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SEC 3145 - Form 12b-25 (notification of late filing)
Publication date: 30 Jun 2023
us PwC SEC Volume 3145
.1 General
.11 What is Form 12b-25 and where can I find it?
Form 12b-25 is the reporting form used by registrants to notify the SEC when the registrant is unable to file specified periodic reports (see SEC 3145.12) by the original due date. The requirement to notify the SEC and to file Form 12b-25 is set forth in Exchange Act Rule 12b-25(a).
If a company timely files its Form 12b-25 and complies with the other requirements of Exchange Act Rule 12b-25(b) (including filing the related periodic report within the relevant extension period), then the SEC will consider the periodic report to have been timely filed on its original due date. One reason this is important is because companies that have not filed specified SEC reports on a timely basis during the past 12 months would not qualify for certain opportunities for additional flexibility under the SEC's rules and forms. For example, one of the eligibility requirements for filing a registration statement on Form S-3 is that the registrant has timely filed specified SEC reports for the last 12 months. See General Instruction I.A.3(b) of Form S-3. Similarly, one of the conditions to qualify as a well-known seasoned issuer is that the registrant must have timely filed specified SEC reports during the last 12 months. See Securities Act Rule 405.
The text of Form 12b-25 is available on the SEC’s website (https://www.sec.gov/files/form12b-25.pdf).
.12 Which SEC reports are eligible for the limited extension under Exchange Act Rule 12b-25 and how long is the extension?
The reports that are eligible for the limited extension under Exchange Act Rule 12b-25(b) and the associated extension period are as follows:
Extension Period |
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Quarterly reports* on Form 10-Q |
5 calendar days |
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Annual* and semi-annual* reports on Form N-CEN or N-CSR |
15 calendar days |
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Distribution reports on Form 10-D |
5 calendar days |
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*also applies to transition reports and to special financial reports under Exchange Act Rule 15d-2 (see Exchange Act Rules CDI 135.09). |
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.13 What is the due date of Form 12b-25?
Form 12b-25 must be filed with the SEC no later than one business day after the original due date of the periodic report to which the notice relates. For instance, if the original due date of the related periodic report is a Friday, then the due date of the Form 12b-25 is the following Monday (assuming that neither Friday nor Monday is a holiday).
If the original due date of the related periodic report is a Saturday, Sunday or a holiday, then the Form 12b-25 would be due no later than the 2nd business day after the original due date of the related periodic report. This is because SEC rules specify that if the due date of a report (e.g., Form 10-K) is a Saturday, Sunday or a holiday, then it will be considered timely filed on the 1st business day after the Saturday/Sunday/holiday on which the report was originally due. See Exchange Act Rule 0-3 and Exchange Act Rules CDI 135.03.
For example, assume a registrant is a calendar year-end company and a non-accelerated filer. The registrant’s Form 10-Q for the first quarter of 2022 is due on May 15, 2022 (the 45th day after March 31, 2022). However, since the 45th day after March 31st falls on a Sunday, Exchange Act Rule 0-3 provides that the Form 10-Q will be considered timely filed on Monday, May 16, 2022 (the next business day after May 15, 2022). If the registrant cannot file its Form 10-Q on May 16, 2022, the Form 12b-25 will be due May 17, 2022 (the next business day after the due date of the Form 10-Q).
.14 How is the extended due date determined?
If the original due date of the underlying periodic report was not a Saturday, Sunday or holiday, the extension period begins to run the day the periodic report is originally due. For example, the Rule 12b-25 extension period for a Form 10-Q due on a Friday would end the following Wednesday, the 5th calendar day after Friday (assuming neither Friday nor Wednesday is a holiday). See SEC FRM 1330.3a.
If the original due date of the periodic report is a Saturday, Sunday or holiday, then the extension period will begin to run on the next business day. This is because Exchange Act Rule 0-3 provides that a report will be considered timely filed on the first business day following the original due date when the original due date falls on a Saturday, Sunday or holiday. Similarly, if the extension period ends on a Saturday, Sunday or holiday, the filing will be considered to have been made within the extension period if it is made on the next business day. See Exchange Act Rules CDIs 135.04 and 135.05.
For example, if a Form 10-Q of a calendar year-end, non-accelerated filer is originally due Sunday, August 14, 2022 (the 45th day after June 30th), then the Form 10-Q would be considered timely filed on Monday, August 15th under Exchange Act Rule 0-3. If the registrant is unable to file the Form 10-Q by August 15th then its Form 12b-25 will be due no later than Tuesday, August 16th and the Rule 12b-25 extension period will end on Monday, August 22 (because August 20th, the 5th calendar day after August 15th, is a Saturday).
Companies should consider consulting with their legal counsel regarding the implications of not filing a periodic report by the extended due date including whether an already effective registration statement on Form S-3 might need to be amended in connection with the next Form 10-K filing (see Securities Act Rules CDI 198.02 and Exchange Act Rules CDI 135.07). The auditors would also need to consider implications on future consents that they may be asked to provide.
.3 References to PwC in Form 12B-25
Part III of Form 12b-25 must include a description “in reasonable detail” of the reason why the related periodic report could not be filed by the original due date. In our experience, disclosure under Part III ordinarily focuses on the underlying root cause of the inability to timely file. In the rare circumstance in which the reason relates to the inability of a person (other than the registrant) to provide a required opinion, report or certification, then the company must also file a letter (sometimes referred to as a “12b-25(c) letter”) from that person stating the specific reasons why he/she is unable to furnish the required opinion, report or certification before the original due date.
The underlying reasons for a company’s inability to timely file rarely involves PwC or the unavailability of our report, and we do not want any unwarranted implications on the public record that PwC is the reason for the delay of a required filing with the SEC.
For example, a company seeking additional financing to alleviate liquidity/going concern issues may seek to assert in its Form 12b-25 that its Form 10-K could not be filed because the audit report is not available. After further consideration, however, the issue may be that the report the auditor is prepared to provide (e.g., a report with a “going concern” paragraph) is not the report the company wants to receive or that management has not included certain disclosures in its financial statements required by applicable accounting standards (e.g., “going concern”-related disclosures discussed in FASB ASC 205-40). In that case, the company would ordinarily consult with its legal counsel before proceeding. If, after consulting with its legal counsel, the company determines it is appropriate to file the Form 12b-25, then the form would likely refer to the company’s liquidity status, its plans to obtain additional financing and the consequences of not obtaining that financing (e.g., that the company might conclude and disclose that there is substantial doubt about its ability to continue as a going concern and that the audit report would include a similar disclosure). The Form 12b-25 likely would not indicate that the reason for the company’s inability to file on a timely basis is the unavailability of the audit report.
We have also seen situations in which the unavailability of the audit report is a direct result of the unavailability of data from third parties, confirmations, legal opinions, etc., any of which may be required in order for the auditor to be able to complete its procedures. While it may be true that at the due date of the company’s filing the audit is not yet complete, the Form 12b-25 should address the root cause of the delay (e.g., delays in the company’s closing process or the unavailability of information from third parties).
If the registrant plans to attribute its inability to timely file its report to PwC, we should work with the registrant to ensure that the disclosures in the Form 12b-25 are accurate, complete and balanced so that our letter to be included in the Form 12b-25 can express agreement. Otherwise, we will need to include clarifying detail of the reasons surrounding the registrant's inability to timely file its report in our letter. We modify our letter as needed so that the record is clear.
.31 Would an independent auditor’s inability to complete an interim review constitute the “inability of a person, other than the registrant, to furnish any required opinion, report or certification” for purposes of Rule 12b-25(c)?
No. The SEC staff has informally indicated that the phrase “opinion, report or certification” does not include a completed interim review, whether or not a written review report is issued. A letter from the auditor is required only if the auditor’s inability to provide a required opinion, report or certification is the reason for the filing delay.
.4 Other disclosure matters
Filings made under the Exchange Act (including Form 12b-25) need to include whatever additional material information is necessary to keep the required disclosures from being misleading (see Exchange Act Rule 12b-20). Companies should ensure they are providing sufficient context in their Form 12b-25 disclosures and should consider consulting with their legal counsel concerning the adequacy of disclosure about the underlying reasons as to why they cannot file on a timely basis as well as other matters.
Although it is not possible to list all circumstances which should be considered, companies oftentimes consider disclosure of matters relating to:
- the company’s historical accounting/financial reporting which are currently under discussion (e.g., a misstatement in previously issued financial statements),
- internal control-related matters (e.g., a material weakness has been identified but not yet disclosed),
- potential changes in business/organization (e.g., potential bankruptcy),
- internal or external investigations (e.g., as a result of matters reported through a whistleblower hotline),
- consequences of the inability to timely file their periodic report (e.g., debt covenant violations, termination of contracts or failure to meet stock exchange listing requirements).
.5 Selected SEC staff compliance and disclosure interpretations
The Division of Corporation Finance staff has published CDIs relating Form 12b-25 and Exchange Act Rule 12b-25:
- Exchange Act Forms CDI Section 107 and Exchange Act Rules CDI Section 135 and
- Exchange Act Rules CDIs 144.03 and 151.01.
.9 Frequently asked questions
.901 Should an issuer file a Form 12b-25 even if it does not expect to file the related periodic report within the specified extension period?
Yes. Form 12b-25 should be filed even if the company does not expect to file the related periodic report within the specified extension period (although the company should not check the box in Part II.) See Exchange Act Rules CDI 135.02 and Exchange Act Forms CDI 107.01.
One of the conditions to the relief set forth in Exchange Act Rule 12b-25(b) is that the company represents in its Form 12b-25 that the periodic report that is the subject of the Form 12b-25 will be filed before the end of the applicable Exchange Act Rule 12b-25(b) extension period. That representation is typically made by marking the check box in Part II of Form 12b-25. If a company did not mark that check box because it did not believe it would file the periodic report within the Exchange Act Rule 12b-25(b) extension period but is able to file the periodic report containing all required disclosures within the applicable Exchange Act Rule 12b-25(b) extension period, then the company may be still be able to avail itself of the Exchange Act Rule 12b-25(b) relief. See Exchange Act Forms CDI 107.02. Companies may wish to discuss this situation with their legal counsel.
.902 May an issuer file Form 12b-25 before the due date?
Yes. Even though Form 12b-25 is not due until the business day after the due date of the related periodic report, companies may voluntarily file the Form 12b-25 earlier.
.903 Are there any extensions available beyond the initial 5-day/15-day extension?
No. The extension provided by Form 12b-25 only applies to the original due date of the report. There are no additional extensions available. See SEC FRM 1330.3.
.904 Does a Form 12b-25 need to be filed if the registrant will file the related periodic report before the deadline for filing the Form 12b-25?
We understand that a Form 12b-25 should be filed with the SEC even if the related periodic report will be filed prior to the deadline for filing the Form 12b-25. This situation may arise, for example, when a periodic report is filed shortly after 5:30 pm Eastern Time on the original due date and will be considered filed the next business day (i.e., the day after the original due date).
.905 Can a company file a new registration statement on Form S-3 during the 5-day/15-day extension period but prior to filing the periodic report that is subject to the extension?
No. Exchange Act Rule 12b-25(d) indicates that a registrant will not be eligible to “use” any Securities Act registration statement form during the extension period and prior to filing the periodic report if the use of that registration statement form is predicated on timely filed reports. The SEC staff has indicated that it interprets the term “use” contained in the rule to mean that a company would not be eligible to file a new registration statement on Form S-3 until the subject report is filed within the extension period.
.906 Can a company continue to use an already effective registration statement on Form S-3 during the 5-day/15-day extension period?
The SEC staff has provided interpretive guidance on this question in Exchange Act Rules CDI 135.06. Companies should consider consulting with their legal counsel regarding the ability to use an already effective registration statement during the extension period.
.907 What are some common examples of reports/filings that are not eligible for the Rule 12b-25 extension?
Only the periodic reports identified in Exchange Act Rule 12b-25(a) are eligible for the extension. Examples of reporting requirements for which Exchange Act Rule 12b-25 is not available to separately extend the filing deadline beyond the dates that are specified by the underlying reporting form include:
- Form 8-K (see SEC FRM 1330.3d);
- Form 20-F filed to report the loss of shell company status (see General Instruction A(d) of Form 20-F);
- Financial statements of an equity method investee (unless the investee itself is an SEC registrant and is eligible to use Exchange Act Rule 12b-25 for an extension) (see Exchange Act Rule 12b-25(f) and Exchange Act Rules CDI 135.01);
[Editor’s note: Exchange Act Rules CDI 135.01 refers to investees that are less than 50% owned. However, we understand the SEC staff applies the same guidance to a 50% owned equity method investee.]
- Financial statement schedules (see Exchange Act Rule 12b-25(f));
- Information required by Part III of Form 10-K (e.g., executive compensation disclosures (see SEC 3130.912)) (see Exchange Act Rules CDI 135.10); and
- Interactive data file (i.e., XBRL) (see Exchange Act Rules CDI 135.11).
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