As the June 30 deadline for 11-Ks looms, its becoming increasingly apparent that the SEC is unlikely to give any firm guidance on whether 906 certifications are required (despite the paragraph in the internal control report adopting release issued Friday that noted that the SEC and DOJ were in discussions). As the due diligence for these certifications is likely to take a lot of time – because there is likely to be so many different third-party entities involved – companies should start figuring out what they will do to support the certification now.
The question remains – who should sign the 11-K certification. The answer likely is whoever signs the 11-K: the company’s CEO and CFO – or the plan adminstrator (if that is a natural person) or whoever has the highest responsibility for the plan.
The next question is whether the certification should have the “fairly presents” language since there is no income statement involved – some companies have changed the certification to read that the fairly presents language relates to the “net assets available for benefits and changes in net assets available for benefits of the Plan.” See the two 11-Ks filed by Intel this morning – one of these is at http://www.sec.gov/Archives/edgar/data/50863/000005086303000185/pr1165ex99.htm.
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