Regulation A+ went into effect on June 19, 2015, with the promise that small companies could raise up to $50 million in new capital through an online mini-IPO with investments from anyone in “the crowd” and not just from wealthy accredited investors. By giving access to the general public, this section of the JOBS Act promised to be a game changer for the American economy, and for small businesses everywhere.
So why, three months after this law went into effect, is very little being heard about anyone raising money under the new law?
One requirement of the SEC filings is that your company’s financial records are in order and that the last two years of financial statements need to be audited by an independent CPA or auditing firm for the SEC to approve a Regulation A+ offering. Not surprisingly, few small businesses were ready for this requirement when the law went into effect, and many are still trying to get these records in order and audits completed to file their mini-IPO offering for SEC approval.
Having financials ready for SEC review is a luxury most small businesses were not prepared for when the mini-IPO law became a reality and now are playing catch-up. Craig Denlinger of Artesian CPA is one of the accountants at the forefront of the Regulation A+ movement. I asked Denlinger for some tips to pass along to help facilitate the process of a Regulation A+ filing.
“Initial filings are taking a lot more time than I think people anticipated, from both legal and accounting side,” Denlinger says. “As the industry builds out, framework and templates time and costs will go down.”
In the meantime, Denlinger suggested the following:
1. Preparation for the audit.
Companies should get a strong accountant in place, preferably a CPA with SEC experience, prior to the audit. The SEC requires a company to follow Regulation S-X, Article 2, for all financials filed with a mini-IPO offering. Denlinger says that Regulation S-X “requires the company raising funds to prepare the financial statements, so companies cannot rely on the auditor for full preparation. Audit firms must take a more hands-off approach than is typical under AICPA independence rules.”
2. No disclaimers allowed.
Denlinger says that opinion disclaimers in the audit are not acceptable under to Regulation S-X. “If a company is an inventory-based business, satisfying the audit requirement can prove difficult since the auditor is unable to observe the inventory counts for the past two years that are required to be audited,“ Denlinger says. “This doesn’t necessarily preclude companies with inventory from a Reg A+ offering, but it is something that should be discussed very early in the process to ensure the auditor will be able to issue an opinion that the SEC will consider an acceptable audit.”
3. Experience counts.
The Regulation A+ rules create for a hybrid between public company and private standards for financial reporting, so the auditor’s SEC experience is important to understand the additional requirements to meet the financial reporting standards.
4. What are the actual audit requirements?
There is a lot of confusion as to audit requirements of Regulation A+. While it has been commonly reported that a company must have two years of audited financials to attempt to raise up to $50 million in a mini-IPO, there is not much guidance as to what the SEC actually requires. What happens if your business, for example, is less than 2 years old?
For example, Denlinger says that a company with a calendar year-end filing with the SEC in February of 2016 would need to present audited financial statements for the years ended Dec. 31, 2013 and 2014, and unaudited financial statements as of a date not sooner than June 30, 2015.
It gets even more confusing if more than three months have passed since the company’s year end. This is why you need a good accountant. A number of early Regulation A+ filings were reportedly rejected without review based on the incorrect financials being included. Another reason you need a good accountant.
Regulation A+ can be an incredible capital funding tool, but there are a lot of accounting hoops to jump through and roadblocks to avoid.
Did I mention that you need a good accountant?