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Chapter 20-12 CODE OF PROFESSIONAL CONDUCT

Rule 20-12-.01 Introduction

(1) This Code of Professional Conduct is promulgated under the authority granted by Code Section 43-3-8(a)(2), which delegates to the Board the power and duty to prescribe rules of professional conduct for establishing and maintaining high standards of competence and integrity in the profession of public accountancy.
(2) The Rules of Conduct set out below rest upon the premises that the reliance of the public in general, and of the business community in particular, on sound financial reporting, and, on the implication of professional competence which inheres in the authorized use of a legally restricted title relating to the practice of public accountancy, impose on individuals engaged in such practice certain obligations both to their clients and to the public. These obligations, which the Rules of Conduct are intended to enforce where necessary, include the obligation to maintain independence of thought and action, to strive continuously to improve one's professional skills, to observe where applicable generally accepted accounting principles and generally accepted auditing standards, to promote sound and informative financial reporting, to hold the affairs of clients in confidence, to uphold the standards of the public accountancy profession, and to maintain high standards of personal conduct in all matters affecting one's fitness to practice public accountancy.
(3) Acceptance of licensure to engage in the practice of public accountancy, or to use titles which imply a particular competence so to engage, involves acceptance by the licensee of such obligations, and accordingly of a duty to abide by the Rules of Conduct.
(4) The Rules of Conduct are intended to have application to all kinds of professional services performed in the practice of public accountancy, including tax and management advisory services, and to apply as well to all licensees, whether or not engaged in the practice of public accountancy, except where the wording of a Rule clearly indicates that the applicability is more limited.
(5) A licensee who is engaged in the practice of public accountancy outside the United States will not be subject to discipline by the Board for departing, with respect to such foreign practice, from any of the Rules so long as his or her conduct is in accordance with the standards of professional conduct applicable to the practice of public accountancy in the country in which he or she is practicing. However, even in such case, if a licensee's name is associated with financial statements in such manner as to imply that he or she is acting as an independent public accountant and under circumstances that would entitle the reader to assume that United States practices are followed, he or she will be expected to comply with Rules 20-12-.08 and 20-12-.09.
(6) In the interpretation and enforcement of the Rules of Conduct, the Board will give consideration, but not necessarily dispositive weight, to relevant interpretations, rulings and opinions issued by the Boards of other jurisdictions, and by appropriately authorized committees on ethics of professional organizations.

Rule 20-12-.02 Independence

A licensee shall not express an opinion on financial statements of an enterprise in such a manner as to imply that he or she is acting as an independent public accountant with respect thereto unless he or she is independent with respect to such enterprise. Independence will be considered to be impaired if, for example:

(a) During the period of his or her professional engagement, or at the time of expressing his or her opinion, the licensee:
1. Had or was committed to acquire any direct or material indirect financial interest in the enterprise; or
2. Was a trustee of any trust or executor or administrator of any estate if such trust or Estate had or was committed to acquire any direct or material indirect financial interest in the enterprise; or
3. Had any joint closely-held business investment with the enterprise of any officer, director or principal stockholder thereof which was material in relation to the net worth of either the licensee or the enterprise; or
4. Had any loan to or from the enterprise or any officer, director or principal stockholder thereof other than loans of the following kinds made by a financial institution under normal lending procedures, terms and requirements:
(i) Loans obtained by the licensee which are not material in relation to the net worth of the borrower;
(ii) Home mortgages; and
(iii) Other secured loans, except those secured solely by a guarantee of the licensee.
(b) During the period covered by the financial statements, during the period of the professional engagement, or at the time of expressing an opinion, the licensee:
1. Was connected with the enterprise as a promoter, underwriter or voting trustee, a director or officer or in any capacity equivalent to that of a member of management or of an employee; or
2. Was a trustee for any pension or profit-sharing trust of the enterprise.
(c) The foregoing examples are not intended to be all-inclusive.

Rule 20-12-.03 Integrity and Objectivity

A licensee shall not in the performance of professional services knowingly misrepresent facts, nor subordinate his or her judgment to others. In tax practice, however, a licensee may resolve doubt in favor of his or her client as long as there is reasonable support for his or her position.

Rule 20-12-.04 Commissions

(1) "Commission" means any item of value given or received by a licensee to or from any third party in return for suggesting the purchase of any product or service.
(2) A licensee shall not recommend or refer to a client any product or service in exchange for a commission, recommend any product or service to be supplied by his or her client to a third party, or receive a commission when the licensee or the licensee's firm also performs for that client:
(a) An audit or review of a financial statement;
(b) A compilation of a financial statement when the licensee expects or reasonably might expect that a third party will use the financial statement and the licensee's report does not disclose a lack of independence; or
(c) An examination of prospective financial information.
(3) The prohibition of subsection (2) of this section applies during the period in which the licensee is engaged to perform any of the services listed in subsection (2)(a), (b), and (c) and the period covered by any historical financial statements involved in the listed services.
(4) A licensee who is not prohibited from receiving a commission and who is paid or expects to be paid a commission shall disclose that fact, in writing, to any individual or entity to whom the licensee recommends or refers a product or service to which the commission relates.
(5) A licensee who accepts a fee for recommending or referring any service of another licensee to any individual or entity or who pays a fee to obtain a client shall disclose, in writing, the receipt or payment of the fee to the client.
(6) This rule shall not prohibit:
(a) Payments for the purchase of an accounting practice; or
(b) Retirement payments to individuals, and their heirs or estates, who were formerly engaged in the practice of public accountancy.

Rule 20-12-.05 Contingent Fees

(1) "Contingent fee" means a fee established for the performance of any public accountancy service pursuant to a written or oral agreement in which no fee will be charged unless a specified finding or result is attained, or in which the amount of the fee is otherwise dependent upon the finding or result of the service.
(2) A licensee shall not accept or perform any public accountancy services for a contingent fee or receive a contingent fee from a client for whom the licensee or the licensee's firm performs:
(a) An audit;
(b) A review;
(c) A compilation of a financial statement when the licensee expects or reasonably might expect that a third party will use the financial statement and the licensee's report does not disclose a lack of independence; or
(d) An examination of prospective financial information.
(3) The prohibition of subsection (2) of this section applies during the period of time in which the licensee is engaged to perform those services and the period covered by any historical financial statements involved in those services.
(4) A licensee in public practice shall not prepare for a contingent fee:
(a) An original or amended tax return or claim for a tax refund. Preparation of an original or amended tax return or claim for tax refund includes giving advice on events which have occurred at the time the advice is given if such advice is directly relevant to determining the existence, character, or amount of a schedule, entry, or other portion of a return or claim for refund; or
(b) An amended federal or state income tax return for a client claiming a refund of taxes because a deduction was inadvertently omitted from the return originally filed when there is no question as to the propriety of the deduction, rather the claim is filed to correct an omission.
(5) The following are examples of circumstances where a contingent fee would be permitted regardless of whether the licensee or licensee's firm is performing the services specified in subsection (2) of this section:
(a) Representing a client in an examination by a revenue agent of the client's federal or state income tax return;
(b) Filing an amended federal or state income tax return claiming a tax refund based on a tax issue that is either the subject of a test case by a different taxpayer or with respect to which the taxing authority is developing a position;
(c) Filing an amended federal or state income tax return or refund claim which claims a tax refund in an amount greater than the threshold for review by the Joint Committee on Internal Revenue Taxation or state taxing authority;
(d) Requesting a refund of either overpayments of interest or penalties charged to a client's account or deposits of taxes improperly accounted for by the federal or state taxing authority in circumstances where the taxing authority has established procedures for the substantive review of such refund requests;
(e) Requesting, by means of protest or similar document, consideration by the state or local taxing authority of a reduction in the assessed value of property under an established taxing authority review process for hearing all taxpayer arguments relating to assessed value; or
(f) Representing a client to obtain a private letter ruling or influencing the drafting of a regulation or statute.
(6) Fees shall not be considered as contingent:
(a) If fixed by courts or other public authorities; or
(b) In tax matters if determined based on the results of judicial proceedings or the findings of governmental agencies. A fee is considered determined based on the findings of governmental agencies, if the licensee can demonstrate a reasonable expectation at the time of the fee arrangement, of substantive consideration by an agency with respect to the licensee's client. The expectation is deemed not reasonable in the case of preparation of original tax returns.
(7) Fees may vary depending on the complexity of services rendered.

Rule 20-12-.06 Incompatible Occupations

A licensee shall not concurrently engage in the practice of public accountancy and in any other business or occupation which impairs his or her independence or objectivity in rendering professional services.

Rule 20-12-.07 Competence

A licensee shall not undertake any engagement for the performance of professional services which he or she cannot reasonably expect to complete with due professional competence, including compliance, where applicable, with Rules 20-12-.08 and 20-12-.09.

Rule 20-12-.08 Auditing Standards

A licensee shall not permit his or her name to be associated with financial statements in such a manner as to imply that he or she is acting as an independent public accountant with respect to such financial statements unless he or she has complied with applicable generally accepted auditing standards. Statements on Auditing Standards issued by the American Institute of Certified Public Accountants, and other pronouncements having similar generally recognized authority, are considered to be interpretations of generally accepted auditing standards, and departures therefrom must be justified by those who do not follow them.

Rule 20-12-.09 Accounting Principles

A licensee shall not express an opinion that financial statements are presented in conformity with generally accepted accounting principles if such financial statements contain any departure from such accounting principles which has a material effect on the financial statements taken as a whole, unless the licensee can demonstrate that by reason of unusual circumstances the financial statements would otherwise have been misleading. In such a case, the licensee's report must describe the departure, the approximate effects thereof, if practicable, and the reasons why compliance with the principle would result in a misleading statement. For purposes of this Rule generally accepted accounting principles are considered to be defined by pronouncements issued by the Financial Accounting Standards Board and its predecessor entities and similar pronouncements issued by other entities having similar generally recognized authority.

Rule 20-12-.10 Forecasts

A licensee shall not in the performance of professional services permit his or her name to be used in conjunction with any forecast of future transactions in a manner which may reasonably lead to the belief that the licensee vouches for the achievability of the forecast.

Rule 20-12-.11 Confidential Client Information

A licensee shall not without the consent of his or her client disclose any confidential information pertaining to his or her client obtained in the course of performing professional services.

(a) This Rule does not:
1. Relieve a licensee of any obligations under Rules 20-12-.08 and 20-12-.09; or
2. Affect in any way a licensee's obligation to comply with a validly issued subpoena or summons enforceable by order of a court; or
3. Prohibit disclosures in the course of a quality review of a licensee's professional services; or
4. Preclude a licensee from responding to any inquiry made by the Board or any investigative or disciplinary body established by law or formally recognized by the Board.
(b) Members of the Board and professional practice reviewers shall not disclose any confidential client information which comes to their attention from licensees in disciplinary proceedings or otherwise in carrying out their responsibilities, except that they may furnish such information to an investigative or disciplinary body of the kind referred to above.

Rule 20-12-.12 Records

A licensee shall furnish to his or her client or former client, upon request made within a reasonable time:

(a) Any accounting or other records belonging to, or obtained from or on behalf of, the client which the licensee removed from the client's premises or received for the client's account, but the licensee may make and retain copies of such documents when they form the basis for work done by him or her; and
(b) A copy of the licensee's working papers, to the extent that such working papers include records which would ordinarily constitute part of the client's books and records and are not otherwise available to the client.

Rule 20-12-.13 Discreditable Acts

A licensee shall not commit any act that reflects adversely on his or her fitness to engage in the practice of public accountancy.

Rule 20-12-.14 Acting Through Others

A licensee shall not permit others to carry out on his or her behalf, either with or without compensation, acts which, if carried out by the licensee would place him or her in violation of the Rules of Conduct.

Rule 20-12-.15 Advertising and Solicitation

(1) A licensee shall not use or participate in the use of any form of public communication having reference to his or her professional services which contains a false, fraudulent, misleading, deceptive or unfair statement or claim. A false, fraudulent, misleading, deceptive or unfair statement or claim includes but is not limited to a statement or claim which:
(a) Contains a misrepresentation of fact; or
(b) Is likely to mislead or deceive because it fails to make full disclosure of relevant facts; or
(c) Contains any testimonial or laudatory statement, or other statement or implication that the licensee's professional services are of exceptional quality if not supported by verifiable facts; or
(d) Is intended or likely to create false or unjustified expectations of favorable results; or
(f) Implies educational or professional attainments or licensing recognition not supported in fact; or States or implies that the licensee has received formal recognition as a specialist in any aspect of the practice of public accountancy, except in accordance with Rules adopted by the Board; or
(g) Represents that professional services can or will be competently performed for a stated fee when this is not the case, or makes representations with respect to fees for professional services that do not disclose all variables affecting the fees that will in fact be charged; or
(h) Contains other representations or implications that in reasonable probability will cause an ordinarily prudent individual to misunderstand or be deceived.
(2) A licensee shall not by any communication use coercion, duress, compulsion, intimidation, threats, overreaching, or vexatious or harassing conduct in the course of offering, soliciting, or advertising to perform an engagement.

Rule 20-12-.16 Forms of Practice

(1) A licensee may practice public accountancy only in a partnership, an association, a corporation, or any legal entity which practices public accountancy.
(2) A CPA or foreign accountant may only practice public accountancy in any legal entity in which a simple majority of the financial interests and voting rights are owned by CPAs in good standing in this state or any other state.

Rule 20-12-.17 Firm Names

A licensee shall not practice public accountancy under a firm name which is misleading in any way as to the legal form of the firm or as to the individuals who are partners, members, officers or shareholders of the firm, or as to any matter with respect to which public communications are restricted by Rule 20-12-.15. However, the names of one or more past CPA owners may be included in the name of a firm or its successor, and a CPA owner surviving the death or withdrawal of all other CPA owners may continue to practice under a firm name for up to two years after becoming a sole CPA owner; provided, however, that the name of any such former CPA owner may not be used in the event that such past CPA owner license has been revoked, suspended or otherwise been the subject of action by the Board whereby the licensee has been prohibited, for any period of time from practicing public accountancy or prohibited from using the title CPA or holding himself or herself out as a CPA. The firm name is not intended to reflect those licensees who are solely employees of the firm, having no ownership interest in the firm. A firm name may not include the names of Non-CPA owners.

Rule 20-12-.18 Communications

A licensee shall, when requested, respond to communications from the Board within thirty days of the mailing of such communications by registered or certified mail.

Rule 20-12-.19 Other Professional Standards

In the performance of services in the practice of public accountancy for which standards have been established by the American Institute of Certified Public Accountants or by other entities having similar generally recognized authority, a licensee shall conform to such standards. Services subject to this rule shall include but not be limited to, accounting and review services, consulting services, financial planning services, and tax services.

Rule 20-12-.20 Repealed