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Asymmetrical Reporting

By Joseph A. DiRuzzo, III

As the regulatory state continues to grow with every passing year, businesses' obligations to provide information to, and file reports/forms with, local, state, and federal governmental agencies increases. Whether it be periodic reporting, e.g., IRS Form 1120, SEC Form 10-Ks, or upon the consummation of a specific transaction or event, e.g., IRS Form 8300, SEC Form 8-K, each filing represents an opportunity to incur a potential liability for incorrect or improper reporting. To that end, each filing also represents justification to the IRS to audit a business (to the extent that justification is needed).

It should come as no surprise that compliance costs make the list of corporate counsel's top concerns. However, reducing compliance costs often comes with an unseen price ' the cost of the audit and any attendant fines and penalties that result. Accordingly, corporate counsel is placed in the unenviable position of attempting to balance the unknown risk of future audits and contingent (and often speculative) governmental liabilities with known (and quantifiable) costs of short and medium-term governmental compliance. Indeed, before a governmental audit commences corporate counsel can be viewed as a “chicken little,” always attempting to minimize exposure that may never come to pass, while after a governmental audit starts, and there is an internal assessment that there was corporate shortcomings, corporate counsel is blamed with not doing enough. Given these mutually exclusive competing interests, what is a savvy corporate counsel to do?

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