Scale of Fines for Non-Compliance with the Financial Reporting Requirements of the Commission

June 24, 2009 SEC MEMORANDUM CIRCULAR NO. 08-09 SCALE OF FINES FOR NON-COMPLIANCE WITH THE FINANCIAL REPORTING REQUIREMENTS OF THE COMMISSION In line with the continuing efforts to strengthen compliance by corporations with the financial reporting requirements provided for in Section 141 of the Corporation Code, Section 68 of the Securities Regulation Code, Pre-Need Uniform Chart of Accounts (PNUCA), as revised, Investment Company Act, Financing Company Act, Lending Company Act and Investment Houses Law, the Commission, in its meeting on June 18, 2009, approved the scale of administrative penalties set forth below. I. Scale of Fines (A) Ordinary corporations with no secondary license issued by the Commission Violation 1st Offense 2nd Offense 3rd Offense Material Stock Corporations deficiency in Deficit P500 P1,000 P2,000 the financial Capital Deficiency 300 600 1,200 statements or Retained Earnings: non-compliance 0 to P100,000 P500 P1,000 P2,000 with the P100,001 to P500,000 1,000 P2,000 P4,000 requirements P500,001 to P5,000,000 2,000 P4,000 P8,000 of the Rules P5,000,001 to P10,000,000 3,000 P6,000 P12,000 Above P10,000,000 4,000 P8,000 P 16,000 Non-stock Corporations Negative Fund Balance P200 P400 P800 Fund Balance/Equity Up to P100,000 P300 P600 1,200 P100,001 to P500,000 500 1,000 2,000 P500,001 to P10,000,000 1,000 2,000 4,000 Above P10,000,000 2,000 4,000 8,000 Material - An amount based An amount An amount misstatement on the above based on the based on the in the financial scale or 1/10 of above scale or above scale or statements 1% of the amount 2/10 of 1% of 4/10 of 1% of of misstatement, the amount of the amount of whichever is misstatement misstatement, higher whichever is whichever is higher higher (B) Branches and regional offices of foreign corporations licensed to operate in the Philippines by the Commission Violation 1st Offense 2nd Offense 3rd Offense Material Net Cash Receipts deficiency in the 0 to P100,000 P500 P1,000 P2,000 financial P100,001 to P500,000 P1,000 P2,000 P4,000 statements or non- P500,001 to P5,000,000 P2,000 P4,000 P8,000 compliance with P5,000,001 to P10,000,000 P3,000 P6,000 P12,000 the requirements Above P10,000,000 P4,000 P8,000 P16,000 of the Rules Material - An amount An amount An amount misstatement in based on the based on the based on the the financial above scale or above scale above scale or statements 1/10 of 1% of or 2/10 of 4/10 of 1% of the amount of 1% of the the amount of misstatement, amount of misstatement, whichever is misstatement whichever is higher whichever is higher higher (C) Lending Companies; Transfer Agents Violation 1st Offense 2nd Offense 3rd Offense Material Deficit P500 P1,000 P2,000 deficiency in the Retained Earnings: financial Up to P100,000 P1,000 P2,000 P4,000 statements or non- P100,001 to P500,000 2,000 4,000 8,000 compliance with P500,001 to P5,000,000 3,000 6,000 12,000 the requirements P5,000,001 to P10,000,000 4,000 8,000 16,000 of the Rules Above P10,000,000 5,000 10,000 20,000 Material - An amount An amount An amount misstatement in based on the based on the based on the the financial above scale or above scale above scale or statements 1/10 of 1% of or 2/10 of 4/10 of 1% of the amount of 1% of the the amount of misstatement, amount of misstatement, whichever is misstatement whichever is higher whichever is higher higher Interim Financial Statements Violation 1st Offense 2nd Offense 3rd Offense Material Deficit P100 P200 P400 deficiency in the Retained Earnings: financial up to P100,000 P200 P400 P800 statements or non- P100,001 to P500,000 400 800 1,600 compliance with P500,001 to P5,000,000 600 1,200 2,400 the requirements P5,000,001 to P10,000,000 800 1,600 3,200 of the Rules Above P10,000,000 1,000 2,000 4,000 Material - An amount An amount An amount misstatement in based on the based on the based on the the financial above scale or above scale above scale or statements 1/10 of 1% of or 2/10 of 4/10 of 1% of the amount of 1 % of the the amount of misstatement, amount of misstatement, whichever is misstatement whichever is higher whichever is higher higher (D) Financing Companies Violation 1st Offense 2nd Offense 3rd Offense Material Deficit P1,000 P2,000 P4,000 deficiency in the Retained Earnings: financial Up to P100,000 P2,000 P4,000 P8,000 statements or non- P100,001 to P500,000 3,000 6,000 12,000 compliance with P500,001 to P5,000,000 4,000 8,000 16,000 the requirements P5,000,001 to P 10,000,000 5,000 10,000 20,000 of the Rules Above P10,000,000 6,000 12,000 24,000 Material - An amount An amount An amount misstatement in based on the based on the based on the the financial above scale or above scale above scale or statements 1/10 of 1% of or 2/10 of 4/10 of 1% of the amount of 1% of the the amount of misstatement, amount of misstatement, whichever is misstatement whichever is higher whichever is higher higher Interim Financial Statements Violation 1st Offense 2nd Offense 3rd Offense Material Deficit P400 P800 P 1,600 deficiency in the Retained Earnings: financial Up to P100,000 P600 P1,200 P2,400 statements or non- P100,001 to P500,000 800 1,600 3,200 compliance with P500,001 to P5,000,000 1,000 2,000 4,000 the requirements P5,000,001 to P10,000,000 1,200 2,400 4,800 of the Rules Above P10,000,000 1,400 2,800 5,600 Material - An amount An amount An amount misstatement in based on the based on the based on the the financial above scale or above scale above scale or statements 1/10 of 1% of or 2/10 of 4/10 of 1% of the amount of 1% of the the amount of misstatement, amount of misstatement, whichever is misstatement whichever is higher whichever is higher higher (E) Brokers and Dealers of Securities; Government Securities Eligible Dealers (GSEDs) EHITaS Annual Financial Statements Violation 1st Offense 2nd Offense 3rd Offense Material Deficit P2,500 P5,000 P10,000 deficiency in the Retained Earnings: financial Up to P1,000,000 P5,000 P10,000 P20,000 statements or non- P1,000,001 to P10,000,000 6,000 12,000 24,000 compliance with P10,000,001 to P20,000,000 7,000 14,000 28,000 the requirements P20,000,001 to P30,000,000 8,000 16,000 32,000 of the Rules Above P30,000,000 9,000 18,000 36,000 Material - An amount An amount An amount misstatement in based on the based on the based on the the financial above scale or above scale above scale or statements 1/10 of 1% of or 2/10 of 4/10 of 1% of the amount of 1% of the the amount of misstatement, amount of misstatement, whichever is misstatement whichever is higher whichever is higher higher Interim Financial Statements Violation 1st Offense 2nd Offense 3rd Offense Material Deficit P500 P1,000 P2,000 deficiency in the Retained Earnings: financial Up to P1,000,000 P1,000 P2,000 P4,000 statements or non- P1,000,001 to P10,000,000 2,000 4,000 8,000 compliance with P10,000,001 to P20,000,000 3,000 6,000 12,000 the requirements P20,000,001 to P30,000,000 4,000 8,000 16,000 of the Rules Above P30,000,000 5,000 10,000 20,000 Material - An amount An amount An amount misstatement in based on the based on the based on the the financial above scale or above scale above scale or statements 1/10 of 1% of or 2/10 of 4/10 of 1% of the amount of 1% of the the amount of misstatement, amount of misstatement, whichever is misstatement whichever is higher whichever is higher higher (F) Investment Houses; Universal Banks Registered as Underwriters of Securities; Investment Company Advisers Annual Financial Statements Violation 1st Offense 2nd Offense 3rd Offense Material Deficit P5,000 P10,000 P20,000 deficiency in the Retained Earnings: financial Up to P5,000,000 P10,000 P20,000 P40,000 statements or non- P5,000,001 to P15,000,000 11,000 22,000 44,000 compliance with P15,000,001 to P30,000,000 12,000 24,000 48,000 the requirements P30,000,001 to P50,000,000 13,000 26,000 52,000 of the Rules Above P50,000,000 14,000 28,000 56,000 Material - An amount An amount An amount misstatement in based on the based on the based on the the financial above scale or above scale above scale or statements 1/10 of 1% of or 2/10 of 4/10 of 1% of the amount of 1% of the the amount of misstatement, amount of misstatement, whichever is misstatement whichever is higher whichever is higher higher Interim Financial Statements Violation 1st Offense 2nd Offense 3rd Offense Material Deficit P1,000 P2,000 P4,000 deficiency in the Retained Earnings: financial Up to P5,000,000 P3,000 P6,000 P12,000 statements or non- P5,000,001 to P15,000,000 4,000 8,000 16,000 compliance with P15,000,001 to P30,000,000 5,000 10,000 20,000 the requirements P30,000,001 to P50,000.000 6,000 12,000 24,000 of the Rules Above P50,000,000 7,000 14,000 28,000 Material An amount An amount An amount misstatement in based on the based on the based on the the financial above scale or above scale above scale or statements 1/10 of 1% of or 2/10 of 4/10 of 1% of the amount of 1% of the the amount of misstatement, amount of misstatement, whichever is misstatement whichever is higher whichever is higher higher (G) Clearing Agency and Clearing Agency as Depository; Stock and Securities Exchange/s Annual Financial Statements Violation 1st Offense 2nd Offense 3rd Offense Material Deficit P10,000 P20,000 P40,000 deficiency in the Retained Earnings: financial Up to P10,000,000 P20,000 P40,000 P80,000 statements or non- P10,000,001 to P20,000,000 21,000 42,000 84,000 compliance with P20,000,001 to P50,000,000 22,000 44,000 88,000 the requirements P50,000,001 to P100,000,000 23,000 46,000 92,000 of the Rules Above P100,000,000 24,000 48,000 96,000 Material - An amount An amount An amount misstatement in based on the based on the based on the the financial above scale or above scale above scale or statements 1/10 of 1% of or 2/10 of 4/10 of 1% of the amount of 1% of the the amount of misstatement, amount of misstatement, whichever is misstatement whichever is higher whichever is higher higher Interim Financial Statements Violation 1st Offense 2nd Offense 3rd Offense Material Deficit P4,000 P8,000 P16,000 deficiency in the Retained Earnings: financial Up to P10,000,000 P5,000 P10,000 P20,000 statements or non- P10,000,001 to P20,000,000 6,000 12,000 24,000 compliance with P20,000,001 to P50,000,000 7,000 14,000 28,000 the requirements P50,000,001 to P100,000,000 8,000 16,000 32,000 of the Rules Above P100,000,000 9,000 18,000 36,000 Material - An amount An amount An amount misstatement in based on the based on the based on the the financial above scale or above scale above scale or statements 1/10 of 1% of or 2/10 of 4/10 of 1% of the amount of 1% of the the amount of misstatement, amount of misstatement, whichever is misstatement whichever is higher whichever is higher higher (H) Pre-need Corporations Annual Financial Statements Violation 1st Offense 2nd Offense 3rd Offense Material deficiency in the Active: 1 Active: Active: financial statements or non- P25,000 P50,000 P100,000 compliance with the Inactive 2 Inactive Inactive requirement of the Rules P12,500 P25,000 P50,000 Material misstatement in the Active: Active: Active: financial statements P25,000 P50,000 P50,000 Inactive Inactive Inactive P12,500 P25,000 P25,000 Failure to comply with the Active: Active: Active: requirements of PNUCA P25,000 P50,000 P100,000 Inactive Inactive Inactive P12,500 P25,000 P50,000 Interim Financial Statements Violation 1st Offense 2nd Offense 3rd Offense Material deficiency in the Active: 1 Active: Active: financial statements or non- P5,000 P10,000 P20,000 compliance with the requirements of the Rules Inactive 2 Inactive Inactive P2,500 P5,000 P10,000 Material misstatement in the Active: 1 Active: Active: financial statements P5,000 P10,000 P20,000 Inactive 2 Inactive Inactive P2,500 P5,000 P10,000 Failure to comply with the Active 1 Active: Active: requirements of PNUCA P5,000 P10,000 P20,000 Inactive 2 Inactive Inactive P2,500 P5,000 P10,000 (I) Issuers of securities registered under the SRC and public companies Annual Financial Statements Violation 1st Offense 2nd Offense 3rd Offense Material deficiency in the P25,000 plus P500 P50,000 plus P100,000 plus financial statements or non- per day until P1,000 per day P2,000 per day compliance with the completed/ until completed/ until completed/ requirements of Rules complied complied complied Material misstatement in the P50,000 or 1/10 of P100,000 or 1/10 P200,000 or 1/10 of financial statements 1% of the amount of of 2% of the 4% of the amount of misstatement, amount of misstatement, whichever is higher, misstatement, whichever is higher, plus P500 per day whichever is plus P1,000 per day until corrected higher, plus until corrected P1,000 per day until corrected Interim Financial Statements Violation 1st Offense 2nd Offense 3rd Offense Material deficiency in the P10,000 plus P100 P20,000 plus P500 P30,000 plus P1,000 financial statements or non- per day until per day until per day until compliance with the completed/ completed/ completed/ requirements of Rules complied complied complied Material misstatement in the P25,000 or 1/10 of P50,000 or 1/10 of P100,000 or 1/10 of financial statements 1% of the amount 2% of the amount 4% of the amount of misstatement, of misstatement, misstatement, whichever is higher, whichever is whichever is higher, plus P500 per day higher, plus plus P1,000 per day until corrected P1,000 per day until corrected until corrected The penalty for material deficiencies in the financial statements of a public company engaged in the business of providing health and education services are covered by SEC Memorandum Circular No. 4, Series of 2009, or any amendments thereto. II. Definition For purposes of this Circular, Retained Earnings shall mean the accumulated profits realized out of normal and continuous operations of the business after deducting therefrom distributions to stockholders and transfers to capital stock or other accounts. The Retained Earnings for the purpose of computing the penalty under this Circular shall be the total amount of appropriated and unappropriated retained earnings as shown in the latest financial statements audited by the company's independent auditor. III. Test of Materiality A. The following shall be considered a material deficiency in the financial statements (FS) or significant non-compliance with SRC Rule 68: (i) Any of the following is not submitted with the FS: (1) Balance Sheet; (2) Income Statement or Statement of Receipts and Disbursements; (3) Cash Flow Statement; (4) Statement of Changes in Equity or Fund Balance; (5) Notes to Financial Statements; (6) Statement of Management's Responsibility; (7) Auditor's Report. (ii) The following shall likewise render the financial statements significantly not compliant: (1) If a listed company, public company, mutual fund or issuer of securities to the public, the auditor's opinion is qualified due to a deviation from the applicable financial reporting framework. However, for listed banks, a qualified opinion of the external auditor shall not be considered a non-compliance with SRC Rule 68 if the qualification pertains to a deviation adopted by the Bangko Sentral ng Pilipinas as part of its prudential reporting requirements; (2) The auditor's report is substantially not compliant with the wording prescribed by Philippine Standards on Auditing (PSA) No. 700, as revised, and other applicable auditing standards and practices. (iii) The Statement of Management's Responsibility is not signed by the prescribed signatories and/or not notarized in the case of a listed or public company; (iv) There is no accounting policy for a significant account; For purposes of these Guidelines, a significant account means a Balance Sheet or Income Statement item, the amount of which is equivalent to: For listed companies, public companies, mutual funds, other issuers of securities to the public, and pre-need companies (1) 5% or more of Total Current Asset, if it is one of the current asset items; (2) 5% or more of Total Non-Current Asset, if it is one of the non-current asset items; (3) 5% or more of Total Current Liabilities, if it is one of the current liabilities items; (4) 5% or more of Total Long-Term Liabilities, if it is one of the long-term liabilities items; (5) 5% or more of the Total Stockholders' Equity, if it is one of the equity items or the amount of Total Assets if there is capital deficiency; (6) 5% or more of the Gross Income, Cost of Sales/Services or the Total Operating Expenses, as may be applicable. For all other corporations, the threshold shall be 10% or more of the items mentioned above . (iv) The required disclosures or presentations under the applicable financial reporting framework and SRC Rule 68/68.1 for a significant account are not provided in the financial statements. In case however of disclosures on related party transactions as required under PAS 24, any deficiency thereof shall be considered significant regardless of the amount involved if the reporting company is a public company, listed company, issuer of securities to the public or secondary licensee of the Commission. (v) Five (5) or more of the following minor deficiencies are noted: (1) The financial statements are not presented in the prescribed comparative format; (2) There is no distinction between the current and non-current portion of assets or liabilities except in cases where PAS 1 allows non-classification; (3) There are no cross-references to the notes to financial statements; (4) The number of disclosure items that are not provided for a significant account does not exceed two; (5) The Statement of Management's Responsibility is not in full conformity with the prescribed wording of SRC Rule 68 or 68.1; (6) Such other deficiencies as the Commission may consider minor. B. Any of the following shall be considered a material misstatement in the financial statements: (1) An accounting policy for a significant account is not consistent with PFRS or GAAP, e.g., for non-publicly accountable entities or pre-need companies; (2) An accounting policy for a significant account is not consistently applied between periods or to similar transactions and events (inconsistent application); or (3) The estimate or assumption used on a significant account is unreasonable and resulted to material 1 misstatement of the financial statements; (4) There is more than one (1) minor misstatement and the aggregate amount involved for said misstatements meets the test of materiality; (5) The financial statements of a corporation with a subsidiary or subsidiaries are not presented on a consolidated basis in violation of PAS 27; (6) Such other misstatements in the financial statement, i.e., overstatement or understatement of income, asset, liability or equity, that the Commission may consider material. IV. Reckoning Date of Computation of Penalty The amount of daily penalty shall be computed from the date the violation is discovered, as indicated in the comment letter of the Commission, up to the time that a sufficient and meritorious explanation, together with an audit committee or board resolution taking up the matter, and the corrective measures to be taken thereon, are submitted to the Commission . The submission shall include the revised financial statements or an addendum to the financial statements, as may be directed by the Commission. V. Delinquency A. An entity that commits a violation for the fourth time shall be subject to the following penalties: i. In the case of a corporation holding a secondary license from the Commission, suspension of the license for a period of sixty (60) business days and a monetary penalty equivalent to 200% of the fine for the third offense. Failure to pay the fine within the suspension period shall be a ground for the revocation of the company's license; ii. In the case of a corporation with no secondary license from the Commission, a monetary penalty equivalent to 200% of the fine for the third offense with a warning that a subsequent violation shall be a ground for the revocation of the corporation's registration with the Commission. Failure to pay the fine shall be a ground for the revocation of the company's registration. B. An entity that commits a violation for the fifth time shall be subject to the following penalties: i. In the case of a corporation holding a secondary license from the Commission, revocation of the license and a monetary penalty equivalent to 200% of the fine for the fourth offense; TAEcSC ii. In the case of a corporation with no secondary license from the Commission, revocation of its registration and a monetary penalty equivalent to 200% of the fine for the fourth offense. The non-payment of the above monetary penalty shall constitute a derogatory record on the directors and officers of the corporation. C. The suspension or revocation of the company's secondary license shall not affect its civil or criminal liability for any act committed prior to such suspension or revocation. The provisions of Section 71.2 of the Securities Regulation Code shall likewise be observed for contracts entered into by the subject company. VI. Coverage of the Penalty A. The penalties for the violations cited shall be in addition to the fine imposable for the late filing of the financial statements, as provided for in earlier circulars or may in the future be issued by the Commission. B. The imposition of monetary penalty shall be without prejudice to any action that the Commission may institute against the corporation, its directors and officers, in accordance with existing laws and regulations. VII. Repealing Clause The salient provisions of SEC Memorandum Circular No. 6, Series of 2005 (Consolidated Scale of Fines) and other circulars, rules, orders earlier issued by the Commission that are inconsistent with any of the foregoing enumeration of violations and penalties shall be deemed superseded, repealed or amended by this Circular. TEAICc VIII. Transitory Clause This Circular shall be applied to violations committed in prior years in so far as the stated penalty is favorable to the corporation. In all other cases, the Circular shall cover financial statements for the period ended December 31, 2008 and onwards. This Circular shall take effect on July 15, 2009. Issued this 24th day of June, 2009. Mandaluyong City, Philippines. For the Commission: (SGD.) FE B. BARIN Chairperson Footnotes 1. With dealer license 2. Without dealer license 1. Use the 5% and 10% threshold in item (b) above.