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Recently released and on parole, Tyco’s former CEO Dennis Kozlowski was the epitome of excess compensation in the beginning of the millennium. Despite the fact he transformed a small enterprise into a billion-dollar giant, he was convicted of fraud for using Tyco as his “personal piggy bank.” This and other white-collar crimes have led to the creation of better monitoring parameters and resources to help define employees’ salaries, especially those of top executives. Often, owners of closely-held businesses can easily manipulate their business’s profitability by paying themselves more or less than reasonable compensation. Business valuation experts can serve as a reliable professional resource whose contribution goes beyond tests and industry-specific statistics. IRS Guidelines and Parameters Section 162(m)(4)(C) and Section 162(m)(4)(E) of the Internal Revenue Code are both used as guidelines in tracking performance-based compensation. From describing the roles of the board of directors in determining compensation, to establishing further forms of compensation, such as bonuses, these two codes give an outline for investigating an executive or owner’s proper compensation. In addition to the Revenue Code, the IRS’s Fringe Benefits Audit Technique Guide assists by listing the benefits commonly provided to executives, potential issues, and also provides steps to help examine same. Both bonuses and benefits received by owners can be complex and ambiguous depending on the case. Bonuses can be clearly recorded, or simply rely on a handshake. Benefits, similarly, can often not be taxed to the recipient, but rather recorded within the operating expenses of the business. This concept […]

While the panel and the audience primarily agreed the intent of the proposed legislation has merit – there was some concern whether the proposed legislation addresses the need of a mechanism to calculate maintenance awards.Emily Ruben, Esq. (Attorney-in Charge of the Brooklyn Neighborhood Office of The Legal Aid Society) pointed out that many couples going through a divorce do not have substantial assets to divide and that their greatest asset of the marriage is frequently the income of the more-monied spouse.  That being said, moderate and low-income spouses usually cannot afford the often costly litigation required to establish a right to maintenance.Considering the unpredictable and inconsistent climate of maintenance awards, the less-monied spouse will usually settle, albeit under some pressure, to avoid costly litigation.The New York legislative houses are each considering possible legislation to establish guidelines for post-marital income sharing not dissimilar to the Child Support Standards Act. By establishing guidelines for both the amount of maintenance to be awarded and the duration of the award, post-marital guidelines would provide the consistency and predictability for spousal support that the Child Support Standards Act has provided for child support. So we are prompted to ask: Is this Bill a long-awaited solution? Is it indeed the new approach consistent with Chief Judge Judith Kaye’s call for a “cultural revolution” to reduce drastically the time and costs—both financial and emotional—of matrimonial cases? Senator Hassell-Thompson, who introduced the Bill in the Senate, has said, “Neither spouse should feel financially compelled into accepting potentially detrimental or […]

What does it really cost to invest in a 401(k) plan? A recent AARP survey found that more than 80% of plan participants did not know the answer to that question.  Most employees have no idea how much their plan is charging. According to the Government Accountability Office (GAO), the information on fees that 401(k) plan sponsors are required by law to disclose is limited and does not provide for an easy comparison among investment options. Annual fees ranging from 3% to 6%–even as some plans still charge 1%–have not been disclosed, and often simply ignored, because, as one attorney who specializes in employment law has said, “everyone was making money.” Fees are one of the biggest issues in the trillion dollar industry, and many believe the industry is long overdue for transparency. According to the Department of Labor’s estimates, a one-percentage point difference in fees reduces overall retirement income by 28% over the course of a lifetime. As it has become increasingly clear that many companies have been breaching their fiduciary duty by offering plans with excessive or hidden fees, employees have an obligation ask the right questions–and have every right to know “What are we paying for, and what are we getting?” Unfortunately, administrative fees usually don’t appear on quarterly or annual statements. It can be quite a challenge for employees  to find out how much in fees they are actually paying out annually; and it has come to light that many people—providers, third -party consultants—are getting generous […]

ATTENTION MATRIMONIAL LAW ATTORNEYS Couples who are involved in a same-sex union have a number of different tax issues that must be addressed that are not applicable to heterosexual married couples. These tax issues will vary depending upon whether the individual couple lives in a state that recognizes same-sex marriage or its equivalent, or whether they live in a state that does not recognize any type of legal union for same-sex couples. When the marriage is recognized by the state, while the couple may have more tax benefits in some cases, more tax issues may arise than exist in situations where no marriage or marriage equivalent is acknowledged on a state level. Because the federal government does not recognize homosexual marriage nor any equivalent thereto as of 2011, some couples may have tax returns and tax identities that differ significantly on the state and federal level.  –Why are there tax issues for same-sex marriages? – What are the differences between federal and state income tax rules? – How should income be claimed? – Can marital assets be transferred or gifted? – How should children be claimed? Please click here to instantly obtain a free copy of this whitepaper.

In 2010 we saw a number of high profile celebrity divorces and break ups occupying the tabloids and evening news. Tiger Woods and Elin Nordegren’s divorce was just the beginning. As the year closed we saw Sandra Bullock’s marriage crash and burn. Even Hollywood’s starlets like Elizabeth Hurley, Eva Longoria and Scarlett Johansson couldn’t avoid the hazards of matrimonial failure. In some instances these divorces may have ended inauspiciously due to a prenuptial agreement or the ability of the parties to cut ties financially without disrupting their lifestyle. For attorneys representing clients in a divorce the breakdown of this economic partnership may require a forensic accountant and business valuation expert. But how does the matrimonial practitioner use this resource to better serve their client? Here are four things to consider, along with cases that illustrate the issues. Always Use a Qualified Business Valuation Expert. In Brooks v. Brooks, the husband owned minority interests in his family’s limited liability companies (LLCs), which held commercial property. At trial, the wife presented the companies’ financial statements and a real estate expert, who appraised the LLC’s underlying property at $61 million. Notably, the expert testified that his appraisal was only the first step in a fair market valuation (FMV), which required assessing the companies’ outstanding debt and closely held stock. At the close of the wife’s case, the husband decided not to call his BV expert, saying there was “no valuation testimony” to rebut. Instead, he presented only the operative buy-sell agreements plus his tax returns, which essentially showed a […]

Reputations and public perception are often associated with performance and adherence to rules that govern an activity.  Lance Armstrong, once the darling of cycling, is expected to lose more than $50 million dollars of future sponsorships and endorsements as a result of his admissions to violating his sport’s standards.  Many also believe that his well-documented doping activities will leave him stripped of a once untarnished professional reputation.  Armstrong is not alone; there have been many other examples of people purposely violating their professions’ standards in an attempt to gain an upper-hand. Business valuation analysts are held to certain standards established by their credentialing organizations.  Ultimately, these standards are intended to secure the credibility and quality to their work-product.  Working with a credentialed business valuation analyst that adheres to these standards is important to both attorneys and their clients. In our current whitepaper, “An Attorney’s Guide To Understanding Business Valuation Standards,” Mark S. Gottlieb outlines the organizations and premises of their professional standards.  Attorneys need to be familiar with these standards so that they can illustrate the credibility of their expert, or better understand the possible deficiencies of opposing professional opinions. Please click here to instantly obtain a free copy of this whitepaper.

If you are representing clients in divorce proceedings, innocent spouse relief can help you to protect your clients from liability for underpayment or nonpayment of taxes caused by their spouse’s dishonesty. Innocent spouse relief provides an important source of relief from tax debt, but until recently, there were significant limitations on when innocent spouse tax relief could be claimed.  The IRS recently lifted some of these limitations and the changes that were made can help you to make sure your client doesn’t become unfairly burdened with his or her spouse’s tax debts. On July 25, 2011 the IRS issued Notice  2011-70, which made a significant change to the requirements for those seeking innocent spouse relief under (IRC Section 6015(f). IRS Commissioner Douglas Shulman indicated that the change was made because “when people are in tough circumstances, we [The IRS] need to be willing to work with them.” Taxpayer Advocate Nina Olson has indicated that the change was a “a welcome occasion where everybody has emerged a winner.” The changes made by the IRS are simple – they extended the eligibility period for those seeking equitable relief, lifting the previously enforced two-year limit. Mark S. Gottlieb recently wrote a white paper entitled, An Attorney’s Guide to the Recent IRS Changes Regarding Innocent Spouse Relief.  This is a must read for all matrimonial and family law practitioners. This white paper is part of a 3 part special issue for all matrimonial practitioners. Part 1 – An Attorney’s Guide to Divorce-Related Tax Issues. Part 2 […]

Valuing the very small company can often be more challenging than valuing a large firm or corporation.  These types of valuations most commonly arise in the divorce cases, although they also are frequently present in shareholder litigation, partnership dissolutions, and similar litigation. Often, client budgetary restrictions are an overriding consideration. However, attorneys and valuation analysts can work together from the outset of an engagement to meet client budgets and provide credible valuation. Here are a few areas where communication and cooperation can be the most helpful. Valuation Standards.  Just like attorneys, accredited valuation experts are bound by standards of professional conduct. However, none of those standards distinguish between a valuation for a small business (and perhaps small budget) and a larger business. Once engaged, valuation analysts often find themselves caught between performing a complete and credible valuation, complying with the applicable standard(s), and keeping the job within a client’s budget. In litigation settings, most valuation analysts expect to be cross-examined on whether they adhered to the proper standards. If not, a lack of client funds will be no defense, and the analyst’s credibility as well as the client’s case could suffer. Managing Expectations. Proper client screening is just as important in the valuation as in the legal context. Valuation analysts can help retaining attorneys to inform the client why the appraisal is necessary, its potential costs and the benefits that will inure to the case. Clients—especially in the divorce setting—will often suffer from misplaced expectations or assumptions. These clients need to receive the proper information and guidance from their […]

In these economically challenging times, parties are increasingly seeking ways to reduce the cost and conflict of divorce. Many attempt to streamline the process by retaining a joint expert/valuator to appraise the marital business and/or business interests. Indeed, there are numerous benefits. Consider, for instance, that without a joint appraisal, many non-business owning spouses or those without direct access to marital funds would not be able to afford any expert in the case. In addition to the added financial benefit of retaining a joint expert, The evaluator is also likely to get better access to documents and other evidence than an expert who has been retained by one party or another, The evaluator can often take on the role of creative problem solver, coming up with financially efficient, resourceful solutions, The parties and their attorneys frequently view the joint appraiser as more independent and objective, and can use the joint expert to expedite mediation and settlement. Attorneys avoid any pitfalls by clearly explaining to their clients the differences between retaining a sole expert and a joint expert. This will help clients from feeling “betrayed” later on in the case—when, for example, the appraiser may spend more time with the business-owning spouse to obtain information and financial records; or when the appraiser’s opinions conflict with the owner’s perception of the business’ value. It is important for the legal practitioner to become acquainted not only with appraisers who have experience as joint experts, but also those who also have some mediation or […]

When it comes to business bankruptcies, the numbers seem to loom larger with every year. From 2005 through 2008, annual business bankruptcies increased by over 200%. In the years 2009 and 2010, business bankruptcies were more than double for the years 2006 and 2007. We have seen bankruptcy filings from businesses with long histories such as the 163-year-old Tribune Company, or, more recently, younger companies as Blockbuster, whose goal is to cut its debts from $900 million to $100 million, and Circuit City, which seems to be finding a second life online of late. No matter what the size of the company or its reputation, however, valuation plays a key role in the bankruptcy process; and, inevitably, valuation issues will arise. These issues pervade throughout the entire bankruptcy process–and impact each of the stakeholders along the way. While it is the attorney’s job to reach legal conclusions as part of the valuation, fairness or solvency analyses, the valuation analyst may serve debtors, creditors and legal counsel as either a consulting expert or a testifying expert. Whether a valuation expert uses one or all three of the accepted methodologies—the income approach, the sales or company comparison approach, or the cost approach–they are influenced by data and assumptions used under the formulas. A company typically elects to file for bankruptcy under Chapter 7 of the Code when continued business operations cannot be supported by the income the company is generating. If a company does elect to file a Chapter 7 bankruptcy petition, […]