No. Although these two rules appear similar, there are important differences between S-X 8-08(b) and S-X 3-01(c).

For instance, a company must already have a reporting obligation under Section 13 or 15(d) of the Exchange Act to meet the first condition of S-X 3-01(c), whereas that condition is not applicable to S-X 8-08(b). This means that a smaller reporting company that is doing an initial public offering may be able to qualify for the reporting relief provided in S-X 8-08(b) while a non-smaller reporting company doing an initial public offering would not be able to qualify for the reporting relief under S-X 3-01(c).

Additionally, S-X 3-01(c) and S-X 8-08(b) use different income reference points for assessing eligibility. As noted in SEC 4600.31, S-X 3-01(c) uses income attributable to the registrant, after taxes. S-X 8-08(b) uses income attributable to the registrant from continuing operations, and before income taxes. See SEC FRM 1220.3.

Yes, in certain circumstances.

When a US domestic SEC registrant changes its fiscal year-end, it may need to file a transition report that includes financial statements covering the transition period with the SEC. The transition period is the period from the end of the most recently completed fiscal year to the beginning of the new fiscal year. If the transition period is less than six months, the registrant has the option of reporting the transition period on Form 10-Q (with unaudited financial statements). If the registrant elects to present its transition report on Form 10-Q, then the transition period financial statements would need to be audited no later than the time the registrant files its Form 10-K for its first full fiscal year following the close of the transition period. See SEC 3185 for more information regarding changes in fiscal year-end.

According to an SEC staff interpretation, if the most recent audited financial statements provided in a Securities Act registration statement or proxy statement following a change in year-end are dated more than one year and 45 days before the date the filing is made, then the audited financial statements must be updated to include/incorporate by reference the audited transition period financial statements. Accordingly, an SEC registrant that changes its fiscal year-end may need to have the transition period financial statements audited before the due date of its first annual report of the new fiscal year. See SEC FRM 1365.4.

For example, assume Company A, a non-smaller reporting company SEC registrant with an October 31 fiscal year-end, determined on February 1, 2023 to change its fiscal year-end to December 31.

The transition period would be November 1, 2022 through December 31, 2022. Company A may file its transition report on Form 10-Q with unaudited financial statements for the two months ended December 31, 2022. In this case, the Form 10-K for the year ending December 31, 2023 would need to include audited financial statements for the transition period (i.e., the two months ended December 31, 2022).

Absent pre-clearance with the SEC staff, Company A would have to provide audited transition period financial statements in any registration statement or proxy statement filed after December 15, 2023 (since the most recent audited financial statements are dated more than 1 year and 45 days after October 31, 2022). Company A's accelerated filer status would not impact that conclusion.

A registrant that has not been in existence for a complete fiscal year must provide audited financial statements as of a date less than 135 days before the filing date of the registration statement. See, for example, S-X 3-01(a) (S-X 8-02 for a smaller reporting company). The SEC staff has indicated that the requirement to provide audited financial statements applies to the initial filing date, but that subsequent updates performed to comply with the 135-day rule may be made on an unaudited basis, except that audited financial statements are required if the effective date of the registration statement is more than 45 days after the company's fiscal year-end (a smaller reporting company may consider the age of financial statements requirements in S-X 8-08).

See SEC FRM 1220.4.

See SEC 4550.41 regarding the age of financial statements requirements for a US business acquired or to be acquired in connection with a registration statement or proxy statement. See SEC 3150.26 with respect to the age of financial statements requirements for an acquired business in connection with an Item 9.01 Form 8-K.

The SEC staff has indicated that a registrant may register additional securities on an effective registration statement under Securities Act Rule 462(b) even if the financial statements in the original effective registration statement, which were within the age limitations of S-X 3-12 as of the effective date of that registration statement, are not within the age limitations of S-X 3-12 as of the filing date of the Rule 462(b) registration statement. However, the registrant should consider whether more current financial information would be required to be disclosed to investors to make the information in the registration statement not misleading. See Securities Act Rules CDI 244.06.

The SEC staff has indicated that S-X 3-01 does not prevent a shelf takedown and would not apply to the prospectus supplement as it is not for the purpose of updating the prospectus under Section 10(a)(3) of the Securities Act. See Securities Act Rules CDI 212.13.

No. Although Item 8 of Form 10-K generally calls for financial statements of the registrant required by Regulation S-X, S-X 3-01(b) and (c), and S-X 8-08 indicate that those rules are not applicable to Form 10-K. Additionally, Item 1 of Part I of Form 10-Q refers only to S-X 10-01 (S-X 8-03 for a smaller reporting company). S-X 10-01(c) and S-X 8-03 specify the financial statements required to be included in Form 10-Q.