Normalizing Adjustments and Valuations

Valuations frequently assume a third party will purchase a business and primarily run it unchanged.  This does not mean a buyer will continue to pay expenses or a level of expense not considered typical.  Non-operating assets are typically excluded from a valuation, too.  Normalizing adjustments take the atypical expenses or portion of expense (or income) out of the mix.

Non-operating and one-time items include but are not limited to gains and losses from the sale of assets, income and expenses related to investments and legal settlements.  Expenses related to layoffs are an example of operating but non-recurring expenses generally removed.  If an income source or expense is not related to ongoing operations, it is subject to adjustment.

Discretionary adjustments look to income sources or expenses over which an owner has a choice.  Compensation paid to owners and officers as well as rent paid to related parties are frequent candidates for a discretionary adjustment.  Rent paid to a related party is often based on the cash flow requirements of that related party.  For a property with no mortgage, for instance, below market rent may be paid.  This is an example of how adjustments can work as a reduction of expense or an addition to expense.

Various authoritative sources report officer/owner compensation based on industry type, size and location.  These sources can form the basis for this adjustment.  Real estate appraisals are frequently used as the source for an adjustment to market rent.

Controversy exists over whether to include “discretionary” adjustments when valuing a minority interest.  Opponents say no, correctly stating a minority owner has no control over these discretionary expenses.  Proponents argue these adjustments should always be considered.  Shareholders of publicly-traded companies will invest elsewhere if they deem company management is overpaying executives, for example, resulting in a lower return on their investment.  A growing lack of investor interest leads to a decline in share price.

Proponents point to the derivation of yields used when calculating value based on cash flow.  These yields are often based on data from public equity markets.  As investors price shares and the related returns based on how well management is running the company, a perceived overpaying of expenses will lead to lower share prices and returns.

 

83(b) Elections and the Smaller Business

We continue our series of articles on compensation with this blog on IRS Section 83(b) elections.

A section 83(b) election allows an employee or contractor to include in taxable income the fair market value of property they received for the performance of services before they are truly entitled to that property.  With small businesses, this often occurs with restricted shares granted to employees or contractors that vest over time.  The election does not apply to stock options.

Without the election, with shares that have yet to vest and which the recipient can’t transfer, the fair market value of those shares is included in income when either the shares are theirs or the shares become transferable.  Generally, that means as the shares vest.

The 89(b) election allows the recipient to recognize all the income associated with all the shares at the date of grant, presumably at a lower value.  For tax purposes, all shares are treated as if they are fully vested.

If share value is expected to rise over the vesting period, electing 83(b) is a smart choice.  The election starts the clock for capital gain recognition should the shares be sold or transferred in the future.  It also determines that taxable basis for these shares when later sold or transferred.

Electing 83(b) should not be considered a slam-dunk.   Even with a start-up, shares have value.  This may be influenced by venture capital investments or other equity funding occurring at the same time as the restricted shares grant.  And it is quite possible that when the shares do vest, their value may be lower than at the time of grant.  Lastly, an employee who leaves prior to the completion of the vesting period will have paid taxes on compensation never fully received.

An 83(b) election is smart if the amount of income reported at grant is small, the share value’s growth prospects are moderate to high and the risk of share forfeiture through employee termination is very low.

An 83(b) election must be supported by a valuation of the shares in question.  JBV has significant experience and expertise in that area.

A tax specialist should assist with the election to avoid any tax consequences.

At JBV, we are here to assist you.

Stock Options and the Smaller Business

Stock options and stock ownership plans are a popular and effective method of incentivizing employees, often at a low cost to both the employer and the employee. Several types exist, including non-qualified stock options, incentive stock options, employee stock ownership plans, phantom stock, stock appreciation rights and more. In this second of a series of articles, we will look at Phantom Stock Options and Stock Appreciation Rights.

Phantom Stock Options and Stock Appreciation Rights

Under traditional stock option plans, an employee can become an owner of the company. Often, a business owner does not wish to pass along ownership. But s/he does want to incentivize key employees. Phantom stock options (“mirror stock” or “shadow stock”) and stock appreciation rights (SARs) both provide these features.

As with other stock plans, a set of milestones can be established. The “shares” are “issued” when the milestone is reached.

Phantom stock plans are tied to long-term company performance. There are advantages to both the employer and employee traditional stock plans don’t offer. Employees do not need to invest any money. Nor are they subject to corporate governance issues that may arise. They cannot be asked to personally guarantee company obligations. Most importantly, if they wish to sell shares under a traditional plan, their options may be limited. Typical smaller businesses are not traded and often do not hold any defined means for redeeming shares. This issue is not relevant for a phantom plan.

For an employer, the shares are “phantom”, the employee is NOT an owner. These employees hold no authoritative input in the management of the business. Yet, the employee can be incentivized through additional value added to the business, much like an owner. Administratively, these plans are much less complex than traditional stock option plans.

For the employer and the employee, the exercise of the option becomes an immediate taxable event. The employee reports it as ordinary income; the employer as a deduction.

With a SAR, many of the same advantages exist as with phantom stock. The key differences are in the exercise of the option and the amount of the award. A SAR can be exercised at the employee’s discretion once the vesting schedule is met. A phantom plan calls for exercise at the time the vesting schedule is met. A SAR awards the employee the amount equal to the difference between the FMV of the underlying stock at the exercise date and the grant date. The recipient of phantom options receives the full value of the share.

An attorney and a tax advisor should design the plan with your guidance to avoid any legal or tax consequences.

At JBV, we have valued many stock option plans, from ESOPs to phantom stock and SAR plans to ISOs and more. We are here to assist you.

Stock Options – Non-Qualified Stock Options and Incentive Stock Options

Stock options and stock ownership plans are a popular and effective method of incentivizing employees, often at a low cost to both the employer and the employee.  Several types exist, including non-qualified stock options, incentive stock options, employee stock ownership plans, phantom stock, stock appreciation rights and more.  In this first of a series of blog posts, we will look at non-qualified stock options and incentive stock options.

An employee stock option is a contract issued by an employer to an employee to purchase a set amount of shares of company stock at a fixed price for a limited period of time. There are two broad classifications of stock options issued: non-qualified stock options (NSO) and incentive stock options (ISO).  NSOs are typically offered to non-executive employees and outside directors or consultants.  ISOs are reserved for employees, generally executives.  Tax treatment of the two differs as well.

Both plans operate under a vesting schedule.  The employer grants the shares on Day 1 Year 1 but may set a vesting schedule.  Many schedules are based on time: 20% vest at the end of Year 1, an additional 20% at the end of Year 2, etc.  Other vesting schedules are tied to milestones: 20% when sales have reach $15 million, or 20% when productivity reaches 75%.  Both types of vesting schedules need to be clearly documented and agreed to.

Under both plans, no taxes are due at the time of grant.  NSOs are taxed at the date of exercise.  The difference between the Fair Market Value (“FMV”) on the grant date and the FMV on the exercise date is taxed as ordinary income to the recipient and as expense to the company.

ISOs are not taxed when the options are exercised. When the securities are sold, they are taxed under capital gains rules.  If the securities are held for one year after the option exercise and two years after the date of grant, they qualify for long-term capital gain treatment.  If these two qualifications are not met, they are treated as non-qualified stock options and are taxed using ordinary income rates.

An attorney and a tax advisor should design the plan with your guidance to avoid any legal or tax consequences.

At JBV, we have valued many stock option plans, from ESOPs to NSOs to ISOs and more.  We are here to assist you with yours.

IRS May Try to Restrict Discounts


At the American Bar Association (ABA) Section of Taxation meeting on May 8th, 2015, Catherine Hughes, of the Office of Tax Policy in the U.S. Treasury Department, announced that proposed regulations under section 2704(b)(4) could be released before the fall. She indicated that the tax community could look to the Obama Administration’s prior budget proposals on valuation discounts for clues about what the proposed regulations might provide.

Section 2704(b)(4) states:

The Secretary may by regulations provide that other restrictions shall be disregarded in determining the value of the transfer of any interest in a corporation or partnership to a member of the transferor’s family if such restriction has the effect of reducing the value of the transferred interest for purposes of this subtitle but does not ultimately reduce the value of such interest to the transferee.

Many believe the IRS does not have the authority to ignore minority and marketability discounts without Congressional action.

The IRS has unsuccessfully tried the Congressional route before.

A proposal was included in President Obama’s budget proposals in each of fiscal years 2010 to 2013. These proposals called for the elimination of discounts in family-controlled entities. None made it to the final approved budget.

Within the last ten years, the Certain Estate Tax Relief Act of 2009 appears to be the sole introduced bill on the topic. (Note my search was unscientific and may exclude other recent actions.)

HR 436: “Certain Estate Tax Relief Act of 2009”

This bill proposed the elimination of the ability to apply discounts for lack of marketability for transfers of “nonbusiness assets” of an entity. “Non-business assets” are those that are “not used in the active conduct of one or more trades or businesses.” For example, the new law would disallow a lack of marketability discount for the transfer of an interest in an entity that relates to the entity’s holdings of marketable securities.

Exceptions would have applied to two particular types of assets. First, an exception would have been made for real property owned by an entity is which the transferor materially participates, which would be measured in a manner similarly to passive activity limitations for income tax purposes. Second, an exception would have existed for “reasonably required” working capital of a trade or business.

Additionally, the Bill disallowed any minority discount for transfers of interests in a family controlled entity. This would have attributed ownership of the transferor to their spouses, parents, children, grandchildren, etc., thus eliminating the minority interest discount.

Status – Died in Congress

Does this mean the current attempt will fail? Who knows! However, panic mode is not called for.

Sales of Privately Held Businesses Are On the Rise December 2014

The economic recovery has created a surge in sales of small businesses. The number of deals tracked by online marketplace BizBuySell.com rose more than 40 percent in the third quarter. Behind the trend: Baby boomers want to retire, businesses are healthier after the recession and buyers are finding it is easier to finance deals.

At the low point of the recession – the second quarter of 2009 – BizBuySell logged just 1,040 closings. In the third quarter of this year 1,685 sales closed.

Expect sales to continue at their current hectic pace, says Curtis Kroeker, a general manager at BizBuySell.com.  “Next year could be a year of extreme growth, given the trend we’ve seen this year,” Kroeker says.

Many owners had hoped to get prerecession prices but lowered them after finding few takers. But don’t worry about sellers. They’re still doing fine, Kroeker said. The average selling price for a small business is up 3.4 percent from a year ago, and more people have the financial ability to buy a company since the recession.

Farrell v. Farrell, 2013 Ark. App. LEXIS 33 (Jan. 23, 2013)

In this Arkansas Court case, the various attempts to determine values for two related family-owned businesses led to widely divergent results.  Even from the same valuation analyst.

Farrell v. Farrell, 2013 Ark. App. LEXIS 33 (Jan. 23, 2013)
The wife appealed the trial court’s decision to assign all interest in the family businesses to the husband, which, she claimed, left her with a shortfall of $4.4 million.
The husband owned a 19.4% interest in two sets of closely held family businesses. The first entity included mining and land companies; the second was called the “Texas ventures.” At trial, the husband requested that the wife receive one-half of all business interests. However, she asked the court to value the companies and award money instead. Both parties presented experts to provide valuations.

As to the first entity, the wife’s expert stated that the value of a coal mine lay in its reserves—the coal in the ground—and that the value of the particular company was $13.2 million. He did not value the Texas ventures, but the wife’s CPA determined they were worth $3.2 million.

The husband provided several valuations for the first business, including one from the company’s controller that stated book value (not specified). One of the experts cautioned that any valuation had to account for the costs of extracting the coal as well as bonding and permitting. (Further details not provided.)

The husband’s CPA initially stated the Texas entities were worth $1.6 million but revised his opinion after talking with the wife’s CPA. Subsequently, he assigned a negative value of $536,000.

The trial court initially issued a letter opinion stating it had considered the various valuations but noted some had deficiencies and limitations “too numerous for a lengthy discussion.” The statute referred to “fair market value,” the court said. But this standard was of no consequence, since the business was a closely held family corporation and the shares were not for sale. The issue was the value long term to the owners or to someone who would buy the entire operation. As to the mining business, the court credited the wife’s expert’s valuation but applied a 25% discount “for mining costs and contingencies.” It determined a total value of $10.2 million. Adding this amount to the remainder of the valued estate, it found the total marital assets were worth $11.2 million and each party’s share was $5.6 million.

Among the court’s reasons for not making the wife a minority shareholder was its concern that she or her representative would impede business operations. Therefore, it awarded all the shares to the husband, along with the accompanying corporate debt, and the rest of the marital estate, valued at $979,000, to the wife. Because the court recognized that this resulted in an “uneven division” of assets in the husband’s favor, it also ordered the husband to pay the wife $10,000 per month for life in alimony. These payments would make the division equal.

The trial court did not incorporate its letter opinion in its subsequent divorce decree. Although it agreed with the wife that there had to be valuations for all assets, it did not expressly value the Texas ventures. In assessing the mining business, it again adopted the valuation of the wife’s expert. However, it lowered the value to $9.9 million, noting it had considered the business-related debt. At the same time, it reduced the wife’s share of the marital estate to $964,000.

The wife asked the court to reconsider its unequal division. She requested that it place a value on the Texas businesses. She also stated that, even if their value were zero, the marital estate would still be worth about $11 million. As it stood, her award was only 9.7% of the assets. To remedy the shortfall, the court should increase the monthly alimony payments to $33,000 or order the husband to pay a $4.4 million lump sum.

After the trial court denied the motion, she appealed, making ostensibly the same arguments. The husband contended that the trial court in fact had valued the Texas entity. It had lumped all the values into its calculation and incorrectly attributed the supporting evidence to the wife’s expert, whose $13.2 million valuation referred only to the mining business.

The Court of Appeals agreed with the wife that the lower court’s decision was problematic. The opinion left it unclear whether the trial court meant to include the Texas entities in the valuation it adopted. Although the court’s value for the first business was within the range of expert testimony, the law required it to state expressly the value of the property. And although the court explained its decision to award all business interests to the husband in its letter opinion, it failed to incorporate the latter in the official divorce decree. This failure was in violation of the statute. On remand, the lower court also might reconsider its alimony award, the appellate court noted.

How to Select a Business Valuation Expert

The selection of a business valuation expert becomes critical if you or your clients have a need to “know” the value of a business. There are several considerations that must be made before selecting an expert. These qualifications and characteristics apply in any engagement:

• Is the analyst certified by a recognized national credentialing organization and subject to standards of work and ethics by that organization?
• Are they current in their education and knowledge?
• Do they have deep and varied experience in valuing businesses (not just the type of business you want valued)?
• Do they have a depth of business knowledge outside of just valuing businesses?
• Do they have a reputation for being independent, objective, and reliable?
• Are they clear in their description of the work that is to be done, the information they will need to do the work, the time it will take, and the cost of the valuation engagement?

These unique considerations depend on the context of some of the most common uses of a business valuation.

Estate/Gift
The Internal Revenue Service (IRS) is a highly experienced player on the other team when it comes to the valuation of business interests for estate and gift tax purposes. The valuation expert should have an excellent understanding of the reporting requirements imposed by the IRS, as well as a current and working knowledge of relevant court cases and IRS regulations. A valuation expert engaged early in a planning setting is invaluable to preventing problems “down the road.” Strong knowledge and experience in this type of an engagement is essential.

If a family limited partnership (FLP), or similar entity, is being contemplated by the taxpayer, a skilled valuation expert can help design the entity to avoid later issues. The valuation expert can be critical in defending the entity before the IRS.

Employee Stock Ownership Plans
The Department of Labor (“DOL”) is the user of note in these engagements.  Their purpose is to (rightfully) ensure a fair valuation for the ESOP participants.  As such, it is often best to err on the side of caution when determining a value.  This can include some non-standard adjustments such as for compensation and rent paid to related parties.  Typically, a valuation analyst only considers those two adjustments if a control position is being valued.  We believe that officer/owner compensation and rent paid to related parties should always be considered, if not always adjusted.

In recent months. the DOL has challenged some initial transaction valuations based on too little compensation being paid to the selling officer/owner.  The result remains undetermined, but it appears the DOL believes the valuation is too high, resulting in too much consideration paid by the ESOP for the shares. The next logical step is for the DOL to look at all officer/owner compensation in all subsequent valuations, even for minority positions.  In our view, being “fair” to employees requires examining these components even in a minority situation.
We’re being proactive on our stance and examining it now.

Where Do I Find Such an Expert?
Call us about your valuation needs. We have the business valuation knowledge and skills to handle most tasks. Or, we can help you locate an experienced professional for your specific
situation.

How to Review a Valuation Report

Business valuations are prepared for many purposes, including litigation, estate and gift tax, and the purchase or sale of a business. To properly understand and utilize a valuation, the reader should critically review the report to determine its accuracy and reasonableness.In reviewing a business valuation report, the reader should determine if the report is prepared by a qualified appraiser, includes detailed planning, identifies the critical factors, and documents and analyzes specific information.

While reviewing the report, it should be evident that the appraiser has an understanding of the company’s unique characteristics including the history, ownership, management, products, services, customers, suppliers, facilities, and personnel. It should be apparent that the valuation analyst has analyzed and understands the risks involved with ownership, the stability or irregularity of the earnings as well as any other relevant factors that affect the company being valued. In the report, the appraiser should consider external factors that may affect the company as of the valuation date including the national and local economic conditions, relevant governmental regulations, and demographic trends.

Ask the following questions:

  • Does the appraiser possess the proper education or experience to perform the valuation?
  • Is the report mathematically accurate?
  • Does the appraiser properly apply case law and statutes?
  • Has a site visit been performed? By performing a site visit the appraiser is better able to understand the business’s products, assets, liabilities, and the competence of employees. We’re among the old school firms that require a site visit.
  • Has the appraiser properly identified and valued the interest? For instance, is the interest a minority interest or controlling interest?
  • Has the appraiser properly analyzed the books and records of the company and made appropriate adjustments?
  • Was an analysis made to find material personal expenditures? It is important to understand the accounting methods being utilized by the company and to determine if they were being applied   consistently. Our firm consists solely of CPA’s, skilled in analyzing financial statements
  • Has compensation been properly adjusted, if appropriate? Failure to properly adjust compensation could have a material impact on the valuation.
  • Has there been a thorough and thoughtful analysis of the factors affecting risk?
  • Has the appraiser addressed the discounts that were applied, how the specific discounts were computed and discussed empirical evidence and the company’s unique characteristics?

After analyzing the valuation report, the reviewer should consider whether the conclusion of value determined by the valuation analyst makes economic sense for the purpose that the valuation was prepared for. Would the reader buy (sell) the business for the value stated?

Court Discredits Expert’s Use of Going Concern Method for Inactive Business

In this New Hampshire Court case, the CPA’s attempt to determine a value for a struggling business using a going concern approach was rebuffed

O’Rourke v. Burke and Hotchkiss, PLLC, 2013 N.H. Super. LEXIS 4 (March 6, 2013)
Citing an authority on the going concern methodology but failing to apply the prescribed principles was only one of several critical errors an expert made when he assessed damages for a struggling bagel company related to its legal malpractice claim. In its Daubert ruling, the court found the testimony unreliable.

The plaintiff, a bagel business, filed suit in state court against the defendant, a law firm, alleging it had failed to perfect the lending shareholders’ security interests in the company. As a consequence, when the business filed for bankruptcy, the trustee was able to take possession of all of its assets. Had the firm performed to standard, the company shareholders would have kept the secured assets, disposed of the unsecured debt, and continued in business upon reorganization.

The company retained an expert, a CPA, who analyzed the going concern value of the business’s assets, their depreciated value, and the value of other assets. The defendant objected under Daubert, as adopted by state law. The plaintiff claimed the opinion was admissible because any legitimate concerns went to weight and credibility.

No sustained earnings. The expert stated he chose to value the company as an “active business with future earning power as opposed to liquidation value.” He said he used the “going concern methodology” James S. Queenan set forth in “Standards for Valuations of Security Interest in Chapter 11,” a 1987 law review article. It suggests that an expert consider earnings of the five previous years and refrain from making “long-range projections of substantial earnings for a business currently suffering losses or making only a small profit.” The article calls them “largely speculative.”

However, the expert here only considered earnings for one year in business—2009 to 2010—during which the company actually showed a loss of $238,187. Also, in a deposition, its owner stated that in years prior to bankruptcy its weekly cash flow was “basically a little over break-even.”

Moreover, the expert based his analysis on the assumption that if the business had been able to continue it would have made a number of changes to increase profits. For example, he assumed it would have moved to a cheaper location, disposed of the retail portion of the business, and downsized in terms of space and menu. In line with this vision, he calculated labor costs, utility costs, and other expenses and projected income and annual net income. Ultimately, he concluded that the business’s “going concern” value was $448,000.

The court found the testimony problematic. First, it noted that the expert had failed to follow the very method he referenced as authoritative. Contrary to the “Queenan methodology,” he did not base his valuation on anywhere near a five-year period. Also, it was obvious, even at the time he performed his analysis, that the company was no longer “an active business,” the court stated. In fact, “the business never generated sustained earnings.”

Second, he based his analysis “entirely on speculation.” Calculating damages based on a going concern valuation ultimately was based on lost profits, the court said. Even if the law does not require absolute certainty, it considers evidence of expected profits incompetent where operations have never begun. This was the case here because the expert’s analysis was based on the business starting over, under a “substantially different business model from the old business.”

Although the going concern methodology itself was reliable, it “cannot reliably be applied to the facts in issue,” and it was not applied to the facts, the court concluded.
Regarding the expert’s analysis of the depreciated value of the business’s assets, the defendant noted that, even though the depreciated book value of an asset was meaningful for tax purposes, it “says little about the asset’s current fair market value.” The court agreed, finding this testimony could, in effect, mislead a lay jury. In sum, it excluded the expert’s entire opinion.