Federal Rules and Regulations Governing ESOPs Business valuation reports of employer’s securities owned by ESOPs are subject to review by plan fiduciaries, government agencies, and IQPAs auditing the ESOP’s financial statements. Each of these readers have their own responsibilities to the participants and beneficiaries of the plans. This article will examine the federal rules and regulations governing ESOPS, the responsibilities of the report readers, and the use of the report as audit evidence. Introduction Business valuation reports of employer’s securities owned by Employee Stock Ownership Plans (ESOP) are subject to review by plan fiduciaries, government agencies, and independent qualified public…
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A Legislative Approach? In April of 2023, the United States Department of Labor (DOL) committed to move forward with a regulation to clearly detail “adequate consideration” in section 408(e) of the Employee Retirement Income Security Act of 1974 (ERISA). For decades the DOL has utilized litigation versus heeding Congress’s edict to enact regulations regarding adequate consideration and it seems as though action is going to finally be taken. This article discusses recent developments suggesting a change in their approach. In April of 2023, the United States Department of Labor (DOL) committed to move forward with a regulation to clearly detail…
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When is there a Duty to Corroborate Data? NACVA’s Standards Board (SDB) was formed in 2016 with the purpose to promulgate NACVA’s Standards, including the development of interpretations, amendments, restatements, and new releases of NACVA’s Standards as deemed necessary and prudent. While being able to influence the very rule governing one’s profession is an astute honor, the most rewarding role performed by the SDB is that of responding to questions that a member has asked or issues they are dealing with. This article addresses data reliability questions and issues, and how it relates to the NACVA standards. NACVA’s Standards Board…
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In Financial Projections (Part II of II) This is a two-part article that considers the review and assessment of prospective financial information. Specifically, this discussion describes the behavioral bias that may influence financial projections. This discussion should inform any party involved in compiling or assessing financial projections. This discussion is particularly relevant for fiduciaries who may be involved in the transaction or other investment decision-making process. In Part I of this article, the authors discussed key questions fiduciaries should ask to understand financial projections and eliminate or reduce bias. In this second-part, the authors discuss company-specific considerations—a qualitative approach and…
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In Financial Projections (Part I of II) This is a two-part article that considers the review and assessment of prospective financial information. Specifically, this discussion describes the behavioral bias that may influence financial projections. This discussion should inform any party involved in compiling or assessing financial projections. This discussion is particularly relevant for fiduciaries who may be involved in the transaction or other investment decision-making process. Introduction This discussion considers the review and assessment of financial projections that are prepared as part of a corporate transaction. This discussion may inform any party involved in compiling or assessing financial projections. This…
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For “Intentionally Defective” Grantor Trusts (Part II of II) In this second and final part of this article, the author provides illustrations that showcase pitfalls to avoid when the power of substitution is exercised. Read Part I here.
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For “Intentionally Defective” Grantor Trusts (Part I of II) The power of substitution is held by the settlor of a grantor trust if this power is provided by the trust instrument. This power allows the settlor, at any time, to remove an asset or assets from the grantor trust in exchange for an asset or assets of equivalent value. Such a transfer can be problematic and vulnerable to challenge if the equivalent value is questionable. One such example is when a promissory note bearing a below-market interest rate is the substituted property. First, this discussion presents an analysis of the…
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As the financial planning industry nears a fee-only, fiduciary world, we are finally outgrowing our profession’s roots—and for the better. In the process, though, independent broker-dealers will face some important choices about their future business models. To read the full article in FinancialPlanning, click: As Planners Outgrow Their Roots, Hard Choices Lie Ahead.
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A summary of recent federal and state court cases involving final partner administrative adjustments, mergers, and matrimonial law This month we highlight four cases. The first is Rovakat, a federal appellate court decision where a claimed redemption was deemed a sale of stock. The In re MFW Shareholder Litigation case involves a motion for summary judgment where a majority of the minority shareholders approved a merger transaction; this was deemed a “cleansing device” that led to the dismissal of plaintiff’s leading claim, which involved an allegation of breach of fiduciary duty. In Matter of Central N.Y. Oil & Gas, the…
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Increased Scrutiny for ESOP Fiduciaries This article presents a case for higher scrutiny for ESOPs as well as their fiduciaries. By juxtaposing protocol with proverbs from Aesop’s fables, valuable lessons are learned for business and life.
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California Sanctions Husband for Hidden Account. Wisconsin Finds ESOP Was Properly Governed In White v. Marshall & Isley Corporation, the U.S. District Court for the Eastern District of Wisconsin dismisses a case asserting that employee stock ownership plan (ESOP) fiduciaries violated their duty of prudence. In re: Simmons, tried in the Court of Appeals of California, found the husband subject to additional sanctions for his failure to disclose a separate property savings account. Find out more.
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Plus: Bishop v. Commissioner Rules on When and Whether a Bad Debt Loss Can Be a Claimed Deduction In Schwab v. Commissioner, a case turns on when a variable universal life insurance policy is a taxable event. In Boone Operations Co., LLC v. Commissioner, find out when contributing fill dirt to the city of Tucson is or isn’t a charitable or taxable event.
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Recent Cases Consider: Fair Market Value in Arkansas, Equalization Payments and Healthcare Credits in Iowa, and Valuations Based on Future Cash Flow in Louisiana Judge Wiggins in Iowa rules In re Marriage of McDermott on equalization payments and tax credits for health insurance payments. In Louisiana, Judge Williams finds a valuation in Fancher v. Prudhomme invalid since it was based on assumed cash flow—and a withdrawing member was the source of almost all the company’s business. Instead, current asset value is key. Find out more.
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Cases in Ohio, Delaware Assess Acquisition Share Value, Family Business In Iacampo v. Oliver Iacampo, the Ohio Court of Appeals rules on the appropriate use of experts in valuing a family business, the nature of passive income, and financial help from the wife’s parents. In Delaware, Gaerreald v. Just Care, Inc. turns on proper methods for determining share value, the value of an expert opinion, and deference to management projections.
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In United States v. David A. Taylor IRS Lays Down the Law The Wills, Trusts, and Estates Prof blog reports on a recent case demonstrating that if a fiduciary has a duty to pay a claim of the government before paying a debt—or they may be personally liable for the unpaid claims of the government! Here are some of the case details: David J. Tyler and Paula I. Tyler were a married couple who held real property on Cricket Lane in Pennsylvania as tenants by the entirety. The IRS issued deficiencies for their income taxes from 1992-1998. On August 20,…