Current through September 24, 2024
(1) The commissioner shall not recognize a
person or firm as a qualified independent certified public accountant if the
person or firm:
(a) Is not in good standing
with the AICPA and in all states in which the accountant is licensed to
practice, or, for a Canadian or British company, that is not a chartered
accountant; or
(b) Has either
directly or indirectly entered into an agreement of indemnity or release from
liability (collectively referred to as "indemnification") with respect to the
audit of the insurer.
(2) Except as otherwise provided in this
Chapter, the commissioner shall recognize an independent certified public
accountant as qualified as long as he or she conforms to the standards of his
or her profession, as contained in the Code of Professional Ethics of the AICPA
and Rules and Regulations and Code of Ethics and Rules of Professional Conduct
of the Tennessee Board of Public Accountancy, or similar code.
(3) A qualified independent certified public
accountant may enter into an agreement with an insurer to have disputes
relating to an audit resolved by mediation or arbitration. However, in the
event of a delinquency proceeding commenced against the insurer under Title 56,
Chapter 9 of the Tennessee Code Annotated, the mediation or arbitration
provisions shall operate at the option of the statutory successor, to the
extent allowed by law.
(4)
(a) The lead (or coordinating) audit partner
(having primary responsibility for the audit) may not act in that capacity for
more than five (5) consecutive years. The person shall be disqualified from
acting in that or a similar capacity for the same company or its insurance
subsidiaries or affiliates for a period of five (5) consecutive years. An
insurer may make application to the commissioner for relief from the above
rotation requirement on the basis of unusual circumstances. This application
should be made at least thirty (30) days before the end of the calendar year.
The commissioner may consider the following factors in determining if the
relief should be granted:
1. Number of
partners, expertise of the partners or the number of insurance clients in the
currently registered firm;
2.
Premium volume of the insurer; or
3. Number of jurisdictions in which the
insurer transacts business.
(b) The insurer shall file, with its annual
statement filing, the approval for relief from Subparagraph (a) of this
Paragraph with the states that it is licensed in or doing business in and with
the NAIC. If the nondomestic state accepts electronic filing with the NAIC, the
insurer shall file the approval in an electronic format acceptable to the
NAIC.
(5) The
commissioner shall neither recognize as a qualified independent certified
public accountant, nor accept an annual audited financial report, prepared in
whole or in part by a natural person who:
(a)
Has been convicted of fraud, bribery, a violation of the Racketeer Influenced
and Corrupt Organizations Act, 18 U.S.C. Sections 1961 to 1968, or any
dishonest conduct or practices under federal or state law;
(b) Has been found to have violated the
insurance laws of this state with respect to any previous reports submitted
under this Chapter; or
(c) Has
demonstrated a pattern or practice of failing to detect or disclose material
information in previous reports filed under the provisions of this Chapter,
Rule 0780-01-54-.09, Rule 0780-01-78-.04, or Rule 0780-01-83-.08.
(6) The commissioner may hold a
hearing in accordance with the procedures set out in Title 4, Chapter 5, Part 3
of the Tennessee Code Annotated to determine whether an independent certified
public accountant is qualified and, considering the evidence presented, may
rule that the accountant is not qualified for purposes of expressing his or her
opinion on the financial statements in the annual audited financial report made
pursuant to this Chapter and require the insurer to replace the accountant with
another whose relationship with the insurer is qualified within the meaning of
this Chapter.
(7)
(a) The commissioner shall not recognize as a
qualified independent certified public accountant, nor accept an annual audited
financial report, prepared in whole or in part by an accountant who provides to
an insurer, contemporaneously with the audit, the following non-audit services:
1. Bookkeeping or other services related to
the accounting records or financial statements of the insurer;
2. Financial information systems design and
implementation;
3. Appraisal or
valuation services, fairness opinions, or contribution-in-kind
reports;
4. Actuarially-oriented
advisory services involving the determination of amounts recorded in the
financial statements. The accountant may assist an insurer in understanding the
methods, assumptions and inputs used in the determination of amounts recorded
in the financial statement only if it is reasonable to conclude that the
services provided will not be subject to audit procedures during an audit of
the insurer's financial statements. An accountant's actuary may also issue an
actuarial opinion or certification ("opinion") on an insurer's reserves if the
following conditions have been met:
(i)
Neither the accountant nor the accountant's actuary has performed any
management functions or made any management decisions;
(ii) The insurer has competent personnel (or
engages a third party actuary) to estimate the reserves for which management
takes responsibility; and
(iii) The
accountant's actuary tests the reasonableness of the reserves after the
insurer's management has determined the amount of the reserves;
5. Internal audit outsourcing
services;
6. Management functions
or human resources;
7. Broker or
dealer, investment adviser, or investment banking services;
8. Legal services or expert services
unrelated to the audit; or
9. Any
other services that the commissioner determines, by regulation, are
impermissible.
(b) In
general, the principles of independence with respect to services provided by
the qualified independent certified public accountant are largely predicated on
three basic principles, violations of which would impair the accountant's
independence. The principles are that the accountant cannot function in the
role of management, cannot audit his or her own work, and cannot serve in an
advocacy role for the insurer.
(8) Insurers having direct written and
assumed premiums of less than one hundred million dollars ($100,000,000) in any
calendar year may request an exemption from Paragraph (7)(a) of this Rule. The
insurer shall file with the commissioner a written statement discussing the
reasons why the insurer should be exempt from these provisions. If the
commissioner finds, upon review of this statement, that compliance with this
Chapter would constitute a financial or organizational hardship upon the
insurer, an exemption may be granted.
(9) A qualified independent certified public
accountant who performs the audit may engage in other non-audit services,
including tax services, that are not described in Paragraph (7)(a) of this Rule
or that do not conflict with Paragraph (7)(b) of this Rule, only if the
activity is approved in advance by the audit committee, in accordance with
Paragraph (10) of this Rule.
(10)
All auditing services and non-audit services provided to an insurer by the
qualified independent certified public accountant of the insurer shall be
preapproved by the audit committee. The preapproval requirement is waived with
respect to non-audit services if the insurer is a SOX Compliant Entity or a
direct or indirect wholly-owned subsidiary of a SOX Compliant Entity or:
(a) The aggregate amount of all such
non-audit services provided to the insurer constitutes not more than five
percent (5%) of the total amount of fees paid by the insurer to its qualified
independent certified public accountant during the fiscal year in which the
non-audit services are provided;
(b) The services were not recognized by the
insurer at the time of the engagement to be non-audit services; and
(c) The services are promptly brought to the
attention of the audit committee and approved prior to the completion of the
audit by the audit committee or by one or more members of the audit committee
who are the members of the board of directors to whom authority to grant such
approvals has been delegated by the audit committee.
(11) The audit committee may delegate to one
or more designated members of the audit committee the authority to grant the
preapprovals required by Paragraph (10) of this Rule. The decisions of any
member to whom this authority is delegated shall be presented to the full audit
committee at each of its scheduled meetings.
(12)
(a) The
commissioner shall not recognize an independent certified public accountant as
qualified for a particular insurer if a member of the board, president, chief
executive officer, controller, chief financial officer, chief accounting
officer, or any person serving in an equivalent position for that insurer, was
employed by the independent certified public accountant and participated in the
audit of that insurer during the one-year period preceding the date that the
most current statutory opinion is due. This Rule shall only apply to partners
and senior managers involved in the audit. An insurer may make application to
the commissioner for relief from the above requirement on the basis of unusual
circumstances.
(b) The insurer
shall file, with its annual statement filing, the approval for relief from
Subparagraph (a) of this Paragraph with the states that it is licensed in or
doing business in and the NAIC. If the nondomestic state accepts electronic
filing with the NAIC, the insurer shall file the approval in an electronic
format acceptable to the NAIC.
Authority: T.C.A. §§
4-5-301,
56-1-501(b),
56-1-501(h), 56-2-301 and 56-44-102.