Reasons to Know Your Value
conducts certified business appraisals for a multitude of different kinds of functions. It is important to always know the value of your company. Every industry has cycles and if you are even contemplating the thought of selling, it is important to know when the next crest in the wave is coming (or if it already passed). We feel that it is important that the average person considering an appraisal of their company understand the disclosure requirements under the Uniform Standards of Professional Appraisal Practice administered by the Appraisal Institute of Washington, DC. Under USPAP, the appraiser must identify both the function and the intended use of the appraisal within the certified appraisal document.
Although, appraisers are bound by the principles and code of ethics by which they perform an appraisal, as outlined by the Appraisal Institute, the end use of that appraisal must be disclosed and the appraisal must be written in a way that allows a third party to understand how the concluding value was derived.
Estate/ Tax Valuation or Gifting a Business to Related Party
Business estate valuations may be requested for a number of different matters related to estate planning.
The owner of the estate may want to know the value of his or her assets and business today, as well as what they may be worth in the future. Other uses for estate valuations include, planning for a Will or when looking towards retirement.
Stockholder Actions represent many different situations. For example, a minority shareholder in a company may bring action against the majority shareholder. The board of directors may have voted to buy his or her interest in the company at a price that he or she does not feel represents the true value of the shares. In a situation such as this, the minority shareholder may hire to value the interest of that one person, conducting an independent appraisal for his or her interest in the action.
Another common time for litigation is divorce. In many instances the husband may own the business and the wife, under common law, will be entitled to half the value of that business. In this situation we would be engaged, either by the estate or by an attorney representing one of the parties, to tell the court what the business is worth.
Buy Sell Agreements
There are many different issues related to Buy/Sell Agreements. Most of the time, when we’re engaged to do that kind of an appraisal, it would have something to do with cross purchase agreement or an insurance funding agreement within the corporation.
In other situations, if one of the partners or shareholders were to die we would be charged with establishing the value of their part of the company. This is also done to make sure a business has enough insurance. Often referred as Keyman Insurance, it makes sure that if that person wasn’t able to complete his or her duties in full or if he or she were to pass away, the corporation would be paid by the insurance company based on the set value. The insurance company will require a professional or a certified appraisal in order to write this type of insurance policy.
A buy/sell agreement can also be as simple as calling us up and saying “I found what I feel is a great business that I’d like to buy and I’d like to have you help me establish a value for it”. In this situation, we will represent the interest of the buyer by preparing an evaluation, in addition to generating an Offer to Purchase and/or a Buy/Sell Agreement.
Business Appraisal for Divorce Purposes
In Massachusetts, the issues of performing a professional business appraisal for divorce proceedings have changed. If you need an expert to provide business valuation and/or expert testimony for dissolution of marriage, the 2007 landmark Mass. SJC case of Bernier v. Bernier may have far reaching implications. This interesting case sets forth the court’s opinions regarding many factors that may not be used in a business valuation or appraisal that’s intended use is other than divorce. While this dissertation is intended to touch upon the main issues of Bernier, caution must be applied, as it may not be applicable in all cases.
Fair Value (FV) versus (FMV). Does the owner of a business in a divorce case have any potential intention of actually selling the business? Most business appraisals assume a contemplated sale of the business stock or assets to an arm’s length buyer who is in possession of the relevant facts and not under compulsion to act. The Bernier case changes this hypotheses by stating that a different standard of value, Fair Value, must be opined if the owner of the business in question is not likely to place it for sale. Fair Value disallows the appraiser from applying premiums and discounts for lack of marketability, liquidity and amongst others, key man. These discounts are commonly used in other business valuation cases.
In our engagement to opine to a business value in dissolution of Marriage case, we will ask the retaining attorney if they want us to apply the SJC’s ruling in the instant case. Our experience tells us that each lawyer has a varied understanding of this complex and confusing case. We are happy to offer our professional opinion as it applies to each individual case. While we strive to perform within the standards of the Washington, DC based Appraisal Institute and its practices as promulgated by the Uniform Standards of Professional Appraisal Practices (USPAP). Each client’s needs are different. Budgets vary; some reports are for mediation, others for expert testimony in the divorce case and others for the trier of fact. Accordingly, has custom tailored our reports to the needs of the client and their attorneys. For a multitude of reasons, we are asked to provide a letter opinion of value. The valuation sets forth the main issues at hand and reduces the report to a summary opinion where the work sheets are maintained in our files.
Our most common report is a calculation report that summarizes the issues and details the conclusions within the text of the actual report. A calculation report is considered under USPAP a limited summary report. This report is an economically affordable suitable for all forms of uses including divorce business valuation, estate business valuation, shareholder/stockholder business appraisal, estate business value, economic distress and recovery valuations, purchase and sale valuations, buyer representation appraisals, etc.
For a more comprehensive appraisal, we provide a full narrative report that details all the various aspects of how we arrived at our opinion of value. All reports, unless otherwise stated, are stated in cash or equivalents and in fee simple. For divorce purposes, our reports will typically reflect the Bernier decision.
Bernier – Tax Affectation The SJC rejected the fact that a business should be taxed at a regular (C corp.) rate. In essence, the court ruled that the value arrived at should be taxed at the owner’s applicable tax rate if a pass through entity. This ruling has several implications. The business value is stated in Fair Value, typically a higher value than FMV due to the lack of discounts for liquidity and key man issues. Business valuation experts have argued for decades relative to whether value should be stated based on pre-tax or after tax income. While, most buyers will pay a multiple of; earnings BEFORE interest, taxes, depreciation and amortization, there exists the death and taxes presumption that no one is exempt and thereby all value should be based on after tax income. The common theory being that the acquiring party will have different tax, depreciation and cost of financing burdens than the subject company. It is interesting to note that the SJC stated that if the business is not to be sold, FV must be used. In addition however it ruled that despite the fact the business will not be sold the value should be stated as if it were sold and subsequently tax affected. This treatment can reduce the ultimate value of the company by 0% to as much as 64% for a Massachusetts C Corporation. For this reason , along with many business appraisal and valuation practitioners elect to treat each assignment on an individual basis.
Divorce valuation and the expert witness. Based on our brief outline above, it is obvious that we have given significant fodder to opposing counsel under cross-examination. Bernier has added to the confusion that can be introduced to influence the judge or jury.
makes it position in each case very clear. We answer question in a way the trier of fact can understand without introducing mumble and jumble of the professional that often confuses rather than informs. We are business valuators than do not use any sort of canned business valuation software but rather do the work in our heads and reduce it to writing ourselves with little fluff. The result is an expert witness that understands his assignment and typically does not need to refer to notes while on the witness stand. business valuation experts know what they are talking about because they have done the work themselves. This means a more credible witness.
Why should be your Divorce Business Valuation Expert in Massachusetts?
is a veteran of hundreds of divorce appraisals. Many times, counsel for both sides will stipulate to our expert opinion to save time and money. That said, counsel still has a fiduciary responsibility to advocate the interests of their own client. The valuation experts of Massachusetts take careful attention to opining to their professional ethics, not the interests of either party. After 23 years of providing certified business appraisals and valuations to Massachusetts and New Hampshire courts, it is interesting to note that we have represented husbands and wives on a nearly equal basis. No one law firm accounts for more than 2% of our annual income and we are known to advocate our opinion of value, not the opinion of the client or their attorneys. In short, we will never be a “hired gun.”
- Life member of The Institute of Business Appraisers, Inc.
- Qualified and testified in many family court cases
- Provided hundreds of divorce business appraisals for settlement or mediation purposes
- Excellent presentation on the witness stand
- In possession of thousands of empirical “sold business” statistics
- Practicing business valuation for divorce cases since 1986
Business Litigation Support
litigation supportSellMyCompany’s staff has been trained in the proper courtroom procedures to aid counsel in litigation support. Our testimony is clear, concise and accurate. Our presentation is designed to be understandable to a judge or jury that does not have a financial background. Counsel fear not! is totally independent in its business appraisals and strives to be an advocate of its opinion, not the client. We enjoy nearly 100% stipulation of counsel for both sides for our status as experts in the appraisal of closely held companies. Whether the case concerns divorce, shareholder action, fraudulent conveyance, estate matters or issues of other interest, SellMyCompany’s staff of business valuation professionals stand ready to offer the highest level of litigation support available in the marketplace.
Economic Damages Calculations
Economic Damages calculations can be provided for quantification of the loss incurred due to breach of contract, wrongful death, personal injury, wrongful termination, sex or age discrimination, patent infringement or any other type of litigation requiring this type of service
ESOP – Employee Stock Option Plans
Employee Stock Option Plans require not only an independent initial valuations but regular annual valuation for the protection of the stock holders. Special provisions of the Department of Labor are a mandatory part of the valuation process..
SFAS 141 & 142 and Impairment
SFAS 141 & 142 and Impairment is of concern not only to public traded companies but to those presenting financial statements to lenders for consideration when there is present on the balance sheet a value for the of acquired assets or stock of another business.