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BV News and Trends March 2023

A monthly roundup of key developments of interest to business valuation experts.

BVResearch Pro adds another issue of the ASA’s BV Review

Among many other resources, the BVResearch Pro platform contains the full archive of the Business Valuation Review going back to 1982.

The NICE Method Theory and Application

The Nonmarketable Investment Company Evaluation (NICE) Method, a valuation method under the Income Approach to value, determines the fair market value of noncontrolling equity interests in closely held investment entities such as family limited partnerships.1 In this paper I describe the theory of the method and the mechanics of its application in a valuation model. Recently, I have developed the Excel-based NICE-R Model, which is designed to be a transparent and user-friendly valuation tool.2 Finally ...

Absent a goodwill analysis, the court does its own

In a Tennessee divorce case involving the husband’s plastic surgery practice, neither valuation expert did an analysis that separated enterprise and personal goodwill.

Chase v. Chase

On appeal, the husband asked the court to review whether the wife needed alimony given the assets she otherwise received in the equitable distribution and her earning capacity as a pharmacist, whether an award of rehabilitative alimony and alimony in futuro by the trial court was appropriate, and whether the trial court’s valuation of the husband’s medical practice was in error. The appellate court affirmed the trial court in all aspects reviewed and did not award legal fees to either party.

Tennessee Appeals Court Affirms Trial Court Decision on Spousal Support and on the Value of Husband’s Medical Practice

On appeal, the husband asked the court to review whether the wife needed alimony given the assets she otherwise received in the equitable distribution and her earning capacity as a pharmacist, whether an award of rehabilitative alimony and alimony in futuro by the trial court was appropriate, and whether the trial court’s valuation of the husband’s medical practice was in error. The appellate court affirmed the trial court in all aspects reviewed and did not award legal fees to either party.

Manbro Energy Corp. v. Chatterjee Advisors, LLC

The primary focus of this case was cross-motions for summary judgment on issues dealing with fiduciary duty and implied covenant of good faith and fair dealing. A final issue, of importance to valuation experts, was a motion to exclude the testimony of the plaintiff’s valuation expert, which the court denied.

U.S. District Court (New York) Denies Motion to Exclude Expert Witness

The primary focus of this case was cross-motions for summary judgment on issues dealing with fiduciary duty and implied covenant of good faith and fair dealing. A final issue, of importance to valuation experts, was a motion to exclude the testimony of the plaintiff’s valuation expert, which the court denied.

Court tweaks blue-sky method in valuing a car dealer

A Tennessee appellate court recently considered the Chancery Court’s determination of the value of an oppressed minority shareholder’s interest in an “ultra-high-end” car dealership.

Buckley v. Carlock

The Tennessee appellate court affirmed the Chancery Court’s determination of the value of an oppressed minority shareholder’s interest in an “ultra-high-end” car dealership. The valuation of an expert utilized the “blue sky method,” a rule of thumb method, to value the dealership and ultimately the minority interest. The Chancery Court conducted a hearing on which it heard valuation expert testimony. The appellate court affirmed the Chancery Court’s valuation and its methodology since it was generally accepted by the financial community.

Appellate Court Affirms Use of the ‘Blue Sky Method,’ a Rule of Thumb, to Value a Minority Interest in an Oppression Case

The Tennessee appellate court affirmed the Chancery Court’s determination of the value of an oppressed minority shareholder’s interest in an “ultra-high-end” car dealership. The valuation of an expert utilized the “blue sky method,” a rule of thumb method, to value the dealership and ultimately the minority interest. The Chancery Court conducted a hearing on which it heard valuation expert testimony. The appellate court affirmed the Chancery Court’s valuation and its methodology since it was generally accepted by the financial community.

Pourmoradi v. Gabbai

This California appellate case reviewed the trial court’s decision that discounts for lack of control and lack of marketability were not appropriate in determining the value to be paid to the plaintiffs in this corporate dissolution case where the remaining 50% owners exercised their right to purchase the plaintiff’s 50% interest in the LLC.

California Appellate Court Remands for Application of Trial Court of Wrong Standard of Value Denying Discounts

This California appellate case reviewed the trial court’s decision that discounts for lack of control and lack of marketability were not appropriate in determining the value to be paid to the plaintiffs in this corporate dissolution case where the remaining 50% owners exercised their right to purchase the plaintiff’s 50% interest in the LLC.

Recap of recent BV cases of note

A number of recent cases have emerged that contain various valuation issues.

Iowa Supreme Court Allows Reduction in Value for Transaction Costs but Refuses to Allow a Reduction for Built-In Capital Gains Tax

This case was decided, on appeal, under the Iowa “election-to-purchase-in-lieu-of-dissolution statute.” The Iowa Supreme Court decided that, because the parties’ experts had “both included transaction costs in their valuations under a net asset approach, the district court’s failure to reduce the asset values to account for the costs to liquidate the corporation’s assets warranted reversal.” Additionally, since there was no evidence of an intention to liquidate the company or its assets, the court declined to adjust for the built-in gains tax consequences urged by the majority shareholder.

Guge v. Kassel Enters.

This case was decided, on appeal, under the Iowa “election-to-purchase-in-lieu-of-dissolution statute.” The court decided that, because the parties’ experts had “both included transaction costs in their valuations under a net asset approach, the district court’s failure to reduce the asset values to account for the costs to liquidate the corporation’s assets warranted reversal.” Additionally, since there was no evidence of an intention to liquidate the company or its assets, the court declined to adjust for the built-in gains tax consequences urged by the majority shareholder.

Court of Chancery sanctions use of asset approach in complex appraisal case

A low-profile appraisal case in front of the Delaware Court of Chancery raised important valuation questions, including how the court should determine the fair value of a nonoperating entity and how it should deal with the value of claims both parties brought on behalf of the company prior to the contested merger.

In re Happy Child World, Inc.

In an entire-fairness-cum-statutory-appraisal case involving nonoperating day care center whose facility was leased on merger date, court approves use of capitalization of earnings and NAV models and averaging results to determine fair value; business model was uncertain on merger date, court notes.

Uncertain Business Model on Merger Date Justifies Use of Income and NAV Models, Court Says

In an entire-fairness-cum-statutory-appraisal case involving nonoperating day care center whose facility was leased on merger date, court approves use of capitalization of earnings and NAV models and averaging results to determine fair value; business model was uncertain on merger date, court notes.

Henley Mining v. Parton

In statutory appraisal case, court denies summary judgment motion arguing opposing expert’s valuation fails to meet legal definition of fair value, i.e., “the value of the company as a whole and as a going concern”; court says controlling case law does not preclude use of net asset value method.

Fair Value Standard Does Not Preclude Use of Net Asset Approach, Court Affirms

In statutory appraisal case, court denies summary judgment motion arguing opposing expert’s valuation fails to meet legal definition of fair value, i.e., “the value of the company as a whole and as a going concern”; court says controlling case law does not preclude use of net asset value method.

Landmark Jones case featured in upcoming workshop

“Read the Jones case,” an IRS official said when asked about the position the IRS is taking on tax affecting pass-through entities.

On double-dip issue, Ohio appeals court agrees with Gallo analysis

A recent Ohio appeals court decision expressly agreed with its sister court’s 2015 ruling in Gallo that state law does not prohibit double dipping but does require the trial court to avoid unfairness in distributing marital assets and determining spousal support.

Ohio Court Affirms Facts of Case Don’t Require ‘Double-Dipping Offset’

Ohio appeals court upholds trial court’s spousal support determination based on husband’s average, rather than normalized, income, finding “equity did not require a double-dipping offset”; court agrees with sister court’s ruling in Gallo that applicable statute does not prohibit double dipping.

Kim v. Kim

Ohio appeals court upholds trial court’s spousal support determination based on husband’s average, rather than normalized, income, finding “equity did not require a double-dipping offset”; court agrees with sister court’s ruling in Gallo that applicable statute does not prohibit double dipping.

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