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SEC shuts down auditor BF Borgers, levying $14M in fines for fraud on 1,500+ filings

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The Securities and Exchange Commission charged BF Borgers CPA PC, a fast-rising auditing firm based in Lakewood, Colorado, on Friday with deliberate, systemic failures to comply with Public Company Accounting Oversight Board standards for audits and reviews on more than 1,500 SEC filings from January 2021 through June 2023, while permanently suspending the firm.

The firm agreed to pay a $12 million civil penalty, and its owner Benjamin Borgers agreed to pay a $2 million civil penalty to the SEC.

The SEC also charged the firm and its owner with falsely representing to their clients that the firm’s work would comply with PCAOB standards; fabricating audit documentation to make it appear that the firm’s work did comply with standards; and falsely stating in audit reports included in more than 500 public company SEC filings that the firm’s audits complied with standards.

SEC building with official seal
The Securities and Exchange Commission headquarters in Washington, D.C.

Joshua Roberts/Bloomberg

Both the firm and Borgers himself also agreed to permanent suspensions from appearing and practicing before the commission as accountants, effective immediately. Borgers did not immediately respond to requests for comment.

A relatively small firm, BF Borgers quickly climbed the rankings in recent years in terms of the number of new SEC audit clients it took on, dominating the rankings in 2021, according to Ideagen Audit Analytics. However, in its most recent PCAOB inspection report,  all 11 of the audits reviewed in 2022 were included in Part I.A of the report due to the significance of the deficiencies identified. Among its clients is Trump Media & Technology Group Corp., which runs Truth Social and recently went public by merging with Digital World Acquisition Corp., a special purpose acquisition company.

“Ben Borgers and his audit firm, BF Borgers, were responsible for one of the largest wholesale failures by gatekeepers in our financial markets,” said Gurbir Grewal, director of the SEC’s Division of Enforcement, in a statement Friday. “As a result of their fraudulent conduct, they not only put investors and markets at risk by causing public companies to incorporate noncompliant audits and reviews into more than 1,500 filings with the commission, but also undermined trust and confidence in our markets. Because investors rely on the audited financial statements of public companies when making their investment decisions, the accountants and accounting firms that audit those statements play a critical role in our financial markets. Borgers and his firm completely abandoned that role, but thanks to the painstaking work of the SEC staff, Borgers and his sham audit mill have been permanently shut down.”

The SEC’s order found that BF Borgers failed to adequately supervise and review the work of the team performing the audits and reviews; did not properly prepare and maintain audit workpapers; and failed to obtain engagement quality reviews, without which an audit firm may not issue an audit report. According to the SEC’s order, of BF Borgers’s 369 clients whose public filings from January 2021 through June 2023 incorporated the firm’s audits and reviews, at least 75% of the filings did not comply with PCAOB standards.

The SEC also found that, at Benjamin Borgers’ direction, BF Borgers staff copied workpapers from previous engagements for their clients, changing only the relevant dates, and then passed them off as workpapers for the current audit period. That meant the workpapers falsely documented work that hadn’t been performed.

Among other problems, the workpapers regularly documented purported planning meetings — required to discuss a client’s business and consider any potential risk areas — that never occurred and falsely represented that both Benjamin Borgers, as the partner in charge of the engagement, and an engagement quality reviewer had reviewed and approved the work.

The SEC’s order found that Borgers engaged in improper professional conduct and violated, and caused violations of, the antifraud, recordkeeping, and other provisions of the federal securities laws. Without admitting or denying the SEC’s findings as to each of them, BF Borgers and Benjamin Borgers both consented to an order, effective immediately, under which they were ordered to pay civil penalties and were denied the privilege of appearing or practicing before the SEC as an accountant. In addition, the commission censured Borgers and his firm and said they would have to cease and desist from committing or causing violations of the relevant provisions of the federal securities laws.

In its yearly report on accounting and auditing enforcement activity by the SEC, Cornerstone Research reported in February that the SEC publicly disclosed 83 accounting and auditing enforcement actions in fiscal year 2023, a 22% increase from FY 2022 and the highest number of actions initiated since FY 2019. Monetary settlements in accounting and auditing enforcement actions totaled $583 million, a 7% decrease from the prior fiscal year and 47% lower than the average of total monetary settlements in the prior five fiscal years.

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Accounting

EV makers win 2-year extension to qualify for tax credits

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The Biden administration gave carmakers a partial reprieve in finalizing electric-vehicle tax credit rules intended to loosen China’s grip on battery materials crucial to the car industry’s future.

Starting in 2025, plug-in cars containing critical minerals from businesses controlled by U.S. geopolitical foes, including China, will be ineligible for up to $7,500 tax credits, the Treasury Department said Friday. Automakers will get an extra two years, however, to shore up sourcing of graphite and other materials considered difficult to trace to their origin.

The rules put finishing touches on President Joe Biden’s push to develop an alternative to China’s preeminent EV and battery supply chains. The administration is imposing stringent sourcing requirements for raw materials and components in order for electric cars to qualify for the tax credits that are a powerful draw for consumers otherwise put off by still-high prices.

“These actions provide a strong signal to automakers that we want to see EVs built here in America with components and critical minerals sourced from the U.S. and our allies and partners,” White House Climate adviser John Podesta said.

The two-year exemption speaks to the challenges automakers have had reducing their reliance on Chinese suppliers of materials such as graphite. The mineral used in battery anodes emerged as a geopolitical flashpoint last year when Beijing placed restrictions on exports, sparking fears of global shortages.

The Biden administration’s rules don’t allow tax breaks for vehicles with batteries containing critical minerals from foreign entities of concern, a term referring to businesses controlled by US geopolitical foes such as China, North Korea, Russia and Iran. Those requirements take effect in 2025, as proposed.

But Biden has given auto and battery manufacturers some flexibility on this front, too. In December, the administration decided to allow materials from foreign subsidiaries of privately owned Chinese companies in non-FEOC countries — such as Australia or Indonesia — to count toward tax credit eligibility. This drew criticism from Western miners and policymakers who want Biden to more aggressively cut China out of the supply chain.

Automakers will now have until 2027 to curb the use of certain difficult-to-trace materials from FEOCs, provided that they submit plans to comply after the two-year transition and it’s approved by the government, the Treasury Department said.

“FEOC exemptions for any battery materials should be temporary,” said Abigail Hunter, the executive director of the Center for Critical Minerals Strategy at SAFE, a Washington think tank. “We need a clear exit strategy, lest we continue our dependencies on adversaries and further undermine the competitiveness of U.S. and allied critical minerals projects.”

The rules release concludes two years of work on requirements that already have reduced the number of EVs eligible for tax credits. About 20 models qualify today, compared to as many as 70 previously. Treasury Department officials said Friday they expect the number of qualifying vehicles to continue to fluctuate as companies adjust their supply chains.

Automakers including Tesla Inc., General Motors Co. and Toyota Motor Corp. have lobbied for additional flexibility to meet requirements. A lobby group representing automakers based outside the US praised the additional two years provided for the difficult-to-trace materials.

“It will take time for the global production and sourcing of graphite and other critical minerals needed to produce EVs to match the strict standards required by automakers,” Autos Drive America President Jennifer Safavian said in a statement.

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Oregon senator Ron Wyden demands refunds for TurboTax customers over glitch

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Senate Finance Committee Chairman Ron Wyden, D-Oregon, demanded in a letter that Intuit give a refund to Oregonians who, due to a software glitch in the company’s TurboTax tax prep software, were steered toward taking the standard deduction when they would have paid less tax if they’d itemized. The senator said the company had known of this glitch in early April, but didn’t acknowledge it until shortly before the filing deadline.

The glitch, according to the Oregonian, affected about 12,000 people, some of whom reported having to pay hundreds more in tax dollars than they needed to. They were generally using the desktop version of the software, versus the online version.

“Fixing this error will require identifying all affected Oregonians, notifying them, and ensuring they can be made whole,” said the senator. “In part because of TurboTax’s various guarantees and market share, Oregonians who overpaid due to TurboTax’s error likely assumed the software opted them into claiming state standard deduction to minimize their taxes. That assumption was wrong. And because the vast majority of taxpayers understandably dread filing season and avoid thinking about taxes after it ends, many of those affected will not learn on their own that they overpaid. Intuit must act to inform them and help them get the full tax refunds they are entitled to receive.”

The TurboTax logo on a laptop computer in an arranged photograph in Hastings-on-Hudson, New York, U.S., on Friday Sept. 3, 2021. Photographer: Tiffany Hagler-Geard/Bloomberg

Tiffany Hagler-Geard/Bloomberg

An Intuit spokesperson said the company is currently working to resolve the issue, referencing their tax return lifetime guarantee.

“As part of our tax return lifetime guarantee, we are committed to the accuracy of TurboTax tax filers’ tax returns to ensure they receive the maximum refund possible. We are quickly working to resolve an issue impacting a small number of customers and actively engaging with those filers impacted to ensure their returns are correct and that they receive the maximum refund they are owed,” said the spokesperson.

The senator has also asked Intuit for an explanation of how this glitch happened in the first place, as well as an approximate timeline for the steps it took once it became aware of it. He has also asked for a count of precisely how many people were affected, as well as Intuit’s plans for both addressing this problem and what the company will do to prevent it in the future.

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Accounting

On the move: RSM names a client experience leader

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RSM US named its first enterprise client experience leader; the Financial Accounting Foundation is looking for nominees for its Financial Accounting Standards Advisory Council; RKL named a new office managing partner; REDW appointed three new vice presidents; and other firm and personnel news from across the accounting profession.

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