Proceedings of 5th European Business Research Conference 10 - 11 September 2015, St. Regis Hotel, Rome, Italy, ISBN: 978-1-922069-83-2 The Restructuring Plans of the Companies in Crisis in Italy: Ethical Principles in the Activity of the Attestor Alberto Dell’Atti* and Mario Turco** The present work is inserted in the lodging of business crisis, with particular reference to the restructuring procedures introduced by the reform of bankruptcy law, with the main aim to highlight the applicative issues, especially regarding the activity of attestation of the plans. In dealing the topic, have arisen not few uncertainties about the role of the attestor and, consequently, we felt obliged firstly to outline the nature of the assignment and then, to identify the principles that should guide his activities. In our country, in fact, the role of the attestor did not have the attention it deserved by both the legislature and both by the same doctrine. Proof of this is the protracted lack of standards of certification designed to regulate this activity, which has resulted in behaviors often not consistent because not linked to a reference framework. This void was finally filled with the publication of a joint document issued by AIDEA (Italian Academy of Business Economics - Accademia Italiana di Economia Aziendale), IRDCEC (Istituto di Ricerca dei Dottori Commercialisti ed Esperti Contabili - Istituto di Ricerca dei Dottori Commercialisti ed Esperti Contabili), ANDAF (National Association of finance directors - Associazione Nazionale Direttori Amministrativi e Finanziari), APRI (Association of Professionals of company restructuring - Associazione Professionisti Risanamento Imprese) and OCRI (Crisis and Company Restructuring Observatory - Osservatorio Crisi e Risanamento Imprese), published on June 6, 2014, entitled “Principi di attestazione dei piani di risanamento”, with which they were provided generally shared models to conjugate in relation to the specificities of the concrete case. JEL Codes: M40, M41 and M42 1. Introduction The economic and financial crisis which has affected the whole economy of the Western countries since 2007 has taken connotations increasingly devastating involving the equilibrium conditions of enterprises. That fact, therefore, has drawn the attention of corporatists, especially regarding the consolidation strategies, or the restoration of conditions for the economic efficiency of the enterprise, that very often impose drastic interventions in the management policies, in the organizational structure and in the government functions of the management.In this scenario, a key role was assumed by the Italian bankruptcy laws, the reform of which introduced a number of institutions, many of which were intended to facilitate the overcoming of the business crisis in a perspective of preservation of the business capital and of continuation of the economic activity (1). Indeed, the law is intended to give priority to the relationship between the debtor company and its creditors, reserving to these actors the task of finding a private solution aimed at reconciling the different interests in the business continuity (Adamo S.-Fasiello R., 2011; Dell’Atti A., 2012; Turco M., 2013). _________________________________________________________________ * Associate Professor of Business Management and Accounting in the University of Salento (Italy), Department of Economic and Management. Email: alberto.dellatti@unisalento.it ** Researcher in Accounting in the University of Salento (Italy), Department of Economic and Management. Email: mario.turco@unisalento.it 1 Proceedings of 5th European Business Research Conference 10 - 11 September 2015, St. Regis Hotel, Rome, Italy, ISBN: 978-1-922069-83-2 These procedures, as it is known, are defined minor procedures (rescue plan, restructuring agreements, composition with creditors in its various forms), and share the reorganization and / or restructuring plan, asserted by a technical and professional judgment of veracity and feasibility by a attestor nominated for that purpose. In particular: a) with reference to the restructuring plan (Article 67 B.L., no. 3 letter d), the attestor must certify the suitability of such a plan to allow for the recovery of the company and the restoration of the equilibrium conditions; b) with reference to the restructuring agreements (Article 182 bis B.L.), the attestor must evaluate the existence of the conditions of feasibility of the agreement, paying particular attention to the ability of the debtor company to meet its obligations toward the creditors that did not join the agreement; c) with reference to the procedure of composition with creditors (Art. 160 and ff B.L.) and of composition with business continuity (Article 186 bis B.L.), the attestor is responsible to verify and certify the validity of the information contained in the plan and express his opinion about its feasibility degree. These legal solutions show different assumptions and purposes and, therefore, relate to different valuation principles (Savioli G., 2010). The attestor in charge of certifying the restructuring plan assumes the role of guarantor against the actors concerned, given that the decisions that they take will be based on clear and comprehensive information. Given the importance of the role assumed by the attestor, and in addition to the other burdens charged to him, it seems useful to define the nature of the activity performed by the expert and the code of conduct to which he must refer in the judgment of reliability. On this subject, especially attestor bodies have provided useful tips over the years, compensating for the total lack of information on the part of the Italian legislation and for the absence of appropriate national standards. In this context of uncertainty of particular importance is the document entitled “Principi di attestazione dei piani di risanamento”, jointly prepared by AIDEA (Accademia Italiana di Economia Aziendale), IRDCEC (Istituto di Ricerca dei Dottori Commercialisti ed Esperti Contabili), ANDAF (Associazione Nazionale Direttori Amministrativi e Finanziari), APRI (Associazione Professionisti Risanamento Imprese) and OCRI (Osservatorio Crisi e Risanamento Imprese), published on June 6, 2014, entitled “Principi di attestazione dei piani di risanamento”, with which they were provided generally shared models to conjugate in relation to the specificities of the concrete case (2). 2. Literature review As already mentioned, it is useful to point out that the issue of the attestation of restructuring plans has not received the attention it deserves in literature (especially the Italian one). Therefore, we considered appropriate to start with a summary of the various doctrinal contributions and existing documents issued by the various bodies of reference, submitting some interesting insights to the reader, in an effort to provide a clear and exhaustive picture of the problem. First of all, it is necessary to define the context in which the analysed case has to be included, namely the restructuring plans for companies in crisis (Bastia P., 2011), in order to understand the nature and function of the activity that the attestor has to perform. 2 Proceedings of 5th European Business Research Conference 10 - 11 September 2015, St. Regis Hotel, Rome, Italy, ISBN: 978-1-922069-83-2 First, it is necessary to point out the clear separation between the audit (Consob, Document n. 100 of the restructuring plans) and the attestation (Arens A.A. et al., 2009; Messier W.F. Jr., 2000; Riva P, 2009; Sager W.H., 1993), since the latter implies a different and complex role played by the professional, especially with regard to the evaluation of the prospective data (Bloker & Willingham, 1985; Quagli A., 2004). Subsequently, the analysis was focussed on the principles of attestation in force internationally, issued by the IAASB (ISAE 3400), as well as on those in force in the US (AT 301 Section), with specific regard to the different phases of the restructuring process and to the requirements for the conduct of the attestor, also in relation to the responsibilities proper of his assignment. In this context, relevant is the judgment on the accuracy of the accounting data and, consequently, on the feasibility of the restructuring plan. Therefore, it seems necessary to refer to the various instruments of quantitative analysis that enable the attestor to assess the state of crisis of the company and to verify whether the consolidation strategies proposed are compatible with its objectives (Dixon J.R. et al., 1990; Eccles R.G., 1991; Eccles R.G.-Pyburn P.J., 2004; Poddighe F.-Cestari G., 2013; C., Scott J.T., 1981; Wilcox J.V., 1971). Lastly, the focus is put on the complexity of the attestation activity, if only for the fact that, very often, the attestor is required to evaluate estimated information and accounting data that, more often than not, are not present in past management. 3. Work objectives and methodology followed. The aim of this study is to investigate the role and tasks of the attestor called to attest the restructuring plan, as well as identify the guidelines to which he must refer in his technical opinion. This research, began in 2011, grafted into the mainstream of corporate crisis and possible consolidation strategies, with the intention of providing a useful input on an issue that has long been held to be relevant both by legislation and doctrine. Proof of this has been the lack for a long time of attestation principles aimed at regulating this activity. This situation has determined behaviours often not homogeneous, as deprived of a framework of reference. Such a weakness, however, has been the subject of extensive discussion in a previous work (Dell'Atti, 2012), in which the need for a prescriptive framework of reference able to guide and facilitate the conduct of attestors had already been highlighted. This paper, therefore, aims to analyse the content of the principles of assurance issued internationally by the IAASB (International Auditing and Assurance Standards Board), also in order to verify their implementation at national level. In this regard, particular attention has been paid to the nature of the activity of the attestor, as well as to the contents of the restructuring plan. The methodology was first deductive, because it was based on the analysis of the various (national and international) doctrinal contributions, as well as on the documents issued by attestor bodies and institutions, especially with regard to review and certification. In this context, our intention was that to follow a rational path in which we analysed the principles governing the activities of assurance in the international context and the way in which they are applied with reference to the assessment of the restructuring plans. It was later followed an inductive or logical process that, starting from the observation of the Italian situation, led us to verify whether the principles of certification issued internationally are applicable in Italy, also in consideration of the document recently issued by the IRDCEC. 3 Proceedings of 5th European Business Research Conference 10 - 11 September 2015, St. Regis Hotel, Rome, Italy, ISBN: 978-1-922069-83-2 4. The findings 4.1 Attestor's behavioural references during the auditing activities. As mentioned above, the task of the attestor is quite complex and sometimes difficult, as he is required to estimate a range of accounting information and data, both of historical kind, representing facts that have already occurred, and of prospective kind, representing future events. It is clear that the greatest threat to the attestor, especially in the presence of a restructuring plan that provides business continuity, is represented by the presence of prospective data which, obviously, cannot be determined objectively and as such require due diligence. Indeed, the difficulty is twofold, in the sense that on the one hand the expert must analyse prospective data constructed on the basis of assumptions, estimates, and conjectures that, as such, have an inherent and more or less high degree of randomness, and on the other hand, he is very often forced to do the job in a limited period of time. In view of these facts, it is important to highlight the role provided by the legislation for the attestor. In this regard, it is useful to recall Article 2501 bis no. 4 cc (Italian Civil Code) which, as it is known, provides for the concept of reasonableness, a guiding principle that must inspire the report of the attestor in the case of preparation of a merger plan subsequent to an acquisition with debt; this case occurs when a company makes debt in order to acquire control of another company with the assets of the acquired company representing the security for the repayment of debt. Indeed, the merger plan, prepared pursuant to Article 2501 cc, shall state the grounds for the operation, together with a business plan, in which the objectives to be achieved have to be explained. Said plan is then audited by one or more experts who, fulfilling the requirement of Article 2501 cc, have the responsibility to prepare a detailed report attesting for the reasonableness of the content. In this regard, it has to be taken into consideration that with the reform of the company law, the Italian legislation introduced a new type of reports prepared by the expert, whose job is not only to evaluate the assets of the companies involved in the operation, but must go further, performing a real investigation on the future capital, economic and financial developments of the newly-formed company. The judgment of reasonableness on the plan, under the aforementioned Article 2501 co. 4 cc, must be based on the existence of the following essential joint profiles: a) reliability, ie the need to verify that the provisional data of economic and financial type provided for in the business plan agree with the implications and connotations of environmental nature; b) feasibility, in the sense that it is necessary to analyse carefully the real chances of achieving the objectives. In this regard, it is necessary to consider the assumptions of the plan and the behaviors to be taken in order to ensure their practical implementation in the manner and within the time specified; c) visibility, ie the perception that the restructuring plan is likely to succeed, like for example, for the existence of external donors, the entry of a new management and so on. Only under such conditions, the attestor can be considered able to fully express his opinion. 4 Proceedings of 5th European Business Research Conference 10 - 11 September 2015, St. Regis Hotel, Rome, Italy, ISBN: 978-1-922069-83-2 As it is well known, the bankruptcy law, with reference to the so-called "minor procedures", borrowed the term "attestation" (3), which usually means to "bear witness, to affirm, to certify". Therefore, the activity conducted by the attestor in the restructuring procedures is that to certify / assert, with the utmost transparency and authenticity, the veracity of the corporate data and the feasibility of the plan. As to the accuracy of the corporate data, the attestation is nothing more than the issuance of a statement that results, in fact, in an assumption of responsibility by the, while, with regard to the prognosis about the feasibility of the plan, the attestor bears the responsibility of verifying and certifying that the plan itself presents a realistic chance of implementation. Having clarified this point, it is essential to emphasize the substantial difference between the activity of auditing and that of attestation. On this point, it is useful to recall Document no. 100 recommended by the Consob (National Committee for Companies and Stock Market - Commissione Nazionale per le Società e la Borsa) (4), which, albeit between the lines, marks the distinction between: a) auditing services, that is the he control over the general balance sheets (including consolidated balances), as well as on the interim ones. It is a process based on a coordinated set of audits, inspections and analyses, directed to gather the information needed to make a judgment of reliability of the data contained in the above documents before publication. It is clear that this is an ex-post activity, since these documents include data representing facts that have already occurred; b) attestation services, required by law or regulations, or laid out on a voluntary basis, and relating to information different from those referred to in subparagraph a). In other words, these are charges for which the attestor has the task of assessing specific elements, the determination of which is the responsibility of other subjects, this in order to formulate an opinion on the reliability of the items that undergo the evaluation of stakeholders. In this regard, it should be underlined that the activity of attestation does not just check past data, but above all prospective data, representative of future events, assumed ex-ante. However, the distinction between the activities of attestation and auditing, even if clarified in quoted Document 100, emerges clearly from the International Standards on Auditing. At international level, the auditing standards are issued by a special commission of the IFAC (International Federation of Accounting), named IAASB (International Auditing and Assurance Standards Board) which, as it is known, is the international body issuing the standards for auditing, attestation and quality control, with the task of carrying out also a continuous monitoring aimed to make possible changes to the principles in force, thus improving the auditing itself (Riva P., 2009). Such principles can be divided into: 1) International Standards on Auditing (ISA); 2) International Auditing Practice Statements (IAPS); 3) International Standards on Review Engagements (ISRE); 4) International Standards on Assurance Engagements (ISAE); 5) International Standards on Related Services (ISRS); 6) International Standards on Quality Control (ISQC). There is a clear distinction between the (general and practice) ISAs concerning the auditing activities properly understood and those that are used as part of the assurance (and attestation) activities. With regard to these latter, the introductory document to the international principles (International Framework for Assurance 5 Proceedings of 5th European Business Research Conference 10 - 11 September 2015, St. Regis Hotel, Rome, Italy, ISBN: 978-1-922069-83-2 Engagement) points out that the task entrusted to the auditor is to assess the object of control, for which, however, another person bears the responsibility. Hence the need to start a systematic methodological process implying an adequate technical knowledge aimed to collect and evaluate the data on which the resulting judgment directed to the end user may be expressed. The Assurance activity is based on the simultaneous presence of the following elements: a) the existence of three subjects, namely the person who has prepared the object of control, the attestor, as well as the recipient of the judgment; b) the object of control, that is what has to be analysed and verified; c) the criteria applied, ie the valuation approach and the methodologies followed; d) an indication of the most relevant elements; e) the final report containing the attestor opinion on feasibility. Obviously, the assignment is conditioned by the attestor’s acceptance, after verification of his position of neutrality with respect to the parties concerned, of his own level of competence in relation to the task assigned to him, and having taken note of the conditions and terms that characterize the job itself. Consequently it is necessary that: the object of the assignment is clearly identifiable; the criteria followed by the attestor are reported to the users and shared by them; there is the widest availability of documentation in order to fully carry out the task; the job is rational and consistent with its objectives. The net difference between the activities of auditing and attestation is confirmed within the US context. Indeed, the Auditing Standards Board (ASB), which is the body with the task of ruling the auditing, attestation and quality control within the AICPA (American Institute of Certified Public Accountants), has issued the following standards: Statements on Auditing Standards or SASs (also called AU); Statements on Standards for Attestation Engagements or SAAE (also called AT); Statements on Standards for Accounting and Review Services or SAARS; Statements on Quality Control Standards or SQCS (Arens A.A. et al., 2009; Sager W.H., 1993). In Italy, as it is known, were never issued principles regulating the "attestation" and because of that gap different approaches have been suggested over time for addressing the issue. A first indication was provided by two documents prepared by a special Study Commissions established within the National Council of Chartered Accountants (Restructuring Plan Protocol ..., 2006; Comments on the content ..., 2009): a) “Restructuring Plan Protocol. Report of the attestor: organizational profiles and standards of conduct within the procedures of Composition with Creditors, debt restructuring agreements, attested restructuring plan"(approved 3 July 2006)”; b) “Remarks on the content of the reports of the attestor in the negotiating composition of the business crisis (approved February 19, 2009). It is useful to point out that in the aforementioned Protocol there were no solutions to facilitate the task of the attestor, but it highlighted the many problems characterising the activity, given the absence of specific rules of conduct. In addition, it has to be noted that, in the absence of a specific accounting protocol, it is necessary to refer to a number of criteria, adaptable to the different situations which arise from time to time (auditing, evaluation criteria of the economic capital, etc.), while recognizing at the same time that this approach appears rough and inadequate in relation to an activity 6 Proceedings of 5th European Business Research Conference 10 - 11 September 2015, St. Regis Hotel, Rome, Italy, ISBN: 978-1-922069-83-2 of attestation properly understood. This conclusion was reiterated in the aforementioned document of 2009 called "Observations ....", which states that the same bankruptcy law makes no provision regarding the content and the conditions that must characterize the report of attestation. Therefore, also in this case, we proceeded through an empirical observation. In this regard, a first clarifying intervention concerns the definition of "attestation", which, according to the aforementioned document, consists of: the assumption of responsibility by the attestor about the activity of auditing of the accounting information; the check and the subsequent certification of the conditions set out in the feasibility plan for the period of time under consideration (5). From the analysis of these documents can be drawn the following conclusions: a) there is no doubt that the report plays a function of guarantee towards the third parties and, for this reason, the attestor must attest the reliability of the data shown in the plan, as well as express his opinion about its feasibility; b) the references to the auditing standards and to the evaluation techniques of the economic capital, do not automatically translate into practice, given that the timeframe available to the attestor to deliver its judgment is often inadequate; c) no reference was made to the international principles. The lack of national standards raises a question, namely whether it is possible to operate an international reference in order to fill a substantial gap (Riva P., 2009). To answer this question, it is useful to consider the ISAE 3000 (Assurance Engagements Other Than Audits or Reviews of Historical Financial Information), a document that, at international level, is aimed at attestors who are called to carry out an attestation. On this point, there was a work published in 2010 entitled "Guidelines for financing enterprises in crisis", result of a joint research project of the University of Florence, the CNDCEC and the ASSONIME (Italian Association between shareholding companies Associazione Italiana tra le Società per Azioni), in which were drawn up the guidelines or recommendations to be followed, the compliance with which enables the attestor to provide a better guarantee on the activity he performs (6). More specifically, with reference to the attestation of the plans in bankruptcy proceedings, have been proposed reference models with the aim of enhancing the restructuring tools provided for in bankruptcy law. They aim, above all, is that to implement a process of attestation as a result of a careful and accurate verification activity regarding the reasonableness of the plan and its ability to lead the company out of the crisis in the way and within the time specified. Therefore, it is a judgment that is not limited to a simplistic check of the purposes of the plan, but requires an even more detailed and complex activity, intended to go into the logic and reasonableness of the analysis and methodologies followed by the attestor, in order to assess perspective business conditions. On this point, the cited document makes specific reference to the information contained in ISAE 3400 "The examination of Prospective Financial Information", highlighting a clear will for convergence to international standards. That said, it seems legitimate to question whether, also in Italy, in the absence of appropriate principles governing the activities of attestation, can be applied the ISAE. An affirmative answer may arise from the application, by analogy, of the Consob Resolution no. 1079/1982 that, in relation to the financial statements, provides for the application of international accounting standards in the absence of national ones. Therefore, operating a broad interpretation of this resolution, the application of the 7 Proceedings of 5th European Business Research Conference 10 - 11 September 2015, St. Regis Hotel, Rome, Italy, ISBN: 978-1-922069-83-2 ISAE 3400 is not only desirable, but becomes even an obligation of the attestor (P. Riva, 2009). That conclusion is confirmed by research papers published by ASSIREVI (Italian Association of Auditors - Associazione Italiana Revisori Contabili) which show that, in the absence of references to the national standards, reference should be made to the international standards, which, however, do not replace but complement the revision procedures planned at national level. In the past, the company doctrine has proved favourable to the solution consisting of the applicability of the ISAE 3400 (Quagli A., 2004), a conclusion that was definitely shared by the aforementioned document "Principles of attestation of the restructuring plans", in which specific reference is made to ISAE 3000 and 3400. This document, putting order within a scenario of uncertainty created at the national level, indicates to the attestor the procedure to be followed in carrying out his activities, by imposing to him the respect for all the principles contained in it and the express reference to them in the report of attestation. 4.2 The feasibility study of the restructuring plan. Both in the case in which the plan provides for the continuation of the business, or its termination through a (total or partial) liquidation procedure, it is necessary that the attestor analyses the causes that led to the state of crisis in order to verify that the restructuring process assumed in the plan is compatible with the established goals. It is worth stressing that the state of crisis takes on usually more or less markedly pathological connotations that, most of the time, have their origin from insidious and complex situations to which the management has failed to remedy. Indeed, the corporate crisis can be defined as the result of an inefficient use of the corporate resources due to the inadequate positioning of the company in relation to its environment (Ferrero G., 1987). This definition shows that the crisis stems from a combination of causes internal and external to the company itself as, if in most cases the changes in the environment may be the originating cause, it is equally true that a corporate structure unable to cope with them contributes to the worsening of the operational conditions (Dell'Atti A., 2012). Moreover, the state of crisis hardly occurs abruptly. Indeed, in most cases, it is the result of events that occur even in a latent way and that settle gradually within the business system, passing through a multiplicity of stages closely related. Therefore, the lack or the delay in the implementation of a conclusive intervention is likely to determine the transition from a temporary crisis to a phase of final crisis, on which any recovery action, if still viable, will have a different scope in relation to the conditions in which the company finds itself. Accordingly, especially with reference to projects which provide business continuity, it is necessary that the attestor ascertains the extent of the crisis, the causes originating it and the critical factors of success in order to assess the adequacy of the restructuring strategy proposed by the management. In other words, when assessing the remedial action indicated in the plan, it is necessary that the attestor checks the conditions that may lead to reasonably assume that the actions being taken will be able to remove the causes that compromise the overall balance of the company. It follows that it is necessary an in-depth analysis of those causes in order to understand if the planned interventions have an appreciable degree of coherence. In this regard, it is necessary to make a diagnosis of the business situation through an analysis based on qualitative and quantitative information and data, taking into 8 Proceedings of 5th European Business Research Conference 10 - 11 September 2015, St. Regis Hotel, Rome, Italy, ISBN: 978-1-922069-83-2 account, on the one hand the corporate structure, its organization and environmental context and, on the other hand, the accounting data appropriately weighted by applying traditional complex models based primarily on an analysis of the budget, namely the examination of the equity, financial and economic indicators (Wilcox J.W., 1971; Scott J.T., 1981; Poddighe F.- Cestari G., 2013). However, the analysis of the budget may be accompanied by techniques and statistical methods that fall within the so-called traditional evolved models. Among these, remember the univariate analysis, based on the application of unidimensional methodologies,or the multivaried analysis based on multidimensional methodologies, respect to which particularly important is the so-called discriminant analysis (Dixon J.R. et al., 1990; Eccles R.G., 1991; Eccles R.G.-Pyburn P.J., 2004). As it is known, the budget analysis is the most common and most immediate tool, as it allows the attestor to obtain, within each management area, the financial, economic and balance information and, at the same time, understand the relationships between the different areas, identifying among them those with the highest level of criticality. The identification of the causes of the crisis and the state of the same, allows the attestor to assess the validity of the recovery strategies identified in the plan, strategies that can go either in the direction of the business continuity and, therefore, of the restoration of the conditions of a general equilibrium, or in the direction of the disposal of all or part of the business assets. In addition, it has to be emphasized the fact that the definition of the restructuring plan is not immediately followed by its implementation, therefore it is necessary to evaluate the costs that will be incurred during this period of time and compare them to the expected benefits. Obviously it is a prospective analysis aimed to assess both its organizational sustainability, ie the adequacy of the human resources, and its economic sustainability, ie the economic sacrifices that the company may incur. 4.3 The main stages of the attestation process. The main phases that characterize the process of attestation can be summarized as follows: a) the position of the attestor; b) the assumptions at the base of the restructuring plan; c) the report of attestation. a) the position of the attestor. The first phase, preliminary to the fulfilment of the assignment, is aimed at verifying the neutrality of the attestor both towards the company that awarded him the mandate, and toward all those involved in the scheme. In fact, since the attestor serves as a guarantor for the parties involved in the process, it must be ensured that there are no reasons which would prejudice his impartiality of judgment. In this regard, it is useful to recall the requirements provided for in Article 28, letter a) and b) B.L., as well as those provided for in Article 2399 cc about the causes of ineligibility and disqualification of the attestors performing the audit (7). However, even before taking his office, the attestor must assess the scope of the assignment conferred to him in relation to his skills and the degree of risk involved (8). b) the evaluation of the hypothesis placed at the base of the restructuring plan. 9 Proceedings of 5th European Business Research Conference 10 - 11 September 2015, St. Regis Hotel, Rome, Italy, ISBN: 978-1-922069-83-2 The second phase is that in which the attestor must go into the matter of the plan. This means that, preliminarily, he has the duty to assess, on the basis of the data gathered and received, the conditions on which that plan is based, in order to express an initial opinion on the feasibility of the plan. In this regard, the ISAE 3400 suggests to pay particular attention (9): a) to the prospective information based on facts and evidence of an objective nature, representative of future events that present a certain degree of reliability, such as the existence of the order book, the entry of new lenders, etc. Such prospective information are based on best estimate assumptions regarding reasonable future events and inferred from objective facts (Bloker E.-Willingham J.J., 1985). b) to prospective information based on facts and evidence of a subjective nature, representative of future events that, as such, involve the need to be verified (think of a restructuring plan based on a launching strategy of new products or on the acquisition of new markets). In this case, it comes to prospective information based on hypothetical assumptions, mainly of a subjective nature and not supported by historical data. The prospective information may be: forecasts, when they are based on matters of a subjective nature; projections, when they are based on matters of an objective nature; mixed, when forecasts and projections coexist. That distinction is all the more necessary, because the essential prerequisite is that the attestor examines carefully the information provided by the company managers and eliminates, as appropriate, those that he deems unreliable, or the result of mere speculative attitudes. Ultimately, a plan can be defined reliable when the underlying assumptions are compatible with the conditions of the market, with the behavior of the consumer, with the strategies of the competitors, with the socio-cultural, environmental context and so on. However, even in the absence of such compatibility, the plan may prove feasible, but only in the case in which it can be proved that the elements placed at its foundation are part of a strategic plan which is based on objective factors that support its implementation. In addition, especially with reference to the restructuring plans, it is possible to detect a certain inconsistency between the historical and the prospective data; in this case, any difference has to be motivated providing a convincing justification for the new hypothesis (Bastia P., 2011). In the Italian context, with reference to the bankruptcy procedures being implemented to restore the enterprise, the role of the attestor is essential because, in consideration of the state of crisis, the plan is based on feasibility assumptions potentially suitable for reaching the goals, but for that very reason the task of the attestor is inherently complex, because, more often than not, he is called to certify provisional and perspective information that will have to be based on rationality and demonstrability. Having clarified that point, a plan can be considered credible and achievable if it is formulated on the basis of realistic and adequately verifiable assumptions, and if it is proved that the fixed objectives are reasonably achievable. From here the necessity to ascertain that the plan is: compatible, with the market and environment conditions in general; comparable, a connotation that must exist between the historical data and the prospective ones, paying attention that at the increase of the difference between the historical data and the forecasts, the attestor must prove the reliability of these 10 Proceedings of 5th European Business Research Conference 10 - 11 September 2015, St. Regis Hotel, Rome, Italy, ISBN: 978-1-922069-83-2 latter; sustainable, in the sense that it must be shown that the resources of the company are compatible with the complex hypothesis at the base of the plan; coherent, a requirement that must exist between the different parts that make up the plan. Furthermore, in the case of a company in crisis, the task of the attestor is even more difficult, because he will have to express his opinion with reference to a definitely new prospective situation that often finds a weak response in the past administration. Indeed, the corporate crisis represents a moment of interruption compared both to the past and to the future and, therefore, the conditions in which it is called to operate are characterized by high uncertainty, especially in view of the fact that the attestor has to estimate future events also characterized by exceptionality, which makes it difficult and unlikely to operate a comparison to circumstances that arose in the past. Hence the need for the plan to be drawn up in absolute transparency, both as to the assumptions on which it was built, and the methodologies used, in order to allow the attestor and third parties to verify the accuracy and appropriateness of the qualitative and quantitative aspects contained therein. In the present case the need for transparency is more urgent than in the case of the business plan of a normally operating company, in that, while in the latter case the plan is directed to potential investors, which, of course, have the absolute freedom to decide whether or not to fund the company, in the case of the restructuring plan, it is addressed to the company creditors that, on the contrary, are already fully involved in the crisis situation and, therefore, are in need to decide which action to take. Needless to say that, the more a plan is deficient in terms of transparency, the more it is difficult to form an attestation opinion. The transparency of a plan is directly proportional to the degree of explanation of the assumptions on which it is built, resulting in a lower degree of uncertainty arising from the relationship between the actions proposed and the effects expected from them. In other words, in situations of business discontinuity, it is very likely that emerge variances between forecast and historical data. The increase of such variances makes even more evident the need to provide elements that make the plan more credible (Borsa Italiana, 2003; Assirevi, Document no. 114/2007). So, a mere explanation of the hypotheses at the basis of the plan is not enough, but what is necessary is a contextual indication of the underlying information sources, as this allows the attestor to verify the authority and validity of the assumptions on which such plan was built. As it is known, in the case of companies in crisis, particularly important are the structural measures that, in turn, require a range of multilateral agreements with the lenders, especially banks, as well as with third parties, in the event of sale of company assets or units. These are operations that go beyond the threshold of the ordinary management, because they relate to events of a certain complexity likely to be modified ongoing. It follows that, the attestation of a plan based on potential agreements or mere commitments taken by counterparties has to be excluded, but the attestor must make sure that the negotiations were concretely defined and supported by documents suitable to demonstrate their contents (10). In addition, as mentioned above, so that a plan is attestable it is necessary that the underlying assumptions are credible and reasonable, especially with reference to the quantitative determination of liability. In this regard, it is necessary to check not only the liabilities resulting from the accounting, but also to determine the latent or potential ones, in order to reach a debt situation as clear and truthful as possible. The existence 11 Proceedings of 5th European Business Research Conference 10 - 11 September 2015, St. Regis Hotel, Rome, Italy, ISBN: 978-1-922069-83-2 of not manifest contingent liabilities implies, for the attestor, the recognition of any lawsuits or pending litigation and ongoing contracts, which may determine additional debt and the consequent increase of future financial needs (11). A further task in the responsibility of the attestor is that to analyse possible future scenarios in relation to the main variables. To this end, a plan should be accompanied by a sensitivity analysis aimed to assess the robustness of the future economic and financial results indicated, and to show whether and how such results can be sensitive to the changes in the parameters used. This undoubtedly makes the task of the attestor easier; in taking his decisions he will be more comforted both by the presence of values not very sensitive to possible future changes, and by shock absorbers (cash and / or capital reserves) that tend to neutralize or at least mitigate any negative influence (12). c) The attestation report One element that affects primarily the implementation of a restructuring plan is the time factor, that is the time frame within which the fundamental conditions must materialize. To this end, it should be stressed that, especially in the event of reorganization proceedings, the time component is a fundamental constraint, as it is in relation to it that there is a need to verify whether the actions listed in the plan are sustainable (13). Indeed, there is a relationship of inverse proportionality between the reliability of the hypotheses at the basis of the plan and the time needed for their implementation. In other words, in principle, the longer the period of implementation of the plan, the lower the degree of reliability of the estimates made by the company (14), as in this case there is a higher risk of changes affecting such conditions. Therefore, it is necessary to limit the period of implementation of the plan as much as possible, so as to reduce the degree of uncertainty and increase the level of reasonableness. However, it is true that the duration of the restructuring plan cannot be considered the same for all cases, but it varies depending on a number of factors, such as: company size, type of activity, economic and financial situation, importance of the goals pursued, etc. It follows that, the greater the complexity of the plan, the longer its time of implementation. Another aspect affecting the preparation of the plan is the accuracy control of the accounting data. In this regard, the ISAE 3400 emphasizes the need that the attestor must have, first of all, a thorough knowledge of the company as a whole, ie of its structural and functional aspects. This requires, at the same time, an evaluation of the degree of experience and expertise possessed by those who have processed the information, of the methods followed and of the underlying documentation. In other words, the attestor must analyse the contents of the plan and, therefore, he must verify the consistency between the data reported and the assumptions made, paying particular attention to the areas of greatest uncertainty characterized by possible changes that, should occur, risk to threaten future events. This last recommendation is also contained in par. 5 Appendix C) of the aforementioned document US AT 301, resumed in Chapters 7 and 15 of the AICPA Guide p.f.i., according to which the attestor has the task to proceed to the identification and the mapping of the specific risks of the company, in order to identify the areas most exposed to possible changes that, should occur, could jeopardize the conditions of the plan. Moreover, paragraph 13 of aforementioned Appendix C), highlights the need to verify the level of competence of the person who drew up the plan, as well as the fairness and reasonableness of the information contained therein (15). Therefore, the attestation of a plan assumes knowledge of the following elements: 12 Proceedings of 5th European Business Research Conference 10 - 11 September 2015, St. Regis Hotel, Rome, Italy, ISBN: 978-1-922069-83-2 the company activity and its internal areas of risk; the possible external risks; the degree of competence and knowledge of the person who prepared the plan, especially with regard to the formulation of the prospective information. In cases of restructuring of corporate crises, according to what provided by the bankruptcy proceedings, the verification activities of the attestor cannot but start from the analysis of actual data that are, in any case, the basis for the development of the prospective ones. Therefore, the historical data are a measure of judgement and their possible unreliability can only have bad influences on the entire plan. Indeed, we must not forget that part of the historical data are the result of subjective assessments, that is estimates made previously. Therefore, they can be much more unreliable the greater the subjective component with which the same estimates were carried out, with the result that they generate a distorting effect on future data. In this regard, the ISAE 3400 explicitly recommends that the attestor, before focussing on prospective data, must conduct a careful analysis of the data formed earlier, as they form the basis of judgment for future trends. Consequently, a passive attitude on the part of the attestor, limited to a simple comparison of the original data with the general accounting and, therefore, a mere sharing of the same, might impair the validity of the whole plan (16). It is evident that this conclusion involves a further onerous burden on the attestor, but it is a task that he cannot escape, by virtue of the role of guarantor that he plays, both towards the company and third parties. Moreover, the complexity of the task of the attestor is accentuated because of two factors: a) the decidedly limited time that, in most cases, the attestor has to perform his task; b) the size of the company that, if relevant, make the verification activities even more complicated. It is necessary, therefore, that the attestor rationalises his activity, firstly by delimiting the field of action by focussing his attention on those quantity data, that he considers most significant and, secondly, by identifying and analysing the elements that can affect the attestation of the plan, as well as the lack of facts and / or situations which may affect the accuracy and reliability of the accounting representations concerning the management. However, in companies of a certain size the task of the attestor could paradoxically be facilitated by the fact that the historical data have been audited by other (internal or external) auditors. In this case, the attestor would have only the task of verifying the procedures followed, provided that the opinion expressed by other auditors does not present reservations. In this regard, it has to be noted that, although the reference to reports by other (external or internal) auditors is covered by the (national and international) ISAs, this must not become a sort of obligation, because the attestor is free to refuse the opinion of others. Moreover, should he decide in this sense, he must go into the matter of such reports, in order to emanate a mature and conscious judgment. Furthermore, it has to be observed that, especially in cases of companies in crisis, the use of the internal systems must be carried out with particular care and, to this end, it is required that they undergo appropriate checks, to assess the degree of reliability of the control systems and, consequently, to decide whether to accept or not the judgment of the internal organ. It is, therefore, necessary that the attestor examines preliminarily the organizational structure of the company and the role played 13 Proceedings of 5th European Business Research Conference 10 - 11 September 2015, St. Regis Hotel, Rome, Italy, ISBN: 978-1-922069-83-2 by the control function, namely assessing the degree of its autonomy and objectivity in respect to senior management. Therefore, we need to know the nature and the extent of the tasks assigned to the internal auditor and the degree of skill and diligence of the staff committed with it. It is also needed to check whether the control activities have been well planned and documented through internal audit manuals and working papers. It is clear that this implies a close working relationship between the attestor of the plan and the internal auditors and, therefore, the full availability of these latter to provide the documentation and information necessary, so that the attestor finds himself in the best condition so as to give his opinion as to their accuracy. Only after conclusion of this phase the attestor decides whether to make use of the work done by other auditors, assuming, in this case, the full and conscious responsibility for the judgment that he will formulate. Paradoxically, the work of the attestor may be more complex in the case of smaller companies, in which often there is not a control system and the historical data have not been audited by the competent bodies. In the international context, the ISAE 3400 (paragraph 27) and the US document AT Section 301 (which is analysed in Chapter 17 of the AICPA p.f.i.) define the ways in which the attestor must set the report. At national level, however, such rules can be found in the aforementioned "Protocol" of 2006 by the Working Group of the CNDC, as well as in the aforementioned "Guidelines", subsequently permanently enshrined in the IRDCEC document. Those documents highlight the need that the report by the attestor is both analytical and exhaustive in any part of it. Ultimately, the report must be structured as follows: a) an introduction in which, at the outset, must be specified the professional skills of the attestor and that no grounds for incompatibility pursuant to article. 28 letter. a) and b) L.F. and Article 2399 cc exist. In this phase, it is the duty of the attestor to specify the content of the task received and its purpose, as well as to indicate in detail the documents examined that underpin the whole report. As regards the accounting data, the attestor must report and document the checks he carried out, specifying the auditing techniques used, the categories of information analysed, the extension of the samples observed and the results obtained; b) the central part containing the illustration of the plan, its objectives and the strategy to be adopted. In this phase it is necessary that the attestor checks the nature of the hypotheses at the basis of the plan, if they are projective or provisional, and put the same in relation to the connotations and the capacity of technical production and organization of the company. This verification is particularly important, as it allows to assess the merits of the case at the base of the plan, also in relation to its implementation timing; c) the conclusion, that consists of two parts, the professional judgment on the veracity of the corporate data and on the degree of feasibility of the plan. It seems clear that a negative judgment about the veracity of the accounting data prevents the formulation of any judgment about the feasibility of the plan. On the contrary, a positive judgment on the veracity of the information and data analysed does not imply a similarly positive feasibility assessment. In addition, the judgment of feasibility could depend on the occurrence of certain future events (like, for example, the conclusion of a contract by a specific date), with a positive judgement of attestation conditioned upon the occurrence of a certain event. In other words, it is a conditioned attestation that cannot be excluded as long as the 14 Proceedings of 5th European Business Research Conference 10 - 11 September 2015, St. Regis Hotel, Rome, Italy, ISBN: 978-1-922069-83-2 attestor specifically indicates the conditions and the time frame within which they must occur. It has to be pointed out, finally, that the attestor is not required to monitor the plan, as this is up to the entrepreneur or to judicial bodies. However, in certain cases (eg the restructuring plan pursuant to Article 67 B.L.) nothing prevents the attestor, for his particular technical skills, from being affected also by this burden, without invalidating the character of independence that belongs to him. 5. Conclusions This work falls within the broader issue of corporate crisis, examining one aspect common to different corporate restructuring procedures introduced with the reform of the bankruptcy law, like the attestation of the feasibility plan in relation to the principles of shared assurance at the international level. In addressing the issue, emerged great uncertainty about the role of the delegated attestor, the standards of conduct that he must observe and the nature of the assignment conferred. In this respect, were considered important the regulations issued at international level in the field of attestation and their substantial application at national level was verified. This conclusion, however, is confirmed by the aforementioned document entitled "Standards of attestation of restructuring plans", in which were finally recognized standards, patterns of conduct and operational ways to which the attestors must comply. That document, validated by CNDCEC, finally fills a substantial gap, as it allows the attestor to perform his task by following the guidelines and avoiding unlike behaviours. However, it is believed that have yet to be discussed some critical issues regarding the evaluation of the prospective values contained in the plan. It is obvious, in fact, that among the various tasks of the attestor there is also the seizing of future often conjectural scenarios. These scenarios must then be verified through a sensitivity analysis to assess the merits of the economic and financial perspectives indicated, or to demonstrate whether and how the expected results are sensitive to changes in the parameters used. Hence, it is evident the need that the activities of attestation are entrusted to highly qualified attestors. NOTES 1 As it is known, bankruptcy law has been recently modified through article 33 of Law by decree 83/2012, converted into Law 134/2012. 2 This document was published on June 6, 2014 and validated by the CNDCEC (National Council of Chartered and Accounting Experts - Consiglio Nazionale dei Dottori Commercialisti ed Esperti Contabili) on September 3, 2014. 3 According to some scholars, the attestation of reasonableness, provided for in Article 2501 bis cc, does not fall within the activities of auditing or review, but into the broader activity of assurance engagements, as intended in the national context. On this point, see, among all, W.F. Messier Jr (2000), Auditing, McGraw-Hill. In this regard, it is useful to point out that the term assurance engagements refers to those independent attestor services, typically provided by professionals empowered to that end, with the aim to improve the information so that decision-making bodies may operate in the best possible way by making the information clearer and more accurate. 15 Proceedings of 5th European Business Research Conference 10 - 11 September 2015, St. Regis Hotel, Rome, Italy, ISBN: 978-1-922069-83-2 4 CONSOB (Commissione Nazionale per le Società e la Borsa), Principi di revisione, Documento n. 100 “Principi sull’indipendenza del revisore”, issued by resolution no. 15185/2005. 5 This conclusion makes specific reference to the composition procedure, but it does not seem that there are dissenting opinions about other restructuring procedures. 6 Remember that a first draft of the "Guidelines" was presented on May 20, 2008 and have since been collected contributions and insights that allowed the final draft of the document. See also: A. Quagli (2011), Verifiche ed attendibilità dei piani di risanamento, in Amministrazione e Finanza Review, no. 2, p. 47. 7 ASSONIME (Associazione Italiana tra le Società per Azioni), Circular no. 4 of February 11, 2013, p. 45 e ff. Remember also that essential requisite so that the professional may assume the assignment is that he is enrolled in the Registro dei Revisori hold by the Ministry of Justice. 8 CNDCEC (Consiglio Nazionale dei Dottori Commercialisti ed Esperti Contabili)), Circular no. 30/IR of February 11, 2013 9 Fondazione dei Dottori Commercialisti ed Esperti Contabili di Firenze, Commissione di Studio Area Procedure Concorsuali, Guida operativa per la redazione delle relazioni art. 161 c. 3 L.F. e art. 160 co. 2 L.F., p. 12. 10 In this regard, it has to be mentioned also Document n. 500 (CONSOB) “Gli elementi probativi della revisione”, according to which the reliability of evidence is influenced by its source and nature. Such reliability is much higher in relation to the impartiality of the sources and to the information obtained directly. Therefore, the professional bears the responsibility to assess the origin and content of the documents in his possession. 11 Principio di Revisione 501 (CONSOB), Sez. B - Gli elementi probativi Considerazioni addizionali per casi specifici dei Principi di revisione. 12 In this regard, see also: AICPA Guide p.f.i., par. 6.38; the abovementioned Guidelines, and the Guida al Piano industriale by Borsa Italiana. 13 S.A.F. Fondazione, Ordine dei Dottori Commercialisti ed Esperti Contabili di Milano (2010), Commissione Gestione Crisi d’impresa e Procedure Concorsuali, Quaderno n. 27, La crisi d’impresa. L’attestazione di ragionevolezza dei piani di ristrutturazione ex art. 67, co. 3, lett d) L.F., p. 85 e ss. 14 Such inverse proportionality is a common element to both international standards and US standards. 15 See also: ASB, AT Section 301, Statement on Standards for Attestation Engagements. 16 See, in this regard: CNDC (Consiglio Nazionale dei Dottori Commercialisti), Gruppo di lavoro decreti competitività della Commissione procedure concorsuali, Protocollo piani di risanamento e ristrutturazione. Relazioni del professionista: profili organizzativi e principi di comportamento nell’ambito delle procedure di concordato preventivo, accordi di ristrutturazione dei debiti, piano di risanamento attestato, 2006; CNDCEC (Consiglio Nazionale dei Dottori Commercialisti ed Esperti Contabili), Commissione crisi e risanamento, Osservazioni sul contenuto delle relazioni del professionista nella composizione negoziale delle crisi d’impresa, 2009; Linee Guida of 2008. 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