Swart, Baumruk & Co., LLP, Harry J. Swart, CPA
SECURITIES EXCHANGE ACT OF 1934
Release No. 43883 / January 25, 2001
ACCOUNTING AND AUDITING ENFORCEMENT
Release No. 1363 / January 25, 2001
Administrative Proceeding File No. 3-10410
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In the Matter of SWART, BAUMRUK & CO., LLP,
Respondents
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ORDER INSTITUTING PROCEEDINGS
PURSUANT TO SECTION 21C OF THE SECURITIES EXCHANGE ACT OF 1934, AND RULE 102(e) OF THE COMMISSIONS RULES OF PRACTICE, MAKING FINDINGS AND IMPOSING REMEDIAL SANCTIONS AND IMPOSING A CEASE-AND-DESIST ORDER |
I.
The Securities and Exchange Commission ("Commission") deems it appropriate that public administrative proceedings pursuant to Section 21C of the Securities Exchange Act of 1934 ("Exchange Act"), and Rules 102(e)(1)(ii) and (iii)1 of the Commission's Rules of Practice, be and hereby are instituted against Swart, Baumruk & Co., LLP ("Swart Baumruk") and Harry J. Swart, CPA ("Swart") (collectively "the Respondents").
II.
In anticipation of the institution of these proceedings, the Respondents have each submitted Offers of Settlement ("Offer") to the Commission, which the Commission has determined to accept. Solely for the purpose of these proceedings, and any other proceedings brought by or on behalf of the Commission or to which the Commission is a party, the Respondents, without admitting or denying the findings contained herein, except that they admit to the Commission's jurisdiction over them and over the subject matter of these proceedings, consent to the issuance of this Order Instituting Public Proceedings Pursuant to Section 21C of the Securities Exchange Act of 1934, and Rule 102(e) of the Commission's Rules of Practice, Making Findings and Imposing Remedial Sanctions and Imposing a Cease-and-Desist Order ("Order").
Accordingly, it is ordered that proceedings pursuant to Exchange Act Section 21C and Rule 102(e) of the Commission's Rules of Practice be, and hereby are, instituted.
III.
On the basis of this Order and the Respondents' Offers, the Commission makes the following findings:2
A. RESPONDENTS
1. Swart Baumruk is a public accounting firm located in Kissimmee, Florida. Its predecessor firm H.J. Swart & Co., P.A. ("H.J. Swart") was engaged in September 1996 to audit the financial statements of Am-Pac International, Inc. ("Am-Pac"), a publicly held issuer for the transition period July 1 through December 31, 1996. Under the name Swart, Baumruk & Twohig, LLP ("Swart, Baumruk & Twohig"), it audited Am-Pac's 1997 financial statements. After Twohig left the firm during 1998, the firm became known as Swart Baumruk. Swart Baumruk is no longer retained by Am-Pac.
2. Harry Swart, a certified public accountant licensed in Florida, is one of two partners of Swart Baumruk. He was the sole partner of H.J. Swart and was one of three partners of Swart, Baumruk & Twohig. During the period relevant to these proceedings, Swart served as audit and billing partner for the audits of Am-Pac's financial statements for the period July through December 1996 and for fiscal 1997.
B. FACTS
1. Summary
This case involves violations of the auditor independence rules and financial reporting requirements. Swart Baumruk,3 a certified public accounting firm, and its partner, Harry Swart, lacked professional independence in auditing Am-Pac's financial statements for the six months ended December 31, 1996. Specifically, after preparing Am-Pac's financial statements and performing other internal accounting functions for it during the final three months of 1996, Swart Baumruk audited the financial statements it had prepared.
During 1997 Am-Pac's principals, Thomas Tedrow and Jeffrey Martin approached Swart, inquiring whether there was a means by which Am-Pac's financial books and records could reflect the asserted appreciation of certain real property Am-Pac had acquired. Swart advised them that they could do so by selling the property at market value, and leasing it back from the purchaser to continue the business operations. Tedrow and Martin then engaged in a sale-leaseback, in which they "sold" the property to themselves and in turn "leased" it back to themselves, a transaction wholly lacking in economic substance. Without making adequate inquiry, Swart prepared the financial statements reflecting the transaction. Am-Pac incorporated those financial statements in its Forms 10-QSB for the second and third quarters of 1997.
Swart Baumruk and Swart (the audit partner on the engagement) also lacked professional independence in auditing Am-Pac's 1997 financial statements. Although by this time Am-Pac had hired a bookkeeper, Swart Baumruk maintained a more complete general ledger than that maintained by the company, prepared trial balances for Am-Pac subsidiaries, performed Am-Pac's consolidation, and prepared its financial statements. As in 1996, Swart Baumruk audited the very financial statements it had prepared and, accordingly, lacked independence in doing so.
2. During 1996 Swart and his Firm Prepare Am-Pac's Financial Statements then Audit their Own Work
In Spring 1996, Tedrow and Martin began arranging a reverse acquisition between Pacific Foods (a British Virgin Islands corporation with no assets or operations, formed in May 1996 and privately held by Tedrow and, nominally, Jeff Martin's wife Sharron), and a public company called Captain Tony's Pizza, Inc. In September 1996, Captain Tony's changed its name to Am-Pac. On September 21, Am-Pac retained the Swart Baumruk firm to audit its financial statements for the six month period ended December 31, 1996. Am-Pac's president Tedrow retained Swart Baumruk.
After its retention, Swart Baumruk proceeded to act as Am-Pac's de facto internal accountant with respect to the preparation of quarterly and annual financial statements. No Am-Pac employee had the expertise to prepare its financial statements. Although Am-Pac maintained some components of a general ledger, Swart Baumruk employees maintained the complete general ledger on Swart Baumruk's own accounting software. Swart Baumruk used that general ledger to prepare Am-Pac's financial statements. In addition, Swart Baumruk employees performed or reviewed bank reconciliations, and prepared Am-Pac's journal entries, its consolidated trial balance summarizing the general ledger, and its financial statements. Swart Baumruk then audited the financial statements it had prepared. Throughout the Am-Pac engagement, Harry Swart was the engagement and billing partner.
On December 31, 1996, Am-Pac completed its reverse acquisition of Pacific Foods, after which Tedrow and Sharron Martin (who had each owned fifty percent of Pacific Foods' stock) each owned forty-four percent of Am-Pac's common stock. That same day Am-Pac acquired an Orlando, Florida tavern it named "Headlightz."
3. During 1997 Swart Baumruk Continues to Perform Internal Accounting Tasks
Having acquired the Headlightz tavern on the last day of 1996, Am-Pac's bookkeeping and other internal accounting needs increased. In part to meet this need, in March 1997 Am-Pac hired a bookkeeper whose duties included maintaining the general ledger for Headlightz of Orlando, Inc. ("Headlightz, Inc."), the Am-Pac subsidiary that held the operating assets of the tavern, preparing checks for officers to sign, and reconciling the bank statements of the company and its various subsidiaries.
Notwithstanding Am-Pac's having hired a bookkeeper, during 1997 Swart Baumruk personnel continued to perform substantial internal accounting tasks. For example, when Am-Pac's bookkeeper was unsure how to classify an invoice, she obtained the advice of a Swart Baumruk senior accountant. Also, this senior accountant instructed Am-Pac's bookkeeper on reconciling bank statements, gave her a bank reconciliation form to simplify the task, and from time to time reviewed her work. Moreover, Swart Baumruk conducted a portion of Am-Pac's bank account reconciliation work.
Am-Pac's bookkeeper prepared general and sales ledgers for Headlightz, Inc., and its accounts payable and receivable reports. The bookkeeper's general ledger (reflecting sales and corresponding accounts receivable, and purchases and corresponding accounts payable) was incomplete because it did not account for fixed assets. Accordingly, a Swart Baumruk employee prepared Headlightz, Inc.'s fixed assets report, calculated depreciation, then made the appropriate entries in a separate Am-Pac general ledger the firm maintained. This general ledger included fixed assets, depreciation calculations and all adjusting entries Swart Baumruk made. Thus it reflected all the company's transactions and account adjustments whereas the general ledger the bookkeeper maintained did not.
During the year ended December 31, 1997, a Swart Baumruk employee reviewed both a lengthy journal entry to make adjustments to Headlightz, Inc.'s general ledger, and a trial balance summarizing the general ledger activity. (The journal entry had been prepared by another Swart Baumruk employee.) Swart Baumruk employees prepared trial balances for the other Am-Pac subsidiaries directly from the subsidiaries' books and records, although only Headlightz, Inc. engaged in significant financial activity.
4. Tedrow and Martin Devise a Plan to Inflate Am-Pac's Net Income for the Quarters Ended June 30, 1997, and September 30, 1997
Am-Pac acquired the Headlightz property in a pooling of interests transaction in which it paid the seller 333,939 Am-Pac shares. Because Am-Pac was trading at $3.75 per share on December 31, 1996 (the date of the transaction), the theoretical sale price exceeded $1.25 million. Am-Pac carried the property on its books and records at $253,696, the seller's historical cost.
In or about June 1997, Tedrow and Martin asked Swart whether Am-Pac could recognize the higher market value of the property while continuing to operate the Headlightz tavern. Swart advised Tedrow and Martin that they could do so through a sale-leaseback transaction.
Tedrow and Martin thereafter entered into a sale-leaseback transaction to sell the property to J.T. Investments, an entity they owned, then lease back the property to enable Am-Pac to operate the tavern. On June 29, 1997, Am-Pac purportedly sold its real estate to J.T. Investments for $1.4 million. J.T. Investments took the property subject to a $440,363 mortgage and executed a $959,637 note payable to Am-Pac, pursuant to which no principal and interest were due for two years. The sales agreement reflects that Tedrow, on behalf of J.T. Investments, bought the property from Martin, on behalf of Am-Pac. Three days after the sale, Am-Pac subsidiary Headlightz leased back the property from J.T. Investments. (For this agreement Martin rather than Tedrow signed for J.T. Investments; and Tedrow signed for Am-Pac subsidiary Headlightz.)
Other facts reflect that Am-Pac's sale-leaseback with J.T. Investments was an artifice. J.T. Investments did not even file its corporate charter until August 7, 1997, more than a month after it had purportedly purchased the real estate. Moreover, notwithstanding the sale-leaseback transaction, Headlightz never paid rent to J.T. Investments. Rather, Am-Pac continued to make mortgage payments as it had always done.
5. Swart's Firm Prepares Am-Pac's 1997 Second and Third Quarter Financial Statements
Swart's firm prepared financial statements for Am-Pac for the quarter ended June 30, 1997, which reflected a $1.13 million "gain on sale of property," and more than $1 million in net income. In so doing Swart improperly accounted for the sale-leaseback transaction.4 Swart provided these financial statements to Am-Pac's attorney, who subsequently included them in Am-Pac's Form 10-QSB. Swart's firm likewise prepared the financial statements for the quarter ended September 30, 1997. Those financial statements reflected net income of more than $750,000 for the first three quarters. They were subsequently incorporated in Forms 10-QSB that Am-Pac filed with the Commission.5
6. Swart and his Firm Prepare Am-Pac's 1997 Year-End Financial Statements, then Audit their Own Work
Not only did Swart Baumruk perform much of Am-Pac's internal accounting during fiscal 1997 but also, at Am-Pac's request, its personnel prepared Am-Pac's quarterly and annual financial statements. Specifically, a senior accountant in the firm performed Am-Pac's consolidation. Swart Baumruk employees then made journal entries (recording adjustments), and compiled the financial statements, the components of which were a consolidated statement of operations, a consolidated balance sheet, and a consolidated statement of cash flows. Swart then reviewed the financial statements and the underlying accounting documents.
In January 1998, Am-Pac retained Swart Baumruk to audit its fiscal 1997 financial statements. As for fiscal 1996, at year-end the firm audited the financial statements it had prepared. Swart himself did much of the planning and administration for the audit, and one of the firm's senior accountants performed most of the audit fieldwork. In November 1998 Am-Pac filed its Form 10-KSB for fiscal 1997, including Swart Baumruk's audit reports containing unqualified opinions on Am-Pac's financial statements.
C. LEGAL ANALYSIS
1. The Requirement of Auditor Independence
The Supreme Court has made it clear that an independent auditor "assumes a public responsibility transcending any employment relationship with the client [and] owes ultimate allegiance to the corporation's creditors and stockholders, as well as to the investing public. This `public watchdog' function demands that the accountant maintain total independence from the client at all times and requires complete fidelity to the public trust" (United States v. Arthur Young & Co., 465 U.S. 805, 817-18 (1984) (emphasis added)).
The Exchange Act (§§12 and 13(a)(2)) requires that financial statements filed with the Commission must be certified by "independent" accountants. Regulation S-X (Rule 2-01) provides: (i) that "the Commission will not recognize any certified public accountant or public accountant as independent who is not in fact independent"; (ii) that, in assessing an auditor's independence, the Commission "will give appropriate consideration to all relevant circumstances, including evidence bearing on all relationships between" the auditor and the audit client; and (iii) that the accountant's report must state whether the audit was conducted in accordance with GAAS (generally accepted auditing standards).
Section 602.02.c.i. of the Commission's Codification of Financial Reporting Policies ("Codification") provides: "It is the Commission's position that an accounting firm cannot be deemed independent with regard to auditing financial statements of a client if it has participated closely, either manually or through its computer services, in maintenance of the basic accounting records and preparation of the financial statements."
2. The Respondents' Professional Independence was Impaired
Swart and his firm maintained accounting records for Am-Pac that were critical to the preparation of the company's financial statements during the last three months of 1996. Swart Baumruk generated the trial balances, performed the consolidation, then prepared Am-Pac's financial statements. They then audited their own work. In 1997 Swart and his firm maintained Headlightz, Inc.'s fixed assets ledger, calculated depreciation, then made the appropriate entries in the general ledger Swart's firm maintained for Am-Pac. As in 1996, Swart Baumruk employees then generated the trial balances, performed Am-Pac's consolidation, and prepared Am-Pac's financial statements. They audited the very financial statements they had generated. By virtue of their having participated closely in the maintenance of Am-Pac's basic accounting records and having prepared its financial statements, Swart Baumruk and Harry Swart cannot be deemed independent with regard to auditing Am-Pac's financial statements.
3. Swart and Swart Baumruk Caused and Willfully Aided and Abetted Am-Pac's Violations of Section 13(a) of the Exchange Act and Rule 13a-13 Thereunder
When Tedrow and Martin sought a means of recognizing what they asserted was the higher market value of property Am-Pac owned, Swart advised them to effect a sale-leaseback. Without adequate inquiry, Swart and Swart Baumruk then prepared financial statements, which were subsequently incorporated in Am-Pac's 1997 second and third quarter Forms 10-QSB, reflecting the resulting gain. These financial statements were materially false because they overstated Am-Pac's net income by a material amount for the three and six months ended June 30, 1997, and for the nine months ended September 30, 1997. These financial statements were prepared in a manner that did not accord with the rules for sale-leaseback accounting previously described. Moreover, in view of all the circumstances, Swart and Swart Baumruk should have made further inquiry into the purported transaction. By acting as they did, Swart and Swart Baumruk provided substantial assistance to Tedrow's and Martin's scheme to inflate Am-Pac's net income. As a result, Am-Pac's 1997 second and third quarter reports filed with the Commission were materially false in violation of Exchange Act Section 13(a) and Rule 13a-13 thereunder, and Swart and Swart Baumruk caused and willfully aided and abetted these violations.
4. The Respondents Engaged in Improper Professional Conduct.
The Respondents engaged in improper professional conduct under the negligence standards of Rule 102(e)(1)(ii) of the Commission's Rules of Practice, as defined in Rule 102(e)(1)(iv)(B). These provisions state that, "[w]ith respect to persons licensed to practice as accountants, `improper professional conduct' under Section 201.102(e)(1)(ii) means:
(B) Either of the following two types of negligent conduct:
(1) A single instance of highly unreasonable conduct that results in a violation of applicable professional standards in circumstances in which an accountant knows, or should know, that heightened scrutiny is warranted.
(2) Repeated instances of unreasonable conduct, each resulting in a violation of applicable professional standards, that indicate a lack of competence to practice before the Commission."
a. Respondents' Conduct was Highly Unreasonable In Circumstances Where Heightened Scrutiny Is Warranted
"Because of the importance of an accountant's independence to the integrity of the financial reporting system, the Commission has concluded that circumstances that raise questions about an accountant's independence always merit heightened scrutiny." See §III.C.1. of Amendment to Rule 102(e) of the Commission's Rules of Practice, Release No. 33-7593 (October 19, 1998). The respondents maintenance of Am-Pac's basic accounting records and their preparation of Am-Pac's financial statements was highly unreasonable conduct that resulted "in a violation of applicable professional standards in circumstances in which an accountant knows, or should know, that heightened scrutiny is warranted." In addition, Swart's conduct in advising Tedrow and Martin to structure the transaction as a sale-leaseback, then preparing the financial statements for the 1997 second and third quarters reporting the material gain of more than $1 million was highly unreasonable conduct which merited heightened scrutiny. As the Commission has stated, "'[h]eightened scrutiny' would be warranted when matters are important or material." §III.C.1. of Amendment to Rule 102(e) of the Commission's Rules of Practice, Release No. 33-7593. Recognition of a gain of $1.13 million was clearly important and material to Am-Pac's financial statements, and Swart should have been aware of this fact.
b. Swart Baumruk Engaged in Repeated Instances of Unreasonable Conduct, Each Resulting in a Violation of Applicable Professional Standards
By auditing its own work during successive years, Swart and Swart Baumruk engaged in repeated instances of unreasonable conduct which indicates a lack of competence to practice before the Commission. Swart likewise repeatedly engaged in unreasonable conduct by preparing Am-Pac's financial statements reporting the gain for the quarter ended June 30, 1997, then again for the quarter ended September 30, 1997.
IV.
On the basis of this Order and the Offers submitted by the Respondents, the Commission finds that Swart and Swart Baumruk failed to comply with Rule 2-02 of Regulation S-X, caused and willfully aided and abetted violations of Section 13(a) of the Exchange Act and Rules 13a-1 and 13a-13 thereunder, and engaged in improper professional conduct within the meaning of Rule 102(e)(1)(ii) of the Commission's Rules of Practice.
V.
In view of the foregoing, the Commission has determined that it is appropriate to accept the Respondents' Offers. Accordingly, IT IS HEREBY ORDERED, effective immediately, that
A. The Respondents, pursuant to Section 21C of the Exchange Act, cease and desist from committing or causing any violation and any future violation of Rule 2-02 of Regulation S-X, Section 13(a) of the Exchange Act, and Rules 13a-1 and 13a-13 thereunder.
B. The Respondents are hereby suspended from the privilege of appearing or practicing before the Commission as accountants.
C. After three (3) years from the date of this Order, Swart may request that the Commission consider his reinstatement by submitting an application (attention: Office of the Chief Accountant) to resume appearing or practicing before the Commission as:
1. a preparer or reviewer, or a person responsible for the preparation or review, of any public company's financial statements that are filed with the Commission. Such an application must satisfy the Commission that the Swart's work in his practice before the Commission will be reviewed either by the independent audit committee of the public company for which he works or in some other acceptable manner, as long as he practices before the Commission in this capacity; and/or
2. an independent accountant. Such an application must satisfy the Commission that:
a. Swart, or any firm with which he is associated, is a member of the SEC Practice Section of the American Institute of Certified Public Accountants Division for CPA Firms ("SEC Practice Section");
b. Swart has received an unqualified report relating to his or the firm's most recent peer review conducted in accordance with the guidelines adopted by the SEC Practice Section; and
c. as long as Swart appears or practices before the Commission as an independent accountant he will remain either a member of the SEC Practice Section or associated with a member firm of the SEC Practice Section, and will comply with all applicable SEC Practice Section requirements, including all requirements for periodic peer reviews, concurring partner reviews, and continuing professional education.
D. After three (3) years from the date of this Order, Swart Baumruk may request that the Commission consider its reinstatement by submitting an application (attention: Office of the Chief Accountant) to resume appearing or practicing before the Commission as:
1. a preparer or reviewer, or a firm responsible for the preparation or review, of any public company's financial statements that are filed with the Commission. Such an application must satisfy the Commission that Swart Baumruk's work in its practice before the Commission will be reviewed either by the independent audit committee of the public company for which it works or in some other acceptable manner, as long as it practices before the Commission in this capacity; and/or
2. an independent accounting firm. Such an application must satisfy the Commission that:
a. Swart Baumruk is a member of the SEC Practice Section;
b. Swart Baumruk has received an unqualified report relating to the firm's most recent peer review conducted in accordance with the guidelines adopted by the SEC Practice Section; and
c. as long as Swart Baumruk appears or practices before the Commission as an independent accounting firm it will remain a member of the SEC Practice Section, and will comply with all applicable SEC Practice Section requirements, including all requirements for periodic peer reviews, concurring partner reviews, and continuing professional education.
E. The Commission's review of any request or application by either Respondent to resume appearing or practicing before the Commission may include consideration of, in addition to the matters referenced above, any other matter relating to that Respondent's character, integrity, professional conduct, or qualifications to appear or practice before the Commission.
F. Respondents shall be liable jointly and severally for disgorging $32,750 in fees obtained from the Am-Pac audits plus $9,231.03 in prejudgment interest, which shall be paid pursuant to the following schedule: $20,000 shall be paid within ten (10) days of the date of this Order; $10,000 shall be paid within forty-five (45) days of the date of this Order; and $11,981.03 shall be paid within three (3) months of the date of this Order. Such payments shall be: (1) made by United States postal money order, certified check, bank cashier's check or bank money order; (2) made payable to the Securities and Exchange Commission; (3) hand-delivered or mailed to the Comptroller, Securities and Exchange Commission, Operations Center, 6432 General Green Way, Mail Stop 0-3, Alexandria, VA 22312; and (4) submitted under cover letter which identifies Swart and Swart Baumruk as Respondents in these proceedings, the file number of these proceedings, a copy of which cover letter and money order or check shall be sent to Erich T. Schwartz, Assistant Director, Securities and Exchange Commission, 450 Fifth Street, N.W., Washington, D.C. 20549-0706.
By the Commission.
Jonathan G. Katz
Secretary
Footnotes
1 Rule 102(e)(1) of the Commission's Rules of Practice provides, in pertinent part:
The Commission may censure a person or deny, temporarily or permanently, the privilege of appearing or practicing before it in any way to any person who is found by the Commission after notice and opportunity for hearing in the matter . . . (ii) to be lacking in character or integrity or to have engaged in unethical or improper professional conduct; or (iii) to have willfully violated, or willfully aided and abetted the violation of any provision of the Federal securities laws or the rules and regulations thereunder.
2 The findings herein are made pursuant to the Respondents' Offers and are not binding on any other persons or entities in these or any other proceedings.
3 The firm that is the respondent in this Order was known by three different names during the relevant period. The term "Swart Baumruk" is used in this Order to refer to H.J. Swart, its immediate successor firm Swart, Baumruk & Twohig, and the latter's successor firm Swart Baumruk.
4 Under the sale-leaseback accounting rules, as prescribed by Statement of Financial Accounting Standards ("SFAS") 28, the gain should not be recognized at the time of the transaction, but rather should be deferred and amortized over the life of the lease. However, paragraph 13c of SFAS 98, on accounting for leases, precludes the use of sale-leaseback accounting if the seller-lessee demonstrates continuing involvement in the risks and rewards of ownership. That provision states that a seller-lessee has such involvement if he can "participate in any future profits of the buyer-lessor or the appreciation of the leased property, for example, a situation in which the seller-lessee owns . . . any interest in the buyer-lessor." Since Tedrow and Martin controlled both Am-Pac and J.T. Investments, the transaction did not qualify for sale-leaseback accounting. The transaction should have been accounted for pursuant to SFAS 66, titled "Accounting for Sales of Real Estate," and the deposit method of accounting. Specifically, paragraph 65 of SFAS 66 provides:
Under the deposit method, the seller does not recognize any profit, does not record notes receivable, continues to report in its financial statements the property and the related existing debt even if it has been assumed by the buyer, and discloses that those items are subject to a sales contract.
Moreover, pursuant to Interpretation No. 39 of Accounting Principles Board Opinion (APB) 16, "Business Combinations," under no circumstances would it be appropriate for Am-Pac to recognize income on the transaction. Rather, the difference between Am-Pac's cost and the consideration paid by J.T. Investments would properly be accounted for as a capital contribution.
5 Am-Pac restated its 1997 second and third quarter reports on September 23, 1998. In the restated reports the net income for the quarter ended June 30, 1997, originally more than $1 million, was reduced to a loss of $87,292. For the six months ended June 30, 1997, net income declined from $863,956 to a net loss of $273,108. For the nine months ended September 30, 1997, net income declined from more than $750,000, to a loss of $393,810.