Category: Uncategorized

Credit: Jacob M. Dietz, CPA

Imagine you are a business owner, and the time has come to sell the business. You wipe away a few tears, and you begin to negotiate with a potential buyer. How much will you get paid? That answer may depend partially on how you get paid. This blog explores some options for getting paid.

Cash

Getting paid in cash may be attractive for a seller. After the seller has the cash, they can take the money and do with it as they please. They have the security of getting the cash in hand immediately.

One drawback to the cash sale for the seller is that it brings all the income from the sale into one year. That can throw the seller into higher tax brackets, and they may potentially lose out on credits. On the bright side, if they have a large tax bill from the sale, then at least they have cash to pay it.

With a cash deal, there is less risk to the seller. Consequently, they may not get as much cash for the sale. On the other hand, there may be more risk to the buyer. Therefore, the buyer does not want to pay as much.

Although I am calling this cash, it is cash from the seller’s perspective. For the buyer, the cash could be savings, or perhaps bank debt, or some other source of cash. Calling it cash does not mean that the buyer is debt-free. In fact, in a cash sale, the buyer may be deeply in debt, which can be risky.

Seller-Financed Debt

Another option for the sale is where the buyer agrees to pay the seller for the business, in the form of a loan, over time.

This arrangement increases the risk to the seller. What if the buyer defaults on the loan? The economy might go bad, and even an honest buyer may not be able to pay. Worse yet, the buyer may be dishonest and simply refuse to pay. With the increased risk comes the possible opportunity for a higher sales price. The seller incurs more risk, so they may ask for more money. On the other hand, the buyer may have less risk, at least if it is unsecured debt, and they may be willing to pay more. Also, there may be more potential buyers if the seller is willing to finance it.

How could there be more potential buyers? If a business would be for sale for $600,000, then there would be many people who could not afford that price, even if they wanted to buy it. A bank may offer some financing, but if the buyer does not have a significant enough down payment, the bank may not help them. On the other hand, if the seller finances it, then what was impossible may become possible with seller-financing. The seller and buyer might agree to some type of middle ground in which some of the sales price is paid immediately in cash and some is seller-financed. For example, if the total sales price of the business is $600,000, the seller may ask for $300,000 in cash and offer a 7 year note for $300,000.

Contingency

Another part of the sales price could be a contingency. There could be different contingencies, but let’s use revenue as an example. The deal could specify that if revenues in year 1 equal $X, then an additional $20,000 or will be paid to the seller. A contingency can help reduce the risk of the buyer.

How and How Much

How the seller gets paid can affect how much they get paid. If the seller is taking on more risk, then they may want to ask for more money. On the other hand, if the buyer is taking on more risk, then the buyer may want to pay less. How the seller gets paid, therefore, may affect how much they ask to get paid.

If you are selling or buying, remember to think about both how the payments will be made, and how much they will be. Deals can be complex, and you will likely want to consult with your accountant on important deals.

The ideology is among other things to be a small but powerful business.

One specific dream, one night, 1,300 years ago, was the start of one of the world’s oldest businesses. Hoshi Ryokan a traditional Japanese Inn, launched from Taicho Daishi’s dream, has been a family managed business since 718 A.D. The Inn is currently in its 46th generation of Hoshis, with Zengoro Hoshi preparing to transition the business to his grandson. The Hoshi family credits the success of the business and transition longevity to clear succession rules with each passing generation, as well as instilling a motto in each new generation “study the water running down a small current”.

The ideology is among other things to be a small but powerful business. The power of the water was the successful origin of the spa Inn. Taicho’s dream told him specific details where a special hot-spring was located that would serve the village people forever. Taicho sought the help of villagers to locate the hot-spring; the village sick who immerse themselves in the water soon found their health was immediately restored.

While many businesses stories are not that unique, we can learn from the Hoshi Ryokan family succession plan that strict training in family protocol, values and personal ethics has ensured the success of the business transitions for over 1,300 years. The protocol includes a strong set of ethics and values. Each generation has had its own set of idea’s but the Hoshi family hasn’t waivered from their commitment to family succession for 1,300 years. The family knows what made them successful, and they (the Hoshi family) is not permitted to forget.

Planning for the next five or ten years for your business? How important do you think the values of your management culture will be to your businesses continued success?

Preface: Today we reflect on the life of Clayton Christensen, the Gentle Giant of Innovation. In 2019 Clay Christensen was inducted in the Thinkers50 Hall of Fame, honoring the most strategic thinkers in the world. 

 “Clay Christensen’s influence on the business world has been phenomenal.“ Stuart Crainer & Des Dearlove, Thinkers50

Clay’s article “How Will You Measure Your Life?” is one of the most downloaded articles in the history of HBR.

Read Two Master Pieces from a Truth-Seeker:

How Will You Measure Your Life? Clayton M. Christensen

After 25 years studying innovation, here is what I have learned

And we will always remember Clayton with this question, we once heard. “What valuation model does God use for a Soul?”

Preface: Key Lessons From This Story: Here are some important lessons we can learn from Mark’s story:

A Lesson Learned By An Executor—The Hard Way

Careful Planning Is Important. Mark’s mother (or her attorney) failed to ensure that her will and transfer-on-death accounts had consistent directions. If Mark had chosen to do so, he legally could have ignored the directions of the will and kept the 1/6^th share he received from investment account, as well as the entire balance of the “In Trust For” account. (This is also true when a parent and a child jointly own a bank account, and one of them passes away.) This could have led to conflict in the family if Mark had chosen to be greedy and keep the money. If you know you are named as an executor for someone, consider sitting down with them while they are still alive to talk through their expectations and desires. Also, make sure their documents (will, trust, beneficiary designations, etc.) reflect those desires and that their financial accounts are properly titled. It may be appropriate to have an estate planning attorney be part of that conversation.

It Is Easy to Overlook Important Requirements. For states like Pennsylvania that require payment of inheritance tax, filing the tax return can be easy to overlook if no estate is opened. It is not very difficult to avoid probate if a person plans carefully, but after the second spouse dies (and even sometimes at the death of the first one) an inheritance tax return is often required in Pennsylvania (and some other states). This is true even if no estate is opened. The failure to file will likely be noticed by the Department of Revenue at some point, and filing late often results in interest and penalties. Also, estate administration procedures in all states generally require doing things that the average person simply can’t be expected to know about, such as providing notices to beneficiaries, creditors, and certain government entities. What executors don’t know can come back to bite them because they can be held personally liable for mistakes in how an estate is handled.

It Pays to Seek Out Good Counsel. It is valid for executors to be concerned about the cost of having an attorney assist with administering an estate. Depending how an estate attorney charges, and the size and complexity of the estate, the bill can be sizable. But trying to settle an estate without at least some level of professional help is simply not an option for most people. Rather than risking mistakes or oversights that will cost even more to correct, if you are an executor you should seek professional help (usually an attorney) to ensure that things are handled correctly and that all exemptions and deductions are taken.

An executor does not need to use the attorney that drafted the will! This is a big misconception people have, and often it keeps them from shopping around for a competent and reasonably-priced attorney. This makes it too easy for attorneys who prepare a will to charge high fees when settling the person’s estate. Make sure that you talk about fees before hiring an attorney to do anything, but especially when asking for help to settle an estate. Fees can vary widely between attorneys so it is worth your time to ask. Often attorneys will charge the estate a percentage of the estate’s assets (this is permitted in many states, but it can result in unreasonably high fees). Some will charge a flat rate based on the estimated time required to settle the estate, which allows you to know the cost in advance. Some will charge an hourly rate, but they should at least be able to give you an estimate of the time necessary to do the work. (Because I feel that charging a percentage of an estate is often unfair to the client, I generally charge by the hour or a flat rate when settling estates.)

In conclusion, serving as an executor is an important role and it should be taken seriously. It pays to review plans before death when possible, and it is also important to seek out good counsel to ensure things are handled properly. As Mark learned, “little” oversights can have big consequences down the road.

Nevin Beiler is an attorney licensed to practice law in Pennsylvania (no other states). He practices primarily in the areas of wills & trusts, estate administration, and business law. Nevin is part of the conservative Anabaptist community and is committed to practicing law in a way that builds the Kingdom of God and is consistent with Anabaptist values. His office is in New Holland, PA, and he can be contacted by email at info@beilerlegalservices.com or by phone at 717-287-1688. More information can be found at www.beilerlegalservices.com.

 Disclaimer: This article is general in nature and is not intended to provide specific legal or tax advice. Please contact Nevin or another attorney licensed in your state to discuss your specific legal questions. In order to protect confidentiality and provide a better illustration, names in the above story have been changed and some facts may have been changed or added.

Preface: What executors don’t know can come back to bite them because they can be held personally liable for mistakes in how an estate is handled.

A Lesson Learned By An Executor—The Hard Way (Segment II)

Mark wanted to be fair and do the right thing, so when he received the money from the checking account and his share of the investment account, he gave all that money to his siblings. That left only the farm, which was supposed to be transferred to Mark. Mark wondered if he should file the will at the courthouse and open a probate estate for his mother. But he wasn’t sure how to handle all of steps of opening and closing an estate, and he had always heard that probate should be avoided because estate attorneys could be very expensive.

 As with many things in life, “a little later” can be a long time. About six years later, Mark was beginning to think about transferring the farm to his oldest son.

He had given all of the cash he received from his mother’s accounts to his siblings, and he didn’t like the idea of borrowing money or asking his siblings for money to pay an attorney to help settle the estate. Also, he didn’t see why it was necessary since all of his mother’s accounts had been distributed, and all his siblings agreed that the farm was his. He knew that at some point he should update the deed to the farm, but decided that he would take care of that “a little later.”

This was an unpleasant surprise for Mark. When his dad passed away there was no need to open an estate or file in inheritance tax return because Mark’s mother and father had owned all their assets jointly,

 As with many things in life, “a little later” can be a long time. About six years later, Mark was beginning to think about transferring the farm to his oldest son. He remembered that the deed to the farm was still in the names of his parents and decided that it was past time to deal with that issue. He contacted an attorney to draft a new deed for him, but the attorney said that to transfer the property into Mark’s name they would need to open a probate estate and have Mark appointed as the executor so that he would have legal authority to transfer the deed. Furthermore, the attorney informed Mark that an inheritance tax return should have been filed when his mother passed away.

But unfortunately, transferring the farm into Mark’s name would require a probate proceeding, and all of his mother’s assets were subject to inheritance tax when she died.

This was an unpleasant surprise for Mark. When his dad passed away there was no need to open an estate or file in inheritance tax return because Mark’s mother and father had owned all their assets jointly, and joint assets of spouses are generally not reportable for Pennsylvania inheritance tax purposes when the first spouse dies. But unfortunately, transferring the farm into Mark’s name would require a probate proceeding, and all of his mother’s assets were subject to inheritance tax when she died.

If that information wasn’t bad enough, Mark’s attorney told him that if he had properly filed an inheritance tax return by the original due date (nine months after his mother died), he could have claimed a specific exemption from paying inheritance tax on the farm, which would have saved him 4.5% of the value of the farm. Now, the Pennsylvania Department of Revenue would require him to pay that tax on the value of the farm, in addition to requiring his siblings to pay tax on the $350,000 that they had received. And not just 4.5% tax on those assets, but tax, penalties, and interest!

 Disclaimer: This article is general in nature and is not intended to provide specific legal or tax advice. Please contact Nevin or another attorney licensed in your state to discuss your specific legal questions. In order to protect confidentiality and provide a better illustration, names in the above story have been changed and some facts may have been changed or added.

Preface: If you know you are named as an executor for someone, consider sitting down with them while they are still alive to talk through their expectations and desires.

A Lesson Learned By An Executor—The Hard Way

Credit: Nevin Beiler, Attorney

In this article I will tell you the story of Mark, who was named as the executor for his deceased mother. This story is inspired by various true life accounts, but it (like all of my written stories) has been changed and adapted to protect people’s confidentiality and to provide a better lesson to learn from.

Mark was the oldest of six children. His parents were dairy farmers all their lives. When Mark came of age and got married he stayed on the family farm and helped his father. He also worked away some to help pay the bills. His father passed away unexpectedly when Mark was 48 years old, and Mark began working full time on the farm. Mark’s father and mother owned everything jointly, so when Mark’s father died there was no need to open a probate estate or to file in inheritance tax return.

The family discussed having Mark purchase the farm before their mother died. However, they decided as a family that to avoid disruption during their mother’s life, and to avoid capital gains tax, the farm transfer should wait until their mother died.

Mark’s mother continued to own and live on the farm for the next 5 years, and she drew an income from the farm. Mark eventually purchased all of the equipment and cows, but not the real estate. Mark and his wife also provided a significant amount of care for his mother in the later years of her life, which saved her from needing to enter a nursing home. The family discussed having Mark purchase the farm before their mother died. However, they decided as a family that to avoid disruption during their mother’s life, and to avoid capital gains tax, the farm transfer should wait until their mother died. Later, Mark’s mother and siblings also all agreed that since Mark had worked on the farm all his life and provided extensive care for his mother that he should receive the farm for a very low price, or perhaps for free.

When Mark’s mother died she owned two assets in addition to the farm: (1) an investment account with a balance of about $300,000 and (2) a checking account containing about $50,000. The investment account had a transfer-on-death designation that left the account equally to her six children. Her checking account contained an “In Trust For” (ITF) designation naming Mark as the beneficiary of the account. This meant that the bank was supposed transfer the checking account directly to Mark after his mother’s death (this is sometimes done so an account can avoid probate). Mark’s mother left a will naming Mark as the executor and stating that the farm should be given to Mark. The will also stated that all her other assets should be split equally among her other five children (not including Mark).

Mark recognized that the will and the way his mother’s financial accounts were titled contradicted each other. The will indicated that, because he was receiving the farm for free, only the other five children should get the investment account. However, the transfer-on-death instructions on the investment account gave him 1/6^th of the account. Also, the will indicated that the other five children should equally share the checking account, but the bank told him that all the money in the account was legally his because it was titled “In Trust For” his benefit. (In cases like these, how accounts are titled and their transfer-on-death instructions or beneficiary designations override the directions of a person’s will.)

To be continued….

 Disclaimer: This article is general in nature and is not intended to provide specific legal or tax advice. Please contact Nevin or another attorney licensed in your state to discuss your specific legal questions. In order to protect confidentiality and provide a better illustration, names in the above story have been changed and some facts may have been changed or added.

Preface: “How do we value all that obsolete inventory and keep on track with our earnings guidance? No worries, we can value it at a fair price and call it ‘collectors edition’ stock.” — From a business ethics discussion.

Valuing your Business – A Calculation of Value or Conclusion of Value  Valuation 

Credit: Donald J. Sauder, CPA | CVA (2015)

Business valuation is a complex field with multiple aspects in the determination of a business interest’s value. Whether you’re selling a business, buying a business interest, involved in court actions, estate planning, or filing gift taxes, a business valuator can assist you in achieving a realistic and fair valuation.

There are two types of business valuations – a conclusion of value and calculation of value.

A conclusion of value or full valuation begins when a client and valuation analyst determine the valuation approach with an engagement letter. This letter outlines the extent of the valuation with a full report according to the professional standards of the business valuations.

For a CPA certified in business valuation this would be the standards set for by the American Institute of Certified Public Accountants (AICPA). Individual appraisal organizations have their own set of professional standards. An AICPA valuation includes a client request to value a business interest, and an estimate in value according to Statements on Standards for Valuation Services No. 1, The valuation applies any needed valuation methodology as prescribed by the valuator. The valuator then publishes a conclusion of value report. A full valuation report could exceed 45 pages with defensible proofs for the determined value of the business.

A calculation of value is much more limited in scope and nature and does not require any specific methodology beyond those agreed to by the valuator and client. So a calculation of value could overlook important characteristics in valuing your business accurately. With a calculation of value, a detailed value report, providing more depth on valuation numerics, is not prepared. A calculation of value is performed with only an agreement between the valuator and client on the methodology and procedures performed on the business interest, a calculation of the business value according to the agreed upon procedures, and an opinion provided by the valuator to the client on the calculated value, such as a verbal report.

Because of the savings in cost, a calculation of value may be adequate in some instances for determining a business value, depending on why the client needs the valuation.

Calculations of value are less expensive than a comprehensive conclusion of value, but you should have an experienced business valuator advise you on what valuation option will work for your business. The thoroughness of a valuation requires that you provide the valuator with all relevant documents and financial statements to determine an accurate value for your business.

If financial statements are deficient or records inadequate, you may need to choose a calculation of value because the necessary records are not available for a conclusion of value report. Yet, with a full valuation report, there is little room for question on the thoroughness of value, and the report will be defensible in more circumstances.

In summary, business valuation is a field where you are well advised to get an expert to work with you in valuing your business interest. You understand the value of hiring an expert to file taxes for business entities; it’s the same with business valuation. If you need a valuation of your business, for a transaction, for giving, or for estate planning, talk with your CPA or attorney to obtain a trusted referral to a valuation expert.

Preface: The SECURE legislation — standing for “Setting Every Community Up for Retirement Enhancement” — puts into place numerous provisions intended to strengthen retirement security across the country.

NEW Tax Legislation Update: The Secure Act Tax Legislation

The Setting Every Community Up for Retirement Enhancement Act– A.K.A. the SECURE Act, has been under tax law construction for approximately three years. The legislation train connected to the increased spending bill to keep the government open for business pulled quietly away from the station in the recent days with new and improved retirement tax saving features.

SECURE Act Highlights:

Employer Credit for New Plan Start-ups: Before the SECURE Act, employers were at liberty to claim a tax credit equal to fifty percent of the start-up costs of a qualified retirement plan for employees, up to a maximum of $500. The SECURE Act increases this new plan credit limit to the greater of  $500 or the lesser of $250 multiplied by the number of non-highly compensated employees eligible to participate in the plan or $5,000.

Required Retirement Plan Minimum Distributions: Under long-standing rules, participants in qualified retirement plans and IRAs were obligated to start taking required minimum distributions in the year following the year they turned age 70½. The SECURE Act pushes up the ceiling on the required minimum distribution age for retirement plan distributions to age 72 from 70½.

Improved 401(k) safe harbor rules: The tax law revision includes changes legislated to give simplicity, and improve employee retirement savings safeguard. One example is the new legislation eliminates the safe harbor notice requirement, while keeping the requirement permitting employees to make or change a 401(k) election at least once a year.

College Student Retirement Benefits: Although non-tuition expenses received by graduate and postdoctoral students didn’t qualify as earned compensation previously, therefore the funds could not be used for IRA contributions. The new tax law includes qualifying these earnings while additionally structuring penalty-free withdrawals of up to $10,000 from 529 education-savings plans for the repayment of qualifying student loans

IRA Age Limits on Contributions: Before the SECURE Act, retirement savers were not permitted to contribute to a traditional IRA once they attained the age of 70½. With the SECURE Act, this restrictive feature has clearer skies potential.

Automatic Retirement Plan Enrollment Credits: To improve employee participation in qualified retirement plans, the new law creates an additional credit of up to $500 per year for businesses that provide new 401(k) and SIMPLE plans with an automatic enrollment feature. This credit is in additional to the start-up cost credit for purposes encouraging employee automatic participation in the qualified retirements plans.

Part-time Workers Inclusion: Before the SECURE Act, small businesses did not need to include part-time workers with less than less than 1,000 payroll hours per year from participating in 401(k) plans. The SECURE Act changes this feature for retirements plans to include all employees who have completed either one year at least 1,000 payroll hours or three consecutive years of at least 500 hours of service.

Family Planning Early Withdrawals: Current tax laws exempt some retirement plan distributions from retirement plans from a 10% tax penalty on early savings withdrawals prior to age 59½. The SECURE Act improves these qualifying withdraws to include qualified child birth or adoption expenses.  The tax law now allows penalty-free withdrawals up to $5,000 from retirement plans for families with either a birth or adoption of a child.

Preface: No one is useless in this world who lightens the burdens of another. – Charles Dickens

Reflections from A Christmas Carol

It begins with credit. What does it end with but credit? It is well said that “Animals do not worry about money, only People worry about money.” Charles Dickens’s financial woes in 1843 were no doubt somewhat discouraging to the young thirty-one-year-old father and, he like a few today, was worried about money. Having recently relocated to a more spacious and higher maintenance residence to provide for his growing family of five children, money was tight, and his debt was growing. With a lack of responsible budgeting, i.e., Charles was failing to live with-in his means; the stress was multiplied with dear relatives asking him for money.

With his two recent novels resulting in lackluster sales, his publishers had cut his royalty payments, and he was strapped for cash. The stakes were high, and the financial pressures were growing. Charles Dickens that year may have perceived the Christmas Holiday Season in the following quote “What’s Christmas time to you but a time for paying bills without money; a time for finding yourself a year older, but not an hour richer?” The famous book A Christmas Carol was “A Miracle of Christmas” for the young author, which has been adapted as literary work shaping the meaning of the Holiday Season for dozens of decades following.

Today, many have no appreciation of the happiness in avoiding the debtor’s prison, that Charles Dickens knew too well. He was scarred from the childhood trauma from being pulled from school and forced to work in boot-blacking factory, to help his father in Marshalsea debtors prison. It was a burning memory for the young Dickens, and his book describes the brutal terrors of failing on debt payments in that era.

On the contrast, Mr. Scrooges’ journey from an innocent student to the kind Mr. Fezziwig’s office and then onward to the stingy miser, was perhaps or perhaps not a matter of chance. Whether it’s the saddest part of the story or not, Mr. Scrooges likely began his career with good or maybe great intentions, but his decision to remain silent when told to be happy with the life he had chosen, was the moment he realized his incremental steps forward ultimately towards eating porridge for Christmas dinner in a room lit with one candle.

Formally stated, Newton’s third law is: For every action, there is an equal and opposite reaction. The statement means that in every interaction, there is a pair of forces acting on the two interacting objects.

Newton’s law may perhaps be true of Mr. Scrooges’ business partner Mr. Marley. From Mr. Marley’s perspective, the common welfare was not his business interest or practice. He strongly encouraged Mr. Scrooge to amend his ways. And then there was also Newton’s law for Mr. Cratchit. Never allowed to put more coal on the fire to keep warm while at work, while being paid 15 shillings a week, while just caring for his family was enough. Finally, the big turkey arrived from Mr. Scrooge on Christmas Day.

No one is useless in this world who lightens the burdens of another. – Charles Dickens.

Mr. Marley was in fantasy land, pulling a chain of heavy bank boxes, as well as with his opportunity to redeem his time. Mr. Scrooge was too. We are not. Whether you feel like Charles Dickens, The Cratchit Family, nephew Fred, Mr. Scrooge, or Mr. Fezziwig say, this Holiday Season, let us genuinely remember Mr. Scrooges words “I will honor Christmas in my heart, and try to keep it all the year.” 

And to our readers, we quote the honorable Tiny Tim, “God bless ‘em, everyone” and Merry Christmas!

Giving with Trusts, Foundations and Donor-Advised Funds

Credit: Douglas A. Smith

Recent federal tax law changes pertaining to itemized deductions have caused many people to rethink how they make charitable gifts. With the increased standard deduction, far fewer taxpayers will itemize, which means that small charitable contributions may not create the tax benefit the donor anticipated. At the same time, many charitably inclined people want to go beyond simply making small annual gifts to their favorite charities, preferring instead to make more substantial gifts during life rather than under a Will so that they can appreciate and enjoy how the charity utilizes the benefits. The good news is that there are several charitable giving techniques available that address both of these issues:

Charitable Trusts, Private Foundations, and Donor-Advised Funds.

Doug practices in the areas of estate planning, estate administration, nonprofit organizations, business formation and succession planning, and tax law.

In addition to drafting wills and trusts for estate planning clients, Doug has experience structuring charitable gifts and planning for tax-deferred retirement plan distributions.  He also assists nonprofit organizations in obtaining and preserving tax exempt status and helps reinstate nonprofits that have had their exempt status revoked. Doug works with business clients from startup through succession, providing advice on choice of entity, preparing trusts and buy-sell agreements, and structuring business transactions.