services to an audit 
client is whether, in the particular case, the company has the capacity 
to make its own decisions regarding the proposed tax matter, such that 
the auditor would not be in the position of performing management 
functions or making management decisions for the company.\70\ The 
resolution of this inquiry will vary depending on the nature of the tax 
matter at issue and the sophistication of the company, among other 
things.
---------------------------------------------------------------------------

    \70\ See PCAOB Rule 3600T (adopting AICPA Code of Professional 
Conduct, paragraph .05 of ET sec. 101, ``Independence'', 
Interpretation No. 101-3, ``Performance of Other Services,'' as of 
April 16, 2003) (``care should be taken not to perform management 
functions or make management decisions for attest clients the 
responsibility for which remains with the client's board of 
directors and management.'') (Interpretation No. 101-3 was later 
amended by the AICPA in December 2003).
---------------------------------------------------------------------------

    Rule 3524, both as proposed and as adopted, is intentionally silent 
as to when a registered public accounting firm should provide the 
required information about a proposed tax service to an audit 
committee. This is because, under the SEC's 2003 independence rules, 
audit committees themselves may have policies that establish a 
procedure and schedule for audit committee review of non-audit 
services, including tax services.\71\ Some commenters expressed concern 
that the rule might favor one approval method (ad hoc) over another 
(approval pursuant to policies and procedures). This is not the case. 
Similar to the SEC's 2003 independence rules, Rule 3524 does not 
dictate, or even express a preference as to, whether the documentation 
and discussions required under Rule 3524 should take place pursuant to 
an audit committee's policies and procedures on pre-approval or on an 
ad hoc basis. Many issuers have adopted policies that provide for pre-
approval in annual audit committee meetings. The Board understands that 
such an annual planning process can include as robust a presentation to 
the audit committee as a case-by-case pre-approval process, and Rule 
3524 is designed to be flexible enough to accommodate either system and 
to encourage auditors and audit committees to develop systems tailored 
to the needs and attributes of the issuer.
---------------------------------------------------------------------------

    \71\ 17 CFR 210.2-01(c)(7)(i)(B).
---------------------------------------------------------------------------

    The timing and method by which auditors describe for, and discuss 
with, audit committees proposed tax services will necessarily vary 
depending on different audit committees procedures. For those audit 
committees that hold an annual meeting to consider proposed non-audit 
services for the upcoming year, often by reviewing a proposed annual 
budget for non-audit services, it would be appropriate for auditors to 
provide their disclosures pursuant to Rule 3524(a), and hold their 
discussions pursuant to Rule 3524(b), about proposed tax services that 
are known at the time of the meeting in connection with or at that 
meeting. In addition, some audit committees' policies delegate 
authority to pre-approve non-audit services to one committee member and 
require reporting of any services approved by delegated authority at 
the next scheduled audit committee meeting, on a quarterly basis, or 
otherwise, in order for the audit committee to review an updated 
forecast or other summary of non-audit services. In such cases, it 
would be appropriate for auditors to provide the member holding 
delegated authority to approve a tax service a description of the 
service that complies with Rule 3524(a). Also, although the auditor may 
discuss the service with the member holding delegated authority when 
the member is considering the service, in order to comply with Rule 
3524(b), the auditor ought to discuss the service with the audit 
committee as a whole when the audit committee considers the updated 
forecast or other summary.
    Finally, Rule 3524(c) requires a registered public accounting firm 
to document the substance of its discussion with the audit committee 
under subparagraph (b). The few commenters who addressed this provision 
supported it.\72\
---------------------------------------------------------------------------

    \72\ One commenting auditor suggested that the Board consider 
requiring specific forms or occasions for auditor documentation of 
audit committee discussion. After considering this suggestion, the 
Board has determined that such forms or required timing of 
discussions could unnecessarily limit the scope of the discussions 
that, in the judgment of the auditor and audit committee, are 
appropriate.
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Effective and Transition Dates
    The Board intends that the rules become effective at varying times.
    In light of pre-existing legal and regulatory requirements, Rules 
3502 and 3520 do not, in any practical sense, create new criteria for 
appropriate conduct. Accordingly, no transition period is called for, 
and therefore the Board intends that Rules 3502 and 3520, as well as 
the definitions in Rule 3501, become effective 10 days after the date 
that the SEC approves the rules.
    Rule 3521 is based on the SEC's existing contingent fee rule, 
although it differs from that rule in certain respects. Accordingly, 
the Board will not apply Rule 3521 to contingent fee arrangements that 
were paid in their entirety, converted to fixed fee arrangements, or 
otherwise unwound before the later of December 31, 2005, or 10 days 
after the date that the SEC approves the rules. Of course, as noted 
above, the Commission's Rule 2-01 on auditor independence treats an 
auditor as not independent if it enters into a contingent fee 
arrangement with an audit client today.\73\
---------------------------------------------------------------------------

    \73\ 17 CFR 210.2-01(c)(5).
---------------------------------------------------------------------------

    Rules 3522, 3523, and 3524 establish new criteria for appropriate 
conduct by registered public accounting firms and their associated 
persons. The Board believes it is appropriate to allow a reasonable 
period of time for such firms to prepare internal policies and 
procedures, and train their employees to ensure compliance with these 
new requirements. In addition, the Board understands that engagements 
covered by these rules may be in progress and that firms will need to 
terminate or complete these engagements in a professional manner. 
Accordingly, the Board believes it is appropriate to allow transition 
periods for these rules.
    The Board understands that Rule 3523 will, in practical effect, 
lead to some registered firms terminating recurring engagements to 
provide tax services and may require certain members of public 
companies' senior management to find other tax preparers. Accordingly, 
the Board has determined that it will not apply Rule 3523 to tax 
services being provided pursuant to an engagement in process at the 
time the SEC approves the rules, provided that such services are 
completed on or before the later of June 30, 2006 or 10 days after the 
date that the SEC approves the rules. As

[[Page 12735]]

discussed above, the Board will treat engagements as ``in process'' if 
an engagement letter has been executed and work of substance has 
commenced; the Board will not treat engagements as ``in process'' 
during negotiations on the scope and fee for a service.
    Although the Board does not expect them to require the same 
transition as Rule 3523, Rules 3522 and 3524 also impose new legal 
requirements. Accordingly, the Board has determined that it will not 
apply Rule 3522 to tax services that were completed by a registered 
public accounting firm no later than the later of December 31, 2005, or 
10 days after the date that the SEC approves the rules. Rule 3524 will 
not apply to any tax service pre-approved before the later of December 
31, 2005, or 10 days after the date that the SEC approves the rules, 
or, in the case of an issuer that pre-approves non-audit services by 
policies and procedures, the rule will not apply to any tax service 
provided by March 31, 2006.
The Technical Amendments
    On November 22, 2005, the Board adopted technical amendments to 
Rules 3502 and 3522 and revised the effective dates for certain of the 
rules. The Board described these amendments as follows:
    After discussions with the SEC staff, the Board has decided to 
remove the word ``cause'' from the title and text of Rule 3502. This 
amendment is intended to avoid any misperception that the rule affects 
the interpretation of any provision of the federal securities laws. The 
rule, as amended, should be interpreted and understood to be the same 
as the rule adopted by the Board in July, however.\74\ In particular, 
under the amended rule, the person's conduct must have the same 
relation to the violation and the person must act with the same mental 
state as under the rule the Board adopted in July.
---------------------------------------------------------------------------

    \74\ See PCAOB Release No. 2005-014 (July 26, 2005), at 9-14 
(discussing Rule 3502).
---------------------------------------------------------------------------

    The Board is also amending Note 1 to Rule 3522(b) to correct a 
typographical error in the citation of the provision of the Internal 
Revenue Code cited in that note.
    In light of the time that has elapsed since their adoption, the 
Board has also decided to revise the effective dates for certain of the 
rules. Three of those rules `` Rules 3521, 3522 and 3524 `` had 
effective dates of the later of December 31, 2005 or 10 days after the 
date the SEC approves the rules.\75\ The Board has decided to revise 
the effective dates of those three rules to 60 days after the date the 
SEC approves the rules.\76\
---------------------------------------------------------------------------

    \75\ See id., at 47-48.
    \76\ The effective dates of Rules 3501, 3502, 3520 and 3523 are 
not changed by this release and remain as set forth in the Board's 
adopting release. Id.
---------------------------------------------------------------------------

    Specifically, the Board will not apply Rule 3521 to contingent fee 
arrangements that were paid in their entirety, converted to fixed fee 
arrangements, or otherwise unwound before 60 days after the date that 
the SEC approves the rules.\77\ The Board will not apply Rule 3522 to 
tax services that were completed by a registered public accounting firm 
no later than 60 days after the date that the SEC approves the rules. 
Rule 3524 will not apply to any tax service pre-approved before 60 days 
after the date that the SEC approves the rules, or, in the case of an 
issuer that pre-approves non-audit services by policies and procedures, 
the rule will not apply to any tax service provided by March 31, 2006. 
Combined with the time period since the rules' adoption, the extension 
of the effective dates for these rules should allow reasonable time for 
affected firms to prepare internal policies and procedures, train their 
employees to ensure compliance with the new requirements, and, if 
necessary, terminate or complete any ongoing engagements covered by the 
rules in a professional manner.
---------------------------------------------------------------------------

    \77\ Of course, the Commission's Rule 2-01 on auditor 
independence treats an auditor as not independent if it enters into 
a contingent fee arrangement with an audit client today. 17 CFR 
210.2-01(c)(5).
---------------------------------------------------------------------------

III. Date of Effectiveness of the Proposed Rule and Timing for 
Commission Action

    Within 35 days of the date of publication of this notice in the 
Federal Register or within such longer period (i) as the Commission may 
designate up to 90 days of such date if it finds such longer period to 
be appropriate and publishes its reasons for so finding or (ii) as to 
which the Board consents, the Commission will:
    (a) By order approve such proposed rule; or
    (b) Institute proceedings to determine whether the proposed rule 
should be disapproved.

IV. Solicitation of Comments

    Interested persons are invited to submit written data, views and 
arguments concerning the foregoing, including whether the proposed 
rules are consistent with the requirements of Title I of the Act. The 
Commission also requests specific comment on the following:
    Regarding proposed Rule 3522, the Board indicates that while an 
auditor's independence is not impaired per se upon a subsequent listing 
of a transaction under the regulations of the Department of Treasury or 
the Internal Revenue Service, ``firms should nevertheless be cautious 
in participating in transactions that they believe could become 
listed.'' The Board further states that, if a transaction later becomes 
listed, the auditor ``should carefully consider the potential 
impairment of its independence with the audit committee of its 
client.'' For example, the Board states that the ``auditor's judgment 
regarding appropriate financial reporting and disclosure concerning a 
transaction that becomes listed could become biased by the auditor's 
vested interests in defending its tax advice.'' The Board also declined 
to adopt a bright-line rule providing that, so long as a transaction 
recommended by the firm was not listed at the time it was executed, 
subsequent listing could not impair an auditor's independence at the 
later date. Instead, the Board notes that the requirement for the 
auditor to consider, on a forward-looking basis, whether such a 
situation may reasonably be thought to bear on its independence is 
addressed in existing independence requirements. As such, the Board 
determined not to expand proposed Rule 3522(b) to specifically address 
this issue. We request comment on this discussion. Is it clear from the 
Board's discussion that a subsequent listing of a transaction, while 
not in and of itself impairing the auditor's independence prior to the 
listing of the transaction, may impact independence from the date of 
the listing forward? Is additional guidance necessary regarding the 
consideration of an auditor's independence when a transaction planned 
or opined on by the auditor subsequently becomes listed?
    Comments may be submitted by any of the following methods:

Electronic Comments

     Use the Commission's Internet comment form (http://www.sec.gov/rules/pcaob.shtml); or
     Send an e-mail to [email protected]. Please include 
File Number PCAOB-2006-01 on the subject line.

Paper Comments

     Send paper comments in triplicate to Nancy M. Morris, 
Secretary, Securities and Exchange Commission, 100 F Street, NE., 
Washington, DC 20549-1090.

All submissions should refer to File No. PCAOB-2006-01. This file 
number

[[Page 12736]]

should be included on the subject line if e-mail is used. To help the 
Commission process and review your comments more efficiently, please 
use only one method. The Commission will post all comments on the 
Commission's Internet Web site (http://www.sec.gov). Copies of the 
submission, all subsequent amendments, all written statements with 
respect to the proposed rule that are filed with the Commission, and 
all written communications relating to the proposed rule change between 
the Commission and any person, other than those that may be withheld 
from the public in accordance with the provisions of 5 U.S.C. 552, will 
be available for inspection and copying in the Commission's Public 
Reference Section, 100 F Street, NE., Washington, DC 20549-1090. Copies 
of such filing also will be available for inspection and copying at the 
principal office of PCAOB. All comments received will be posted without 
change; we do not edit personal identifying information from 
submissions. You should submit only information that you wish to make 
available publicly. All submissions should be submitted on or before 
April 3, 2006.

    By the Commission.
Nancy M. Morris,
Secretary.
[FR Doc. 06-2365 Filed 3-10-06; 8:45 am]
BILLING CODE 8010-01-P