U.S. regulators are cracking down on Chinese companies for issuing misleading financial reports. But the feds have been stymied so far by a wall of resistance to U.S. accounting rules—and not just from the companies.
The Securities Exchange Commission on Dec. 3 formally accused the Chinese affiliates of the Big Four accounting firms of violating U.S. law. The issue at hand: failure to provide documents in ongoing accounting fraud investigations of nine U.S.-listed, China-based companies.
Ernst & Young Hua Ming, Deloitte Touche Tohmatsu Certified Public Accountants, KPMG Huazhen, and PricewaterhouseCoopers Zhong Tian CPAs have been charged “with violating the Securities Exchange Act and the Sarbanes-Oxley Act, which requires foreign public accounting firms to provide the SEC upon request with audit work papers involving any company trading on U.S. markets,” said a statement on the SEC website. The SEC also named a fifth U.S. firm, BDO China Dahua.
“Only with access to work papers of foreign public accounting firms can the SEC test the quality of the underlying audits and protect investors from the dangers of accounting fraud,” SEC Enforcement Director Robert Khuzami said in a prepared statement. “Firms that conduct audits knowing they cannot comply with laws requiring access to these work papers face serious sanctions.”
Over the past two years, the SEC has audited scores of Chinese firms amid concerns that many are issuing financial statements that don’t reflect their real operations. The alleged violations include overstating revenue and profit. Many of them have listed on U.S. exchanges through so-called reverse mergers—when a company buys a largely inactive shell company that already has a listing and so can avoid strict disclosure requirements. To date, the SEC has deregistered almost 50 companies, including China MediaExpress Holdings, and launched fraud investigations against more than 40 issuers and company executives.
The investigations, however, have faced serious obstacles to gathering evidence within China. Beijing’s attitude has been that its own accounting system is fully adequate and that there is no need for the U.S. to conduct its own probe. And China’s security regulators and finance officials have been loathe to participate in any joint investigation.
The international accounting firms, for their part, say compliance with SEC demands would mean breaking Chinese law. “The fact that the action is being taken collectively against all of the four largest audit firms and one other firm demonstrates that this is a profession-wide issue,” Caroline Nolan, a PricewaterhouseCoopers spokeswoman, said in an e-mail statement. “For its part, PwC China has cooperated with the SEC at every opportunity. However, PwC China will, and must, comply with its legal obligations under China law.”
“Ernst & Young Hua Ming supports close working relationships between regulators to enable them to cooperate and share information with one another,” Will White, director of global and EMEIA media relations for Ernst & Young, said in an e-mail statement. “We hope that an agreement can be reached between U.S. and Chinese regulators that will enable our compliance with all applicable laws and regulations.”
The issue is also tied up with China’s historic resistance to perceived foreign meddling in its internal affairs, says Paul Gillis, a professor at Peking University’s Guanghua School of Management and an expert on China’s accounting standards. National security has also been raised as a possible concern by Beijing. This makes any resolution even less likely, and the impasse could eventually lead to the delisting of all Chinese companies in the U.S., predicts Gillis.
“The U.S. is looking at this in terms of its own laws and regulations,” says Gillis, who maintains a blog on China accounting. “China is approaching this issue more ideologically, from a national sovereignty issue. This involves Chinese views of foreign oppression going all the way back to the Opium Wars and Japanese occupation. The idea of foreigners pushing around Chinese is deeply offensive.”