Annual Report 2016

Enforcement and court rulings | FAOA 2016
43
Independence and audit type
(ordinary /limited)
The FSC recalled two important
points on the subject of independence
57 : First, independence requirements
for the limited audit are not
fundamentally different to those for
the ordinary audit and, secondly, the
incompatibilities in Art. 728 para. 2
CO provide guidelines that can also
be of importance to the limited audit.
The FSC sees this as a matter of established
federal court case law.
Procedural law questions
The FAC ruled that a letter in which
the FAOA informed a licence holder
of the opening of administrative
proceedings cannot qualify as an
order under the Administrative Procedures
Act (APA, SR 172.021). An
appeal against such a notice cannot
therefore be dealt with 62 .
One-off audit services
The FAC also considered independence
as regards one-off audit services.
Specifically, this concerned the
audit of a company formation report
(Art. 635a CO). The court concluded
that independence requirements
relating to the audit of the entity and
consolidated financial statements
also apply to the formation audit and
even if the newly-formed company
waives the statutory audit 58 . The
work involved in a formation audit
has more in common with the ordinary
than the limited audit 59 . In addition
to this, independence requirements
apply until the newly-formed
company is entered into the commercial
register, which is why the
auditor-in-charge must assure his or
her independence until this point in
time 60 . The auditor-in-charge’s appointment
to the board of directors
of the audited company and subscription
to five percent of its share
capital are therefore incompatible
with independence. Moreover, a
resignation from the board of directors
or a subsequent second audit of
the formation report by another audit
firm do not call the licence withdrawal
into question 61 .
57 FSC Ruling No. 2C_1026/2015 of 18 July
2016, E. 2.1.
58 FAC Ruling No. B-7872/2015 of 21 April
2016, E. 3.5.5.
59 FAC Ruling No. B-7872/2015 of 21 April
2016, E. 3.5.6.
60 FAC Ruling No. B-7872/2015 of 21 April
2016, E. 3.5.8.
61 FAC Ruling No. B-7872/2015 of 21 April
2016, E. 3.5.8. The FSC overruled the FAC
ruling and issued a reprimand instead of
a two-year licence withdrawal (FSC Ruling
No. 2C_487/2016 of 23 November 2016).
62 FAC Ruling No. B-2626/2015 of 19 January
2016, E. 1.5.2.