SEC Urges Companies to Take a Fresh Look at Their Non-GAAP Measures (May 23, 2016)

Last week, the SEC updated its C&DIs1 on non-GAAP measures in response to its increasing concerns that such measures may be misleading, more prominent than comparable GAAP measures, or inconsistently presented from period to period. The C&DIs do not prohibit companies from using non-GAAP measures that comply with the SEC’s existing rules.2 However, the SEC staff’s tone in the C&DIs is intentionally forceful in an effort to “send a message,” as stated by Chief Accountant Mark Kronforst in the SEC’s Division of Corporation Finance (the “Division”) at the May 18 meeting of the PCAOB’s Standing Advisory Group (SAG). In his discussion of the SEC’s concerns about non-GAAP measures, Mr. Kronforst announced that “this next quarter will be a great opportunity for companies to self-correct.”

The C&DIs provide guidance on the following questions related to non-GAAP measures:

• What is misleading or prohibited?

  • Misleading adjustments — Several new C&DIs4provide examples of non-GAAP measures that could mislead investors, including those that:

    –– Exclude normal, recurring cash operating expenses necessary for business operation.

    –– Adjust an item in the current reporting period but do not adjust for a similar item in the prior period, without appropriate disclosure about the change and an explanation for the reasons for the change.

    –– Exclude certain nonrecurring charges but do not exclude nonrecurring gains (i.e., “cherry-picking” non-GAAP adjustments in a non-GAAP measure to achieve the most positive measure).

    –– Are based on individually tailored accounting principles, including certain adjusted revenue measures.
    In C&DI 100.04, the SEC staff provides an example of a prohibited non-GAAP performance measure that reflects revenue that is recognized over the service period under GAAP on an accelerated basis as if the registrant earned revenue when it billed its customers. The measure is prohibited because it is an individually tailored accounting principle and does not reflect the registrant’s required GAAP measurement method. While the example is about revenue recognition, the C&DI indicates that individually tailored accounting principles applied to other financial statement line items to create a non-GAAP measure may also be prohibited.
    Editor’s Note: Under ASC 280,5 a company may present segment measures, including segment-adjusted revenues or segment profit, on a basis that is consistent with the manner in which the company is managed but different from the basis presented in its consolidated financial statements prepared in accordance with GAAP. While such segment measures are not considered non-GAAP financial measures if they are presented in accordance with ASC 280,6 the SEC staff may object to their presentation or discussion on a consolidated basis when they are based on individually tailored accounting principles.
  • Per-share non-GAAP measures — Registrants must assess whether a non-GAAP measure is (1) a performance measure that is different from and reconciled to net income or loss or (2) a measure of liquidity that is different from and reconciled to cash flow from operations. This determination is important because cash-flow or liquidity per-share measures are prohibited. Historically, the SEC staff has generally accepted management’s determination of whether a measure is a performance measure or liquidity measure. However, as indicated in C&DI 102.05, as revised, the SEC staff may challenge measures designated as performance measures that appear to be more like liquidity measures. If they are ultimately determined to be liquidity measures, the SEC would prohibit per-share amounts (e.g., free cash flow is a liquidity measure and therefore per share presentation is expressly prohibited).7 In addition, C&DI 103.02 notes that EBIT8 or EBITDA9 should not be presented on a per-share basis.
• When is the disclosure of a non-GAAP measure more prominent than that of a GAAP measure?
  A registrant that presents a non-GAAP measure is required to present the most directly comparable GAAP measure with equal or greater prominence. C&DI 102.10 provides examples illustrating when the presentation of non-GAAP measures may not meet this requirement and thus might be subject to SEC scrutiny. It states, in part:

  Although whether a non-GAAP measure is more prominent than the comparable GAAP measure generally depends on the facts and circumstances in which the disclosure is made, the staff would consider the following examples of disclosure of non-GAAP measures as more prominent:

  • Presenting a full income statement of non-GAAP measures or presenting a full non-GAAP income statement when reconciling non-GAAP measures to the most directly comparable GAAP measures;
  • Omitting comparable GAAP measures from an earnings release headline or caption that includes non-GAAP measures;
  • Presenting a non-GAAP measure using a style of presentation (e.g., bold, larger font) that emphasizes the non-GAAP measure over the comparable GAAP measure;
  • A non-GAAP measure that precedes the most directly comparable GAAP measure (including in an earnings release headline or caption);
  • Describing a non-GAAP measure as, for example, “record performance” or “exceptional” without at least an equally prominent descriptive characterization of the comparable GAAP measure;
  • Providing tabular disclosure of non-GAAP financial measures without preceding it with an equally prominent tabular disclosure of the comparable GAAP measures or including the comparable GAAP measures in the same table;
  • Excluding a quantitative reconciliation with respect to a forward-looking non-GAAP measure in reliance on the “unreasonable efforts” exception in Item 10(e)(1)(i)(B) without disclosing that fact and identifying the information that is unavailable and its probable significance in a location of equal or greater prominence; and
  • Providing discussion and analysis of a non-GAAP measure without a similar discussion and analysis of the comparable GAAP measure in a location with equal or greater prominence.
• How should a registrant present income tax effects for a non-GAAP measure?
  When calculating a non-GAAP measure, a registrant should be mindful of the impact that adjustments made to a GAAP measure have on income tax expense. Adjusting revenue or income before tax could affect the tax expense or benefits assumed in the calculation of the tax provision. C&DI 102.11 provides new guidance on the consideration of the tax impact of the adjustment. If a non-GAAP measure is a liquidity measure, it may be acceptable to adjust the GAAP tax amount to present taxes paid in cash. If the measure is a performance measure, registrants “should include current and deferred income tax expense commensurate with the non-GAAP measure of profitability” and should not present adjustments net of tax. They should present an adjustment for income taxes separately and disclose how the adjustment was determined.
• What about funds from operations (FFO)?
  FFO is a non-GAAP measure commonly used in the real estate industry. C&DIs 102.01 and 102.02 indicate that FFO, as defined by the National Association of Real Estate Investment Trusts (NAREIT) and in effect as of May 17, 2016, as well as FFO per share will continue to be accepted as performance measures. If a registrant makes adjustments to FFO to arrive at a measure of adjusted FFO, such adjustments must comply with the non-GAAP requirements for a performance measure or a liquidity measure. If adjusted FFO is, in substance, a liquidity measure, presentation on a per-share basis is prohibited.

The FASB, IASB, and PCAOB are also taking a hard look at non-GAAP measures. In an April 7, 2016, video interview at REITWise 2016,10 FASB Chairman Russell Golden spoke about the Board’s research efforts related to the increase in non-GAAP reporting. He indicated that the research is expected to result in the FASB’s issuance this summer of an agenda consultation paper that will discuss potential improvements to, and may involve new types of metrics in, the statements of income and cash flow.11 On May 11, 2016, IASB Chairman Hans Hoogervorst spoke about non-GAAP measures and performance reporting at the Annual Conference of the European Accounting Association. He noted that the popularity of non-GAAP measures may be due in part to a lack of guidance that explicitly defines subtotals in the income statement and common measures such as EBIT and that opportunities therefore exist for the IASB to provide additional guidance. Further, the SAG discussed the auditor’s role regarding non-GAAP measures at its May 18–19, 2016, meeting.12

As a company prepares earnings releases and periodic filings, it should consider the following questions about using a non-GAAP measure:

1. Is the measure neither misleading nor prohibited?
2. Is the measure presented with the most directly comparable GAAP measure and with no greater prominence than the GAAP measure?
3. Is the measure appropriately defined and described, and clearly labeled as non-GAAP?
4. Does the reconciliation between the GAAP and non-GAAP measure clearly label and describe the nature of each adjustment, and is each adjustment appropriate?
5. Is there transparent and company-specific disclosure of the substantive reason(s) why management believes that the measure is useful for investors and the purpose for which management uses the measure?
6. Is the measure consistently prepared from period to period in accordance with a defined policy, and is it comparable to that of the company’s peers?
7. Is the measure balanced (i.e., it adjusts not only for nonrecurring expenses but also for nonrecurring gains)?
8. Does the measure appropriately focus on material adjustments and not include immaterial adjustments that would not seem to be a focus of management?
9. Do the disclosure controls and procedures address non-GAAP measures?
10. Is the audit committee involved in the oversight of the preparation and use of non-GAAP measures?