Wealthy couple - divorce valuation issues

This articles addresses valuations issues in large complex divorce. As such cases typically involve private business assets the article is equally applicable to any form of private business valuation. (The author is 

Robert E. Kleenan of On Pointe Financial Valuation in Colorado.)

...The large asset marital dissolution case presents a number of important valuation issues that may or may not exist in the smaller case. Because of these issues, the attorney needs to have a better understanding of these valuation issues, and must be comfortable that the valuation professional has the experience and expertise to fully develop the issues and to communicate these complex issues to the Court.

I am defining the large asset case as one that includes closely held business interests in excess of $2,000,000 in fair market value. The problem with this definition is that rarely is the closely held business interests shown in the personal financial statement with “fair market value”, but rather have some sort of historic valuation number. Simply put, this is true because individuals that have asset values of this magnitude do not need to provide a “fair market value” for any purposes. These individuals are wealthy!

Where the parties’ wealth is in publicly traded securities, or other similar assets, the valuation issues may be limited. However, the attorney should never lose sight of the fact that even thought the entity is publicly traded; the ownership interests (including options, etc.) of the parties may have a different value that the value shown in the daily trading information of the underlying stock.

In this article, we will focus on several of the key issues that tend to be found in large asset cases. These issues include:

• The complexity of the financial structure of the entities.
• Valuation methodologies to be used.
• Appropriate application of discounts and/or premiums.
• Key person issues.
• Is there a standard of value issue?

Do More Commas in the Value Equate to More Problems in the Valuation?

On the surface, the short answer is NO! Larger cases usually involve a more sophisticated operating entity. Financial information is usually more complete, and the company may have executives that are not part of the family dispute. Industry data, and guideline company information is usually better, and more easily compared to the subject company’s data. However, that being said, there are many issues in the larger valuation that can lead to problems for both the valuation professional as well as the attorney managing the case.From a practical view, the larger case needs a more sophisticated valuation expert. Rarely are the so called “formula approaches” appropriate to the larger valuation. Although we have better financial information that information is usually much more sophisticated and needs greater analysis to fully understand the operations of the entity. There may be more “perks” or other benefits available to the business owner that are not available in the smaller company. Larger business interests are more subject to the future growth and operations of the entity. The need for capital to grow these entities must be identified and taken into consideration in determining the current “fair market value” to the holder of the security.

The larger marital dissolution also requires greater involvement in the valuation process by the attorney. Because the issues are more complex, there will be issues relating to discovery that are out or the norm. Additionally, because the valuation will be more complex, it will be necessary for the attorney to become much more familiar with the valuation experts methodologies.

The following are some of the issues that must be addressed when dealing with the larger valuation matter.

The Complexity of the Financial Structure of the Business may require different approaches to the valuation. – It is not uncommon in larger businesses to find multiple classes of stock (common and preferred) and in some cases, so called phantom stock” issues for non-family, key executives in the organization. The business may not be solely owned by the parties to the divorce, other non-parties may own substantial blocks of stock. Where multiple classes of stock exist, not only must the business be valued, but also each of the classes of stock must be separately valued.

The divorcing parties might not own controlling interest in the entity, with non-family owners involved, and detailed financial information may not be readily available. –This is not an uncommon issue in large asset dissolutions. Where financial data is not available for the operating entity, the valuation professional may have to use a valuation methodology that values the minority shares without performing a valuation of the operating entity. Where the operating entity is distributing economic benefits to the shareholder, this is easier than when the operating entity is not distributing, or is retaining significant economic benefits at the corporate level.

The entity may be closely held by a family unit, but the divorcing party may be a minority owner – This can raise interesting discovery issues. Can the divorcing party gain access to the financial information? Has the divorcing party in the past received this same or similar information? The valuation professional operating under this scenario will need to provide some addition investigative services to be certain that the information being used in the valuation is appropriate regarding historical data.

The valuation methodology will usually be fairly sophisticated and require greater analysis. – It should be obvious, but the Excess Earnings Method is not normally an appropriate method for valuing a larger company. As described by the IRS, the excess earnings method is a method of last resort, used only when no better methodology is available. On large cases, I cannot imagine a matter where no better methodology would be available, and hence Excess Earnings would be appropriate.

Valuation Methodologies in the Large Case

Normally, large case valuations are driven by one or more of the following methodologies.  Each one of these methods will be discussed briefly.

Discounted Future Cash Flow – This is the theoretically best method of valuing an entity. The difficulty of this method is having the company prepare operating projections that truly reflect the expected future economic benefits available to the appropriate shareholder. If the entity being valued is expected to have high growth, or inconsistent earnings, this method is one of the better indicators of the actual value of the entity. However, where reasonable projections are available, the valuation professional should consider using this method. Where the entity is a sophisticated company, the valuation professional needs to measure prior projections with the actual operating results of the entity to determine the ability of management to accurately project future benefits. This is a key part ofthe DCF methodology. It is imperative that the valuation professional take into consideration the degree of accuracy and precision which management has displayed relative to providing information regarding future expected cash flows. The DCF method is only as good as the underlying inputs. It is critical that the forecast be believable and reflects both the historical as well as the future of the business.

Caveat – Many jurisdictions do not allow for the DCF method to be used because they feel that the future efforts of the divorcing party are no part of the current value.

Capitalization of Earnings – This method should be considered on most valuations. The only caveat regarding this methodology is that “the historical benefits must be a proxy for the expected future benefits.” Where historical benefits are not a proxy for the expected future benefits, this method will not provide a reliable indicator of the value of the holdings. If the company being valued is not mature and providing stable earnings, the Cap of Earnings method may not capture the real value of the entity.

Guideline Company Method – Where the company being valued is large and in an industry that has meaningful information available, the valuation professional certainly should consider the use of this methodology. However, when using the guideline methodology, the valuation professional must determine the impact of the “beta” and other company specific factors as they relate to the company being valued.

Discounts and/or Premiums: Real or Imaginary?

One of my pet peeves when it comes to the application of discounts or premiums to a valuation conclusion is that after 20 pages of analysis of the financial issues surrounding the entity, discussions of the economy and the future, the valuation professional reduces the value of the business from 30% - 50% by applying a single paragraph that states that the valuator believes a discount for marketability and minority should be applied.

Before we can begin a meaningful dialogue regarding whether discounts or premiums are or not appropriate when valuing a business, we need to first discuss and understand the concept of “levels of value”. Generally, there are four recognized “levels of value”. These are: 
Synergistic or Strategic Value – this is a value that is not normally part of a “fair market value analysis, because by definition, this value is specific to a buyer, and therefore is outside the accepted definition of fair market value. This is usually considered to be the highest value of an entity.

Control Value – as the name implies, this is the value of a 100% ownership block of stock in the entity. The block does not have to be held by one individual, but the assumption is that the block can and will be traded as a single unit.

Minority / Marketable Value – this is the value of a minority (less than 50.1%) block of stock. This level of value assumes that the block of stock is freely traded as if it were publicly traded stock.

Minority / Non-Marketable – this is the value of a minority block of stock that cannot readily be traded. In most large asset valuations, this is the type of stock that we are valuing.

The “level of value” concept, simply put, is that certain valuation methodologies provide an indication of value at a stated entry level. Since certain methods assume a stated level of value, our application of discounts and/or premiums will always be driven by the entry level of value indicated by the methodology. (i.e. if we use a methodology that results in a minority / marketable level of value, it would be inappropriate to take a minority discount from that level of value).

One of the most common mistakes found in any valuation is the use of a valuation methodology that assumes a certain “level of value”, and then misapplying a  discount or premium because the “level of value” already implicitly contains that assumption. 

For most situations, there are two potential discounts/premiums that are expected.

Minority / Control Issues – It is a well established business valuation principal that a minority interest in an entity is worth less than a controlling interest in that same entity. Control can offer the interest holder greater access to the success of the entity. The question really becomes, what is minority and what is control? Clearly a 100% ownership interest in the equity of an entity is absolute control. However, there are many levels of effective control. An individual that owns a large enough block of stock to effectuate liquidation or other corporate actions based on state law may have a large element of control. In some instances, 50% + 1 share might be enough to have effective control of the organization.

In larger matters, it is not uncommon to have multiple classes of stock. These various classes of stock may have significantly different voting rights, and the “control” of the entity might not have any relationship to the number of shares owned, but rather by the number of votes that are controlled by the stock interest being reviewed.

Finally, the valuator must look at the effective control of the entity. There may be indications of control of voting blocks less than 50%. Situations could include a large minority block, with the remaining shares held in very small blocks by a large number of individuals. In that case, it may only be necessary for the large block holder to get one or two individuals to vote with the large block in order to obtain control.

The Minority Discount is NOT normally 35%. This has become a self-fulfilling prophecy. Every time 35% is used, it just supports the erroneous thought that 35% is the average. The Minority discount should be carefully reviewed by the valuation expert to reflect the reality of the marketplace. The size of the block being valued will impact the application of the minority discount. In short, a 1% block normally has a greater minority discount than a 40% block. The valuation report should clearly discuss the factors that support the discount taken in the valuation.

The Swing Vote Issue

In some instances, there may be a minority block that has greater value than the same percentage ownership in another entity. For instance, let us assume that there are three shareholders in an entity. 2 of the shareholders  each own 49%, and the 3rd shareholder owns the remaining 2%. If the two 49% holders are friendly and in agreement as to how the company is to be run, and how the benefits of the company are distributed, the 2% ownership interest would probably carry a very large minority discount. However, if the two 49% holders are largely in disagreement, the value of the 2% block increases significantly because  the addition of that 2% block by either of the 49% owners gives that owner control.  These issues need to be reviewed where we are valuing a small minority interest.

Marketability Discounts

Some commentators have opined that a 100% interest in  an entity would not be subject to any marketability discount, however most of the  business valuation community does not agree with that position. The Marketability  discount is nothing more than recognition of the present value of money. It is based  on the premise that if we own shares in a publicly traded entity, we can offer the  shares for sale today, and have our cash within 5 business days. As anyone who has  ever worked with a client to sell an interest in a closely held business, there clearly is  a time period between the time the business owner puts the ownership interest up  for sale, and the time that the business owner receives the cash proceeds from that  sale. The Marketablity discount needs to identify and quantify this time value of the  proceeds. Clearly, the smaller the block of stock being offered for sale, the longer  that the potential period of finding a buyer, consummating the sale, and receiving  the proceeds may be.

The issue of buy-sell agreements and other agreements needs to be addressed at  the same time that the Marketability discount is determined. Buy / Sell agreements  do not necessarily negate a marketability discount. Unless the holder of the security  has a “put” right (and the company has the where with all to purchase), the Buy /Sell agreement has little value relative to the marketability discount. Rights of first refusal to purchase the stock also have an impact on the marketability  of the security. Most commentators will tell you that a right of first refusal has a chilling impact on the marketability of the security. As we deal with larger entities,  potential buyers do not want to become involved in the due diligence process where  the entity has a right of first refusal.

Key Person Issues

We have all heard the statement “I am the business, without me, there would be no business”. While this may be true in very small, service based businesses, as the business  gets larger, this issue becomes less important. Yet at the same time, even in very large  businesses, an owner may have a very material impact on the business. This is a fact and  circumstances based decision. It is incumbent on the valuation professional to completely  explore the impact of the business owner on the business, and the ability of the business to  replace that owner / executive.

Most business valuation professionals believe that the impact of a key person should not be  addressed through the use of a separate discount, but should be addressed in the  capitalization rate through the specific company risk factors. It is important that you as the  attorney understand how the impact of a key person is addressed in the valuation, and that  you are comfortable with the analysis of that impact.

Compensation Issues

This issue goes hand in hand with key person issues. We all have seen the valuation report  where the compensation of the owner/spouse has been adjusted for purposes of  determining the “fair market value” of the entity. Then subsequently, for purposes of  determining maintenance and/or child support, the actual salary of the individual is used.  This clearly is a case of double dipping. In the large case, this can be a significant issue. At  the same time, we look at what corporate executives in large publicly traded entities are  earning today, and we need to ask if the compensation of the equity owner is appropriate in  light of compensation of that same person in another entity. This is not a simple issue.

In the larger case, compensation is usually a major part of the business valuation, and the  inappropriate analysis of this issue can result in millions of dollars of value being created or  destroyed. We have all seen cases where the compensation of the equity holders is  reasonable in light of the duties performed relative to other individuals holding similar  positions in publicly traded entities. Yet at the same time, there are equity holders that take large amounts of compensation in lieu of dividends in the entity. The equity holder  may not be providing any meaningful services to the entity.

Compensation issues are a significant item in the large case. These issues need to be  carefully reviewed not only by the business valuation professional, but also need to be  addressed with the attorney and the client.

Source Robert E. Kleenan

OnPointe Financial Valuation

Group, LLC.

Valuation Red Flags for Estate Tax Purposes

On April 28, 2011, the Tax Court held in Estate of Mitchell, T.C. Memo 2011-94, that an estate properly valued both real estate and artwork. The IRS had previously examined the estate’s federal estate tax return and claimed that the estate underreported the fair market values (FMVs) of paintings and interests in several real properties. In response, the executor of the estate filed a petition with the Tax Court to contest the entire deficiency. While the parties were able to resolve most valuation and other estate tax issues, they still disputed the FMV of fractional leased-fee interests in two real properties and of two paintings. Both parties agreed on discounts ranging between 19% and 40% for the real property interests.

Asked to determine the FMV of the real property interests and paintings, the court noted that valuing these types of assets “can be an ambitious task,” because they “are unique and infrequently exchange hands,” and the value of art “often lies in the proverbial ‘eye of the beholder.’” Both the estate and the IRS discarded the initial valuations used on the estate tax return and in the notice of deficiency and presented new valuations at trial. The court stated that this case illustrated the difficulty in ascertaining FMV, the “quintessential fact question.” The court held that the estate properly determined the FMV of the decedent’s real property interests and paintings.

Valuation Issues
Under Sec. 2031, the value of the gross estate of the decedent is determined by including the value of real, personal, tangible, and intangible property held by the decedent at the time of his or her death. Regs. Sec. 20.2031-1(b) indicates that the value discussed in Sec. 2031 equals the property’s FMV. The regulations define FMV as the price at which property would change hands between a willing buyer and a willing seller, neither being under any compulsion to buy or to sell and both having reasonable knowledge of relevant facts. Furthermore, the value of tangible property must reflect its highest and best use as of the valuation date (Estate of Kahn, 125 T.C. 227 (2005)).

As indicated in Mitchell, ascertaining FMV is a question of fact that can cause controversy and litigation, particularly when the assets being valued are distinctive. If a decedent’s estate contains assets that have marked artistic or intrinsic value that totals more than $3,000, Regs. Sec. 20.2031-6(b) requires the appraisal of an expert, executed under oath, to be filed with the estate tax return. The regulations also require care to be taken to ensure that the expert appraisers are reputable and recognized as competent to appraise the assets involved.

Because of the frequency of disagreements regarding the valuation of artwork, Rev. Proc. 96-15 instituted a procedure by which a taxpayer may, after transferring artwork valued at $50,000 or more, obtain an IRS statement of value on which the taxpayer may rely in filing the income, gift, or estate tax return reporting the transfer. A taxpayer must attach to and file with his or her return a copy of the statement of value, regardless of whether the taxpayer agrees with it. If the taxpayer disagrees with the statement of value, the taxpayer may submit additional information with the tax return to support a different value.

When the taxpayer and the IRS do not agree on an asset’s value, both parties may obtain appraisals from valuation experts. The taxpayer technically has the burden of proving that the IRS’s valuation is wrong. However, in a valuation case, if the taxpayer submits an appraisal to support its valuation, the dispute becomes a battle of the experts. While a court may hesitate to decide the value, it will do so when required. Many times, a court will merely use the better of the appraisals. In other instances, the court may balance or even average the appraisals. It is obvious that the courts are requiring qualified experts to have a well-documented approach to their appraisals and to explain them thoroughly. The court will carefully consider all the facts, weigh all relevant evidence, and draw appropriate inferences and conclusions in determining FMV.

The Estate’s Assets
Mitchell’s estate reported a $17 million gross estate value. Its two largest assets were beachfront property and a ranch. The beachfront property was subject to a 20-year lease to an unrelated party, which accomplished the decedent’s goal of keeping the property in his family. The lease also transferred the cost of upkeep to the tenants and provided income to the decedent’s family. The ranch property was subject to a long-term lease to cattle ranchers. Leasing the ranch property accomplished the decedent’s goal of keeping the property maintained until it would be distributed to his two sons.

The decedent’s revocable trust held his assets, including the beachfront and ranch properties. The trust provided that, after the decedent’s death, both properties would be held for the benefit of his sons and distributed to them once the younger of them attained the age of 45. Shortly before the decedent’s death, he gifted a 5% interest in both properties to a separate children’s trust for the benefit of his sons.

The decedent’s estate also consisted of several paintings by well-known American Western artists. The two paintings subject to the Tax Court’s review were an oil painting, “Casuals on the Range,” by Frederic Remington, and a watercolor, “Creased,” by Charles M. Russell.

In valuing the real estate interests, the court noted that the parties had agreed that 19% and 32% fractional interest discounts applied to the 95% and 5% leased-fee interests, respectively, in the beachfront property. In addition, the parties had agreed to apply 35% and 40% fractional interest discounts to the 95% and 5% leased-fee interests, respectively, in the ranch. Therefore, the court had only to decide the value of a 100% interest in both properties to determine the discounted value of the interests in the estate.

The estate used an income-capitalization method to determine the property interest value, whereas the IRS used a lease-buyout method. The income capitalization method values income-producing property by estimating the present value of anticipated future cashflows. The IRS’s experts indicated that the lease-buyout method equals the property’s fee simple value less the amount necessary to buy out the tenant’s lease.

The IRS’s experts also indicated that appraisers generally use the income-capitalization method only with respect to commercial property leases, not residential leases. The court disagreed with this claim and stated that any property that generates income can be valued using the income-capitalization approach.

The decedent treated the beachfront property as an investment and leased it for a profit. Furthermore, the decedent did not intend to live in the property or use it as his residence. The court found that leasing the beachfront property was an income-producing activity that put the land to its best use. The ranch, which the decedent had been leasing for 25 years, provided the decedent with annual income and reallocated the normal maintenance cost to third-party caretakers. The court found the IRS’s lease buyout method to be “speculative at best,” stating that the method had not been accepted by any court or generally recognized by real property appraisers. Rejecting the IRS’s method, the court ruled that the estate’s income capitalization method was the best method for determining the value of the 100% leased-fee interest of both properties.

In valuing the artwork, the court noted that experts consider several different criteria or “art valuation factors,” including thematic appeal, period of work, style, overall quality, provenance, condition of artwork, and market conditions. The court received appraisals from the estate, the IRS, and the IRS Art Advisory Panel. The IRS’s experts did not have expertise or an extensive background in American Western art. All of the experts used the comparable-sales approach to valuing both paintings.

The court found that one IRS expert used poorly documented private sales to value one of the paintings, while the estate used public sale comparables. The court found that the public auction prices were a better indication of FMV. With respect to the second painting, the court found that the IRS experts had failed to adjust their valuation for the painting’s inferior status, poor paper quality, and poor “back boarding.” The court found that the estate’s expert’s reports were the better indicators of value, as they were more understandable, reasonable, and well supported.

Lessons Learned
Determination of value: As demonstrated in the Mitchell case, the determination of value in the Tax Court often operates like arbitration. The court will rule on which valuation best arrives at FMV. It is the taxpayer’s responsibility to conduct due diligence to arrive at an appropriate value. Otherwise, the court may determine that the taxpayer did not properly establish a value.

Valuation and the taxpayer’s and tax preparer’s responsibility: Under Sec. 6662, the taxpayer can be subject to substantial accuracy-related penalties that start at 20% of the understatement and can be higher with a substantial understatement of tax. In turn, the tax preparer can also be subject to understatement penalties under Sec. 6694. Therefore, the tax preparer must take due care that valuations disclosed on the return have appropriate support.

Determining the examination trigger of a valuation: Recently, the IRS has increased its scrutiny of high-income and high-net-worth taxpayers. According to the IRS’s Fiscal Year 2011 Enforcement and Service Results report, the IRS examined approximately 12% of taxpayers earning at least $1 million annually in 2011. That is an increase from 8% in 2010 and 6% in 2009. In comparison, approximately 1% of taxpayers earning less than $200,000 had their income tax returns examined in 2011. Clearly, returns with large reportable income, taxable gifts, or taxable estates face a heightened risk of IRS exams.

In the estate and gift tax arena, the number of experienced IRS agents has also increased. This investment in manpower has resulted in a heightened review of estate and gift tax returns, which in turn results in a greater number of IRS notices and examinations. In essence, a perfectly prepared return can still result in an examination for no other reason than that the taxable gift or bequest is large.

The IRS approach: As evidenced by the Mitchell case, the IRS has been aggressive regarding valuation challenges. Many of the IRS challenges assert estate valuations substantially larger than, and in some cases more than double, the taxpayer’s valuation. It is apparent that the Tax Court’s determinations center on which side presents the best data to support its values. In circumstances where the taxpayer fails to adequately substantiate an asset’s FMV, the additional tax costs can be substantial.

Valuation Red Flags
Several return disclosures can heighten the risk of an examination. Some are unavoidable, such as related-party transactions, while others can be avoided with proper planning.

Related-party transactions: Transactions between related parties (as defined under Sec. 267) have a heightened risk of examination due to perceived attempts to pass value to the younger generation by a discounted sale. If the IRS can prove that the transaction passed a disproportionate benefit to the younger generation, the IRS will assert that the younger generation received a value above the discounted sale and that the difference between the real value and the transacted value is a taxable gift.

In contrast, transactions between un-related parties have a rebuttable presumption of being negotiated fairly. Please note, however, that this presumption is not absolute. Some transactions between unrelated parties can result in IRS review, since there still can be “sweetheart” transactions similar to related-party transactions, such as those between common law partners.

Arbitrary value: Many buy-sell agreements use book value as the basis for an asset sale. When attached as exhibits to a taxpayer’s return, these agreements dramatically increase the risk of examination. Whether book value appropriately represents FMV is not relevant, since upon review, the IRS will assume that book value is arbitrary. Again, if the IRS challenges this valuation and, in turn, supports its valuation with appraisals and technical support, the taxpayer runs the risk of a larger tax liability.

Stale valuations: Reliance on old valuations or out-of-date information also creates problems. Timing is everything. Many taxpayers rely on a rule of thumb, such as appraisals within three months of the transaction; however, this rule can be problematic if the asset has wild swings in value that can make the appraisal’s assumptions obsolete.

Ways to Mitigate Examination Risk
The qualified appraisal: Although a qualified appraisal (one that meets the requirements under Regs. Sec. 1.170A-13(c)(3) for certain charitable contributions) is not required to substantiate the FMV of property for purposes of determining the size of the decedent’s taxable estate, a qualified appraisal provides a strong foundation to establish FMV. Keep in mind, however, that qualified appraisals do not completely protect the taxpayer from examination. The IRS challenges many taxpayers’ qualified appraisals, based on issues that estates can avoid.

Is the appraiser qualified? Taxpayers should ensure the appraiser meets the definition of “qualified” under Regs. Sec. 1.170A-13(c)(5).

Is the appraisal objective? Disclosing the reason for the appraisal in the report may provide the IRS reasons to challenge the report. For example, if the appraisal or the appraiser’s cover letter discloses that the appraisal relates to a related-party sale, the IRS may argue that the value is not objective, since the taxpayer’s goal is a lower value and not necessarily FMV.

Are the appraisals consistent? If more than one appraiser provides a report, each appraiser may be using different assumptions to reach FMV. For example, differing discount rates used to calculate value under the capitalization-of-earnings method may create a red flag for the IRS. When using different appraisers, taxpayers should share information with them from prior appraisals to establish a consistent approach.


Review the planning documents: Advisers should review documents related to buy-sell agreements, articles of incorporation, and voting trusts that have transaction provisions. Furthermore, prior transactions, whether related or unrelated, should also be reviewed. The key is to correct red flags that can lead the IRS to assume that the estate has used an arbitrary value or an inconsistent valuation. Transactions that consistently meet the qualified appraisal requirements provide the taxpayer with greater protection against examination.
Conclusion

The Mitchell case provides a reminder for taxpayers to assess and correct their appraisal processes. It is clear that proper valuation planning can supply the taxpayer with the ability to mitigate the examination risk and increase protection on future returns. Taxpayers with high income and high net worth should be diligent regarding the valuation process and ensure they have used thorough and well-documented appraisal methodologies. Otherwise, the taxpayer may end up triggering a large tax liability, along with interest and penalties.

Source Tax Letter from the AICPA 
Authors Mindy Tyson Cozewith is a director, Washington National Tax in Atlanta, and Sean Fox is a director, Washington National Tax in Washington, DC, for McGladrey & Pullen LLP