A joint statement was issued this week by the Ministry of Finance and the IFRS Foundation) about convergence of Chinese Accounting Standards (CAS) with International Financial Accounting Standards (IFRS). Both parties agreed that a single set of high quality global accounting standards is a good idea.
On November 25, 2005, Sir David Tweedie of the International Accounting Standards Board signed a memorandum with the Ministry of Finance declaring that CAS had substantially converged with IFRS. The agreement was premature in my view since several significant differences remained, but the political pressure on Tweedie to bring China into the IFRS fold was immense. In 2006, China launch a successful initiative to amend IFRS related party disclosure rules to exclude companies under state ownership, effectively converging IFRS with CAS on this point. In 2009, China announced it would fully converge CAS with IFRS by 2011 in accordance with a G20 agreement related to the financial crisis. It didn’t happen. But the Tweedie agreement was sufficient for China to get Hong Kong to accept CAS financial statements for Chinese companies listed in Hong Kong.
Ernst and Young (EY) Hong Kong lost an important case in Hong Kong that may have widespread impact on the profession and the securities markets.
The South China Morning Post reports that the Court of First Instance on Friday rejected EY's plea that it could not hand over to the Securities and Futures Commission the auditors' working papers relating to mainland listing candidate Standard Water as they constituted a "state secret".
This case was particularly embarrassing for EY, since its Hong Kong affiliate served as accountant of record for Standard Water’s proposed IPO, despite doing nearly no audit work. Instead, the audit was done by EY’s mainland affiliate. When SFC asked to see the working papers, EY said they did not have them – a violation in itself, and that its mainland affiliate, EY Hua Ming, had refused to turn them over citing state secrets. EY was finally cornered in Court and had to admit they actually had the work papers on a computer that had been brought to Hong Kong, but said that China’s state secrets laws prohibited them from turning the papers over to SFC.
A new front has opened in the dispute between China and the United States over audit regulation. China has blocked the PCOAB from required inspections of auditors of U.S. listed Chinese companies based on arguments of state secrecy and national sovereignty. Chinese regulators have argued that they cannot allow the inspections of audits where the working papers might include state secrets. An attempt to set up a pilot program apparently fell apart when U.S. and Chinese negotiators were unable to agree on which companies could be excluded from an inspection program. PCAOB Chairman James Doty in remarks to the Standing Advisory Group of the PCAOB suggested that the problem is the myriad of Chinese bureaus that have a say in the matter.
The new front is in banking. Kering SA, owner of the Gucci brand, has sued counterfeiters in U.S. courts and has issued subpoenas to the Bank of China for information about transactions of the counterfeiters. Despite orders from a federal judge, the Bank of China has refused to turn over the information, saying that to do so would violate Chinese law.
Bloomberg reported this week that a final agreement between the PCAOB and Chinese regulators over inspections of Chinese audit firms has fallen through. The article says that the Chinese had so narrowed the terms of inspections that the PCAOB decided it was not worth pursuing the deal.
The PCAOB is the regulator of accounting firms that audit US listed companies, and its most important function is to periodically inspect the accounting firms to make certain that they are following US auditing standards. China has not allowed the PCAOB to conduct inspections in China, even of international firms, since it considers allowing foreign regulators to enforce foreign laws on Chinese soil to infringe on its national sovereignty.
There are no good options left for the PCAOB. Successful short seller attacks indicate that fraud and auditing failures continue to be a problem in China. The only real tool left in the PCAOB toolbox is to deregister the accounting firms that it cannot inspect. But this option would quickly lead to the delisting of Chinese companies from US markets, including companies like Alibaba and Baidu.
Valeant Pharmaceuticals International (NYSE: VRX) (Valeant) was recently the subject of a research report by Citron that alleged the company was the pharmaceutical Enron. The best summary is here by Bronte Capital. The stock price has collapsed and allegations continue to fly. Interestingly, the allegations swirling around Valeant relate to the accounting rule that was created to stop the abuses exploited by Enron – the variable interest entity (VIE).
Citron alleged that Valeant had a network of phantom pharmacies operated by Philidor. Valeant had an undisclosed option to purchase Philidor and consolidated the financial statements of Philidor on the basis that it was a VIE but did not disclose this accounting because the operations were deemed immaterial at 7% of sales. Citron alleged channel stuffing at the phantom pharmacies. Valeant stated that consolidation meant that sales to the VIEs could not be recognized until there was a sale to an outside customer. Valeant’s explanation of the accounting seems plausible, although I question whether the argument that VIE disclosures can be omitted at that level of materiality is correct.
NEEQ has listed 3,365 companies since 2013. The 3,751 listed companies are mostly microcaps. Listing on the NEEQ is easy. Unlike China’s exchanges, there are no requirements that the companies be profitable or growing. China’s security regulator has little involvement and local CPA firms typically audit the listed companies.
Sound familiar? Yes, it appears to be a Chinese version of the reverse merger technique used by many companies to quickly list in the United States. That technique collapsed in wave of fraud. The problem with many reverse mergers was that the market was that poorly regulated and unscrupulous promoters and advisors took advantage of the lack of regulation to perpetrate frauds on the market. There is a big difference, however. US regulators could not investigate or punish fraudsters located in China. Chinese regulators can.
The Public Company Accounting Oversight Board (PCAOB) has not been allowed to inspect accounting firms in China, despite the fact that hundreds of Chinese companies are listed in the United States and their auditors are required to be inspected. China has blocked the inspections because they consider allowing foreign regulators to enforce foreign rules against Chinese persons on Chinese soil to violate China’s national sovereignty, and because of concerns that audit working papers might contain state secrets. Recent academic research suggests it may be in China’s best interest to allow the inspections.
MIT professor Nemit Shroff authored a study titled Real Effects of Financial Reporting Quality and Credibility: Evidence from the PCAOB Regulatory Regime. Professor Schroff examined the clients of non-US auditors that were inspected by the PCAOB and found that audit quality on all of their clients improved, not just those listed in the US and subject to PCAOB and SEC jurisdiction. In other words, there is a spillover effect. PCAOB inspections improve all of the audits, not just the US audits.
A recent activist short selling report on Hong Kong listed China Zhongwang Holdings (1333 HK) alleges an elaborate scheme the heart of which is the alleged sale of billions of dollars of aluminum to companies controlled by the Chairman’s family and proxies. I have no opinion as to whether the allegations are correct, but they do illustrate a problem I see as a major obstacle to corporate governance in Asia.
The report lays out what are alleged to be undisclosed related parties. Hong Kong has strict rules about related party disclosures, probably because Asians seem to have a preference in doing business with the family. That is, of course, of great concern to investors, since profits can easily be tunneled out to insiders by mispricing related party transactions.
From what I can tell, however, most of the alleged undisclosed related parties may not be related parties under the rules, or it may be impossible to prove that they are. The rules that define a related party are set forth in Hong Kong Standard on Auditing 550 and define a related party as one of these situations:
One of the major problems with Chinese companies that use the US capital markets has been the inability of US regulators to effectively regulate them. The Public Company Accounting Oversight Board (PCAOB) regulates auditors of all US listed companies, but has been banned from conducting inspections of these accounting firms in China because China has viewed the enforcement of foreign laws on Chinese soil by foreign regulators to be a violation of its national sovereignty.
The PCAOB has been unsuccessfully negotiating for access for over a decade. A measure of cooperation was reached in 2013 when Chinese regulators agreed to cooperate with the PCAOB on enforcement matters. Enforcement, however, is a small part of the PCAOB’s mandate, and they have remained blocked from doing inspections on Chinese soil. That included Hong Kong to the extent the matters related to the mainland. China has blocked the removal of audit working papers from the mainland, meaning there was no alternative way to conduct the inspections.
I am back from a great summer in California and will be paying more attention to my neglected blog.
For the past several years I have been reporting on changes in the rankings of leading accounting firms in China (2011, 2012, 2013) based on the CICPA’s annual rankings. The data is incomplete, since it only includes the audit firms, not the consulting practices run by most of the firms in separate entities.
The 2014 rankings are out. The Top 7 remain in the same position, with some shuffling below. UHY Vocation replaced Daxin in the Top 10.
EY grew at almost 20%, putting it within a pencil’s reach of BDO which had earlier displaced EY from the Top Four in China. #6 KPMG had a horrible no-growth year, probably because it was the big loser in mandatory audit rotation.
Overall the accounting market in China for the Top 100 firms grew at 13%, with the Big Four growing at 10% and local firms growing at 15%. All of those growth rates exceed GDP growth, indicating that accounting is playing a more significant role in China’s economy.
Last week Tianhe Chemicals (Tianhe), a Chinese company listed in Hong Kong, announced that its auditor, Deloitte, was planning to disclaim an opinion on its financial statements. Tianhe was the target of an activist short seller campaign by Anonymous Analytics last September and a damaging analysis by the Associated Press in November. Also last week Sihuan Pharmaceuticals (Sihuan) published its annual report for 2014 including a disclaimer opinion on its financial statements by auditor PwC. PwC used seven pages to explain why it was unable to express an opinion on the financial statements. Both stocks remain suspended.
Disclaimer opinions are rare, so two in one week is notable. These opinions are rare because they are useless to companies and investors, so companies generally will not accept them. Regulators and exchanges are unlikely to accept a disclaimer opinion, which explains why these stocks are suspended and are likely to remain so.
There are four types of audit opinions. A clean opinion (also called an unqualified opinion) means that the auditor believes that the statements follow GAAP and are free from material error. Unqualified opinions are the most common audit opinions. The terminology can be confusing to the layman. I had several clients in my career demand a qualified opinion since they certainly did not want an unqualified one, and it took some effort to explain that unqualified is better than qualified.
New rules restricting the activities of foreign CPAs in China went into effect on July 1. Today, the South China Morning Post reports that Hong Kong CPAs have been largely exempted from these new rules.
Hong Kong CPA firms will be required to leave their working papers on the mainland. That should cause considerable concern to Hong Kong and US regulators who will be unable to review the work of auditors without the cooperation of Chinese regulators.
I believe the real crackdown to come is over the US listed Chinese companies that are audited by small US based accounting firms. Most of these companies came to market through reverse mergers and trade thinly, if at all, on over-the-counter boards. These companies have had a high incidence of fraud and have embarrassed Chinese regulators who have no authority over them. After the NYSE and NASDAQ cracked down on reverse mergers by requiring a seasoning period before listing, the reverse merger market for Chinese companies in the U.S. died, replaced by China’s National Equities Exchange and Quotations (NEEQ – China’s third board). NEEQ has listed over 2,000 small Chinese companies with an average market cap of under $75 million.
Hong Kong government has published the results of its consultation to improve the regulatory regime for listed company auditors. Hong Kong has long needed reform because the current system of self regulation clearly is not working. The Hong Kong Institute of CPAs is perhaps the most feckless of audit regulators worldwide. The European Union withdrew regulatory equivalency from Hong Kong with respect to audit regulation, which appears to have been the event that prodded Hong Kong into reform.
The proposal, which should now advance to enabling legislation (estimated 2016/2017), is to beef up the regulatory powers of the Financial Reporting Council (FRC), making it similar to other regulators like the U.S. Public Company Accounting Oversight Board or the Canadian Public Accountability Board. The new rules will apply only to auditors of public companies, although they could be expanded to cover other public interest entities.
The HKICPAs will retain certain responsibilities, like registration of CPAs, setting of standards, etc. I have no objection to this, especially with respect to the setting of standards since Hong Kong adopts international standards and local standard setting is ceremonial.
Yesterday the Ministry of Industry and Information Technology (MIIT) issued a pronouncement (2015) 196 announcing a pilot program that appears to allow 100% foreign ownership of e-commerce businesses.
I had anticipated this development as a way to let foreign companies using the VIE structure to operate e-commerce a way out of the proposed crackdown on VIEs under the new foreign investment law. The proposed law may limit the use of VIEs to situations where the foreign parent company is ultimately controlled by Chinese. Many of the overseas listed companies have Chinese control of the offshore company, either through stock ownership, dual class share structures, or special control arrangements. MNCs operating in restricted sectors would not be able to restructure to be controlled by Chinese, and face a possible ban from China.
The new MIIT rule provides an escape valve. It appears limited to companies operating in online data processing and transaction processing (operating e-commerce). It is unclear to me how far that definition will stretch.
The Ministry of Finance issued important provisional regulations on CPA practices carrying out audit services for PRC enterprises listed outside China. The rules were proposed a little over a year ago, freaking out Hong Kong CPAs who saw their livelihood disappearing.
The new rules take effect on July 1, 2015. They will require foreign CPA firms that audit overseas listed Chinese companies to cooperate with a Chinese CPA firm that has at least 25 CPAs. An exception exists for companies with Hong Kong, Macau or Taiwan auditors that have more than 50% of the shares held be persons in those provinces that will be allowed to continue present arrangements. I think few public companies will qualify for the exception.
I believe these rules were directed at the small US CPA firms that audit Chinese firms that mostly came to market through reverse mergers. Most of these firms clients trade thinly, if at all, on the OTCBB or Pink Sheets. Chinese regulators have expressed frustration that Chinese auditors have been tarred with the poor performance by some of these firms in detecting fraud. Many of the companies that use small US CPA firms are likely to have difficulty getting audits done under the new regulations. The auditor will have to align with a Chinese CPA firm yet still do enough work to be considered the principal auditor. The PCAOB has punished firms that outsourced the entire audit to a local firm. In any event, the economics of the business have changed, since the CPA firms are now going to have to share fees with a local firm. This may be the final straw that leads some of these firms to abandon the market.
There is a interesting editorial in Caixin today. It was written by Wang Rao, CEO of Chinese investment bank e-Capital. Wang argues it is time for overseas listed Chinese companies to unwind their VIE structures and seek listing at home. The editorial comes on the heels of an announcement that Chinese investment manager Shengjing had launched an investment fund dedicated to helping overseas-listed Chinese to delist and list instead on China’s stock exchanges. I have long argued that Chinese markets are the appropriate place for Chinese companies to list, since Chinese investors and regulators are better able to understand the companies. The Chinese stock markets, however, have not developed sufficiently for this to happen, I had forecast it would take 5-10 for the necessary reforms to make domestication possible. It appears that things may be moving faster than I expected.
The main factor driving this thinking is the rapid development of China’s own stock markets. The China Stock Market (SSE Composite) has more than doubled in the last year. Perhaps even more important is the success of China’s new third board, the National Equities Exchange and Quotations (NEEQ). NEEQ listed an average of 193 companies a month for the last four months, and now lists 2,343 companies with a total market cap of over US$180 billion. These are mostly small companies with an average market cap of only $77 million. Regulators have promised to tighten supervision of this lightly regulated market, and time will tell whether this market will be plagued with the rash of frauds that were seen with US reverse mergers on the US OTCBB.
Two research reports came out recently against Vipshop Holdings (VIPS), a Chinese e-commerce company listed on NYSE. One report, from Beijing based J Capital, apparently focuses on differences between US regulatory filings and Chinese statutory filings. The J Capital report has not been made public, and my observations are based on the press reports. The company has pushed back on this report saying J Capital read the wrong statutory filings. I don’t put much faith in these types of analyses, since there are many reasons why those filings might be different that don’t point to fraud in the US filings.
The other report is from heretofore unknown research firm Mithra Forensic Research (Mithra). Mithra has taken the more traditional short selling research methodology so effectively used by the likes of Muddy Waters that involves throwing the kitchen sink at the company. At the heart of Mithra’s allegations is that VIPS is improperly recording revenue.
While it is disappointing to see another billion dollar plus market-cap Chinese company come under short attack, I am slightly encouraged because this attack may be different than many of the earlier attacks. Carson Block has said that frauds in the US typically are a result of overly aggressive application of ac-counting standards, but in China, frauds have typically been exposed as situations where large parts of the company simply do not exist.
The State Council, China’s cabinet, last week promised policies to boost e-commerce in China. Included in the proposed reforms is a promise to reduce shareholding restrictions on foreign investments.Premier Li Keqiang appears to be leading the effort.
Nearly all of China’s larger internet companies have Cayman Islands incorp-orated parent companies that were used to facilitate taking foreign capital and listing in overseas markets. Because current Chinese regulations severely re-strict foreign companies from participating in the internet sector, the much maligned variable interest entity (VIE) structure was created to circumvent the rules by operating E-commerce businesses in Chinese companies controlled through contracts instead of through ownership. Investors soon learned the painful lesson that contractual control is inferior to actual ownership.
In January, the Ministry of Commerce issued a proposed foreign investment law for public comment. The new foreign investment law makes it clear that the VIE structure does not circumvent the foreign investment restrictions. In other words, it doesn’t work. The proposed law has a twist – if the foreign company is Chinese controlled, then investment from that foreign company would be treated like domestic investment, and would not be subject to foreign investment res-trictions. The proposed solution works perfectly for many of China’s largest internet companies, like Alibaba and Baidu, which are controlled through corp-orate governance structures that leave voting control in the hands of minority Chinese shareholders (management).
A number of regulatory reforms related to auditing in China appear to have stalled, creating risk for investors.
The most significant change was proposed in Hong Kong, where the regulation of listed company auditors would be taken away from the Hong Kong Institute of CPAs (HKICPAs) and given to the Financial Regulatory Commission. Hong Kong had faced the embarrassment of having its regulatory equivalency with the European Union revoked because of the lack of an independent audit regulator. The HKICPA has proven to be an ineffective regulator. Public consultations were held in Autumn 2014 and then everyone went silent. In March, HK Secretary for Financial Services and the Treasury, Professor KC Chan, reported that the government had completed the public consultation and found majority support for the direction of the reforms. The consultation conclusions are to be published in the middle of this year.
China’s Ministry of Finance issued draft regulations on cross-border audit services on April 21, 2014. The proposed regulations would ban foreign auditors from working in China, requiring them to work with affiliates on the mainland. While the proposed regulations had no meaningful effect on the Big Four, since they all have huge practices on the mainland. I believe the regulation was targeted at the many small US CPA firms that had been traveling to the mainland to audit reverse mergers. Chinese regulators felt that shoddy work by some of these foreign firms had unfairly tarnished the reputation of Chinese accountants. Perhaps unexpectedly, the proposed regulation caused uproar among smaller Hong Kong CPA firms that had significant practices serving mainland companies with listings in Hong Kong. As far as I can tell, nothing has been done since April.
China has been a major focus in recent years for short selling research firms. Short sellers make money by borrowing stock, selling it, and hoping to repurchase and return the borrowed stock at lower prices. Short selling campaigns put short positions into place, and then publish reports about the companies that often allege fraud or overvaluation. The campaigns often lead to a sharp decline in stock prices, investigations, and even delistings, giving the short sellers significant profits.
I am planning to teach a course this fall at Peking University that will focus on short selling campaigns against Chinese companies. I want to share some interesting data about the history of short selling campaigns against Chinese companies. I obtained this data from the excellent database offered by Activist Shorts Research. Founder Adam Kommel kindly gave me access to this database. I highly recommend that any fund investing in Chinese equities subscribe to it.
Here is a table I extracted from the data: