Mississippi Advisory Opinions June 19, 1985: 19850619 (June 19, 1985)

Advisory Opinion Text

Mr. Roy Horton, CPA

Executive Director

Mississippi State Board of Public Accountancy

Post Office Box 55447

Jackson, Mississippi 39216

Dear Mr. Horton:

Attorney General Edwin Lloyd Pittman has received your letter of request and has assigned it to me for research and reply.

Your letter states:

“On behalf of the members of the Mississippi State Board of Public Accountancy, I hereby request your opinion on the following matter.

“ Mississippi Code Annotated § 73-33-15 (Supp. 1984) provides in part:

'It shall be unlawful for any person, except a certified public accountant, who holds a license to practice public accounting issued pursuant to this chapter, or an attorney in the practice of law in this state, to issue, sign or permit his name to be associated with any report, transmittal letter or other written communication issued as a result of an examination of financial statements of financial information which contains either an expression of opinion or other attestation as to the fairness, accuracy or reliability of such financial statements. . . .'

“Under the Board's Rules and Regulations the term 'practice of public accounting' is defined as follows:

'(1) Offering to perform, or performing for the public, accounting or accounting related services while holding one's self out as a certified public accountant, public accountant, firm of certified public accountants, public accountants, accountant or any such similar terminology.

'(2) Signing or affixing one's own or firm name, or other name used in one's profession or business, to any opinion, certificate or report attesting in any way to the reliability of any representation or estimate in regard to any person or organization, embracing financial information or facts respecting compliance with conditions established by law or contract, including but not limited to statutes, ordinances, regulations, grants, loans, and appropriations, together with any wording accompanying or contained in such opinion, report or certificate which indicates (a) that he is an accountant or auditor or that the firm is composed of, or employs, accountants or auditors, or (b) that he has expert knowledge in accounting or auditing or that the firm is composed of or employs persons having expertise in accounting or auditing; or

'(3) Offering to the public or to prospective clients to perform, or actually performing on behalf of clients, professional services that involve or require an audit, examination, review or compilation of financial records leading to a written report concerning same; or

'(4) Maintaining an office for the transaction of business as a certified public accountant, public accountant, accountant, firm of certified public accountants, public accountants or any such similar terminology.'

“Regulation V(D) (2) provides in part:

'When an applicant has met all the requirements for certification, the Board shall issue to him a certificate that he is a certified public accountant in the State of Mississippi. All such certificates shall be valid only when signed by three members of the Board and when the Board's seal is affixed thereto. The issuance of the certificate does not qualify the candidate to practice public accounting in the State of Mississippi unless such certificate holder holds a valid, current license to practice public accounting issued by the Board under this Section .' (Emphasis added)

“The Board has always interpreted Section 73-33-15 to allow non-CPAs to engage in the practice of public accountancy so long as their written communications do not contain an expression of opinion or other attestation as to the fairness, accuracy or reliability of financial statements. This, of course, means that non-CPAs may engage in the practice of public accounting as defined by the above quoted regulations provided they do not express an opinion. “However, the regulations specifically state that the issuance of a certificate which designates one as a CPA does not qualify him to practice public accounting unless such certificate holder holds a valid, current license to practice public accounting.

“It therefore appears that one who is not a CPA may engage in the practice of public accounting so long as he does not express a written opinion whereas one who passes the required examination and meets all other requirements and receives a certificate designating him as a CPA would be prohibited from engaging in the practice of public accounting until such time as he acquires a license to practice from the Board. “The Board requests your opinion as to whether the acquisition of a certificate designating one as a CPA prohibits the holder from engaging in any of the activities included in the definition of public accounting set forth in the regulations.”

A general rule of law is that when an administrative rule or regulation is inconsistent with a statute the statute must prevail. Crosby v. Barr , 198 So.2d 571 (1967); Mississippi State Tax Commission v. Reynolds , 351 So.2d 326 (1977); Buse v. Mississippi Employment Security Commission , 377 So.2d 600 (1979) .

Mississippi Code Annotated § 73-33-15 (Supp. 1984) makes it unlawful for any person except a licensed CPA or attorney to issue, sign or permit his name to be associated with any report, transmittal letter or other written communication issued as a result of an examination which contains either an expression of opinion or other attestation as to the fairness, accuracy or reliability of financial statements.

A corollary to the stated prohibition of Section 73-33-15 is that it is not unlawful for one who is neither a licensed CPA nor an attorney to engage in the practice of public accounting so long as he does not issue, sign or permit his name to be associated with a written statement which contains either an expression of opinion or other attestation as to the fairness, accuracy or reliability of financial statements.

Therefore, in response to your inquiry and based on the above cited legal authorities, it is the opinion of this office that any rule or regulation which attempts to prohibit a certificate holder who does not hold a license to practice as a CPA from engaging in those areas of public accounting which do not require or include a written expression of opinion or other attestation as to the fairness, accuracy or reliability of financial statements is inconsistent with Section 73-33-15 and is therefore unenforceable.

Very truly yours,

Edwin Lloyd Pittman Attorney General.