Chancery Court Determines Value of Shares by Applying Average of GPCM and DCF Methodologies
In a long and complex opinion, the Delaware Court of Chancery determined the value per share of stock in a former stockholder’s appraisal action. The per-share value was reached by ascribing equal weight to adjusted versions of the comparable companies analysis (GPCM) the stockholder advanced and the discounted cash flow analysis the company advanced. The other methodologies were rejected. The use of the GPCM represented the first use of that method in some years.
HBK Master Fund L.P. v. Pivotal Software, Inc.
In a long and complex opinion, the Delaware Court of Chancery determined the value per share of stock in a former stockholder’s appraisal action. The per-share value was reached by ascribing equal weight to adjusted versions of the comparable companies analysis (GPCM) the stockholder advanced and the discounted cash flow analysis the company advanced. The other methodologies were rejected. The use of the GPCM represented the first use of that method in some years.
Tax Court (Grudgingly) Allows Tax Affecting Under the SEAM Method
This was a gift tax valuation case the U.S. Tax Court decided. Gifts of minority interests in The Biltmore Co. were made from the its shareholders, the Cecils, to their children and grandchildren. The IRS audited the gift tax returns and assessed deficiencies for reporting too low fair market values of the gifts of The Biltmore Co. stock. Both sides presented experts to value the gifted interests. The experts agreed that the cash flows should be tax affected. The court accepted the tax affecting while allowing that it was not an admission by the Tax Court that tax affecting should apply in all cases. The Tax Court made changes to the values presented and cobbled together a final value that resulted in refunds to the taxpayers/petitioners.
Estate of Cecil v. Comm’r
This was a gift tax valuation case the U.S. Tax Court decided. Gifts of minority interests in The Biltmore Co. were made from the its shareholders, the Cecils, to their children and grandchildren. The IRS audited the gift tax returns and assessed deficiencies for reporting too low fair market values of the gifts of The Biltmore Co. stock. Both sides presented experts to value the gifted interests. The experts agreed that the cash flows should be tax affected. The court accepted the tax affecting while allowing that it was not an admission by the Tax Court that tax affecting should apply in all cases. The Tax Court made changes to the values presented and cobbled together a final value that resulted in refunds to the taxpayers/petitioners.
Court sets fair value of 50% interest in realty firm
In Connecticut, a real estate firm had a shareholder agreement that allowed for an independent appraisal if one of the owners wanted out.
Delaware Chancery Court Cites Differences in Cash-Flow Assumptions as Cause for Large Discrepancy in Value
In this appraisal action to determine fair value, petitioner Ramcell Inc. exercised its appraisal rights in asking for a statutory appraisal of the value of its 155 shares of Jackson Cellular Telephone Co. Inc. The respondent, Alltel Corp. (dba Verizon Wireless), had converted the 155 shares at a value of $2,963 per share. “Respondent’s expert opines that Jackson’s per-share value was $5,690.92 at the time of the merger. Petitioner’s expert has offered two appraisal ranges, opining that, at the high end, Jackson’s per-share value was $36,016 on the merger date.” Both parties agreed that the DCF method should be the sole method for determining the value. The Delaware Chancery Court, using that method, determined the fair value of each share at $11,464.57. The court noted that the disparity in the parties’ valuations was due to disagreements as to the inputs to the DCF model and how they should be calculated.
Ramcell, Inc. v. Alltel Corp.
In this appraisal action to determine fair value, petitioner Ramcell Inc. exercised its appraisal rights in asking for a statutory appraisal of the value of its 155 shares of Jackson Cellular Telephone Co. Inc. The respondent, Alltel Corp. (dba Verizon Wireless), had converted the 155 shares at a value of $2,963 per share. “Respondent’s expert opines that Jackson’s per-share value was $5,690.92 at the time of the merger. Petitioner’s expert has offered two appraisal ranges, opining that, at the high end, Jackson’s per-share value was $36,016 on the merger date.” Both parties agreed that the DCF method should be the sole method for determining the value. The Delaware Chancery Court, using that method, determined the fair value of each share at $11,464.57. The court noted that the disparity in the parties’ valuations was due to disagreements as to the inputs to the DCF model and how they should be calculated.
Buccieri v. New Hope Realty, Inc.
This case arose out of a dispute between the surviving family and a trustee of the founders of New Hope Realty Inc. The parties could not agree on the management and operations of New Hope Realty. On July 7, 2020, a dissolution proceeding was commenced. The defendants elected to purchase the plaintiffs’ shares. Subsequently, the parties could not agree as to the fair value of the plaintiffs’ interest. The plaintiffs asked the court to determine the value. The court held hearings including testimony from expert witnesses from both parties and determined the fair value.
Court Determines Fair Value of 50% Interest in Real Estate Company—Parties Could Not Agree on Value
This case arose out of a dispute between the surviving family and a trustee of the founders of New Hope Realty Inc. The parties could not agree on the management and operations of New Hope Realty. On July 7, 2020, a dissolution proceeding was commenced. The defendants elected to purchase the plaintiffs’ shares. Subsequently, the parties could not agree as to the fair value of the plaintiffs’ interest. The plaintiffs asked the court to determine the value. The court held hearings including testimony from expert witnesses from both parties and determined the fair value.
Champions Retreat Golf Founders, LLC v. Comm’r
The Tax Court, on remand from the 11th Circuit, which decided that the taxpayer was entitled to a charitable donation for donation of a conservation easement, now valued that interest to determine the amount of the donation deduction. Both parties presented valuation opinions from expert appraisers. The Tax Court determined that the highest and best use of the property before and after the grant of the easement was the key to the determination of the value of the easement. The Tax Court then analyzed the evidence from the expert appraisals to arrive at a value of the easement.
On Remand, the Tax Court Determines the Value of a Conservation Easement From a Golf Course
The Tax Court, on remand from the 11th Circuit, which decided that the taxpayer was entitled to a charitable donation for donation of a conservation easement, now valued that interest to determine the amount of the donation deduction. Both parties presented valuation opinions from expert appraisers. The Tax Court determined that the highest and best use of the property before and after the grant of the easement was the key to the determination of the value of the easement. The Tax Court then analyzed the evidence from the expert appraisals to arrive at a value of the easement.
Xodus Med. v. Prime Med. (I)
This was a patent infringement case related to technology "related to patient slippage within the context of the Trendelenburg position for surgery—when using a viscoelastic foam." Justin Blok was the defendants’ damages expert. The plaintiffs sought to exclude Blok’s testimony on the reasonable royalty because they contended he used unreliable and irrelevant documents to support his opinion. The defendants argued, and the court agreed, that Blok’s opinions go to the weight and not to the admissibility of his opinions.
Court Denies Plaintiffs’ Motion to Exclude Expert Testimony—The Subject of the Testimony Goes to the Weight and Not the Admissibility
This was a patent infringement case related to technology "related to patient slippage within the context of the Trendelenburg position for surgery—when using a viscoelastic foam." Justin Blok was the defendants’ damages expert. The plaintiffs sought to exclude Blok’s testimony on the reasonable royalty because they contended he used unreliable and irrelevant documents to support his opinion. The defendants argued, and the court agreed, that Blok’s opinions go to the weight and not to the admissibility of his opinions.
Gift and Estate Tax Valuation Update
Join Barry Sziklay for important 2021 income and transfer tax valuation cases as well as the valuation aspects of the adequate disclosure regulations required to report a gift for federal transfer tax purposes and start the statute of limitations running. Internal Revenue Code (IRC) Chapter 14 valuations, Special Valuation Rules §§ 2701-2704, will be addressed in a summary fashion given the complexities of the rules required for a valuation to meet the requirements of Chapter ...
Federal Circuit explains concept of ‘built-in’ apportionment
The Federal Circuit, in ruling on a patent infringement case involving two major pharmaceutical companies, recently clarified the apportionment requirement.
Delaware court weighs in on goodwill in sole proprietorships
A recent divorce case out of Delaware is significant for addressing the treatment of goodwill where the business is a sole proprietorship.
Sufficiently Comparable License Obviates Further Apportionment for Reasonable Royalty
Federal Circuit affirms plaintiff’s damages theory that relies on sufficiently comparable license to calculate reasonable royalty; court says there is an assumption that apportionment was built into negotiations for comparable license, obviating need for further apportionment in instant case.
Vectura v. GlaxoSmithKline LLC
Federal Circuit affirms plaintiff’s damages theory that relies on sufficiently comparable license to calculate reasonable royalty; court says there is an assumption that apportionment was built into negotiations for comparable license, obviating need for further apportionment in instant case.
Coca-Cola Co. v. Comm'r
Coca-Cola had been applying a transfer pricing method called the 10-50-50 since it entered into a closing agreement with the IRS in 198, covering the years 1987 to 1995. Coca-Cola had consistently followed that transfer pricing method; the IRS had audited Coca-Cola annually and “signed off” on that transfer pricing method for over a decade. Upon examination of Coca-Cola’s tax returns for 2007 to 2009, the IRS determined that Coca-Cola’s transfer pricing methodology did not reflect arm’s-length norms because it overcompensated the supply point and undercompensated Coca-Cola. The IRS reallocated income between Coca-Cola and its supply points employing the comparable profits method (CPM) pursuant to Reg. Sec. 1.482-5. The IRS increased Coca-Cola’s taxable income by over $9 billion assessing over $3 billion in additional taxes!
2020’s Most Important Transfer Pricing Case—Coca-Cola
Coca-Cola had been applying a transfer pricing method called the 10-50-50 since it entered into a closing agreement with the IRS in 1986, covering the years 1987 to 1995. Coca-Cola had consistently followed that transfer pricing method; the IRS had audited Coca-Cola annually and “signed off” on that transfer pricing method for over a decade. Upon examination of Coca-Cola’s tax returns for 2007 to 2009, the IRS determined that Coca-Cola’s transfer pricing methodology did not reflect arm’s-length norms because it overcompensated the supply point and undercompensated Coca-Cola. The IRS reallocated income between Coca-Cola and its supply points employing the comparable profits method (CPM) pursuant to Reg. Sec. 1.482-5. The IRS increased Coca-Cola’s taxable income by over $9 billion assessing over $3 billion in additional taxes!
American Business Appraisers and BVR Annual Key Issues Update
Every year American Business Appraisers brings together experts from across the country for a frank and practical discussion of the issues impacting business valuation. This year, everyone is invited to four great sessions. Get a current update on the SBA Paycheck Protection Program and the forgiveness application. Adam Rosenfield gives an overview of what the most recent changes to the program are and how that affects clients/future clients. Get guidance on how the loan and ...
A.A. v. B.A.
In valuing owner’s financial advisory business organized as sole proprietorship, court rejects idea that prior case law on goodwill in solely owned business precludes assigning goodwill to business; court says commissions earned during marriage but received post-separation or post-divorce are marital.
Delaware Court Revisits Issue of Goodwill in Sole Proprietorship
In valuing owner’s financial advisory business organized as sole proprietorship, court rejects idea that prior case law on goodwill in solely owned business precludes assigning goodwill to business; court says commissions earned during marriage but received post-separation or post-divorce are marital.
Flaws in North Carolina Court’s Appraisal of Reynolds American
The wrong valuation date, a faulty reliance on other cases and the disregard of projections highlight the court’s opinion in a shareholder dissent case involving two tobacco giants.
In a crunch, court adopts company’s DCF model as fair value indicator
In a statutory appraisal action prompted by the 2016 buyout of minority shareholders by the controller of a private company, the Delaware Court of Chancery recently found there was no meaningful market-based evidence of fair value and neither expert opinion, based on standard valuation methods, was “wholly reliable.”