The Kerviel affair, an exercise essential to practice accounting and tax business language
That passion, that bites and hyperbole has led the Kerviel affair. It has even come to think upside down, some are offended by the order for damages that would be 170,000 years working for Jerome Kerviel to be offended by the fact that this person has lost the equivalent 170,000 years of working with others, he has endangered the future of the 160,000 employees of Societe Generale. It is strange sometimes to see how offenders are perceived better than their victims.
Societe Generale has certainly been wrong: a deficient internal control system on its trading activities simple, the development of programs that handle thousands of transactions without nanosecond-responsive in the deployment same time control programs necessary. But she has already endured a heavy toll of financial loss, loss of certain image, to conduct a rapid recapitalization, blame and condemnation by the Banking, ...
Ironically, Societe Generale had been involved in one of his seminars in late 2007 Nicholas Taleb, a philosopher of chance and uncertainty, a former trader markets, author of "The Black Swan - The Power of uncertainty "and that he was alluded to in an article I posted in January 2010: Enterprise Risk Management
It seemed interesting to revisit this case but in terms of accounting and tax issues that could generate and it will still continue to generate.
THE SEQUENCE OF EVENTS
Societe Generale "has updated the 19th and January 20th, 2008 activities and concealed on an exceptional scale on decision-directional positions conducted mainly during 2007 and early 2008 by a trader in charge of market activity on derivatives "plain vanilla" European stock index. "(Reference Document on the SG 2007)
Let the key dates in these positions "unauthorized and concealed, as reflected in the summary report of the Mission Green, SG-General Inspectorate of 20/05/2008:
- 2005 and 2006: the presence of some fraudulent transactions for amounts still limited P & L: 180 K € for 2005 and 1800 K € for 2006.
- 2007: from constitution of March 2007 of a short position in index futures unwound in November 2007 and generating a profit of 1,471 million €.
- 2008: constitution between 2 and 18 January a short position in index futures on Jan. 20 discovery and unwound between 21 and 23 January 6272 resulting in loss of M €.
From there, two big issues facing the Societe Generale: accounting and tax treatment what does it imply that these operations?
THE ACCOUNTING PROBLEMS
Regulation CRC 2000-06 on liabilities a provision defines an element liabilities, and the conditions necessary for its formation. This regulation has been codified in the General Accounting Plan, which states in Article 312-1.2: "At the end of the year, a liability is recorded whether the obligation exists at that date .... "
The application of accounting rules for the treatment of these transactions "unauthorized and concealed", discovered in January 2008 at the Societe Generale, the lead would have :
- to register a product before tax 1,471 M € in net income for 2007 under operations unwound and incorporated in 2007 ,
- to submit in the notes information about the loss before tax of € 6,272 million under operations established and completed in January 2008 ,
- to recognize the loss before tax of € 6,272 million in income for fiscal 2008.
In its background paper on fiscal 2007, the Company does disagrees General these rules and not about the statement is identical except for one thing, and reads (note 28 to the financial statements): "the application of accounting requirements for the accounting treatment of these transactions .... would have lead to ... "and not " would lead to the .
Detail semantics you say, but detail that transforms an obligation accountant an option, an option. Semantic detail which foreshadows the position ultimately adopted by the Societe Generale in its accounts Social:
"For the benefit of its shareholders and the public, Societe Generale, however, felt that this presentation proved unfit to give a fairly its financial position as at 31 December 2007 and considered that it was more appropriate to see the outstanding results of 2007 the full financial consequences of transactions in the context of these unauthorized activities. To this end, in accordance with the provisions of Article L. 123-14 of the Commercial Code, Societe Generale decided to waive the provisions of Regulation No. 2000-06 of the Accounting Regulatory Committee on liabilities, by recognizing outstanding support in the results of fiscal 2007 a provision for the total cost of stopping unauthorized activity.
After finding this in provisions for losses on trading activities and concealed for - EUR 6 272 million, exceptional items for 2007 thus amounts to - 4801 M EUR.
Article 123-14 of the Commercial Code stipulates:
- in its paragraph 2 that "when applying an accounting requirement does not give the true picture mentioned in this article, additional information must be provided in the appendix. "
- in its paragraph 3 that " if, in an exceptional case, the application of an accounting requirement proves unfit to give an accurate picture of the assets, financial position or results, it must be waived. This exemption is mentioned Annex to the accounts together with an indication of its effect on the assets, financial condition and results of the company. "
Thus, Societe Generale was not limited to the provision of additional information in the annex, as paragraph 2 of Article 123-14 by offering the possibility it considered to be in the exceptional case set forth in paragraph 3 and decided to depart from accounting standards. The justification provided by Societe Generale is a little summary, it seems that the argument based on the appearance inseparable form that "the consequences of financial transactions in the context of these unauthorized activities" who had started before the date of closing of accounts and, of course, amounts outstanding these implications.
In exceptional case, in a context of extraordinary crisis, an exceptional accounting treatment.
It is unfortunate that the accounting profession's failure to capture the most interesting example of a security, to advance accounting technique. One can indeed wonder about what might have been done for accounting purposes, the Société Générale where these "unauthorized and covert operations" gave rise to Explore:
- a loss of € 6,272 million for operations established and unwound in 2007 and a profit of € 1,471 million for operations established and unwound in 2008. Should we have anticipated profit, 2008?
- a lack of trading in 2007 but a loss of € 6,272 million for operations established and completed in January 2008. Should he have been anticipating the loss in 2008 when no transaction had been committed for 2007?
- in a more extreme case, an absence of trading in 2007 but a profit of € 6,272 million for operations established and completed in January 2008. Should we have anticipated profit in 2008 when no transaction had been committed for 2007?
So many interesting questions whose answers would have been likely to show a little more processing concepts "image faithful "and " events after the balance sheet. "
Societe Generale said it had reason to resort to this exceptional accounting treatment? Certainly yes, because we must not forget the objectives of financial reporting. "Financial information is not an end in itself, it is intended to provide information that facilitates decision-making Economic and Financial (work FASB 1978). He had been, indeed, difficult to understand seeing a presentation of the recording, under these operations, a profit of € 1,471 million in FY 2007 and a loss of € 6.272M for the year 2008.
Anticipating the loss of unwinding operations in January 2008 in the 2007 accounts or do not do not change, moreover, not much in economic terms it is the policy of dividend distribution on the justification for the capital increase of 5,500 M € ensuing or on the conclusions of financial analysts and rating agencies. The liquidity problem was there (or rather the problem of cash. It seems to evoke a "liquidity problem" in financial organizations is as taboo as talking rabbit on a boat!) information, whether from the accounts or notes to the accounts had been there as well anyway. By cons, on a psychological (and psychology also affects the economy) notwithstanding this accounting treatment allowed to bury the issue and not having to mention the closing of accounts at the following quarterly and a fortiori when ordinary general meeting called to approve the 2008 accounts.
THE FISCAL PROBLEM
The reference document for 2007 accounts of Société Générale said:
"The net loss recognized in this way was considered deductible for tax purposes. However, the deductibility of the Provision for losses on trading activities and concealed only take place under the taxable income for the year 2008. The tax position is based both on legislation and on case law, and was reinforced by the opinion of several consultations of lawyers Tax "
point on the shift of the deductibility of Provision raises no particular difficulty.
On the tax deduction provisions is subject to certain conditions including that the loss or expense covered by the provision must result from an event that arose prior to the close exercise. So under these regulations that the allowance of € 6,272 million made in the accounts for 2007 could be inferred that under the taxable income for the year 2008 while the profit of € 1,471 million returned in the taxable income of 2007.
It might be different from the principle of the tax deductibility of the loss resulting from such operations.
In a decision of the State Council issued on 05/10/2007, the judges noted that the losses resulting from embezzlement committed by employees of a business are tax deductible to the extent that leaders had no knowledge of the diversion committed or have not competed by their behavior intentionally or by their obvious deficiency in the organization of the company hijacking.
The criminal court dismissed the knowledge by the officers of the actions of Societe Generale Kerviel but the deficiencies in internal control systems have been established.
Thus, the Banking Commission in its decision of July 3, 2008 has issued a reprimand against Société Générale subject to a penalty 4 M € because "the lack of hierarchical controls " because "serious flaws in the system of internal control . In other words because of obvious deficiencies in the organization .
Thus, the tax deductibility of loss on these transactions "unauthorized and concealed" could be questioned.
But otherwise, how could it be lost? Loss of € 6,272 million generated in 2008 or net loss of € 4,801 million which reflects the profit recorded in 2007? The tax administration does to the non deductibility of losses (and not the non-taxation of profits) relating to an embezzlement by an employee, it's a safe bet that the questioning would focus on the 6272 M € of losses in 2008, a challenge in terms of additional tax assessments of more than 2 billion euros.
The decision by the judges of the State Council on 05/10/2007 nonetheless leans in favor of tax deductibility for Societe Generale. In this case, the judges concluded that although the hijacking has been made possible by the terms of reorganization of the department in which employees worked, despite the opacity of operation of the department, despite the failure of internal control, these circumstances did not reveal behavior intentionally or manifest failure of the leaders in the organization of that department. Nevertheless, if a dispute should arise on this issue, it would be long the decision of the State Council in October 2007 had put an end to an adjustment on the 1990 à1993!
The deductibility of risk provision of € 6,272 million in the determination of taxable income for the year 2008 opens the possibility to opt for Societe Generale to carry back its fiscal deficit ( " carry-back ) as provided in Article 220 d of the General Code of Taxation. In good fiscal management, this option was taken by Société Générale allowing it to record and collect a debt of 1.1 billion euros in 2009. As such, it is surprising to see journalists, men policies and especially the candidates for the next presidential election (including some former members of the mission in the economy) about "gift tax" or offended a tax provision yet in place since 1984 and has since been used, by right, for many companies.
The Kerviel affair is not over and other accounting and tax problems are already emerging.
Jerome Kerviel was initially sentenced to pay the Company Generally, as damages the sum of 4,915,610,154 euros, how to recognize this claim in the accounts? It seems, moreover, that although he is appealing the decision, this claim must now be recognized in the accounts. How high it should it may be provisioned for uncollectible? Societe Generale said it would not claim this amount to Jérôme Kerviel, he will then see a drop in the accounts receivable but with what justification tax?
I will probably
the answers to these questions in a future post. And you, what answers would you make?
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