Docstoc

Ch Belk College Of Business

Document Sample
Ch Belk College Of Business Powered By Docstoc
					                    Chapter 14: Fraud Against Organizations

I.    General statistics – Theft by employees – 2006 & 2008 Report to the Nation-
      ACFE
                                      Percent               Median Loss
      A.    Gender                    2006 2008             2006      2008
            1.        Male            61      59            $250,000 $250,000
            2.        Female          39      41            $102,000 $110,000
      B.    Age
            1.        Over 60         2.8     3.9           $713,000 $435,000
            2.        51-60           15.3 18.9             $350,000 $500,000
            3.        41-50           35.0 35.5             $250,000 $250,000
            4.        36-40           16.0 16.2             $135,000 $145,000
            5.        31-35           16.0 12.8             $134,000 $113,000
      C.    Education
            1.        Postgraduate 12.2 10.9                $425,000 $550,000
            2.        Bachelor        33.4 34.4             $200,000 $210,000
            3.        Some College 21.6 20.8                $200,000 $196,000
            4.        High School 32.8 33.9                 $100,000 $100,000
      D.    Occupational Fraud
            1.        Asset Misappr.91.5 88.7               $150,000 $150,000
            2.        Corruption      30.8 27.4             $538,000 $375,000
            3.        F/S Fraud       10.6 10.3             $2,000,000 $2,000,000
      E.    Asset Misappr.
            1.        Cash            87.7                  $150,000
            2.        Non-cash        23.4                  $200,000
            3.        Skimming        18.9                  $76,000
            4.        Larceny         14.2                  $73,000
      F.    Corruption                % of corruption cases
            1.        Bribery         42.7
            2.        Conflict of Int 61.6
            3.        Extortion       16.9
            4.        Ilegal Grat. 29.8
      G.    Other – All cases
            1.        Median loss $159,000                   $175,000
            2.        Loss of revenues 5%                          7%
            3.        Duration – Months 18                         24
            4.        Detection-Method
                      Tip                  44%                     46%



II.   Asset Misappropriations – Theft or misuse of assets
      A.     Three opportunities to steal –Slide 5
             1.     Cash or other assets as they come into organization
             2.     Cash, inventory and other assets on hand
              3.      Disbursement fraud – having org. pay for something it should not
                      pay or pay too much.
       B.     Cash
              1.     Larceny-theft of cash after it has been recorded
              2.     Skimming- theft of cash prior to recording
       C.     Fraudulent disbursements
              1.     Check tampering
              2.     Register disbursement schemes
                     a. False refunds
                     b. False voids
              3.     Billing schemes
              4.     Expense schemes
                     a. Mischaracterizing expenses
                     b. Overstating expenses
                     c. Submitting fictitious expenses
                     d. Submitting same expenses multiple times
              5.     Payroll schemes
                     a. Ghost employees
                     b. Falsified hours and salary
                     c. Commission schemes
                     d. False workers’ compensation claims
       D.     Theft of inventory and other assets
              1.     Misuse of assets
              2.     Assets stolen

III.   Corruption – Slides 8 & 9
       A.     Bribery
              1.      Kickbacks
              2.      Bid-rigging
       B.     Conflicts of interest
              1.      Purchase schemes
              2.      Sales schemes
       C.     Economic extortion schemes
       D.     Illegal gratuity schemes




                   Chapter 16: Bankruptcy, Divorce, and Tax Fraud

I.     Tax Fraud
       A.     Definition – intentional underpayment of taxes – includes not reporting
              income, deliberately overstating tax deductions and exemptions.
      B.     Penalties - line between negligence and fraud is not always clear.
             1.      Mistakes – 20% penalty
             2.      Fraud – 75% penalty
      C.     Audit of return
             1.      May assess civil fines and penalties or
             2.      Refer your case to IRS Criminal Investigation (CI) Division (arm
             of IRS that investigates tax fraud).
      D.     Criminal Investigation Division – Tax and money laundering crimes
             1.      Combines accounting and law enforcement skills.
             2.      Trained to follow the flow of the money.
             3.      Trained to conduct complex financial investigations.
             4.      Conviction rate – 98%.
             5.      Individual taxpayers commit 75% of the tax frauds-mostly
                     middle income earners. Corporations make up most of the rest
             6.      Most common tax fraud – underreporting income. Committed
                     mostly by self-employed people who work in restaurants, clothing
                     store owners, car dealers, etc.
             7.      To be a special CI agent – must be a US citizen and not over 37
                     years old. Must have 15 hours of accounting.
      E.     Tax evasion –Willfully evading tax or willfully failing to pay a tax,
             making false statements on any return, or aiding in the preparation of
             fraudulent tax returns. The following sentence and penalties can be
             assessed (in addition to interest and penalties on the interest from the due
             date of the return to the payment date): IRC section 7201
             1.      Imprisonment up to five years.
             2.      Fine of up to $250,000.
             3.      Civil fraud penalty of 75% on the portion of the underpayment due
                     to fraud.
             4.      Costs of prosecution
      F.     Statute of limitations
             1.      IRC section 6531-generally a person cannot be tried or punished
                     unless indicted within three years of the offense.
             2.      The willful attempt to evade taxes extends the statute of limitations
                     to six years. The six year period begins from the last tax evasion
                     act and could be as later than the due date of the tax return.




II.   Divorce Fraud
      A.     General
             1.     Divorce fraud – intimidation, concealment, deceit, or breach of
                    spousal duties.
             2.     More than 1 million divorce cases are filed annually.
              3.     Approximately 50% of all marriages fail
              4.     Divorces generally result in hostility between the spouses
              5.     People involved in divorce cases are required to supply each other
                     and the court with complete financial statements.
       B.     Three Categories
              1.     Fraud causes the divorce
              2.     Divorce is used to perpetrate the fraud
              3.     Divorce is used to conceal the fraud
       C.     Most divorce litigation result from two factors
              1.     Plaintiff spouse alleges defendant hid assets from divorce court.
              2.     The values assigned to asset were unrealistically low-resulting in
                     unfair divorce settlement.
       D.     The most common area of fraud connected with divorce is asset
              concealment. Red flags that assets might be concealed:
              1.     Transfers of property or large payments to related parties or
                     individuals, such as relatives.
              2.     Frequent and unusual transfers between bank accounts, particularly
                     overseas and business and personal accounts.
              3.     Unusually large payments to particular persons that are not
                     explainable.
              4.     Unusual or rapid reductions in assets.
              5.     Inconsistencies between tax returns and the official forms filed in
                     the divorce court.
              6.     Travel to off-shore tax havens or locations that allow secret bank
                     accounts.
              7.     Missing, inaccurate, or damaged records.


III.   Bankruptcy Fraud
       A.     Majority of bankruptcies come in the form of complete liquidations
       B.     Most common schemes- concealment of a debtor’s assets (70% of
              bankruptcy fraud) and bust-outs. Petition mills and multiple filings next
       most frequent schemes. More than 10% of bankruptcy cases involve bankruptcy
       fraud.
       C.     Purposes of filing – Slide 5
              1.     Gives debtor relief from creditor collection and foreclosure
                     actions.
              2.     Protects creditor from unfair collection efforts by other creditors
              3.     Allows debtor to work out an orderly plan to settle debts or
                     liquidate assets and distribute the proceeds to creditors in a way
                     that treats creditors equitably.
       D.     Bankruptcy code
              1.     Title 11 – refer to as the bankruptcy code. Governs the bankruptcy
                     process and provides for several types of bankruptcy.
                     a. Chapters 1, 2 and 5 – general provisions that apply to all
                     bankruptcies
                   b. Chapters 7 and 11 apply to corporations and individuals
                   c. Chapter 7 – complete liquidation, shutting down of the business.
                   Completely discharges debtor from all debt with no obligation to
                   make payment from future income.
                   d. Chapter 11 – Creditors are told to back-off and business is
                   allowed to operate in a reorganized fashion
                   e. Chapter 13 – reorganizations that can be used by individuals
                   whose income is too large to permit them to file under Chapter 7.
                   Debtors are required to make specific payments to creditors for a
                   specific number of years.
                   f. If Chapters 11 and 13 don’t work, judge can order a Chapter 7
                   liquidation.
             2.    Civil and Criminal bankruptcy fraud statutes
                   a. Criminal – Prosecuted by US Attorney’s office in applicable US
                   District court
                   b. Civil – Conducted in US Bankruptcy Court.
             3.    Bankruptcy fraud penalties- Maximum of 5 years in prison and
                   maximum fine of $250,000 or both per offense.
      E.     Concealment of Assets
             1.    Title 18, Section 152 – crime to knowingly and fraudulently
                   conceal property of a debtor’s estate or falsify any documents,
                   records or statements.
             2.    Means of concealing assets, page 581 – Slide 6
             1.    Red flags of concealment




      B.     Fraud Investigator’s Relationship
             1.     Allows trustees to employ, with approval of court, attorneys,
                    accountants, etc.
             2.     Allows a creditors’ committee to employ attorneys, accountants,
                    etc.
             3.     In order to be compensated from estate funds, must be employed
                    under Code Section 327 and approved by the bankruptcy judge.

IV.   Money Laundering
      A.    Nature – Process by which one conceals the existence, illegal source, or
            illegal application of income and then disguises that income to make it
            appear legitimate.
      B.    Who are the criminals?-drug traffickers, embezzlers, corrupt politicians
            and public officials, mobsters, terrorists, and con artists.
      C.    Money laundering process: See Figure 16.1 and Slide 10
            1.       Placement
            2.       Layering
            3.       Integration
     D.     Combating Money Laundering – Financial Action Task Force (FATF)
     E.     Red Flags of Money Laundering- Page 584.




                 Chapter 17:             Fraud in E-Commerce

I.   E-commerce opportunity elements that create increased risks –Slide 4
     A.      New technologies for which security developments often lag transaction
     developments
     B.      Complex information systems make installing controls difficult
     C.      Transfer of large amounts of information poses theft and identity risks
     D.      Removal of personal contact allowing for impersonation or falsifying
     identity.
     E.      Lack of physical facilities that facilitates falsifying websites and business
     transactions.
     F.      Electronic transfer of funds allows large frauds to be committed more
     easily.
     G.      Compromised privacy often resulting in use of stolen or falsified
     information.
II.    E-commerce risks inside of organization – Slide 6
       A.      Abuse of power granted to users-programmers and technical support
       personnel often have supervisor access to system they create and administer.
       B.      Data theft-personal information about customers can be sold or misused.
       C.      Passwords-left to end user and cannot be controlled (Social
       D.      Sniffing (viewing of information that passes along network line)- Used to
       gather information from unencrypted communications.
       E.      Laptops-may be used to bypass firewalls and controls. Employees walk
       laptops from unprotected networks to protected networks.
       F.      USB drives and portable external hard drives-can download significant
       amounts of information from internal networks.

III.   E-commerce risks outside of organization- Slide 7
       A.   Internet enables hackers to gain access to personal systems
            1.      Cross international boundaries and are mostly anonymous
            2.      Tracing and prosecution very difficult
            3.      If caught-sentences are light
       B.   Phishing-e-mail or pop-up messages asking for personal information.
            Example- Impersonates technical support for employees
       A.   False websites- Used to trick users to provide personal information.
       B.   Spoofing-hides identities by changing information in the header. Forges
            From: field
       C.   Falsified identity – pretending to be someone you’re not.



IV.    Preventing e-commerce fraud- security measures should be based on time-tested
       methods that are mathematically sound. Slide 8
       A.     Security through obscurity should never be an option.
       B.     Should use virtual provate networks, firewalls, public & private key
              infrastructure, SSL encryption, etc.

V.     Internal controls in e-business
       A.      Control environment
               1.     Integrity and ethical values
               2.     Participation by board of directors and audit committee
               3.     Management philosophy
               4.     Human resource policies and practices.
       B.      Risk assessment- identifies key risks for electronic exchange of
               information and money.
       C.      Control activities
               1.     Separation of duties
               2.     Proper authorization of transactions
               3.     Adequate documents and records
               4.     Physical control over asset and records
                5.     Independent checks on performance

VI.     Detecting fraud in e-business – Slides 9 & 10
        A.     Understand the business or operations of the organization
        B.     Identify what frauds can occur
        C.     Determine the symptom that frauds would generate
        D.     Use databases and information systems to search fro symptoms
        E.     Follow up on symptoms- what causes these symptoms.

VII.    Other Preventive Measurers
        A.     Regular audits of user behavior
        B.     Train employees on what e-commerce fraud looks like
        C.     Use employee tip lines

VIII.   Terms
        A.      Sniffing
        B.      Phishing
        C.      Internet worms
        D.      Wartrapping
        E.      Biometics
        F.      Trojan horse
        G.      Spoofing
        H.      Bust-outs
        I.      Encrypton
        J.      Social engineering




                        Chapter 18:            Legal Follow-up

I.      Court system
        A.    State courts – Slide 4
                1.     State and local courts generally handle fraud cases.
                2.     Lower-level trial courts- Initial actions are heard for
                       misdemeanors and pretrial issues for felony and civil
                       cases that are below $10,000. There is no jury trial in
                       probate, family law, estate issues and equitable issues.
                3.     Higher-level trial courts-Initial actions for felonies and
                       cases of more than $10,000.
                4.     Intermediate appellate or reviewing court- 3 judges per
                       panel.
                5.     Higher level Appellate-5 to 9 judges- final level

        B.      Federal courts – Slides 5 & 6
                1.     Frauds are tried in tax court (tax fraud), bankruptcy courts
                     (bankruptcy fraud), and US district courts (mail frauds, etc.)
              2.     Hear fraud cases that involve federal laws or include several states.
                     The controversy must exceed $50,000.
              3.     U.S. Court of Appeals-Hears appeal of judgments rendered in
                     district courts.
              4.     Supreme Court- Reviews decisions made by Courts of Appeals in
                     the 12 circuits.

II.    Criminal law
       A.    Prosecution either federally or by a state for violating a statute that
             prohibits activity.
       B.    May serve jail sentences, pay fines and make restitution to victims.
       C.    Must be proven guilty beyond a reasonable doubt.
       D.    Juries must rule unanimously on guilt.
       E.    Provides more protection for rights of the defendant than does civil law.
             1.      Fourth Amendment –Protects defendants against unreasonable
                     searches and seizures by the government.
             2.      Fifth Amendment- provides the right to refuse to incriminate
                     oneself.
             3.      Sixth Amendment- relates only to trials.
       F.    The criminal litigation process – Slide 9
             1.      Filing criminal charges
             2.      Arresting and charging the defendant
             3.      Preliminary hearings
             4.      Arraignment
             5.      Discovery
             6.      Pretrial motions
             7.      Trial and appeal


       G.     Preliminary hearings vs. grand jury, pp 630-631
              1.     Preliminary hearing – Used to determine whether “probable
                     Cause” exists to charge defendant with a crime. Held before a
                     judge and hearsay and illegally obtained evidence can be heard.
                     Defendant is represented by an attorney who can cross-examine
                     prosecution’s witnesses.
              2.     Grand jury – Prosecution generally prefers to obtain a grand jury
                     indictment. Consist of 16-23 people. Can consider any evidence,
                     even that which would not be admissible at trial. Defendants do not
                     have a right to be notified that a grand jury is considering evidence
                     against them. Defendants are not allowed to review the evidence,
                     confront their accuser, or present evidence in their defense. They
                     cannot be accompanied by their attorneys. The Sixth Amendment
                     protections are denied during the grand jury process.

III.   Civil law
      A.     Provides remedies for violations of private rights
      B.     Purpose- to compensate for harm done to individual or organization.
      C.     May use a few as 6 jurors.
      D.     Verdict need not be unanimous.
      E.     Often heard by judges instead of juries.
      F.     Prove case by the “Preponderance of the evidence.”

IV.   Civil litigation process – four steps – Slide 8
      A.       Investigation and pleadings
      B.       Discovery
      C.       Motion practice and negotiation
      D.       Trial and appeal

V.    Litigation services provided by accountants
      A.      Consultant- Hired by an attorney to gather and interpret facts, prepare
              analyses, help interpret evidence, advise about issues and strategies
              involved in a legal matter, locate other accountants to act as consultants or
              expert witnesses, and help expert witnesses form their opinions. A
              consultant is immune from discovery.
      B.      Masters and special masters-appointed by the court to assist the court in
              some matter-determine certain facts or compute damages. Special master-
              appointed by the court to act as the court’s representative. Compensation
              is set by the court.




C.    Expert witness –retained by an attorney or court as an expert to testify in a
             judicial or administrative proceeding. – Slide 10
             1.      Can offer opinions based on experience, education, or training
             about the fraud. A fact or character witness cannot offer opinions but can
             only testify as to facts.
             2.      Fraud expert must qualify as expert witness (voir dire)
             3.      May testify about- nature of the fraud, the damages suffered in the
             fraud, the negligence of the victim in allowing the fraud to happen,
             standards (auditing or accounting) that were violated, etc.
             4.      Deposition of the expert
                     a.       What are the expert’s opinions?
                     b.       Determine the credentials and experience of the expert.
                     c.       Identify evidence that can be used to impeach the expert or
                              discredit testimony during the trial.
                     d.       Assess how difficult the expert will be in the case.
             5.      Do’s and Don’ts at deposition, trial, and cross-examination, Page
                     633-634.
            6.     Accountants hired to testify as an expert may not use the attorney-
            client privilege. However, a non-testifying expert may fall under an
            attorney work product privilege.

D.   Written Agreement – Accountants asked to perform litigation services should
     enter into a written agreement with the employing attorney. Items covered by the
     written agreement should include:
             1.     Name of the attorney client
             2.     Litigants’ name and place of the legal proceeding
             3.     Nature of the litigation services to be performed
             4.     Whether accountant will be asked to testify as an expert witness
             5.     Restriction imposed on use and disclosure of practitioner’s work
             6.     Any conflicts of interest with the litigants or attorneys
             7.     Whether accountant will be protected by the attorney work product
                    privilege
             8.     Circumstances for termination
             9.     Fee

				
DOCUMENT INFO
Shared By:
Categories:
Tags:
Stats:
views:5
posted:9/9/2011
language:English
pages:11