The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 10. Presenting a live 90-minute webinar with interactive Q&A Double Dipping and Business Valuation in Divorce: Navigating Equitable Distribution and Spousal Support Today’s faculty features: 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific WEDNESDAY, JANUARY 18, 2017 Neil Cahn, Principal, Neil Cahn, Carle Place, N.Y. Anne Marie Jackson, Principal, Ain & Bank, Washington, D.C. Stephanie Hyland, Director, EisnerAmper LLP, Iselin, N.J.
Transcript
The audio portion of the conference may be accessed via the telephone or by using your computer's
speakers. Please refer to the instructions emailed to registrants for additional information. If you
have any questions, please contact Customer Service at 1-800-926-7926 ext. 10.
Presenting a live 90-minute webinar with interactive Q&A
“Double Dipping” is the concept that the same income stream is being counted twice.
* Once as an asset in the division of property
* And again for the determination of spousal support
6
Personal Goodwill
• The issue of double dipping is even more significant in jurisdictions where personal goodwill is considered marital property.
• Personal goodwill is a function of future earning power resulting from continuing patronage related to a person. If this value is fully reflected in the business valuation, then this future earning power is potentially being counted twice – once in property division and again in alimony.
7
Retirement Assets as a Simple Example
• The concept of double dipping is most often applied to pensions and other similar retirement assets. In those cases, the asset is the stream of income that will eventually be distributed. Moreover, as the pensioner approaches death, the value of the pension decreases to zero. The entire asset is exhausted at the time the payment of all income is completed.
• At retirement, the alimony payor converts the retirement asset into a stream of income.
• The alimony receiver seeks to have the retirement income stream considered as part of the income available for alimony in a modification proceeding.
8
Retirement Assets as a Simple Example – cont.
• The asset is the income stream that will be produced.
• A clear “double dip”
• Lee v. Lee, 775 N.W.2d 631 (Minn. 2009)
• Similarly, the double-dip prohibition has been applied to a disability pension. In Armstrong v. Armstrong, 1994 Del. Fam. Ct. LEXIS 46, 1994 WL 872666 (Fam. Ct. 1994), it was held that a fixed benefit disability pension in pay status is a marital asset to be divided as a property right. However, to use this same income for child support or alimony purposes would be double dipping.
9
Cases to Consider
• Bellizzi v. Bellizzi, 107 A.D.3d 1361, 968 N.Y.S.2d 235, 2013 N.Y. App. Div. LEXIS 4777, 2013 NY Slip Op 4868, 2013 WL 3213711 (N.Y. App. Div. 3d Dep’t 2013): Wife should have been awarded 50% of the marital portion of pensions in pay status rather than a (smaller) percentage of monthly income as alimony.
• Practice tip: If the Court is equitably distributing a pension that is not yet in pay status, alert the court to reduce the alimony once the pension enters pay status.
10
Support and a Business
• An award of spousal support and child support is, in the first instance, a function of the income of the obligor.
• W-2 wage earner –straight forward
• Business or professional practice involved – more complex
• WHY?
11
Because of the Double Dip
• The business is often valued as a function of the stream of income it generates for the owner
• When the value of the business is divided and equitably distributed, the spouse in effect receives a portion of the stream of income as reflected in the value – and the owner in effect loses a portion of that stream of income
• The Double Dip occurs when that very same stream of income – without reduction - is then used to determine spousal support.
12
“Double Dipping” applied to a business
• “The theory is that when a business is valued using a capitalization of earnings approach, it is double dipping to both distribute the business and then base spousal support on the income the business produces.”
Morgan, “Double Dipping”: A Good Theory Gone Bad, 25 J. Am. Acad. Matrim. Law. 133, 142 (2012)
13
In New York, it is even more complicated
• Historically, licenses and degrees are assets separate from the business or professional practice.
• Under the recent amendments to New York’s Domestic Relations Law §236, applicable to cases filed after its effective date of January 23, 2016, “The court shall not consider as marital property subject to distribution the value of a spouse’s enhanced earning capacity arising from a license, degree, celebrity goodwill, or career enhancement. However, in arriving at an equitable division of marital property, the court shall consider the direct or indirect contributions to the development during the marriage of the enhanced earning capacity of the other spouse;” (D.R.L. §236[B][5][d][7]).
• 14
Specifically,
1. Capitalization of Excess Earnings: The owner's actual earnings are reduced by a sum equal to the reasonable compensation that would be paid to an “employee” for doing the work of the owner. Then, the owner's actual earnings in excess of that reasonable compensation is multiplied (capitalized) to determine the value of the business.
2. The resulting business value is then divided between the spouses.
3. At the same time, the business owner's entire actual income is used to determine spousal support without any adjustment.
• Is the same stream of income being used twice?
• Is the non-owner spouse receiving two bites at the business income value?
15
Various Methods to Determine Value of a Business
• (1) The income approach
• (2) The market approach
• (3) The asset approach
• The issue of “Double Dipping” comes up when the income approach is used.
16
OBJECTIVES
Overview of Valuation and Divorce
Valuation Considerations
Valuation Methods Double Dipping
17
OVERVIEW OF VALUATION AND DIVORCE
Guidelines for valuations in divorce are not as clear as they are for valuations prepared for other purposes.
o Gift and Estate Tax Valuations
Governed by the Internal Revenue Code and related Regulations
o Valuation of Stock Options
Black-Scholes Option Model
Utilization of a coverture fraction
o Income Tax Purposes (value and basis are used interchangeably)
Governed by Internal Revenue Code and related Regulations
o Section 1031 tax-free exchange
o Charitable contributions o Conversion of Property o Assets transferred into, purchased by, or transferred out of a
business
18
OVERVIEW OF VALUATION AND DIVORCE (continued)
Even in states where there is case law as to valuation, the courts have latitude in their application of the law.
In the marital estate, the value of a business, professional
practice, license, or degree is usually the biggest asset. Therefore, care must be given to the considerations and methodology followed.
19
VALUATION CONSIDERATIONS State Law
Division of Assets
o Equitable Distribution
o Community Property
Valuation Date
o Date of Complaint
o Date of Trial o Date of Divorce
o Date of Separation
o Multiple dates
Business owned prior to the marriage
o Stipulated to by the parties
o Specified by the court
o Value is based on what was known or knowable at a single point in time
20
VALUATION CONSIDERATIONS (continued) Premise of Value
o Going concern
o Liquidation
Participation
o Active
o Passive
Standard of Value Used in Divorce
o Fair Market Value
Most commonly used
Revenue Ruling 59-60
The amount at which the property would change hands between a willing buyer and a willing seller when the former is not under compulsion to buy and the latter is not under compulsion to sell, both parties having reasonable knowledge of the relevant facts.
Assumes a hypothetical arm’s-length sale without regard to a specific buyer or seller. 21
VALUATION CONSIDERATIONS (continued)
o Fair Value
Follows definition used in dissenting stockholder/minority oppression actions
The value of shares immediately before the corporate action to which the dissenter objects.
o Individual state law provides guidance as to how the standard is applied…using customary current valuation concepts and techniques generally employed for similar businesses…and without discounting for lack of marketability or minority status
There is no willing seller.
The seller is under compulsion to sell.
The transaction must be completed under adverse conditions.
The buyer is aware of the seller’s weakened position. 22
VALUATION CONSIDERATIONS (continued)
o Investment Value
Value to a specific investor for individual investment reasons.
Based on individual investment requirements and
expectations.
Synergies associated with ownership.
o Intrinsic Value
Based on an analytical judgement of value based on the perceived
characteristics inherent in the investment.
Assumes a higher level of insight that what the typical investor
might possess.
Recognizes that the value of the business may be worth more or
less to the owner than if it were transferred into the hands of a
hypothetical buyer. 23
VALUATION METHODS
Asset Approach o The asset approach is predicated on the assumption that a prudent
buyer would pay no more than it would cost to purchase the assets (tangible and intangible) of a company at current market prices.
o Requires the valuation of a company’s individual assets and
liabilities. Identify assets and liabilities to be valued. Capture off-balance sheet assets and liabilities
o Convert a cost-basis balance sheet to a fair market value-basis
balance sheet.
24
VALUATION METHODS (continued)
Income Approach o The income approach is based on the theory that the value of a
business is equal to the present value of the entity’s future stream of expected income. May not rely on historical financial information to predict or
forecast future income.
o Capitalization of Earnings Method Value is calculated by dividing its economic or normalized income
by an appropriate capitalization rate. Used when future earnings are expected to be stable. Economic or normalized earnings Future growth Capitalization rate
o Build-up method 25
VALUATION METHODS (continued)
o Discounted Cash Flow Method Value is the calculation of the present value of expected returns.
Used when future earnings are expected to experience varying growth patterns. o Terminal value
A future point in time when cash flows are expected to stabilize
Requires a detailed analysis of the individual components of assets, liabilities, income, and expenses.
Discount rate.
26
VALUATION METHODS (continued)
Market Approach o The market approach estimates value through analysis of recent
sales of guideline companies or their stocks. In general, the prices of stocks traded in a free and active market are regarded as being priced at fair value. Value multiples are developed and applied to various measures of earnings such as cash flows and revenues to determine value.
o Determine value by comparing the subject company to recent
transactions involving companies in the same industry. Typically employed when there is a lack of publicly traded
guideline company data for the industry in which the subject company operates.
27
VALUATION METHODS (continued) Other Methods
o Hybrid Excess Earnings Method
Combination of the asset and income approaches. o Revenue Ruling 68-609 o Provides value for tangible and intangible assets. o Value is the result of after deducting a reasonable return
on the net tangible assets from economic or normalized earnings excess earnings are capitalized to arrive at the intangible asset or goodwill. The value is then the sum of the net tangible assets plus the intangible asset or goodwill.
o Goodwill Enterprise goodwill. Professional goodwill.
Rule of Thumb Buy-Sell Agreements
28
DOUBLE DIPPING
o The consideration of excess earnings in determining the value of a business and in setting support.
o An expert must follow the applicable law in the jurisdiction in
• Held that it was error in a divorce action to base both an equitable distribution award of a business practice, license or degree and the owner’s obligation to pay maintenance on the same projected earnings.
• Also an error to use the same stream of income to value a license and a professional practice.
30
Grunfeld,
We agree with the defendant that the Supreme Court [the trial court in New York State] impermissibly engaged in the “double-counting” of income in valuing [the husband’s] business, which was equitably distributed as marital property, and in awarding maintenance to the [wife]…Here, the valuation of the [husband’s] business involved calculating the [husband’s] projected future excess earnings. Thus, in valuing and distributing the value of the [husband’s] business, the Supreme Court converted a certain amount of the [husband’s] projected future income stream into an asset. However, the Supreme Court also calculated the amount of maintenance to which the [wife] was entitled based on the [husband’s] total income, which must have included the excess earnings produced by his business. This was improper. ‘Once a court converts a specific stream of income to an asset, that income may no longer be calculated in the maintenance formula and payout.’
31
“Assets” subject to the double counting prohibition in New York
• Solely-owned accounting practice: Mula v. Mula, 131 A.D.3d 1296, 2015 N.Y. App. Div. LEXIS 6670, 2015 NY Slip Op 96757, 16 N.Y.S.3d 868 (N.Y. App. Div. 3d Dep’t 2015)
• Medical practice: Rodriguez v. Rodriguez, 70 A.D.3d 799, 894 N.Y.S.2d 147, 2010 N.Y.App. Div. LEXIS 1008, 2010 NY Slip Op 944 (N.Y. App. Div. 2d Dep’t 2010)
• Court awarded non-business owner spouse 50% of the business based on a normalized salary of the business owner, then awarded alimony based on the normalized salary plus 20% of additional payments received by the business
• Ultimately, the court based alimony only on the normalized salary – denying the double dip – and recognizing that future business profits can be treated as either a marital asset or a as a stream of income for support.
• But, overruled in 2015
33
An Example
As Reported As Revised
Sales $1,500,000 $1,500,000
Less: Cost of Goods $1,000,000 $1,000,000
Gross Profit $ 500,000 $ 500,000
Less: Operating Expenses $ 100,000 $ 100,000
Less: Salary for Owner’s
Job
$ 400,000 $ 50,000
Net Income/Net Cash
Flow
$ 0 $ 350,000
34
“Double Dip”
• Using the net cash flow of $350,000, there is a determination of value -- $1,400,000 – which is to be divided between the parties as a division of property.
• Using the corrected salary for the business owner of $50,000 per year.
• But in determining support, the Court uses the full $400,000 per year.
35
Not everyone agrees…
36
Arguments Suggesting there is no Improper “Double Dipping” Related to a Business
• Regardless of the valuation method used, the goal is the determination of fair market value.
• Use of earnings is simply one tool in determining the current fair market value
• From the earlier example, if the business is valued at $1,400,000 and the non –business owner is awarded ½ or $700,000 and the business owner keeps his “excess earnings” of $350,000 going forward indefinitely. Within two years, the business owner has recouped what was paid to the non-business owner spouse and will continue to receive the excess earnings going forward.
37
Steneken v. Steneken 873 A.2d 501 (N.J. 2003)
• Court held that there was no requirement to use the same method of calculating income in determining the value of a business for equitable distribution and for alimony.
• Both equitable distribution and alimony are subject to overarching fairness.
38
Loutts v. Loutts 871 N.W. 2d 298 (Mich. App. 2015)
• Trial court prohibited the “double dip” and cited to the Heller opinion from Ohio
• On appeal, the case was remanded (Loutts I, 298 Mich. App. 21, 826 N.W.2d 152 (2012))
• The appellate court noted that provisions of Ohio law that were instrumental to Heller were inapplicable in Michigan
• Moreover, the appellate court stated that there can be no bright line test, but rather the trial court must focus on the specific facts and circumstances of each individual case.
• On remand, the trial court determined “that the equities in this case [did] not warrant utilizing the value of Q-Photonics for both property division and spousal support”
39
Loutts II
• On remand, the trial court thoroughly discussed its decision to use the value of the business for the purpose of property division, but not spousal support and relied on Plaintiff’s expert, who stated:
“Where a business is valued on the present value of the future income to the owner, some of the earnings/profits are considered as payment for labor (reasonable compensation) and the remaining profits (excess compensation) are reduced to present value and multiplied by a factor to yield a business value.” The trial stated, “If this excess compensation is considered in awarding spousal support, then it could be argued that the Court would be awarding the same dollars twice.”
40
Loutts II
• The trial court also cited Defendant’s extensive bad behavior during the proceedings…and the fact the fact that Defendant did receive half the value of the business that resulted from Plaintiff’s own labors.
• Overruling Heller to the extent that Heller adopts an outright prohibition of double dipping, rather, the court concluded that double dipping was not absolutely prohibited, but may be justified in a given case based upon the other financial circumstances present. Case remanded.
• Distinguished child support from spousal support in the double dipping arguments
43
Gallo v. Gallo (II) 2016-Ohio-3530; 2016 Ohio App. LEXIS 2365 (June 21, 2016)
• On remand, the trial court incorporated its prior findings and determinations and with respect to double dipping found “it equitable to include Dr. Gallo’s income from this asset in its determination of spousal support, even though said inclusion technically constitutes a double dip. The specific facts and circumstances of the within case, such as the disparity in incomes between the parties, overrides the unfairness of the double dipping.”
• Appellate court found that the trial court did not abuse its discretion in determining spousal support.
44
Gallo II
A look at the facts:
Trial court imputed an annual income of $40,000 to Mrs. Gallo and $700,000 to Dr. Gallo. Included in Dr. Gallo’s income was approximately $170,000 per year resulting from his 2.5% ownership interest in Ohio Valley Medical Center. Dr. Gallo did not dispute these amounts.
Based on these facts, the trial court awarded Mrs. Gallo $12,000 per month in alimony for 66 months noting the disparity in income and the 15 year duration of the marriage
45
Marriage of Huff 834 P.2d 244 (Colo. 1992)
• The appellate court held that the lower court's use of the excess earnings method to value the husband's partnership interest in the law firm did not result in double dipping in favor of the wife, on the theory that an excess earnings approach converts future income into property. The same future income stream may be used to value the partnership interest and be the source of income upon which the wife's future support was to be paid. The court determined that valuing a business interest on the basis of past income and then dividing the resulting asset value, is not the same as using future income upon which to pay support.
46
Clark v. Clark 782 S.W.2d 56 (Ky Ct. App. 1990)
• Awarding the wife a portion of the husband's future earnings as support and a portion of the husband's professional corporation's goodwill value as an asset did not amount to a double recovery, where the corporate goodwill was determined by capitalizing the corporation's past excess earnings, not future earnings.
47
Miller v. Miller 705 S.E.2d 839 (Ga. 2010)
• The trial court's award of portions of the husband's medical practice in an alimony award and in property vision as "business alimony" did not constitute impermissible double dipping; there the wife's valuation expert deducted reasonable salary expenses for the husband under both capitalization methods, and thus separate bases for alimony award and property division were clearly acknowledged before the court.
• Accounts receivable of the husband's professional practice were considered in valuing the marital property and determining the amount of alimony. The accounts receivable were not actually divided, but were only a valuation "tool." The constant cash flow continually received by the practice could be used for the determination of support.
49
Marriage of Clark 2015 Ariz. App. Unpub. Lexis 568, 2015 WL 2448844
• The court treated as an asset the future income arising from insurance policies issued during the marriage but renewed later (renewal commissions). Such were community property. After dividing that asset, the court based its maintenance award on the full amount of the renewal of commissions. Denying the husband's argument that such permitted the wife to double dip, the court held that such was argued without citing any supporting legal authority. The differing approaches and other jurisdictions was noted. And the court declined to address the issue.
• Husband contended that the trial court erred in awarding wife $ 4,800 per month in spousal support. Husband complains primarily that the trial court "double-dipped" into a single revenue stream by awarding wife both half the value of his medical practice and spousal support which must be paid from the income he derives from the medical practice. However, husband cites no relevant authority in support of his position. Therefore, husband's argument did not merit appellate consideration.
• But, Rekow v. Rekow, No. CL07-63, 2008 Va. Cir. LEXIS 141, at *10-11 (Va. Cir. Ct. 2008), affirmed in part and remanded in part by Rekow v. Rekow, 2009 Va. App. LEXIS 180 (Va. Ct. App., Apr. 21, 2009): Personal goodwill is separate property and should be excluded from the marital valuations.
51
Champion v. Champion 764 N.E.2d 892 (Mass App. Ct. 2002)
• Calculation of alimony based on income derived from a sole proprietorship awarded the husband in the divorce action was not double dipping, as a collection of accounts receivable, transformed into a stream of income, are replaced by new receivables maintaining the value of the business while providing income to the husband on which the alimony is based.
• But, Sampson v. Sampson, 62 Mass. App. Ct. 366, 377-78, 816 N.E.2d 999, 1008 (Mass. App. Ct. 2004): A remand was required to determine whether there had been improper double counting in the property division regarding the wife's business. The capitalized income method had been used to value the business, but apparently there was no appropriate adjustment when determining the wife's need for support.
• Massachusetts has also looked with disfavor at so-called "double dipping," a term used to describe the seeming injustice that occurs when property is awarded to one spouse in an equitable distribution of marital assets and is then also considered as a source of income for purposes of imposing support obligations. However, an appellate court will decline to disturb an award of child support for inequitable "double dipping" where it is possible to identify separate portions of a given asset of a divorcing spouse as the separate bases of the property assignment and any alimony or support obligations.
53
Traczyk v. Traczyk 1995 OK 22, ¶¶ 15-22, 891 P.2d 1277, 1280-81 (1995)
• That a percentage of patients who continue at the clinic after its transfer may be considered the goodwill of the clinic in this case. Having determined that the value included goodwill, it was within the trial court's discretion to award half of the total value, including goodwill, as alimony in lieu of property division. . . . . On the other hand, the award of support alimony was a separate determination based upon Husband's ability to pay and Wife's demonstrated need.
• In re Marriage of Cheng, No. 47937-1-II, 2016 Wash. App. LEXIS 2854, at *10 (Wash. Ct. App. 2016): The husband argued that the wife’s maintenance award constituted an improper double recovery because both maintenance and her property distribution of half of the business’s value were based on the business’s future income. We hold that the maintenance award does not result in double recovery.
54
The double dip prohibition is recognized:
55
Head v. Head Head v. Head: 523 N.E.2d 17 (Ill. Ct. App. 1988)
• Adding $117,000 to the value of a professional corporation awarded to the husband based upon a stream of future income was error because it resulted in a count of potential future income by considering such income in both the valuation of the asset the apportionment of assets, and in awarding maintenance.
56
Alexander v. Alexander Nos. 310917, 311896, 2013 Mich. App. LEXIS 1490,
at *22-23 (Ct. App. Sep. 10, 2013)
• We conclude that the trial court did "double dip" by awarding Dawn Alexander one-half of the value of the business while also calculating spousal support on the basis of the net income stream from the business. Here, the parties' experts used a capitalization of income approach. That approach includes the projected future net from the business. So when the trial court equally divided the value of the business between the parties, it divided the future income of the business as a marital asset. But we conclude that the trial court did not abuse its discretion by requiring the husband to use the future income of the business in paying spousal support. The trial court may require one party to invade his or her award of marital assets to pay spousal support, particularly when one party is well-established and the other is not.
57
Gelles v. Brodie 2015 Conn. Super. LEXIS 2054, at *17-18, 2015 WL 5237761
(Super. Ct. 2015)
• Business Interest of Wife (a new television show on the Home Shopping Network [HSN]): To award the husband substantial alimony based on the wife's income and then add an additional burden based on essentially the same income she is earning would clearly be "double dipping" and the case law clearly supports this logic and finding,[citations omitted].
58
Berry v. Berry 2006 PA Super 98, ¶ 11, 898 A.2d 1100, 1104 (Super. Ct. of Pa. 2006)
• In determining income for support purposes, however, it is axiomatic that the trial court may not include income that constitutes marital property under 23 PA.CONS.STAT.ANN. § 3501, as such an action would foreclose the equitable distribution of those assets. We have explained that "money included in an individual's income for the purpose of calculating support payments may not also be labeled as a marital asset subject to equitable distribution."
• The appropriate separation between considerations of spousal support and considerations of an equitable distribution of marital wealth prevents a "double dip" by a spouse who seeks and receives encumbered marital property under Code § 20-107.3 and also seeks and receives spousal support under Code § 20-107.1
60
Sieber v. Sieber FD02-5672-006 (Allegheny Pennsylvania Court of Common Pleas 2005)
• where a bonus is treated as an asset to be equitably distributed, it is error to divide the bonus as a marital asset and to base an alimony award on the husband's income including the full bonus.
61
Hubert v. Hubert 465 N.W.2d 252 (Wisc. Ct. App. 1990)
• where accounts receivable are divided as an asset, counting the income generated when the accounts receivable are paid may not be used as the basis for an alimony award.
