business

Buy-Sell Agreements

20-plus issues for every closely held business owner to consider


Key Takeaways:

  • Buy-sell agreements come in three basic forms but must be individually tailored to suit the specific needs of your business.

  • Make sure the agreement meets your ongoing needs, including tax, retirement, insurance and funding issues.

  • Without appropriate “exit” plans in place, ownership changes can be worse than Hollywood divorces—bitter, expensive and devastating to all involved.



Almost all owners of closely held businesses put all of their time, effort and money into launching and growing their businesses. Tragically, they put little effort into protecting what they have built from devastation caused by one or more of the owners leaving the business. Without an appropriate “exit” plan in place, changes in business ownership can be worse than a Hollywood divorce—bitter, expensive and devastating to all involved.

Don’t be fooled! Changes in ownership happen every day in all types of businesses for a multitude of reasons: death, retirement, disability, divorce, voluntary and involuntary termination of employment, lawsuits, financial and economic setbacks, bankruptcy, and selling and gifting interests, just to name a few. The disruptions caused by these events usually result in severe financial consequences for everyone involved, including collateral damage to customer, supplier, banking and employee relationships as well as to long-term company goodwill.

Consider a buy-sell agreement from Day One


Perhaps the biggest tragedy is that most, if not all, of the aforementioned problems can be avoided by putting a well-drafted buy-sell agreement in place right from the start. That’s when all the owners are still in the “honeymoon” stage of the business and relations are most amicable. However, it is never too late to put a buy-sell agreement in place, and some honest thought and open communication will strengthen and protect the business and bring peace of mind to everyone involved. Remember, ownership changes are bound to happen, but having a plan in place to deal with those changes will always smooth out the road ahead.

Next steps


Now that you are convinced that a buy-sell plan is critical for the health and well-being of both the business and the individual business owners, where do you go from here? First, consult with an experienced business lawyer who can walk you through the process and help craft a plan that fits the specific needs of both the business and the individual owners. Second, understand that no two agreements are ever the same, although they generally fall into one of three categories:

1.      Cross-Purchase Agreements, which can be ideal for a business with a small number of owners. When a triggering event occurs, the remaining owners directly purchase the departing owner’s interests in the business.

2.      Stock Redemption Agreements, which can be simpler and easier to structure. Generally they can be better-suited for entities with more owners. With these types of agreements the entity purchases the ownership interests of the departing owner. The remaining owners receive an increase in the value of their interests, not in the number of interests they own.

3.      Hybrid Agreements, which are a combination of cross-purchase agreements and redemption agreements. Generally the entity has the obligation to redeem the interest of the departing owner, but the remaining owners have the option of directly purchasing the departing owner’s interests if the entity is unwilling or unable to do so.

In order to determine which type of agreement will best suit your needs, consider the following issues:

  1. How many owners does the business have today and will have in the future?

  2. Is the business family-owned or are third parties involved?

  3. What type of business is involved, and are there specific issues that need to be addressed relating to the entity’s business, such as professional licensing or trade issues?

  4. What is the legal structure of the business: corporation, S corporation, partnership, limited liability company?

  5. What is the age and health status of each business owner?

  6. Is each of the owners insurable?

  7. What percentage of the business does each owner hold?

  8. What is the value of the business, and how is that value determined?

  9. What are the tax implications of each type of agreement?

  10. What are the transfer implications of each type of agreement?

  11. What restrictions will be put on the transfer of interests?

  12. Will the interests be subject to rights of first refusal?

  13. How will the business be valued and the purchase price determined? How often will the business be revalued? Will the interests be valued differently depending on the specific transfer event?

  14. Will there be penalty provisions for violating the terms of the agreements and/or conduct damaging the business?

  15. How will the transfer of interests be funded? Will insurance such as life insurance and disability insurance be mandated, and if so, how will premiums be paid?

  16. How will the transfers be paid, all upfront or over time? If the payments are over time, what are the terms and the arrangements to secure payment?

  17. Is the agreement aligned with other important legal documents such as the entity organizational documents, employment agreements, business agreements and contracts, banking agreements, and the estate planning documents of the individual owners?

  18. Coordinate the agreement with related property that may be owned by each of the business owners. Examples include affiliated businesses, insurance policies, land and personal property, intellectual property, and leases.

  19. How will termination of the business be handled?

  20. How often will the agreement be reviewed? Doing so annually is a good idea.

  21. How will disputes related to the agreement be handled—litigation, mediation or arbitration?

The foregoing is not a complete checklist of every issue that needs to be considered, but it will give you a good platform to begin discussions between you and your legal counsel.

Conclusion


First, properly structured buy-sell agreements are critical to the survival of any closely held business; they are not an option. Second, these agreements must be tailored to the specific needs of the business. One size doesn’t fit all. Finally, businesses and relationships constantly change; consequently, buy-sell agreements must be reviewed and updated regularly. An out-of-date agreement is next to worthless.

 

Robert J. Pyle, CFP®, CFA is president of Diversified Asset Management, Inc. (DAMI). DAMI is licensed as an investment adviser with the State of Colorado Division of Securities, and its investment advisory representatives are licensed by the State of Colorado. DAMI will only transact business in other states to the extent DAMI has made the requisite notice filings or obtained the necessary licensing in such state. No follow up or individualized responses to persons in other jurisdictions that involve either rendering or attempting to render personalized investment advice for compensation will be made absent compliance with applicable legal requirements, or an applicable exemption or exclusion. It does not constitute investment or tax advice. To contact Robert, call 303-440-2906 or e-mail info@diversifiedassetmanagement.com.

 

The views, opinion, information and content provided here are solely those of the respective authors, and may not represent the views or opinions of Diversified Asset Management, Inc.  The selection of any posts or articles should not be regarded as an explicit or implicit endorsement or recommendation of any such posts or articles, or services provided or referenced and statements made by the authors of such posts or articles.  Diversified Asset Management, Inc. cannot guarantee the accuracy or currency of any such third party information or content, and does not undertake to verify or update such information or content. Any such information or other content should not be construed as investment, legal, accounting or tax advice.



Using Office Antiques to Boost Net Worth, Cash and Aesthetics

Just make sure you know the rules before claiming tax deductions for fair business use

Key Takeaways:

  • Antiques can generally be expensed and deducted when a small business owner uses them to conduct business and subjects them to wear and tear.

  • Because antiques typically appreciate over time, while non-antique versions of the same asset diminish in value, owning antiques can significantly increase your net worth.

  • All kinds of antiques can be used as business equipment and furniture, including cabinets, bookcases, rugs, conference tables, paperweights, clocks, cars and musical instruments.

  • However, Plain Jane versions of those same items may not be deductible, even if you paid top dollar for them.


What did the small business owner do wrong?

Ned Worth, an avid antique collector, is sorely tempted to bid $5,000 for an 18th-century Chippendale piece and use it as his office desk. But, alas, Ned needs to depreciate and expense his office desk for tax-deduction benefits. So he doesn’t bid. Ned winces when the auctioneer’s hammer comes down. The next day he spends $5,000 on a pedestrian desk from Office Depot-- the same $5,000 that he would have spent at auction.

What did Ned do wrong?

Answer: Ned could have deducted and expensed the antique desk. He’d have gotten the same tax deductions and Section 179 expensing benefits with either desk. But while the Plain Jane desk will decline in value over time, the Chippendale desk will increase. By not buying the Chippendale desk, Ned now has three strikes against him:

  • Strike 1: Doesn’t result in increased tax deductions;

  • Strike 2: Takes a chunk of money out of his pocket; and

  • Strike 3: Makes him sad.

Grab some pine, Ned, yer’ out!

Deductibility of office antiques

Desks are among the many antiques that small business owners can actually use to carry out their businesses. But what you may not be aware of is that these antique desks may be just as deductible as are desks that are not antiques.

Historically, the IRS has taken the position that antique desks and other business furnishings and equipment are not eligible for Section 179 expensing and/or depreciation. Why? Because they don’t have a determinable useful life. The IRS still feels that way, or so they said many years ago. But a number of federal courts have overruled the IRS.

The Liddle and Simon cases

Let’s go back to 1984 when a professional violinist named Brian Liddle walked into a Philadelphia antique shop and purchased for $28,000 a 17th-century bass violin made by the famous Italian craftsman Francesco Ruggieri. Mr. Liddle didn’t simply display his Ruggieri. He played it during performances.

Over time, the violin began to wear down. When the neck of the violin began pulling away from its body, Liddle had the instrument repaired by expert artisans. Alas, the Ruggieri never did recover its “voice.” So, in 1991, Liddle traded it for an 18th-century bass with an appraised value of $65,000.

On his 1987 tax return, Liddle had claimed a $3,170 depreciation deduction on the Ruggieri under the Accelerated Cost Recovery System (ACRS), as per IRC 168. The IRS denied the deduction and Liddle appealed.

While all of this was going on in Philadelphia, an eerily parallel series of events was unfolding up the New Jersey Turnpike in New York City. Richard Simon, a violinist for the New York Philharmonic Orchestra, purchased a pair of 19th-century French Tourte bows with an appraised value of $35,000 and $25,000, respectively.

Like Liddle, Simon actually used his bows to perform. And like Liddle’s Ruggieri, Simon’s Tourte bows began to wear out. Although “played out” musically, the bows appreciated in value on the antique market during the time Simon owned them, just as Liddle’s Ruggieri had appreciated despite losing its musical “voice.”

On his income tax return, Simon claimed ACRS depreciation deductions of $6,300 on one bow and $4,515 on the other. The IRS said “no.” The Liddle case reached the U.S. Court of Appeals for the Third Circuit; the Simon case went to the Second Circuit. The courts treated them as companion cases and issued one ruling covering both.

In both cases, the IRS claimed the instruments weren’t depreciable because they actually increased in value over the time they were used. But previous court cases allowing depreciation deductions on assets that had appreciated in market value forced the IRS to back down from that argument.

So the IRS argued that the instruments were “works of art” that didn’t have a determinable life and thus couldn’t be depreciated. In fact, the IRS’s determinable life theory disallowing depreciation of antiques had been the law of the land until 1981.

Unfortunately for the IRS, things had changed since then. In 1981, Congress enacted a law called the Economic Recovery Tax Act of 1981 (ERTA) allowing for ACRS depreciation of business assets. As both federal courts noted, the purpose of ERTA and ACRS was to stimulate investment by making the rules governing deductions for depreciation of business assets easier for taxpayers to understand and apply. Accordingly, ERTA was meant to de-emphasize the complicated concept of determinable life. Assets would qualify for ACRS depreciation, the courts explained, as long as they were actually used in a trade or business and had suffered wear and tear.

Liddle’s Ruggieri violin and Simon’s Tourte bows met both tests, the courts reasoned. The taxpayers didn’t treat the instruments as mere show pieces or collector’s items; they actually used them as tools to earn their livelihood. And such use caused the instruments to wear down. In this way, the antiques were considered the same as any other business asset that wears down as a result of use.

Bottom line: Liddle’s antique violin and Simon’s bows were business assets subject to ACRS depreciation.

Current law on deducting and expensing antiques

According to the Liddle and Simon cases, antiques can be expensed and deducted under two conditions:

  • The taxpayer physically use them to conduct business; and

  • Such business use subjects the antique to wear and tear.

The risk of IRS opposition…

Caveat: In 1996—just a year after the cases were decided—the IRS issued a formal non-acquiescence, stating that it believed the cases “were wrongly decided” and that “the issue should be pursued in other circuits.” ACRS was meant to accelerate depreciation, not convert assets that weren’t previously depreciable, the notice argues.

...And why you shouldn’t worry about it

This may sound ominous, but there are good reasons not to allow the risk of IRS denial to scare you expensing and deducting antiques you use for business purposes.

First, the Liddle and Simon cases are binding in the states of the circuits where the cases took place, including:

  • The Second Circuit, which includes New York, Vermont and Connecticut; and

  • The Third Circuit, which includes Pennsylvania, New Jersey, Delaware and the Virgin Islands.

Further, very few, if any, cases have been reported in which the IRS has actually challenged Liddle and Simon and gone after a taxpayer for deducting and expensing an antique since the IRS issued its non-acquiescence way back in 1996.

Conclusion

Long story short, you can deduct and expense your antique office furnishings and equipment as long as they actually use them for business purposes and subject them to wear and tear.



Robert J. Pyle, CFP®, CFA is president of Diversified Asset Management, Inc. (DAMI). DAMI is licensed as an investment adviser with the State of Colorado Division of Securities, and its investment advisory representatives are licensed by the State of Colorado. DAMI will only transact business in other states to the extent DAMI has made the requisite notice filings or obtained the necessary licensing in such state. No follow up or individualized responses to persons in other jurisdictions that involve either rendering or attempting to render personalized investment advice for compensation will be made absent compliance with applicable legal requirements, or an applicable exemption or exclusion. It does not constitute investment or tax advice. To contact Robert, call 303-440-2906 or e-mail info@diversifiedassetmanagement.com.

 

The views, opinion, information and content provided here are solely those of the respective authors, and may not represent the views or opinions of Diversified Asset Management, Inc.  The selection of any posts or articles should not be regarded as an explicit or implicit endorsement or recommendation of any such posts or articles, or services provided or referenced and statements made by the authors of such posts or articles.  Diversified Asset Management, Inc. cannot guarantee the accuracy or currency of any such third party information or content, and does not undertake to verify or update such information or content. Any such information or other content should not be construed as investment, legal, accounting or tax advice.

 

 

Diversified Asset Management, Inc. - 2018 3rd Quarter Newsletter

New Ways To Influence The Next Generation

The Tax Cuts And Jobs Act of 2018 (TCJA) gives you more good reasons to help you children, grandchildren, great nieces and nephews. Any amount you give to a 529 account that's used to pay for qualified expenses for college as well as private or religious schooling before college is deductible. With tax reform eliminating all or a large chunk of state income-tax deductions for many individuals in 2018, giving to a 529 lightens your state income-tax load while perhaps changing a life of a family member or friend and influencing their values.

Are You “Rich” Or Not? New Survey Hits The High Points

Do you consider yourself rich? If you own a couple of mansions, a fleet of luxury cars, and financial accounts reaching high into the millions, it may be easy to answer that question. But other well-to-do people might struggle with the issue of whether they are "rich" or not. 

New Deduction Rules For Business Owners

If you are a small business owner, Washington, D.C. has changed tax rules to lower your burden but the new rules are fairly complex. Many small businesses, and some that aren't so small, are "pass-through companies," tax-jargon that means the entity's net income isn't taxed at the corporate level but flows straight to their owners' personal returns. That income is taxed at personal income tax rates, as opposed to corporate rates that are generally lower.

Five Retirement Questions To Answer

How much money do you need to save to live comfortably in retirement? Some experts base estimates on multiple of your current salary or income, while others focus on a flat amount such as a million dollars. Either way, the task can be daunting.

A Guide To The New Rules On Tax Deductions In 2018

Uncle Sam giveth, and Uncle Sam taketh away. New federal tax code, which went into effect in 2018 and affects the return you'll file in spring 2019, lowers taxes by expanding some deductions, but restricts or outright eliminates others.

Giving More To Loved Ones – Tax-Free

While it may be better to give than to receive, as the adage contends, both givers and receivers should be happy with the new tax law. The annual amount you can give someone tax-free has been raised to $15,000, from $14,000 in 2017.

To read the newsletter click on the link below:

Diversified Asset Management, Inc. - 2018 3rd Quarter Newsletter

Robert J. Pyle, CFP®, CFA is president of Diversified Asset Management, Inc. (DAMI). DAMI is licensed as an investment adviser with the State of Colorado Division of Securities, and its investment advisory representatives are licensed by the State of Colorado. DAMI will only transact business in other states to the extent DAMI has made the requisite notice filings or obtained the necessary licensing in such state. No follow up or individualized responses to persons in other jurisdictions that involve either rendering or attempting to render personalized investment advice for compensation will be made absent compliance with applicable legal requirements, or an applicable exemption or exclusion. It does not constitute investment or tax advice. To contact Robert, call 303-440-2906 or e-mail info@diversifiedassetmanagement.com.

 

The views, opinion, information and content provided here are solely those of the respective authors, and may not represent the views or opinions of Diversified Asset Management, Inc.  The selection of any posts or articles should not be regarded as an explicit or implicit endorsement or recommendation of any such posts or articles, or services provided or referenced and statements made by the authors of such posts or articles.  Diversified Asset Management, Inc. cannot guarantee the accuracy or currency of any such third party information or content, and does not undertake to verify or update such information or content. Any such information or other content should not be construed as investment, legal, accounting or tax advice.