19. If the auditor suspects there may be non-compliance, the auditor shall discuss the matter with management and, where appropriate, those charged with governance. If management or, as appropriate, those charged with governance do not provide sufficient information that supports that the entity is in compliance with laws and regulations and, in the auditor’s judgment, the effect of the suspected non-compliance may be material to the financial statements, the auditor shall consider the need to obtain legal advice. (Ref: Para. A15-A16)
20. If sufficient information about suspected non-compliance cannot be obtained, the auditor shall evaluate the effect of the lack of sufficient appropriate audit evidence on the auditor’s opinion.
21. The auditor shall evaluate the implications of non-compliance in relation to other aspects of the audit, including the auditor’s risk assessment and the reliability of written representations, and take appropriate action. (Ref: Para. A17-
Reporting of Identified or Suspected Non-Compliance
Reporting Non-Compliance to Those Charged with Governance
22. Unless all of those charged with governance are involved in management of the entity, and therefore are aware of matters involving identified or suspected non-compliance already communicated by the auditor,5 the auditor shall communicate with those charged with governance matters involving non- compliance with laws and regulations that come to the auditor’s attention during the course of the audit, other than when the matters are clearly inconsequential.
23. If, in the auditor’s judgment, the non-compliance referred to in paragraph 22 5 SA 260(Revised), “Communication with Those Charged with Governance”, paragraph 13. is believed to be intentional and material, the auditor shall communicate the matter to those charged with governance as soon as practicable.
24. If the auditor suspects that management or those charged with governance are involved in non-compliance, the auditor shall communicate the matter to the next higher level of authority at the entity, if it exists, such as an audit committee or supervisory board. Where no higher authority exists, or if the auditor believes that the communication may not be acted upon or is unsure as to the person to whom to report, the auditor shall consider the need to obtain legal advice.
Reporting Non-Compliance in the Auditor’s Report on the Financial
25. If the auditor concludes that the non-compliance has a material effect on the financial statements, and has not been adequately reflected in the financial statements, the auditor shall, in accordance with SA 705(Revised)6, express a qualified or adverse opinion on the financial statements.
26. If the auditor is precluded by management or those charged with governance from obtaining sufficient appropriate audit evidence to evaluate whether non-compliance that may be material to the financial statements has, or is likely to have, occurred, the auditor shall express a qualified opinion or disclaim an opinion on the financial statements on the basis of a limitation on the scope of the audit in accordance with SA 705(Revised).
27. If the auditor is unable to determine whether non-compliance has occurred because of limitations imposed by the circumstances rather than by management or those charged with governance, the auditor shall evaluate the effect on the auditor’s opinion in accordance with SA 705(Revised).
Reporting Non-Compliance to Regulatory and Enforcement Authorities
28. If the auditor has identified or suspects non-compliance with laws and regulations, the auditor shall determine whether the auditor has a responsibility to report the identified or suspected non-compliance to parties outside the entity. (Ref: Para. A19-A20)
29. The auditor shall document identified or suspected non-compliance with laws and regulations and the results of discussion with management and, where applicable, those charged with governance and other parties outside the entity.7 (Ref: Para. A21) *** 6 SA 705(Revised), “Modifications to the Opinion in the Independent Auditor’s Report”, paragraph 7-8. 7 SA 230, “Audit Documentation”, paragraphs 8-11, and paragraph A6.
Application and Other Explanatory Material
Responsibility for Compliance with Laws and Regulations
Responsibility of Management for Compliance with Laws and Regulations
A1. Management, with the oversight of those charged with governance, is responsible for ensuring that the entity’s operations are conducted in accordance with laws and regulations. Laws and regulations may affect an entity’s financial statements in different ways: for example, most directly, they may affect specific disclosures required of the entity in the financial statements or they may prescribe the applicable financial reporting framework8. They may also establish certain legal rights and obligations of the entity, some of which will be recognised in the entity’s financial statements. In addition, laws and regulations may impose penalties in cases of non-compliance.
A2. The following are examples of the types of policies and procedures an entity may implement to assist in the prevention and detection of non-compliance with laws and regulations: Monitoring legal requirements and ensuring that operating procedures are designed to meet these requirements. Instituting and operating appropriate systems of internal control. Developing, publicising and following a code of conduct.
Ensuring employees are properly trained and understand the code of
conduct. Monitoring compliance with the code of conduct and acting appropriately to discipline employees who fail to comply with it. Engaging legal advisors to assist in monitoring legal requirements. Maintaining a register of significant laws and regulations with which the entity has to comply within its particular industry and a record of complaints. In larger entities, these policies and procedures may be supplemented by assigning appropriate responsibilities to the following: An internal audit function. An audit committee. A compliance function. 8 SA 200, “Overall Objectives of the Independent Auditor and the Conduct of an Audit in accordance with Standards on Auditing”, paragraph 13(a).
Responsibility of the Auditor (Ref: Para. 4-8)
A3. Non-compliance by the entity with laws and regulations may result in a material misstatement of the financial statements. Detection of non-compliance, regardless of materiality, may affect other aspects of the audit including, for example, the auditor’s consideration of the integrity of management or employees.
A4. Whether an act constitutes non-compliance with laws and regulations is a matter for legal determination, which is ordinarily beyond the auditor’s professional competence to determine. Nevertheless, the auditor’s training, experience and understanding of the entity and its industry or sector may provide a basis to recognise that some acts, coming to the auditor’s attention, may constitute non-compliance with laws and regulations.
A5. In accordance with specific statutory requirements, the auditor may be specifically required to report, as part of the audit of the financial statements, on whether the entity complies with certain provisions of laws or regulations. In these circumstances, SA 700(Revised)9 or SA 80010 deal with how these audit responsibilities are addressed in the auditor’s report. Furthermore, where there are specific statutory reporting requirements, it may be necessary for the audit plan to include appropriate tests for compliance with those provisions of the laws and regulations.
A6. In some audit engagements, specially those relating to audit of government ventures and undertakings, etc., there may be additional audit responsibilities with respect to the consideration of laws and regulations which may relate to the audit of financial statements or may extend to other aspects of the entity’s operations.
The Auditor’s Consideration of Compliance with Laws and
Obtaining an Understanding of the Legal and Regulatory Framework (Ref:
A7. To obtain a general understanding of the legal and regulatory framework, and how the entity complies with that framework, the auditor may, for example: Use the auditor’s existing understanding of the entity’s industry, regulatory and other external factors; 9 SA 700(Revised), “Forming an Opinion and Reporting on Financial Statements”; paragraph 43. 10 SA 800, “Special Considerations—Audits of Financial Statements Prepared in Accordance with Special Purpose Frameworks”, paragraph 11.
Update the understanding of those laws and regulations that directly
determine the reported amounts and disclosures in the financial statements; Inquire of management as to other laws or regulations that may be expected to have a fundamental effect on the operations of the entity;
Inquire of management concerning the entity’s policies and procedures
regarding compliance with laws and regulations; and
Inquire of management regarding the policies or procedures adopted for
identifying, evaluating and accounting for litigation claims. Laws and Regulations Generally Recognised to have a Direct Effect on the
Determination of Material Amounts and Disclosures in the Financial
Statements (Ref: Para. 13)
A8. Certain laws and regulations are well-established, known to the entity and within the entity’s industry or sector, and relevant to the entity’s financial statements (as described in paragraph 6(a)). They could include those that relate to, for example: The form and content of financial statements; Industry-specific financial reporting issues;
Accounting for transactions under government contracts; or
The accrual or recognition of expenses for income tax or retirement benefits. Some matters may be relevant to specific assertions (for example, the completeness of income tax provisions), while others may be relevant to the financial statements as a whole (for example, the required statements constituting a complete set of financial statements). Non-compliance with other laws and regulations may result in fines, litigation or other consequences for the entity, the costs of which may need to be provided for in the financial statements, but are not considered to have a direct effect on the financial statements as described in paragraph 6(a).
Procedures to Identify Instances of Non-Compliance – Other Laws and
Regulations (Ref: Para. 14)
A9. Certain other laws and regulations may need particular attention by the auditor because they have a fundamental effect on the operations of the entity (as described in paragraph 6(b)). Non-compliance with laws and regulations that have a fundamental effect on the operations of the entity may cause the entity to cease operations, or call into question the entity’s continuance as a going concern. For example, non-compliance with the requirements of the entity’s license or other entitlement to perform its operations could have such an impact (for example, for a bank, non-compliance with capital or investment requirements). To illustrate further, a Non Banking Financial Company might have to cease to carry on the business of a non-banking financial institution if it fails to obtain a certificate of registration issued under Chapter IIIB of the Reserve Bank of India Act, 1934 and if its Net Owned Funds are less than the amount specified by the RBI in this regard. There are also many laws and regulations relating principally to the operating aspects of the entity that typically do not affect the financial statements and are not captured by the entity’s information systems relevant to financial reporting.
A10. As the financial reporting consequences of other laws and regulations can vary depending on the entity’s operations, the audit procedures required by paragraph 14 are directed to bringing to the auditor’s attention instances of non- compliance with laws and regulations that may have a material effect on the financial statements.
Non-Compliance brought to the Auditor’s Attention by Other Audit
Procedures (Ref: Para. 15)
A11. Audit procedures applied to form an opinion on the financial statements may bring instances of non-compliance or suspected non-compliance with laws and regulations to the auditor’s attention. For example, such audit procedures may include: Reading minutes; Inquiring of the entity’s management and in-house legal counsel or external legal counsel concerning litigation, claims and assessments; and Performing substantive tests of details of classes of transactions, account balances or disclosures.
Written Representations (Ref: Para. 16)
A12. Because the effect on financial statements of laws and regulations can vary considerably, written representations provide necessary audit evidence about management’s knowledge of identified or suspected non-compliance with laws and regulations, whose effects may have a material effect on the financial statements. However, written representations do not provide sufficient appropriate audit evidence on their own and, accordingly, do not affect the nature and extent of other audit evidence that is to be obtained by the auditor.11 11 SA 580, “Written Representations”, paragraph 3.
Audit Procedures When Non-Compliance is Identified or Suspected
Indications of Non-Compliance with Laws and Regulations (Ref: Para. 18)
A13. When the auditor becomes aware of the existence of, or information about, the following matters, it may be an indication of non-compliance with laws and regulations: Investigations by regulatory organisations and government departments or payment of fines or penalties. Payments for unspecified services or loans to consultants, related parties, employees or government employees. Sales commissions or agent’s fees that appear excessive in relation to those ordinarily paid by the entity or in its industry or to the services actually received. Purchasing at prices significantly above or below market price. Unusual payments in cash, purchases in the form of cashiers’ cheques payable to bearer or transfers to numbered bank accounts. Unusual payments towards legal and retainership fees. Unusual transactions with companies registered in tax havens. Payments for goods or services made other than to the country from which the goods or services originated. Payments without proper exchange control documentation. Existence of an information system which fails, whether by design or by accident, to provide an adequate audit trail or sufficient evidence. Unauthorised transactions or improperly recorded transactions. Adverse media comment.
Matters Relevant to the Auditor’s Evaluation (Ref: Para. 18(b))
A14. Matters relevant to the auditor’s evaluation of the possible effect on the financial statements include:
The potential financial consequences of non-compliance with laws and
regulations on the financial statements including, for example, the imposition of fines, penalties, damages, threat of expropriation of assets, enforced discontinuation of operations, and litigation. Whether the potential financial consequences require disclosure. Whether the potential financial consequences are so serious as to call into question the fair presentation of the financial statements, or otherwise make the financial statements misleading.
Audit Procedures (Ref: Para. 19)
A15. The auditor may discuss the findings with those charged with governance where they may be able to provide additional audit evidence. For example, the auditor may confirm that those charged with governance have the same understanding of the facts and circumstances relevant to transactions or events that have led to the possibility of non-compliance with laws and regulations.
A16. If management or, as appropriate, those charged with governance do not provide sufficient information to the auditor that the entity is in fact in compliance with laws and regulations, the auditor may consider it appropriate to consult with the entity’s in-house legal counsel or external legal counsel about the application of the laws and regulations to the circumstances, including the possibility of fraud, and the possible effects on the financial statements. When it is not considered appropriate to consult with the entity’s legal counsel or when the auditor is not satisfied with the legal counsel’s opinion, the auditor may consider it appropriate to consult the auditor’s own legal counsel as to whether a contravention of a law or regulation is involved, the possible legal consequences, including the possibility of fraud, and what further action, if any, the auditor would take.
Evaluating the Implications of Non-Compliance (Ref: Para. 21)
A17. As required by paragraph 21, the auditor evaluates the implications of non- compliance in relation to other aspects of the audit, including the auditor’s risk assessment and the reliability of written representations. The implications of particular instances of non-compliance identified by the auditor will depend on the relationship of the perpetration and concealment, if any, of the act to specific control activities and the level of management or employees involved, especially implications arising from the involvement of the highest authority within the entity.
A18. In exceptional cases, the auditor may consider whether, unless prohibited by law or regulation, withdrawal from the engagement is necessary when management or those charged with governance do not take the remedial action that the auditor considers appropriate in the circumstances, even when the non- compliance is not material to the financial statements. When deciding whether withdrawal from the engagement is necessary, the auditor may consider seeking legal advice. If withdrawal from the engagement is prohibited, the auditor may consider alternative actions, including describing the non-compliance in an Other
Matter(s) paragraph in the auditor’s report.12
12 SA 706(Revised), “Emphasis of Matter Paragraphs and Other Matter Paragraphs in the Independent Auditor’s Report”, paragraph 10.
Reporting of Identified or Suspected Non-Compliance
Reporting Non-Compliance to Regulatory and Enforcement Authorities
A19. The auditor’s professional duty to maintain the confidentiality of client information may preclude reporting identified or suspected non-compliance with laws and regulations to a party outside the entity. However, the auditor’s legal responsibilities vary under different laws and regulations and, in certain circumstances, the duty of confidentiality may be overridden by statute, the law or courts of law. Under the present legal and regulatory framework for financial institutions in India, their auditor has a statutory duty to report the occurrence, or suspected occurrence, of non-compliance with laws and regulations to supervisory authorities. For example, the auditor is required to report certain matters of non-compliance to the Reserve Bank of India as per the requirements of Non Banking Financial Companies Auditor’s Report (Reserve Bank) Directions, 1988, issued by the Reserve Bank of India. Also, some laws or regulations require the auditor to report misstatements to authorities in those cases where management and, where applicable, those charged with governance fail to take corrective action. The auditor may consider it appropriate to obtain legal advice to determine the appropriate course of action.
A20. In case of certain entities, such as national governments, regional (for example, state, provincial, territorial) governments, local (for example, city, town) governments and related governmental entities (for example, agencies, boards, commissions and enterprises), the auditor may be obliged to report on instances of non-compliance to governing authorities or to report them in the auditor’s report.
Documentation (Ref: Para. 29)
A21. The auditor’s documentation of findings regarding identified or suspected non-compliance with laws and regulations may include, for example: Copies of records or documents.
Minutes of discussions held with management, those charged with
governance or parties outside the entity.
Material Modifications to ISA 250, “Consideration of Laws
and Regulations in an Audit of Financial Statements”
1. Paragraph A6 of the Application Section of ISA 250(A6 of SA 250) deals with the application of the requirements of ISA 250 to the audits of public sector entities regarding the additional audit responsibilities with respect to the consideration of laws and regulations. Since as mentioned in the “Preface to the Standards on Quality Control, Auditing, Review, Other Assurance and Related Services”, the Standards issued by the Auditing and Assurance Standards Board, apply equally to all entities, irrespective of their form, nature and size, a specific reference to applicability of the Standard to public sector entities has been deleted. Further, it is also possible that even in case of non public sector entities, there may be additional audit responsibilities with respect to the consideration of laws and regulations which may relate to the audit of financial statements or may extend to other aspects of the entity’s operations. Accordingly, the spirit of Paragraph A6 in ISA, highlighting the fact that in case of certain entities, there may be additional audit responsibilities with respect to the consideration of laws and regulations, has been retained.
2. Paragraph A20 of the Application Section of ISA 250(A20 of SA 250) deals with the application of the requirements of ISA 250 to the audits of public sector entities regarding the obligation to report on instances of non-compliance to governing authorities or to report them in the auditor’s report. Since as mentioned in the “Preface to the Standards on Quality Control, Auditing, Review, Other Assurance and Related Services”, the Standards issued by the Auditing and Assurance Standards Board, apply equally to all entities, irrespective of their form, nature and size, a specific reference to applicability of the Standard to public sector entities has been deleted. Further, it is also possible that even in case of non public sector entities, the auditor may be obliged to report on instances of non-compliance to governing authorities or to report them in the auditor’s report. Accordingly, the spirit of Paragraph A20 in ISA, highlighting the fact that in case of certain entities, there may be instances of reporting non-compliance to governing authorities or to report them in the auditor’s report, has been retained.
