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.1 General

.11 What is Form 10-K and where can I find it?

Form 10-K is the reporting form used by most US domestic SEC registrants to comply with the SEC’s annual report requirements. See Exchange Act Rules 13a-1 and 15d-1, as applicable.
The disclosure requirements of Form 10-K are set forth in the body of the form and the accompanying instructions and generally leverage Regulations S-X and S-K rather than including the detailed disclosure requirements in the form.
The text of Form 10-K is available on the SEC’s website (https://www.sec.gov/files/form10-k.pdf).
Form 10-K can also be used as a transition report in connection with a change in fiscal year-end. See SEC 3185 and Exchange Act Rules 13a-10 and 15d-10 for more information relating to transition reports in connection with changes in fiscal year-end. Additionally, in limited circumstances, Form 10-K is used as a special financial report under Exchange Act Rule 15d-2. See SEC 3130.917.
[Editor’s note: The guidance in SEC 3130 is drafted primarily from the perspective of an annual report on Form 10-K being filed by a company that is neither a smaller reporting company nor an emerging growth company (each as defined in Exchange Act Rule 12b-2). See SEC 2160 for additional information relating to smaller reporting companies and SEC 2170 for additional information relating to emerging growth companies.]

.12 What is the due date of an annual report on Form 10-K?

The due date of an annual report on Form 10-K is specified in General Instruction A(2) as follows:
- within 60 days after year-end by a registrant that meets the definition of a large accelerated filer;
- within 75 days after year-end by a registrant that meets the definition of an accelerated filer; and
- within 90 days after year-end by a registrant that meets neither the definition of an accelerated filer nor a large accelerated filer.
[Editor’s note: See SEC 3125 and Exchange Act Rule 12b-2 for information relating to the SEC’s definitions of the terms large accelerated filer and accelerated filer.]
See SEC 3130.912 through .914 for additional information.

.13 Is Form 12b-25 (Notification of Late Filing) available to provide a limited extension to the due date of Form 10-K in appropriate circumstances?

Yes. Form 12b-25 applies to Form 10-K. See SEC 3145.

.2 Financial statements requirements

.21 Where can I find the financial statement requirements applicable to an annual report on Form 10-K?

The financial statements requirements applicable to Form 10-K are set forth under Part II-Item 8 of the form.
[Editor's note: The following discussion relates to companies that are not smaller reporting companies. Smaller reporting companies are only required to consider those sections outside of S-X Article 8 that are specifically referenced. See SEC 2160 for more information relating to smaller reporting companies.]
An annual report on Form 10-K requires financial statements meeting the requirements of Regulation S-X, except S-X 3-05, 3-14, 6-11, 8-04, 8-05, 8-06 and Article 11. In addition to consolidated financial statements of the registrant, depending upon a registrant's circumstances, condensed financial information or complete financial statements may be required for one or more of the following (although not necessarily required to be included in the registrant’s financial statements):
1. The registrant (parent company only) pursuant to S-X Article 12. See SEC 4510.*
2. Unconsolidated majority-owned subsidiaries pursuant to S-X 3-09. See SEC 4520.*
3. Fifty percent or less-owned persons accounted for by the equity method pursuant to S-X 3-09. See SEC 4520.*
4. Guarantors of registered securities pursuant to S-X 3-10/13-01. See SEC 4530.
5. Affiliates whose securities collateralize an issue of registered debt pursuant to S-X 3-16/13-02. See SEC 4540.
*Not applicable to smaller reporting companies.
Registrants (other than foreign private issuers and smaller reporting companies) with securities registered pursuant to Section 12(b) (other than mutual life insurance companies) or 12(g) of the Exchange Act must provide disclosures of material quarterly retrospective changes set forth in S-K 302(a), where applicable. When required, these disclosures are usually provided in an unaudited note to the annual financial statements; however, sometimes the disclosures are provided outside the registrant’s financial statements.
See SEC 3130.901 through .905 for additional information.

.3 Selected Form 10-K disclosure items

.31 What are the disclosure requirements related to unresolved written SEC staff comments (Item 1B of Form 10-K)?

A registrant that is either an accelerated filer or a large accelerated filer (each as defined in Exchange Act Rule 12b-2) or a well-known seasoned issuer (as defined in Securities Act Rule 405) must disclose the substance of any unresolved written SEC staff comments relating to its periodic or current reports if (i) the comments were issued at least 180 days before the end of the fiscal year, (ii) the comments remain unresolved at the Form 10-K filing date, and (iii) the registrant believes the comments are material. For purposes of measuring the 180 days, the period begins from the date of the first comment letter that specifically raises the issue. This date may be later than the date of the initial comment letter relating to the filing.
The registrant is not required to reprint the SEC staff’s comment verbatim; however, the disclosure must be sufficient to convey the substance of the comment. Additionally, the registrant’s disclosure may provide other information, including the position of the registrant with respect to the comment. The disclosure requirement does not extend to comments that have been resolved, including those where the resolution includes reflecting changes in future filings.
[Editor’s note: The existence of any unresolved SEC staff comments at the time of (i) filing a periodic report (even if disclosure is not required) or (ii) filing/using a registration statement is a matter that requires careful analysis to determine whether the comment needs to be resolved before moving forward with the filing/transaction.]

.32 What are the disclosure requirements related to certain tax penalties required by the American Jobs Creation Act of 2004?

The American Jobs Creation Act of 2004 (the AJCA) amended the Internal Revenue Code by adding section 6707A which, among other things, requires that a person who files an annual report on Form 10‑K, pursuant to Section 13 or 15(d) of the Exchange Act (either separately or consolidated with another person), must disclose in Item 3 (Legal Proceedings) the requirement to pay certain penalties relating to certain "reportable transactions." The penalties that must be disclosed are those set forth in Section 2.05 of IRS Revenue Procedure 2005-51. Among other things, the disclosure must include the amount of the penalty, whether the penalty has been paid in full, the section and subparagraph of the Internal Revenue Code under which the penalty was determined, and a description of the penalty.
The disclosures required by the AJCA and Rev. Proc. 2005-51 are complex, and companies should consider seeking the advice of legal counsel to ensure that all required disclosures are made and that those disclosures are complete and comply with the relevant regulations. Failure to make these disclosures will be treated as a failure to disclose a listed transaction which is subject to additional penalty. Rev. Proc. 2005-51 is available on the IRS website at http://www.irs.gov/irb/2005-33_IRB/ar14.html.
[Editor's note: The IRS issued Rev. Proc. 2007-25, which clarified the applicability of the disclosure requirements to all annual reports, not just those filed on Form 10-K. Rev. Proc. 2007-25 can be found on the IRS website at http://www.irs.gov/irb/2007-12_IRB/ar15.html. During 2011, the IRS issued Treasury Decision 9550 (T.D. 9550), which provides guidance regarding the penalties applicable for failure to disclose reportable transactions in any return or statement, including any required disclosures in annual reports under the Exchange Act. T.D. 9550 can be found on the IRS website at http://www.irs.gov/irb/2011-47_IRB/ar10.html. Additional guidance was issued on March 26, 2019 under section 6707A in Treasury Decision 9853. The regulation provides additional guidance on the amount of the penalty and how to compute the amount of the penalty in different circumstances. TD 9853 is applicable to any penalties assessed after March 26, 2019 and TD 9550 applies to penalties assessed prior to that date.]

.33 What are the disclosure requirements related to sanctionable activities required by the Iran Threat Reduction and Syria Human Rights Act of 2012?

The Iran Threat Reduction and Syria Human Rights Act of 2012 amended the Exchange Act to require disclosure in annual and quarterly reports filed after February 6, 2013 if the issuer has knowingly engaged in certain activities described in the Iran Sanctions Act of 1996, the Comprehensive Iran Sanctions, Accountability, and Divestment Act of 2010, or certain other federal regulations covering transactions or dealings with Iran. If an issuer or an affiliate of the issuer has engaged in any such activities, the following should be disclosed:
- The nature and extent of the activity;
- The gross revenues and net profits, if any, attributable to the activity; and
- Whether the issuer or the affiliate of the issuer intends to continue the activity.
The determination of whether disclosure is required under the Iran Threat Reduction and Syria Human Rights Act is a legal determination and registrants should consider consulting with legal counsel. EDGAR was updated to introduce a new submission type, IRANNOTICE, for filers to submit notices of disclosure contained in Exchange Act quarterly and annual reports under Section 219 of the Iran Threat Reduction and Syria Human Rights Act of 2012 and Section 13(r) of the Exchange Act. See Exchange Act Sections CDI Section 147.

.34 What is typically included under Item 9B "Other Information"?

Exchange Act Rules 13a-11 and 15d-11 provide that "no failure to file a report on Form 8-K that is required solely pursuant to Item 1.01, 1.02, 2.03, 2.04, 2.05, 2.06, 4.02(a), 5.02(e), or 6.03 of Form 8-K shall be deemed to be a violation of [Section 10(b) of the Exchange Act or Exchange Rule 10b-5]." However, this limited safe harbor extends only until the due date of the registrant’s periodic report covering the period in which the reportable event occurred. Accordingly, the registrant must disclose under Item 9B the information required by these items for any Form 8-K reportable event (other than Item 4.02(a), which must be reported on Form 8-K) occurring during the fourth quarter of the year covered by the Form 10-K (or for an asset-backed issuer since the last required distribution report on Form 10-D) but not previously reported on Form 8-K pursuant to the safe harbor provision. Once the information is included under Item 9B, it does not need to be repeated in a report on Form 8-K, which would otherwise have been required to be filed with respect to such information.
In addition to using Item 9B to disclose information relating to Form 8-K items covered under the limited safe harbor, the SEC staff indicated that if a Form 8-K triggering event occurs within four business days before a registrant files its Form 10-K, the registrant may use Item 9B of Form 10-K to disclose information that would otherwise be required in a Form 8-K (other than disclosures required by Items 4.01 and 4.02). All Item 4.01 and Item 4.02 events must be reported on Form 8-K. See Exchange Act Form 8‑K CDI 101.01. Amendments to previously filed Form 8-Ks must be filed on Form 8-K/A. See SEC 3150.4.

.35 What are the disclosure requirements related to Item 9C “Disclosure Regarding Foreign Jurisdictions that Prevent Inspections”?

Item 9C was added to Form 10-K to implement the disclosure and submission requirements of the Holding Foreign Companies Accountable Act (HFCAA).
A registrant, identified by the SEC pursuant to section 104(i)(2)(A) of the Sarbanes-Oxley Act, as having retained, for the preparation of the audit report on its financial statements included in the Form 10-K, a registered public accounting firm that has a branch or office that is located in a foreign jurisdiction and that the Public Company Accounting Oversight Board (PCAOB) has determined it is unable to inspect or investigate completely because of a position taken by an authority in the foreign jurisdiction must electronically submit the supplemental disclosures specified by Item 9C(a) of Form 10-K to the SEC on or before the due date of the Form 10-K.
A registrant that is a foreign issuer, as defined in Exchange Act Rule 3b-4, identified by the SEC pursuant to section 104(i)(2)(A) of the Sarbanes-Oxley Act, as having retained, for the preparation of the audit report on its financial statements included in the Form 10-K, a registered public accounting firm that has a branch or office that is located in a foreign jurisdiction and that the PCAOB has determined it is unable to inspect or investigate completely because of a position taken by an authority in the foreign jurisdiction must provide the disclosures as specified by Item 9C(b) of Form 10-K.
[Editor’s note: The Divisions of Corporation Finance and Trading and Markets issued a Staff Statement on the HFCAA on April 6, 2023. The statement clarifies the December 2022 amendments to the HFCAA that any foreign authority impeding PCAOB inspections can trigger the provision of the HFCAA.]

.4 Annual report to shareholders

.41 What is an annual report to shareholders and how is it used?

Exchange Act Rule 14a-3 requires that every person solicited by management in connection with an annual meeting at which directors are to be elected shall receive an annual report, which, among other things, contains financial statements prepared in accordance with Regulation S-X (with certain limited exceptions described in Exchange Act Rule 14a-3(b)(1)). Exchange Act Rule 14a-3 specifies the information that must be included in an annual report to shareholders. The annual report to shareholders must either accompany or precede the proxy statement. Beginning in 2023, the annual report to shareholders must also be submitted electronically to the SEC via EDGAR. See SEC Release 33-11070.
[Editor’s note: A company can elect to prepare a single (integrated) document which serves as both the annual report to shareholders (required by Exchange Act Rule 14a-3) and the annual report on Form 10-K. See General Instruction H of Form 10-K.]
[Editor’s note: Notwithstanding the requirement to submit the annual report to the SEC via EDGAR, the information contained in the annual report to shareholders is not necessarily considered "filed" with the SEC for purposes of the liability provisions of the Exchange Act. See Exchange Act Rule 14a-3(c). See also SEC 3130.42.]
[Editor’s note: The annual report to shareholders prepared to comply with Exchange Act Rule 14a-3 is different from a summary annual report which some issuers prepare and provide to their shareholders. See SEC 3130.51 for a discussion of summary annual reports.]
See SEC 3130.915 for additional information.

.42 Can financial statements and other information included in the annual report to shareholders be incorporated by reference into an issuer’s Form 10-K?

Generally, yes. General Instruction G(2) to Form 10-K specifies the conditions under which information in the annual report to shareholders may be incorporated by reference in the Form 10-K. For instance, financial statements contained in the annual report to shareholders which substantially meet the financial statement requirements of Form 10-K may be incorporated by reference into the Form 10-K rather than reprinting the financial statements in the body of the Form 10-K.
Any portions of the annual report to shareholders that are incorporated by reference into the Form 10-K must be filed in electronic format as Exhibit 13 to the Form 10-K as specified by Note 2 to General Instruction G(2) and S-K 601(b)(13). Such data, to the extent incorporated by reference in a report filed under the Exchange Act, is deemed to be "filed" with the SEC. In other words, if the audited financial statements are incorporated by reference into the Form 10-K from the annual report to shareholders, those financial statements will need to be included under Exhibit 13 of the Form 10-K and they will be considered "filed" with the SEC.
It is important that the incorporation by reference language included in the Form 10-K indicate specifically what information in the annual report to shareholders is being incorporated by reference in the Form 10-K in order to avoid any possibility that other sections of the annual report, such as the Chairman's letter, etc., could be considered "filed" as part of the Form 10-K. To limit the information included in the annual report to shareholders which will be deemed to be filed, some registrants prefer to include a statement excluding all portions of the annual shareholder report which are not specifically incorporated by reference into the Form 10-K. See examples below.
Example of incorporation by reference language
Form 10-K Item 8 - Financial Statements and Supplementary Data
The financial statements, together with the report of PricewaterhouseCoopers LLP dated February 23, 2023, appearing on pages XX to YY of the XYZ Company 2022 Annual Report to Shareholders, are incorporated by reference in this Annual Report on Form 10-K.
Example of exclusion language
The financial statements, together with the report of PricewaterhouseCoopers LLP dated February 23, 2023, appearing on pages XX to YY of the XYZ Company 2022 Annual Report to Shareholders, are incorporated by reference in this Annual Report on Form 10-K. With the exception of the aforementioned information and the information incorporated in Items 5, 7, 7A, 8, and 9A, the 2022 Annual Report to Shareholders is not to be deemed filed as part of this Annual Report on Form 10-K.

.5 Summary annual report

.51 What is a summary annual report?

A summary annual report is a document prepared by a registrant and provided to its shareholders with certain highlights relating to the company. Summary annual reports oftentimes include financial highlights, condensed financial statements, an independent auditor's report, and a narrative discussion of the financial data. A summary annual report is different from the annual report to shareholders (see SEC 3130.41) or the Form 10-K.
There are no authoritative guidelines governing the form and content of financial information which may be included in a summary annual report. However, a better understanding of the condensed financial statements oftentimes included in a summary annual report may be promoted when they are accompanied by an appropriate level of disclosure (e.g., condensed or summary footnotes). This disclosure may also prevent the condensed financial statements from being misleading. The determination as to an appropriate level of disclosure is a matter of judgment. Items sometimes disclosed include those relating to:
- The nature of accounting changes and matters affecting comparability;
- The principal revenue recognition policies and other significant accounting policies;
- A description of significant transactions and their effect on reported results (e.g., debt extinguishments, discontinued operations, business combinations, subsequent events);
- Information relating to major contingencies or commitments;
- The terms of debt or other financing arrangements; and
- Significant related party transactions and relationships.
The SEC staff has advised registrants that the nature and amount of disclosure in a summary annual report is generally a matter for the company to determine with its legal counsel. Issuers should consult with their counsel regarding the appropriate level of disclosure to be included in a summary annual report and the applicable liability frameworks. Even though there are no specific SEC-prescribed line-item disclosure requirements, summary annual reports may be subject to various statutes/regulations (e.g., the non-GAAP financial measures rules set forth in Regulation G may be applicable (see SEC 6020)).

.6 Communications with audit committees

.61 Are the audit committee communication requirements specified in S-X 2-07 applicable in connection with Form 10-K?

Yes. S-X 2-07 specifies that each registered public accounting firm that performs an audit required by the securities laws shall communicate the following matters to the issuer’s audit committee prior to the filing of the audit report with the SEC:
- All critical accounting policies and practices to be used;
- All alternative disclosures and treatments within generally accepted accounting principles for policies and practices related to material items that have been discussed with management of the issuer or registered investment company, including:
(i) Ramifications of the use of such alternative disclosures and treatments; and
(ii) The disclosures and treatments preferred by the registered public accounting firm;
- Other material written communications between the registered public accounting firm and the management of the issuer or registered investment company, such as any management letter or schedule of unadjusted differences;
- If the audit client is an investment company, all non-audit services provided to any entity in an investment company complex, as defined in S-X 2-01(f)(14), that were not pre-approved by the registered investment company’s audit committee pursuant to S-X 2-01(c)(7).
These communications are in addition to those otherwise required by generally accepted auditing standards and PCAOB rules (e.g., PCAOB AS 1301). In addition to ensuring that these communications take place prior to the time that the audit report is filed with the SEC (e.g., in the Form 10-K), they must also take place prior to the filing of a consent to the use (or incorporation by reference) of the audit report in a Securities Act registration statement (e.g., Form S-3 or Form S-8). Additionally, the communications should take place prior to the company filing the audit report in connection with an Exchange Act registration statement (e.g., Form 10) or a proxy or information statement. Accordingly, the auditor may be required to have these communications multiple times during any given year.
[Editor's note: See “Office of the Chief Accountant: Application of the Commission’s Rules on Auditor Independence Frequently Asked Questions”, Section L, Audit committee communications [2-07], Question 3 available at https://www.sec.gov/info/accountants/ocafaqaudind080607.htm for situations where there is a predecessor auditor.]

.8 Accountants’ consent

.81 Where can I find information relating to the SEC’s requirements for accountants’ consents?

See SEC 2400 for a discussion of accountants’ consents.

.9 Frequently asked questions

.901 Are there circumstances under which a Form 10-K will need to include audit reports from more than one auditor?

Yes. For instance, if the principal auditor makes reference to the report of another auditor in its report on the registrant’s financial statement, the separate report of the other auditor must be filed in the Form 10-K in addition to the report of the principal accountant. See S-X 2-05 and SEC FRM 4140.4. Additionally, if the financial statements included or incorporated by reference in the Form 10-K for a period prior to the most recently completed fiscal year have been audited by a predecessor auditor, the separate report of the predecessor auditor must be included in the Form 10-K.
[Editor’s note: The requirements applicable to Form 10-K are different from those applicable to an annual report to shareholders. See S-X 2-05 and Note 1 to paragraph (b)(1) of Exchange Act Rule 14a-3.]

.902 Where can I find information about the successor auditor “modification-only” reporting framework?

The PCAOB staff issued a series of FAQs setting forth a framework under which a successor auditor may audit and report on modifications to financial statements previously audited by another independent accountant. The FAQs also discuss a number of issues relating to the predecessor auditor when the predecessor is asked to reissue its report on "pre-modification" financial statements. The FAQs are available on the PCAOB's internet website. The PCAOB staff's questions and answers may be accessed at https://pcaobus.org/Standards/QandA/QA_Adjustments.pdf. See also SEC FRM 4830.

.903 Can a foreign private issuer voluntarily file on domestic forms (e.g., Form 10-K) using home-country GAAP or IFRS as issued by the IASB?

Yes. Foreign private issuers that voluntarily file on domestic forms may file financial statements prepared under home-country GAAP and provide a reconciliation to US GAAP under Item 18 of Form 20-F. Foreign private issuers that voluntarily file on domestic forms may file financial statements prepared under IFRS as issued by the IASB without reconciliation to US GAAP. In both cases, the filings should prominently disclose that the company meets the foreign private issuer definition but is voluntarily filing on domestic forms. See SEC FRM 6120.6.

.904 Can a registrant that is a wholly-owned subsidiary of another registrant furnish abbreviated disclosures in its Form 10-K?

Generally, yes. A registrant that is a wholly-owned subsidiary of another registrant and which, on the date of filing its Form 10-K, meets the conditions specified in General Instruction I(1) of Form 10-K, may furnish the abbreviated disclosure specified in General Instruction I(2) of Form 10-K in lieu of the information that otherwise would be required in Form 10-K.

.905 Are there circumstances in which a parent-registrant and one or more subsidiary-registrants can file a combined Form 10-K?

Yes. A parent-registrant and its subsidiary that is also a registrant are allowed to file combined periodic reports in cases where (1) the parent owns substantially all of the stock of the subsidiary, (2) there are no more than nominal differences between the financial statements of the parent and the subsidiary, and (3) the non-financial disclosures of the parent and subsidiary are substantially similar, if the combined Form 10-K includes certain other specified disclosures. These disclosures include, among other items, separate complete sets of financial statements for each entity (in this context, the requirement is intended to apply to the primary financial statements), separate financial statement notes for areas which are different between the parent and the subsidiary (e.g., debt or capital structure), separate audit reports, separate reports on disclosure controls and procedures and internal control over financial reporting for each entity, and separate CEO/CFO Certifications for each entity. See SEC FRM 1370 for additional guidance.
[Editor's note: Similar considerations apply to filing a combined quarterly report on Form 10-Q. See SEC 3140.901]

.906 What are the requirements for "preferability letters" related to changes in accounting principles in the fourth quarter?

See SEC 3140.904. A preferability letter is expected to be filed with the Form 10-K when a material change is adopted in the fourth fiscal quarter.
Accounting changes should be evaluated to determine if they would require the inclusion of a consistency paragraph in the auditors’ report in accordance with PCAOB AS 2820.

.907 Is a Selected Financial Data table required in a Form 10-K?

No. In SEC Release 33-10890, the SEC eliminated the requirement for Selected Financial Data which was previously set forth in S-K 301 (and required under Item 6 of Form 10-K). However, we understand that some registrants may elect to present similar disclosures.

.908 Are management’s report on internal control over financial reporting or an auditor’s attestation report required in a Form 10-K?

Perhaps. See SEC 3125.4 for guidance on the requirements to include a management’s report on internal control over financial reporting or an auditor’s attestation report in a Form 10K.

.909 Do the SEC’s rules specify where management’s report on internal control over financial reporting should be included in a Form 10-K?

No. Even though the requirement to provide management’s report on internal control over financial reporting appears under Item 9A of Form 10-K, the SEC’s rules do not specify where in the Form 10-K management’s report should appear. In its 2003 adopting release, the SEC indicated its view that "it is important for management's report to be in close proximity to the corresponding attestation report issued by the company's registered public accounting firm..." and its expectation "that many companies will choose to place the internal control report and attestation report near the companies' MD&A disclosure or in a portion of the document immediately preceding the companies' financial statements." Companies have generally placed management’s report either under Item 9A or under Item 8 (immediately preceding the registered public accounting firm’s report).

.910 Is a company that is either reorganizing or liquidating under the provisions of the United States Bankruptcy Code relieved of its Exchange Act reporting obligations because it has filed for bankruptcy?

No. Companies are not relieved of their Exchange Act reporting responsibilities simply because they have filed for bankruptcy. However, in SEC Release 9660 (1972), the SEC provided guidance indicating that it would accept reports which “differ in form or content from reports required to be filed under the Exchange Act.” Staff Legal Bulletin No. 2 (1997) provides the SEC staff’s views on requests to modify the Exchange Act periodic reporting of issuers that are either reorganizing or liquidating under the provisions of the United States Bankruptcy Code. Staff Legal Bulletin No. 2 also sets forth the reports that are required when a registrant emerges from bankruptcy. See PwC’s Guide to Bankruptcies and liquidations, 3.20.

.911 How can companies comply with the Form 10-K requirements to XBRL tag certain information relating to the principal auditor?

Form 10-K requires XBRL tags on the principal auditor’s name, location, and PCAOB identification number. The placement of the required tags within the SEC filing is at the discretion of the registrant. Our preference is for the Firm ID to be disclosed and tagged on a page immediately preceding the audit report (e.g., in the index included in Item 8 or Item 15 of Form 10-K).

.912 When is the information required by Part III of Form 10-K due?

General Instruction G(3) to Form 10-K permits a registrant to incorporate by reference the information required by Part III of Form 10-K from the registrant's definitive proxy statement involving the election of directors if the definitive proxy statement is filed with the SEC no later than 120 days after the end of the fiscal year. If the definitive proxy statement will not be filed within the 120-day timeframe, the company must amend the Form 10-K prior to the end of the 120-day period to provide the Part III information.
[Editor’s note: The filing of a preliminary proxy statement within the 120 day time period would not satisfy the requirements of General Instruction G(3). See Exchange Act Forms CDI 104.17.]
See Securities Act Forms CDI 123.01 for a discussion of circumstances under which the Part III information must be filed sooner than 120 days after year-end in order for certain registration statements to become effective.
See SEC 2120.904 for additional guidance.

.913 When are the financial statement schedules required by S-X Article 12 due?

General Instruction A(4) to Form 10-K provides that a registrant may file the financial statement schedules required by S-X Article 12 as an amendment to Form 10-K within 30 days after the original due date of the Form 10-K.

.914 When are the financial statements required by S-X 3-09 due?

.915 Does the fact that Exchange Act Rule 14a-3 doesn’t specifically refer to management’s assessment of the effectiveness of internal control over financial reporting and any related auditor’s attestation report mean that they are not required in an annual report to shareholders?

FAQ 10 to the SEC staff’s frequently asked questions relating to Section 404 of the Sarbanes-Oxley Act indicates that the intent of Section 404 and the SEC’s rules is that a registrant’s audited financial statements with an accompanying audit report that are contained in or accompany a proxy statement or consent solicitation statement should also be accompanied by management’s report on internal control over financial reporting and any associated auditor’s report relating to internal control over financial reporting. The SEC staff indicated in FAQ 10 that they encourage issuers to include both management’s report on internal control over financial reporting and the associated auditor’s report relating to internal control over financial reporting in the annual report to shareholders when the audited financial statements are included. The SEC staff also noted that, if management states in their 404 report that internal control over financial reporting is ineffective, or if the auditor’s report takes any form other than an unqualified opinion and these reports are not included in the annual report to shareholders, then the issuer would have to consider whether the annual report to shareholders contained a material omission that made the disclosures in the annual report misleading.

.916 Should a registrant file a Form 10-K/A to retrospectively revise its financial statements to reflect a subsequent change in accounting principle, discontinued operations or change in reportable segments?

Generally, no. As described in SEC 2120.23, there are a number of situations in which a registrant might need to revise the financial statements filed in its most recent Form 10-K. Changes in accounting principle, discontinued operations and changes in reportable segments are three common examples of items that might need to be retrospectively reflected.
When required, the revised financial statements are usually filed under Item 8.01 of Form 8-K. Form 10-K/A ordinarily should not be used solely to file retrospectively revised financial statements to reflect a subsequent change in accounting principle, discontinued operations or a change in reportable segments. However, the SEC staff will not object if, in a Form 10-K/A filed to correct a material error, a registrant also reflects the retrospective effects of accounting changes, discontinued operations and changes in segment presentation that have been reflected in filings with the SEC subsequent to the original Form 10-K. If the Form 10-K/A is incorporated by reference into a registration statement, then the correction of the error and the accounting change would be required to be presented in the Form 10-K/A. In these circumstances, the financial statements in the Form 10-K/A should clearly distinguish the effects of the material error from those of any subsequent accounting change. See SEC FRM 13110.6.
For example, assume Company A is a calendar year-end SEC registrant. In September 2023, Company A discovered a material error in its 2022 annual financial statements. Accordingly, Company A will be required to restate the 2022 financial statements included in its 2022 Form 10-K. The error occurred in the fourth quarter of 2022, so prior quarterly financial statements were not impacted. Company A has an effective registration statement on Form S-3.
In addition to the discovery of the error, the following events also occurred during 2023:
- In January 2023, Company A changed its internal reporting structure in an effort to integrate the operations of Acquiree Z (which was acquired during the fourth quarter of 2022). As a result, effective January 1, 2023, Company A changed its segment presentation. The revised segment structure was reflected in the 2023 interim financial statements included in Company A's 2023 Form 10-Q filings. The 2022 interim financial statements included in the 2023 Form 10-Q filings for comparative purposes were also revised to reflect the new segment structure.
- In August 2023, Company A disposed of Subsidiary X. Subsidiary X did not meet the criteria for held for sale classification as of June 30, 2023 and was properly not reported as a discontinued operation in Company A's second quarter 2023 financial statements. Subsidiary X will be reflected as a discontinued operation in Company A's 2023 financial statements to be filed in its September 30, 2023 Form 10-Q. Additionally, the 2022 interim financial statements included in the September 30, 2023 Form 10-Q will be retrospectively revised to report Subsidiary X as a discontinued operation. When the 2023 Form 10-K is filed (in 2024), the 2023, 2022 and 2021 financial statements included in the 2023 Form 10-K will reflect Subsidiary X as a discontinued operation.
Company A will file its restated 2022 annual financial statements on Form 10-K/A in October 2023 (i.e., before the September 2023 Form 10-Q is filed).
Analysis:
In addition to restating its 2022 annual financial statements to correct the material error identified during September 2023, the 2022 annual financial statements to be filed in the October 2023 Form 10-K/A will also be revised to reflect the January 2023 change in segment presentation (because the segment change has been reflected in Company A's interim financial statements for the first and second quarters of 2023 and 2022).
The amended 2022 annual financial statements to be included in the October 2023 Form 10-K/A w not be revised to reflect Subsidiary X as a discontinued operation (because at the date the Form 10-K/A is filed, Company A has not yet filed financial statements that report Subsidiary X as a discontinued operation). Company A's disclosures should clearly identify the items that are reflected in the Form 10-K/A.

.917 What is a special financial report on Form 10-K and when can it be used?

When an initial Securities Act registration statement is declared effective in the early part of a fiscal year, it oftentimes does not include financial statements for the most recently completed fiscal year. Exchange Act Rule 15d-2 provides registrants 90 days after the effective date of the Securities Act registration statement to file a special financial report on Form 10-K. A special financial report includes audited financial statements for the most recently completed fiscal year. MD&A or other narrative disclosures are encouraged but not required. See SEC FRM 1330.5.
[Editor’s note: Even if omitted from a special financial report, MD&A and other disclosures would need to be included in any subsequent registration statement or proxy statement. See SEC FRM 1330.5]
It is important to note that Exchange Act Rule 15d-2 only makes reference to a Securities Act registration statement. There is no corresponding accommodation for a registrant with securities registered under Exchange Act Section 12. Accordingly, a registrant with securities registered under Exchange Act Section 12 would not be eligible to file a special financial report under Exchange Act Rule 15d-2. See Exchange Act Rules CDI 270.01.
Normally, an initial public offering of common stock is registered under both the Securities Act (e.g., on Form S-1) and Exchange Act Section 12 (e.g., on Form 8-A); therefore, the registrant would generally not be eligible to file a special financial report under Exchange Act Rule 15d-2. Rather, the registrant should file an annual report pursuant to Exchange Act Rule 13a-1 (i.e., a complete Form 10-K following the timing guidance described in SEC 3130.12).
[Editor’s note: A registrant may wish to consult with its legal counsel before concluding that it may file a special financial report on Form 10-K under Exchange Act Rule 15d-2.]
[Editor's note: A special financial report under Exchange Act Rule 15d-2 is considered an annual report for purposes of evaluating the company's status as a newly public company. See SEC 3125.802 and SEC FRM 1340.10 (NOTE to Section) for additional information.]

.918 Where can I find guidance on Public Company Accounting Overview Board accounting support fee?

Guidance on PCAOB accounting support fee can be found at:
- PCAOB Rule 7104; and
- Frequently Asked Questions: The Issuer Accounting Support Fee and the Funding Process (https://pcaobus.org/about/accounting-support-fee/supportfeefaq)
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