Note: We updated this post (originally posted last week) to add new frequently asked questions about when to reference Exhibit 104 in Form 8-Ks and about the phase-in schedule for all companies. 

Question:  In a Form 8-K, are you required to explicitly reference Exhibit 104 in the Exhibit Index?

Answer: In discussions with SEC Staff within the SEC’s Division of Corporation Finance, we received the following guidance related to a registrant’s Exhibit 104 reference obligation in 8-Ks:

• If the 8-K does NOT otherwise have an exhibit being filed (or furnished) under Item 9.01(d), then the company does not need to include Item 9.01(d) in the 8-K solely for the Exhibit 104 reference. (The cover page tagging is still required in the background, but there is no standalone Exhibit 104 reference in an Item 9.01.)
  
• In contrast, if the 8-K does have another exhibit being filed under Item 9.01(d) (e.g., there is a material contract), then the company should include a reference to Exhibit 104 in the Item 9.01(d) disclosure because there is already disclosure being provided under this Item. For example, the reference could be as follows:

“104       Cover Page Interactive Data File (embedded within the Inline XBRL document)”

• The principle behind this position is that Item 9.01 is intended to have an informational component to it, and if an Exhibit 104 reference is required in every 8-K then the informational benefit of item 9.01 is weakened.

Question:  As a large accelerated filer, should our 10-Q exhibit list include a separate reference to Exhibit 104?

Answer:  Based on our discussions with SEC Staff within the SEC’s Division of Corporation Finance, we understand the position of the Staff in Corp Fin’s Office of Chief Counsel is that a registrant should explicitly reference an Exhibit 104 in the list of exhibits.  And because the recent EDGAR Filer Manual makes clear that a registrant meets its obligation under Exhibit 104 by providing the cover page interactive data file using an Inline XBRL document set with Exhibit 101, the registrant should simply cross-reference to Exhibit 101.

For example, Exhibit 104 could include a cross-reference as follows:

“104      Cover Page Interactive Data File (formatted as Inline XBRL and contained in Exhibit 101).”

We also remind large accelerated filers that the recent instructions to Item 601(b)(101) of Regulation S-K were amended to require that for interactive data files, the Exhibit Index must include the word “Inline” within the title description for any XBRL-related exhibits.  See Instruction 1 to Paragraphs (b)(101)(i) and (ii) of Regulation S-K.

Question:  What is the phase-in schedule for Inline XBRL for all operating companies?

Answer:

• Operating companies that are currently required to submit financial statement information in XBRL will be required, on a phased basis, to transition to Inline XBRL.
• Phase-in:
  • Large accelerated filers that use U.S. GAAP are required to comply beginning with fiscal periods ending on or after June 15, 2019.
  • Accelerated filers that use U.S. GAAP will be required to comply beginning with fiscal periods ending on or after June 15, 2020.
  • All other filers will be required to comply beginning with fiscal periods ending on or after June 15, 2021.
  • Filers will be required to comply beginning with their first Form 10-Q filed for a fiscal period ending on or after the applicable compliance date.