Audit failures, tax advice and the limits of the duty.
Esshaki Legal Media TeamCurrent as of July 2021
Accountants face claims from clients and, in defined circumstances, from third
parties who relied on their work.
Audit engagements. An audit provides reasonable assurance that financial
statements are free of material misstatement. It is not a guarantee and is not
designed to detect all fraud, and the distinction between an audit and a fraud
examination is the recurring defense.
Third-party liability. Jurisdictions divide among a near-privity approach, a
restatement approach limited to a known and intended class of users, and a
broader foreseeability approach. Identifying which applies determines whether a
lender or investor has a claim at all.
Reliance letters identifying permitted users are what create or foreclose
these claims.
Tax advice. Claims for penalties and interest arising from erroneous
positions, with the tax itself usually not recoverable since it was always owed.
Reliance on advice may abate penalties, which is a benefit the client received.
Non-audit services. Bookkeeping, compilations and reviews carry lower
assurance and correspondingly narrower duties, provided the engagement letter is
clear.
Engagement letters defining scope, limitations, reliance and, where
enforceable, limitations of liability and dispute resolution.
Client fault. Management’s responsibility for the financial statements and
for the representations made to the auditor.