Has your company ever been a victim of employee fraud? After discovering the fraud, you probably first experienced a mixture of emotions including disbelief, shock and anger, as well as uncertainty about what approach and next steps you should take. One question business owners grapple with is whether to file criminal charges against the dishonest employee. There are many factors to consider when making the decision to pursue criminal prosecution, and it is beneficial for a business owner to consult with an attorney and a forensic accountant when deciding how to proceed.
Some questions business owners have include the following:
- Do I have to file a formal criminal complaint with a law enforcement agency?
- I have some sensitive/private matters in my company, that I don’t want law enforcement looking into. Can I keep them out of it?
- I don’t have the time or money to prepare the case. Who does all the investigation: law enforcement or me?
- Do I report the incident to local law-enforcement or a federal agency?
In most cases, there is no requirement to report to law-enforcement matters including fraud, embezzlement or other types of business criminal fraud; however, there are exceptions. Some types of organizations have a statutory or regulatory requirement to report the crime, such as certain governmental agencies, banking organizations and insurance companies. A business owner may refer the fraud offense to law enforcement to send a message to its employees and take an ethical stand that illegal conduct will not be tolerated. However, the business owner will lose control of the investigation, as law-enforcement takes control of the case and looks at what they believe is relevant, which may include embarrassing information, or confidential business data or research. Depending on the severity of the crime, the amount of loss and the relationship with the employee, the employer may decide to not pursue criminal prosecution, but simply terminate the employee and demand restitution.
If the victim business decides to file a complaint, it will need to commit time and support to the law-enforcement agency during the investigation. In many violations of fraud or embezzlement, the violation will typically be investigated first by the business, who then presents the facts of the case to the law-enforcement agency. It is not uncommon for the victim business to need to develop credible evidence before referring the violation to the investigative agency. If the business does not have staff qualified to do the initial investigation, a forensic accountant specializing in these matters can be hired.
Should the victim business report the incident to local law-enforcement or a federal agency? Both local and federal authorities share a joint investigative responsibility on many fraud and embezzlement statutes. The fraud committed may be a violation of both federal crime statutes and local or state criminal statutes. Legal counsel can assist the business in making the best decision.
In order for a law-enforcement agency to take on a fraud case, there needs to be a clear violation of a criminal statute along with strong credible evidence. Understandably, the criminal justice system will be hesitant to spend resources on a weak case. If the agency takes the complaint for further investigation, it is important to be patient with the process and support law-enforcement as they proceed with their investigation. The wheels of justice can move slowly, as the agency has other complaints and cases. A business can continue to investigate the fraud internally by hiring its own forensic accountant, who can cooperate with law-enforcement. More importantly the forensic accountant can also assist with installing internal controls and safeguards to prevent more fraud from occurring.
By Julia MeissnerPosted on March 25 2014 by admin
Nothing in business valuation is more debated than the discount for lack of marketability
Why is the lack of marketability discount so controversial?
- The discount for marketability (“DLOM”) is defined as an interest in personal or real property for which there is not an active public market to convert the investment to cash within several days.
- Over the last thirty to forty years; many business appraisers have applied an arbitrary 25%-40% marketability discount to a noncontrolling, nonmarketable fractional interest in an entity such as a limited partnership.
- In many instances the DLOM was simply based on the mean or median discount indicated by restricted stock and pre-initial public offering studies (“Pre-IPO studies”).
- During that period business valuators generally included limited or no commentary regarding the specific factors that caused the subject limited partnership interest and partnership to be more or less marketable or liquid than the blocks of shares and companies included in the studies.
- In the early 1990s both appraisers and the Internal Revenue Service recognized that benchmarking did not empirically support lack of marketability discounts.
- As a result, numerous appraisers and scholars began to challenge existing theories, models and studies and postulate new theorems that quantified DLOMs.
- The IRS, Tax Courts, appraisers and academicians are only able to agree on one matter associated with the lack of marketability discount controversy-there is no perfect way to measure it.
Will the business appraiser’s lack of marketability discount continue to be challenged by the Internal Revenue Service and others?
Advocates and adversaries of competing DLOM models, including the IRS, will continue in perpetuity to debate the quantification of the DLOM when valuing a nonmarketable limited partnership interest.
At the end of the day, the appraiser, the client and his/her advisers must exercise sound judgment and common sense to assure that the lack of marketability discount will withstand the scrutiny of the IRS.
Henry & Horne, LLP’s Business Valuation & Litigation Support Services Group summarizes all Tax Court cases on its web page that provide insight into the DLOM controversy.
By Gary Ringel
“The Controversy over the Discount of Lack of Marketability” authored by Rand. M. Curtiss, FIBA, MCBA, ASA
“Lack of Marketability-As the scrutiny of valuation reports increases, discounts must be better supported with new and improved methods” authored by Annika M. Reinemann, DFA, ASA published in Trusts & Estates in February 2008Posted on March 18 2014 by admin
Let’s assume there is a real estate brokerage firm located in the Phoenix metropolitan area that has been in business for the last 30 years and is organized as a regular corporation. The owner wishes to transfer the trade name from the corporation to his LLC and requests the assistance of a valuation firm. How is the value of a trade name determined?
A commonly used method to value trade names is the relief from royalty method. This method is used to estimate the present value of future savings that accrue to the owner of an intangible asset by virtue of not having to pay royalties (or license fees) for the use of the trade name. Royalties can be charged on gross revenue, net revenue, or some other measure of cash flows.
The first step is to obtain market royalty rates for comparable trade names. This usually results in a range of market royalty rates. After the royalty rate range is determined, an analysis of various factors is performed and adjustments are made for differences between the observed trade names in the market data and the subject company. Some of the factors to look at are:
- How long has the trade name been in use?
- How consistently has the trade name been used on related products and services?
- How specific is the name– is it general and can it be used on a broad range of products and services or is it very specific?
- How broadly geographically can the name be used – does it have national appeal or only local?
- What is the potential for the trade name to expand its use to different products, services, or industries?
- Does the name have positive or negative connotations and reputation among customers?
- What is the quality of the name – is it perceived as respected?
- How profitable is the business – both in absolute terms and relative to competing trade names?
- How expensive is it to promote the name and what are the various means of marketing/advertising?
- What is the market share and market potential for the company, both in absolute terms and relative to competing names?
- How well recognized is the name?
Let’s assume the market data indicates a royalty rate range from 3% – 8%. After analyzing the above factors, we selected a royalty rate of 3% for the subject trade name. If the brokerage firm is expected to generate annual net commission revenue of $10 million, the royalties saved by owning the trade name are $300,000 per year. Assuming a tax rate of 40%, a required rate of return on the trade name of 25%, and an annual growth rate of 3%, the value of the trade name is $818,000 (rounded).
Having a good understanding of the value of each of the tangible and intangible assets held by a company can help an owner feel confident that he is achieving full value for a transaction, including the value of a trade name and its related royalty rates.
Source: Valuing Intangible Assets by Robert F. Reilly and Robert P. Schweihs, © 1999
By Cindy Andresen, ASAPosted on March 11 2014 by admin
“First-time homebuyers hurt by rising prices and tougher credit standards are disappearing from the market, slowing the pace of the three-year recovery. The decline of these buyers, many of whom are young and non-white, also threatens to widen the wealth gap between owners, who benefit from appreciation, and renters.” -Thomas Lawler, Former Fannie Mae Economist.
Below are some national statistics published by Bloomberg News on March 6, 2014. (*)
- We have the lowest market share (26% in January) for first time home buyers since the National Association of Realtors started measuring this trend in 2008.
- Annual home prices have been rising much faster than personal income for the majority of the U.S. population over the last 15 years when adjusted for inflation. This pattern is not sustainable.
- Americans under 40 have recovered only a third of their wealth lost during the Great Recession, while the majority of the population over 40 has seen their net worth rise to pre-2007 levels.
- Many possible first-time borrowers have stopped applying for loans due to tighter underwriting standards. In fact, applications to buy homes in February of 2014 were at the lowest level since August of 1995.
- FHA loan purchases have declined 38% since their peak in 2010, and are likely to fall further in 2014 due to reduced FHA loan limits.
- The home ownership rate for people under 40 fell to 42.2% in 2013, the lowest in 19 years.
Can the U.S. and Metro Phoenix housing markets fully recover without young first-time home buyers?
In summary, without the participation of the millennial generation, it is my opinion that the U.S. and Metro Phoenix housing market cannot experience a normal, healthy recovery.
Gary Ringel, CGREA
(*) “Americans Shut Out of Home Market Threaten Recovery”Posted on February 25 2014 by admin
“Bubbles have quite a few things in common, but housing bubbles have a spectacular thing in common, and that is every one of them is considered unique and different.” - Jeremy Grantham, co-founder of GranthamMayo van Otterloo , a Boston based asset management firm
On February 14, 2014 the National Association of Home Builders (NAHB) announced “U.S. home builder confidence suffered its largest one-month drop ever in February, hit by this winter’s relentlessly severe weather and concerns about the costs of labor and building lots.”
The NAHB stated that builder confidence dropped 10 points between January and February, from 56 to 46, the largest drop since the NAHB/Wells Fargo Housing Market Index Survey began in 1985. (*) Readings below 50 mean more builders view market conditions as poor than favorable.
The source for the data in the chart below is the survey which compares February and January readings in geographical regions across the United States.
Greater Phoenix Housing Trends
The weakening trend in demand in Metropolitan Phoenix, which obviously is not attributable to bad weather, is disconcerting. In fact, the median sales price of a home decreased from $187,840 to $180,000 between December 30, 2013 and February 15, 2014.
Bubble Or Burst?
In summary, it is extraordinarily difficult to project demand and pricing trends in the Metro Phoenix single family housing market during the remaining 10 months of 2014. The local economy remains saddled with a high unemployment rate, anemic population growth and growing consumer debt.
It is my opinion that the Phoenix housing bubble is about to burst in 2014.
By Gary Ringel, CGREA
(*) The source for the statistics in the chart is the NAHB/Wells Fargo Housing Market Index (HMI) which is based on a monthly survey of members belonging to the National Association of Home Builders. It is designed to measure sentiment for the U.S. single-family housing market. The Survey asks the NAHB’s 140,000-plus members to rate market conditions for current new home sales and sales expectations in the next six months. It also asks builders to rate traffic of prospective buyers for new homes. The HMI is a weighted average of separate diffusion indexes for these three series. Its reading can range between 0 and 100; a reading over 50 indicates that more builders view sales conditions as good compared with those who view them as poor.
Posted on by admin
We continue with more tips for the first-time deposition testifier. Read Part I here.
More Easy Questions – You will be asked some more really easy questions related to such topics as the name of your employer, and a bit about your work history including your current position. You may also be asked whether you are experiencing any health issues or taking medication which might impair your ability to testify.
Basic Instructions – The questioning attorney will then give you some basic rules to follow regarding the way you answer questions. For example, the attorney will tell you not to give an answer by the nodding of your head. This is because it is difficult to record a nod of the head in the court reporter’s transcription.
The attorney will also tell you not to answer until he or she is through asking the question. This is because the court reporter cannot record two conversations going on at the same time. The attorney might tell you that if you don’t know the answer to a question, simply say so and not guess. The attorney will also tell you that if you have to take a rest room break, you may ask for it at any time.
Answering the not so easy questions – You are starting to get the feeling that the attorney is not so bad after all. And, that this deposition talk isn’t as tough as you thought it was going to be. However, from this point on you might start to sense that the attorney asking the questions isn’t as nice as they were portraying themselves to be.
This is the part of the deposition when you are allowed to start sweating; and the part where the questioning attorney is going to pepper you with questions he or she has written out before you ever came to the deposition room. You might now be asked to indicate those persons with whom you talked before your deposition, the time length of the conversations, and what you talked about. If you are testifying as an expert you will likely be asked to indicate when you were first contacted on the matter at hand and to state what you were asked to do. You may also be asked to state the amount of time you spent on the case and the fees you charged.
The attorney sitting next to you – on your side, is going to give you some further instructions, most likely before you ever start your deposition.
These instructions might include the following:
- Answer with a simple “yes” or “no” – don’t offer additional comment until you are asked.
- If you don’t remember, don’t guess. Say you don’t remember.
- If the questioning attorney tries to upset you, don’t get angry. Stay composed.
- If the attorney working on your side offers an objection to a particular question asked of you, don’t give an answer while the objection is being made. Sometimes the objection is good when you are asked a really hard question because it gives you a few extra moments to formulate your answer.
The tips I’ve mentioned are not all inclusive but just might take a bit of stress out of you the first time you have to testify at a deposition.
By Don Bays, CPA/ABV, CVA, CFFPosted on February 18 2014 by admin
If you are going to be testifying on a litigation matter for the first time, say at a deposition, and you have a pulse, you are probably experiencing a large amount of stress. Here are a few tips that may alleviate some of that stress and make the going a little easier for you. The tips are for persons designated as testifying experts, but many will be applicable to just about anyone giving testimony for the first time at a deposition.
Planning – If you will be accompanied by an attorney at your deposition, it is a good idea to meet with the attorney beforehand and discuss some likely questions you will be asked at the deposition. If you have prepared notes or schedules in support of your testimony, make sure you study them before you testify. If you bring these items with you to the deposition and pull them out of a folder as you are being asked questions, count on the questioning attorney to want to make copies of your documents.
Location – The deposition is likely going to take place in a conference room at the office of the attorney requesting your testimony. No judge will be present. I have found that appearing at the deposition conference room several minutes before the start of my deposition puts me a little more at ease as I survey my surroundings and the proposed seating arrangement.
Typical Deposition Room Seating – You will be seated on either side of the end of the conference room table, assuming it is of a rectangular form. The court reporter, who will be transcribing your every word – and anyone else’s who speaks during your deposition, will sit at the end of the conference room table. The court reporter will be between you and the questioning attorney who will be sitting directly across from you. Your client’s attorney will typically be sitting right at your side, ready to object to any questioning from the opposing attorney that he or she believes is out of line.
Your First Words – There are a few opening questions you will be asked that are standard and should be easy for you to answer. The court reporter will swear you in by asking if you swear to tell the truth, etc. – Just like on TV. However, you will not be asked to place your hand on a Bible as you recite your answer. By the way, if your answer is “no,” your deposition is effectively over.
The opposing attorney will then ask you some really easy stuff. Despite what you may think, these questions are not designed to put you at ease but to get information on the written record that you are who you are supposed to be and to find out something about your background. The questions, however, will actually take some stress out of you because of their nature. For example, you will be asked to state your full name. This will be a piece of cake for you. If you are unable to answer this question, here again, your deposition will conclude within the time it takes the questioning attorney’s eyes to stop rolling.
By Don Bays, CPA/ABV, CVA, CFFPosted on February 11 2014 by admin
Forensic accountants are often asked to assist in marital dissolution matters in determining the value of the community interest and the sole and separate interest of retirement accounts. There are several factors to consider when valuing these interests including the following: 1) the period of contributions to the account(s) versus the length of the marriage; 2) the allocation of gains and losses in the account over the period of marriage; 3) the allocation of any distributions or withdrawals during the marriage, and 4) the expected value of future pension benefits in current dollars. Although every case has a unique set of facts and circumstances, we will provide an example of a calculation that might be performed by a forensic accountant to assist in the division of a 401(k) account.
Calculation of Sole and Separate Property Portion and Community Property Portion of a 401(k) Account
Karen has worked as an engineer for a corporation since 1995, and she has made 401(k) contributions to her employer- sponsored retirement plan since that time. In addition, her company contributes a 5% matching portion to her plan, in which she is 100% vested. Karen and Marty were married in 2005 and legally separated June 30, 2013. Therefore, the contributions to the account prior to marriage are considered to be Karen’s sole and separate property, net of any allocable gains or losses on that portion of the investment. We are jointly retained by Karen and Marty to determine the community portion of the 401(k) account. After reviewing the 401(k) statements, we find that calculating the gain or loss on individual shares of investments will be extremely difficult due to the lack of detailed information and numerous changes in the investment portfolio over time.
We advise Karen to not take out loans or withdrawals until our work is completed and the money is divided. We decide to use the following methodology and procedures to calculate the value of the community interest and Karen’s sole and separate interest in the account:
• We determine the value of the 401(k) account prior to the date of marriage. This amount is determined to be the starting balance of Karen’s sole and separate interest.
• We determine the dollar amount of Karen’s contributions plus the employer match contributions to the account during the marriage and distributions from the account during the marriage. These transactions will be attributed to the community interest. Distributions will reduce the community property interest in the account, unless we find that the distributions were used to purchase sole and separate assets of Karen. In this case the distributions will reduce Karen’s Sole and Separate interest in the 401(k) account.
• We determine if there have been any loans taken out from the account and whether they have been repaid. We determine whether to allocate the loans to the sole and separate interest or the community property interest based on the timing of the loans and the use of the funds. We discuss with Karen and Marty, whether they will share repayment of the loans, if there is a balance outstanding.
• We perform an analysis of the appreciation and depreciation of the account during the length of the marriage. We allocate the change in market value (i.e. gains or losses in the various investments) based on the average percentage of ownership (community versus sole and separate) for the respective period. We may perform this analysis by month, quarter or year, based on the availability of statements and our determination of the costs versus benefits of a detailed analysis. In this case, we assume that each ownership interest contains a similar allocation of assets.
• We determine the value of Karen’s and Marty’s ownership interests as of June 30th, 2013, and then account for any changes between that date and the date of our report. We provide the value to divide in three ways: 1) in dollars; 2) percent of account and 3) shares of the account. With this information, an experienced attorney can prepare a Qualified Domestic Relations Order, or QDRO which is used to divide retirement accounts.
Karen and Marty agreed to the above methodology before we began our analysis. We provided each of them detailed schedules and explanations of our calculations. They were able to divide the account amicably by utilizing a QDRO, which established Marty’s right to the calculated portion of the retirement benefits. The order also protected Karen from paying taxes and early withdrawal penalties on the assets that were transferred to Marty.
Marty’s company has a pension benefit that will be paid to Marty after he retires. In my next blog “Dividing a 401(k) or Pension Benefits in a Divorce, Part II”, I will explain how we calculated the value of the community property interest in the future pension payments.
Julia MiessnerPosted on February 4 2014 by admin
Adequate Disclosure Rules Applicable to Gifts Reported on Form 709
Internal Revenue Code Section 6501(c)(9) places a time limit of three years on the revaluation of gifts as long as adequate disclosure rules are met or satisfied. However, be aware that if the IRS challenges the valuation during the limitation period, the taxpayer’s opportunity to contest it also ends with the limitation period.
Taxpayers Must Comply With IRS Instructions In Order To Commence Running of the Three Year Statute Of Limitations
Instructions to Form 709 specify that any gift reflecting, among others, a discount for lack of marketability, a minority interest, or a fractional interest in real estate, must be adequately disclosed.
For A Gift to be Adequately Disclosed, the Taxpayer Has Two Options:
According to Internal Revenue Code §301.6501-1(f)(2), the taxpayer must attach a statement to Form 709, which contains, but is not limited to, the following information.(*)
- A description of the transferred property and any consideration received by the transferor.
- The identity of, and relationship between, the transferor and each transferee.
- A detailed description of the method used to determine the fair market value of the personal or real property transferred (“property”), including any financial data that was utilized in determining the value of the interest, any restrictions on the transferred property that were considered in determining the fair market value of the property, and a description of any discounts claimed in valuing the property.
- If the value of the entity or of the interests in the entity is properly determined based on the net value of the assets held by the entity, a statement must be provided regarding the fair market value of 100 percent of the entity (determined without regard to any discounts in valuing the entity or any assets owned by the entity), the pro rata portion of the entity subject to the transfer, and the fair market value of the transferred interest as reported on the return.
The other option is to attach a business and/or real estate appraisal to Form 709 in lieu of the information required under IRC §301.6501(f)(2)(iv). Such appraisal must satisfy the following criteria.
- The appraiser must be an expert who regularly performs appraisals.
- The appraiser must possess the knowledge required to value the property.
- The appraiser cannot be the donor or donee or a member of the family of the donor or donee.
Examples of data required by the Service in the valuator’s appraisal are listed below.(**)
- The date of the transfer.
- The date on which the transferred property was appraised.
- The purpose of the appraisal.
- A description of the property.
- A description of the appraisal process employed.
- The valuation methodology employed by the appraiser.
Whether or not the taxpayer and its professional advisors elect option one or two, they should comply with IRS regulations to insure that the value of the gifted asset is not challenged by the Service and the clock starts ticking for the statute of limitation.
The choice between option one and option two should be made after consulting with your professional advisor for guidance.
By Gary Ringel
(*) A complete list of information required by the IRS can be found in IRC Section
6501(c) (9). http://www.gpo.gov/fdsys/pkg/CFR-2010-title26-vol18/pdf/CFR-2010-title26-vol18-sec301-6501c-1.pdf.
(**) A complete list of data required by the IRS can be found in IRC Section 6501(c)
March 20, 2010 blog posted on the website of the Law Offices of David L. Silverman. http://nytaxattorney.com/2010/03/20/requirement-of-filing-federal-gift-tax-return/
December 7, 1999 article posted on UncleFed’s Tax Board. http://www.unclefed.com/ForTaxProfs/irs-regs/1999/td8845.html.
Instructions for Form 709(2013). http://www.irs.gov/instructions/i709/index.htmlPosted on January 28 2014 by admin
Coming from the Silicon Valley, I was excited to hear about Apple’s latest venture into the Valley. Apple is pumping $1.3 billion into a manufacturing facility for vendor GT Advanced Technologies. Plans are to mass produce sapphire glass for future iDevices using GT Advanced’s “state of the art” industrial techniques. This is expected to create around 2,000 new jobs in Mesa, Arizona (700 permanent positions and 1,300 construction jobs). The permanent positions include manufacturing operators and technicians, engineers, managers, and supervisors. GT Advanced will supply sapphire glass to Apple over a minimum of five years. So far, the super durable sapphire glass has been used on the iPhone 5s handset’s Home button where it protects the surface of Apple’s fingerprint-scanning Touch ID sensor. It’s also used to protect the built-in cameras which appear on the iPhone, iPad, and iPod touch. Recent analysis, including the partnership with GT Advanced, indicates that Apple is planning on expanding its use of sapphire glass, possibly for an ultra, scratch resistant smartphone or tablet. (a)
Service-providing sectors accounted for 88.3% of Arizona’s jobs in 2013 (b), so expansion into other areas is important for the diversification of the state. Greater Phoenix Economic Council (GPEC) played a big part in Apple’s venture. Barry Broome, CEO of GPEC, says, “We need to be going after future business for the Valley. The next economy is engineering and electronics. This is where innovation, expansion and exports are going to take place. Our strength in Phoenix must focus on building and attracting these businesses.” (3)
Arizona’s economy grew modestly in 2013, with accelerating growth expected in both 2014 and 2015. A boost like this is just what the Valley needs as we head into 2014!
(a) www.appadvice.com, “Apple’s Arizona-Based Sapphire Glass Manufacturing Partner Goes On Hiring Spree”, by Joe White, January 22, 2014.
(b) Arizona’s Economy, Economic and Business Research Center, Eller College of Management, The University of Arizona October, 2013
(c) AZ Business, January/February 2014, “An Opportunity Oasis”, by Eric Jay Toll
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