A help or hinderance? On July 1, 2013, FASB issued exposure drafts calling for public commentary on three proposals that address private company stakeholder concerns. Two proposals involve accounting for identifiable intangible assets and goodwill acquired in business combinations. In this article, Mark Zyla analyzes the proposed changes, including potential concerns, and their far-reaching impact on the industry, as well as private and (in 2014) public companies.
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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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A closer look at real estate appraisal and government contracts A wife sells her portion of interest in a law firm in an arm’s length transaction and the timing and circumstances are questioned with regard to marital property. Adhering to cost accounting standards within government contracts and real estate valuation issues are reviewed in the latest Case Law Update.
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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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The Thought of Every Employee Working Together with a Shared Vision of Business Success is a Dream Situation for Companies. Here’s How to Make it Happen. Gary Davie Friday at Management Today weighs in on how in 2012 the U.K. government (Management Today is UK-based) announced its support for employee ownership, recognizing its ability to promote long-term thinking and growth. Since then, a number of legal changes and possible tax incentives have been announced, he writes, and “they seem to be doing the trick”: At last count, the number of employee-owned businesses in the UK is increasing by 10% year on year,…
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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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A Petitioner Relies Reasonably on His CPA in Gaggero v. Commissioner, the Tax Court Finds. That Makes a Difference: Here’s Why. In Gaggero v. Commissioner, Judge Holmes at the U.S. Tax Court disagrees with the IRS’s contention that the plaintiff conducted an improper scheme to avoid capital gains. In First Street Holdings NV, LLC v. MS Mission Holdings, LLC, Judge Markell at the U.S. Bankruptcy Court finds a lower bankruptcy court’s errors to be likely prejudicial.
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The “Market” is Not Always Right When it Comes to Value, Especially in M&A Transactions The mergers and acquisitions market began a slow recovery this last year after a sharp downturn in 2009. Was the slowdown caused by banks reducing lending activity, cash hoarding by businesses, economic uncertainty, or the simple failure of buyers and seller to agree upon price? Michael Blake takes a look at how value is variously defined—“fair market value,” “fair value,” “investment value,” and “market value”—and offers an assessment of what may prove to be the primary market M&A activity drivers going forward.
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Here are four surprising ways to protect yourself in a law suit and keep legal fees to a minimum. Kevin Daum at Inc. advises: “Shakespeare said, “First kill all the lawyers.” Maybe this seems a tad aggressive, but then again, for most people the last thing you look forward to is someone showing up at your door with a subpoena. Whether a lawsuit is business related or personal, the thought of engaging an attorney for protracted litigation can strike fear into a person’s heart.” Not only is there emotion and argument to contend with, but the sheer agony of…
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Top State Courts Consider the Value of Goodwill, the Legitimacy of the Income Method of Valuation In State of Texas v. Clear Channel Outdoor, the Texas Court of Appeals considers testimony from an expert regarding the income method of valuation for the billboards; in Walsh v. Walsh, the Court of Appeals of Arizona reassesses the realizable benefits of stock redemption value in a law firm, and determines the net assets of the firm should not be conflated with the husband’s own goodwill based on his reputation and experience.
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Federal Cases Examine Bankruptcy, Valuation Standards The Court of Appeals for the Eleventh Circuit weighs in on penalties for “gross valuation misstatement” in Gursthaw v. Commissioner, and the U.S. Bankruptcy Court for the Eastern District of Tennesee rules on the value of mortgage liens In re: Williams.
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Fifth Circuit Disallows 40% Valuation Misjudgment Penalty, OKs 20% Negligence Penalty The Court of Appeals for the Fifth Circuit disallows a 40% valuation misjudgment penalty in Bemont Invs., LLC v. United States, but affirms a Texas Court’s 20% negligence penalty. Judge Goeke at the Tax Court draws distinctions on when charitable deductions are allowable in Dunlap v. Commissioner.
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More: A Case in Texas Turns on a Husband and Wife with Differing Appraisals of a Business That’s Declined in Value Peter Agrapides gathers recent federal cases bearing on valuation and family law. In Georgia, a county issues bonds to finance a regional warehouse built by the corporation; the parties agree to use a certain valuation methodology, and since agreement is mentioned in the lease, the Georgia Court of Appeals finds full compliance with that methodology is in fact part of the lease.
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In Nebraska, Judge Considers: Should Damages be Limited to the Length of a Non-Compete Clause? The Supreme Court of North Dakota prefers the testimony of an accredited appraiser, a Tennessee court asks an expert witness to stick to the topic rather than allowing him to recommend an alternative legal remedy, and a Nebraska court considers whether damages should be limited to those incurred during the period of a non-compete agreement. Find out the details.
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In 2009 Duff & Phelps and the Financial Executives Research Foundation (FERF) first published the results of their comprehensive Goodwill Impairment Study. The 2009 Study examined U.S. publicly-traded companies’ recognition of goodwill impairment at the height of the financial crisis (the end of 2008 and the beginning of 2009), and featured a comparative analysis of the goodwill impairments for over 5,000 companies (by industry), as well as the findings of a survey of FEI members.
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In Palmerino v. Palmerino, the Massachusetts Court of Appealsconsidered whether a trial court erred in valuing the husband’s grocery store. The trial court’s approach had not included discounts—and went further to state that the income approach is preferable for valuation. Find out what the court decides! In Giaimo v. Vitale, the Supreme Court of New York considers the dissolution of a company called EGA Associates. The case involved the sale of 19 residential buildings in Manhattan, accusations of fraud during discovery hearings on fair value, and the applicability of proposed discounts for marketability and built-in capital gains.
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Case Law—State: American Ethanol, Inc. v. Cordillera Fund, LP In American Ethanol, Inc. v. Cordillera Fund, LP, the Supreme Court of Nevada is required to weigh in on fair market value. A lower court had judged that stockholders were fairly paid some $1.75M (about $3 per share) for American Ethanol at the time of the merger. American Ethanol appealed, claiming it was worth more. Part of its argument was that its appraiser—an unaccredited one—couldn’t be expected to perform sophisticated calculations, such as a discount for lack of marketability. Find out what the Nevada Supreme Court determines and why!