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Local Authority Pension Fund Forum questions legality of IFRS accounts

Company accounts prepared using International Financial Reporting Standards (IFRS), the accounting rules issued by the International Accounting Standards Board (IASB), fail to provide a true and fair view of a company’s financial position.

Nor do they allow companies to assess how much of their profit each year is available for distribution to shareholders.

That is the view of the leading commercial Queen’s Counsel George Bompas in a second legal opinion sought by the Local Authority Pension Fund Forum (LAPFF) looking at the legality of IFRS accounts.

LAPFF chairman councillor Kieran Quinn said: “The Opinion sets out how the problems flow from misreading legislation and applying false logic.”

The LAPFF is now calling on the European Parliament to block any attempt within the EU to adopt the IASB’s new financial instruments accounting standard, IFRS 9.

Councillor Quinn added: “The proposed endorsement of IFRS 9 would be defective because the form of fair value accounting in IFRS 9 does not enable a determination of distributable profits.”

This is because the standard mixes up “unrealised mark-to-market and mark-to-model gains with realised profits”.

The forum is an umbrella body for some 65 UK public sector pension fund members, with approximately €235bn in combined assets.

The organisation has for some time been concerned that what it says are defective IFRS accounting standards helped fuel and worsen the fallout from the recent financial crisis by masking losses at banks such as RBS with false or illusionary profits.

In June 2013, the LAPFF, Threadneedle Investment and USS Investment Management released a first Opinion from George Bompas QC.

The Opinion supported the view of those investors who argue that IFRS as it currently stands pays too little heed to protecting the interests of providers of capital by failing to meet the requirements of UK company law.

The investors also argued that IFRSs have moved away from prudence as a fundamental accounting principle, and that they fail to include capital maintenance as an explicit purpose of accounts.

On 3 October 2013, the UK Financial Reporting Council (FRC) hit back by posting a statement on its website declaring that Bompas was wrong.

“On the specific issue of its legality,” the statement read, “the Department for Business (BIS) has today confirmed that the concerns expressed by some are misconceived.”

Alongside this, the FRC obtained its own legal Opinion from Martin Moore QC, which, the watchdog said, “accords with” the BIS view.

The LAPFF, however, contends that Martin Moore QC relied on “defective” advice produced by the Institute of Chartered Accountants in England and Wales (ICAEW) and the Institute of Chartered Accountants of Scotland from 1982.

That advice, George Bompas QC now argues, is not what UK company law provides for.

The LAPFF also believes it is a conflict of interest for the FRC to rely on guidance from the ICAEW, which it regulates.

Councillor Quinn said: “We cannot think of another area of law where the regulated party is not only involved in setting and endorsing standards under the law but has also been in control of the interpretation of the law under which the standards are set, which in this case is an incorrect representation of the law.

“By this route, the accounting profession has effectively become a ‘state within a state’, interpreting the law incorrectly to suit its own interests and, in the LAPFF’s opinion, against the public interest.”

Sources close to the discussions say investors, despite engaging with the FRC extensively, have formed the view that they have made little, if any, progress from the contact.

In line with this latest Bompas Opinion, they believe there are three core problems with the current accounting framework and the IASB’s IFRS standards:

  • They do not result in a ‘true and fair view’ of a company’s financial position but rather achieve the lesser objective of ‘usefulness’
  • This ‘usefulness’ criteria does not focus on specific elements in the accounts such as assets, liabilities and the profit or loss but rather applies to anything within the accounts generally
  • IFRS accounts do not enable a company’s management to determine the profits that can be safely distributed to shareholders and, as such, fail to provide a true and fair view, which is the main purpose of UK company law

Now, concerns over the soundness and purpose of the IASB’s standards have led the LAPFF to issue an urgent plea to the European Parliament to block the IASB’s high-profile financial instruments accounting standard, IFRS 9.

The investors believe this standard is defective and, if adopted for use by Europe’s banks, could lead to a re-run of the financial crisis.

In 2009, the IASB launched its project to replace its existing financial instruments accounting standard, IAS 39, with an entirely new standard.

IAS 39 was viewed by many as a flawed rulebook that failed miserably when put to the test by the financial crisis.

In particular, critics argued that its backward-looking impairment model led banks to recognise losses too late.

The IFRS 9 project is, however, a flagship IASB effort.

Any bid by Europe to block the standard could deal a fatal blow to the London-based quango’s credibility.

The IASB’s opposite number, the FASB, has walked away from efforts to develop a joint financial instruments standard.

The move has complicated the IASB’s bid to become the world’s single global accounting standard setter.

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