Mississippi Advisory Opinions August 23, 1990: AGO 000007541 (August 23, 1990)

AGO 000007541.

Dear Mr. Horton:

Attorney General Mike Moore has received your letter of request and has assigned it to me for research and reply.

Your letter states:

"I have attached a copy of an opinion issued by your office dated June 19, 1985, wherein you opined that any rule of the Mississippi State Board of Public Accountancy which was inconsistent with 73-33-15 of the Mississippi Code of 1972, Annotated, would be unenforceable if such rule attempted to prohibit a certificate holder who did 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. Several sections of the Mississippi Code were amended during the 1990 Regular Session which address the practice of public accounting as a certified public accountant, and we hereby request an official opinion on the question of whether the opinion dated June 19, 1985 is still valid or whether the amendments adopted by the Legislature would require a modification or revision of such opinion. Additionally, the Mississippi State Board of Public Accountancy adopted new rules and regulations in accordance with the Administrative Procedures Act which became effective February 1, 1990. One of the rules adopted reads as follows:

When an applicant has met all of the requirements for a certificate and licensure, the Board shall issue him a certificate.

Prior to the adoption of these new rules, the prior rule relating to this subject read exactly the same as the above with the exception of the underlined language. We have a number of candidates who qualified to sit for the exam prior to February 1, 1990, who have met the requirements in place prior to that date and have successfully completed the CPA exam and desire to be issued certificates following the August, 1990 Board Meeting. Additionally, we have a number of people whose applications to sit for the May, 1990 CPA exam quoted the language from the prior rule as being the rule in effect at the time of their application, and several of these applicants also desire to be issued certificates following the August, 1990 Board meeting, having met the previous requirements and having successfully completed the CPA examination. Please advise us by way of official opinion as to whether the Board can lawfully issue certificates to persons who qualified to sit as candidates prior to February 1, 1990 and those who filed applications bearing the old wording of the rule during the spring of 1990 if such persons have met the requirements for a certificate but have not met the requirements for licensure."

In response to your first question, Mississippi Code Annotated 73-33-15 (1972) has not been amended since 1983 we do not find that any of the amendments of Chapter 322, Laws of 1990 would affect our opinion addressed to you and dated June 19, 1985. Therefore, it remains the opinion of this office that any rule 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 unenforceable.

In response to your second question, section 73-33-5 provides in part:

"The Mississippi State Board of Public Accountancy is hereby authorized with the following powers and duties: ....

(g) To issue certificates under the signature and the official seal of the board as provided in this chapter; (h) To issue licenses to practice public accounting to any certified public accountant who has obtained a certificate or reciprocal certificate issue by the board pursuant to such rules and regulations as may be promulgated by the board; ...."

The above quoted statutory provisions, in our opinion contemplate separate and distinct requirements that candidates must meet in order to obtain a "certificate" on the one hand and to obtain a "license to practice" on the other hand. Therefore, in our opinion, any rule or regulation which attempts to require a candidate to meet the more stringent requirements of a license to practice as a prerequisite to receiving a certificate is unenforceable.

Therefore, in response to your specific question, it is our opinion that the Board must issue certificates to the two groups of candidates described in your letter who have met the requirements for said certificate.

Sincerely,

MIKE MOORE, ATTORNEY GENERAL

BY:

Phil Carter Special Assistant Attorney General

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