Professional Documents
Culture Documents
This lecture covers agency, bankruptcy, securities regulation, CPA legal liability and property insurance.
According to the AICPA's Content Specification Outline these items and the items found in R5 and R6
should make up between 20% and 25% of your Regulation examination.
AGENCY
I. Creation of an Agency
A. An agency is a legal relationship where the principal appoints an agent to act on his/her
behalf.
B. Principal must have capacity (not a minor).
D. Writing not generally required – unless to buy or sell land.
D. Agent – capacity not required – minor can be an agent.
E. Consideration not required to form an agency relationship.
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Becker CPA Review – Regulation 7 Class Notes
C. Apparent authority. This is the second way an Agent has the power to bind the Principal.
1. Title – position
2. Failure to give notice of agent's termination.
D. Ratification of previously unauthorized act can also bind principal in contract.
Requirements: The agent must have indicated that he was acting on behalf of the principal;
all material facts must be disclosed to the principal; and the principal must ratify the entire
transaction.
E. Disclosed Principal – the agent is not liable to third party under the contract.
F. Partially disclosed or undisclosed principal - the agent is liable under contract with the
third party along with the principal.
BANKRUPTCY
I. Chapter 7 Liquidation and Chapter 11 Reorganization
A. Chapter 7 = Liquidation. Trustee is appointed and if the debtor is a business it ceases to
operate.
B. Chapter 11 = Reorganization. Trustee is not required. Debtor remains in possession of
his assets and a plan of reorganization is adopted. Business continues – assets are not
liquidated. Creditors are paid to the extent possible.
C. Chapter 7 and Chapter 11 – May be voluntary or involuntary.
D. Voluntary – Debtor files order of relief. The debtor need not be insolvent. All the debtor
needs is debt.
E. Involuntary – Unsecured creditors petition debtor into court. Must show debtor is not
paying debts as they become due. Fewer than 12 creditors – one or more creditors owed
at least $13,475 in aggregate unsecured debt may file a petition. 12 or more creditors – at
least 3 creditors who are owed in the aggregate at least $13,475 in unsecured debt may file
a petition.
F. Dismissal of a Chapter 7 Case – the Means or abuse tests – an individual consumer debtor
may be dismissed upon a finding that granting relief under Chapter 7 would constitute
abuse.
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Becker CPA Review – Regulation 7 Class Notes
D. Property of the Bankruptcy estate – the debtor's estate; income generated from the
estate; and property the debtor receives from divorce, inheritance or insurance within 180
days after filing the petition.
E. Excluded property – post-petition earnings, spendthrift trusts, educational IRAs, state
tuition programs.
F. Exempt Property – homestead, motor vehicle, household goods, unmatured life
insurance, tools of trade, health aids, government benefits and alimony.
G. Preferential payment – a transfer for the benefit of a creditor on account of an antecedent
debt made within 90 days (one year for insiders) prior to filing the petition while the debtor
was insolvent and the creditor receives more than the creditor would have received under
the Bankruptcy Code.
H. Fraudulent transfers – any transfer for less than equivalent value made with the intent to
hinder, delay or defraud creditors. The trustee had the power to set aside fraudulent
transfers made within 2 years of the filing date.
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Becker CPA Review – Regulation 7 Class Notes
SECURITIES REGULATION
I. Securities Act of 1933
Covers initial sales of investment contracts – practically any investment in which investor hopes
to be passive and make money from management of others.
A. Provide investors with sufficient information in which to make an informed decision.
B. Issuers, underwriters and dealers are required to register securities.
C. Registration Statement is made up of two parts; the Prospectus (written offer to sell
securities) and Part II the details (audited balance sheet and profit loss statement).
D. Registration is effective 20 days after filing.
E. Prefiling period – before registration – no sales activity allowed within 30 days of filing
registration.
F. Waiting period – after registration but before effectiveness – oral sales offers can be made;
tombstone ads can be used; preliminary prospectuses (red herring) can be sent and
summary prospectuses may be distributed. WKSIs can make written and oral offers and
sales.
G. Post-effective period – after the effective date – securities may be sold.
H. Special rules for WKSIs – may conduct sales activities at all times, use special shelf
registration, and use free writing prospectus.
I. Exemptions – Securities and Transaction.
J. Securities Exemption – never need to be registered. Banks, not-for-profits, government,
common-carriers, short-term commercial paper, insurance policies, etc.
K. Transaction Exemptions
1. Casual Sales – not an issuer, underwriting or dealer
2. Intrastate Sales
3. Regulation A – Partial Exemption – sales may not exceed $5 million in 12 months –
issuer files an offering statement.
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Becker CPA Review – Regulation 7 Class Notes
4. Regulation D – Private Offering Exemption. Rules for 504, 505, and 506.
(a) General conditions apply to Rules 504, 505, and 506. General solicitation
generally prohibited. Immediate resale prohibited. SEC must be informed
within 15 days of the first sale.
(b) 504 – Sales may not exceed $1,000,000 in 12 months.
(c) 505 – Sales may not exceed $5,000,000 in 12 months. May be sold to any
number of accredited investors and 35 or fewer unaccredited investors. If only
accredited investors – no disclosure required. Any nonaccredited, all investors
must be given audited financial statements.
(d) 506 – No dollar limit. May be sold to any number of accredited and 35 or fewer
unaccredited but sophisticated investors. If only accredited investors – no
disclosure required. Any nonaccredited, all investors must be given audited
financial statements.
(e) Accredited investor – an institutional investor, a bank or an individual investor
with $1,000,000 net worth or $200,000 annual income.
L. Liability provisions of the 1933 Act
1. Section 11 imposes civil liability for misstatements in registration statements.
2. A plaintiff need only prove a "material misstatement and damages." Not fraud or
reliance.
3. Anyone who signs the registration statements may be liable.
4. Due diligence defense – the defendant had reasonable grounds to believe the facts
in the registration statement were true and no material facts were omitted.
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Becker CPA Review – Regulation 7 Class Notes
II. Tort
A. Negligence – duty, breach of duty, causation, damages
B. Fraud – misrepresentation of material fact, intent to deceive (scienter), actual and justifiable
reliance, intent to induce reliance, damages
C. Constructive Fraud – gross negligence, same elements as fraud but recklessness replaces
scienter
D. A CPA's liability for fraud and Constructive fraud is much broader than for negligence.
Negligence = the client and limited foreseeable class may sue the CPA compared to
Fraud/Constructive fraud = anyone who can prove the elements of fraud can sue.
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Becker CPA Review – Regulation 7 Class Notes
PROPERTY INSURANCE
I. Insurable Interest
A. Must have an insurable interest to purchase insurance = any lawful and substantial
economic interest in property at the time of loss.
This topic is included and should be studied because it is within the scope of the Content Specifications
released by the AICPA and could appear on your exam.
We hope you find these tips helpful. Work hard and you will succeed. This concludes the
Regulation course. Please review the textbook material chapter by chapter. Please do a thorough
review and you will increase your chances of passing the Regulation exam. Become a CPA
sooner through a good study program. Best wishes to all on the Regulation exam.
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