EQUITABLE DISTRIBUTION - VALUATION

LAW & VALUATION

WAKE FOREST UNIVERSITY LAW SCHOOL

April 14, 2004

A. Doyle Early, Jr.

Standard of Value for Equitable Distribution

in North Carolina?

A. Fair Market Value - Poore v. Poore (1985)

B. Investment Value

C. Intrinsic Value - Fountain v. Fountain (2002)

D. Fair Value - Hamby v. Hamby (2001)

Royals v. Piedmont Electric

E. Going Concerns Value

F. Liquidation Value

G. Book Value/Adjusted Book Value

H. Net Value - Beightol v. Beightol (1988)

Fair Market Value

Rev. Ruling 59-60

The price at which property would change hands between a willing buyer and a willing seller, when the former is not under any compulsions to buy and the latter is not under any compulsions to sell, both parties having reasonable knowledge of relevant facts.

Carlson v. Carlson (1997)

Valuing Stock Options

1. Intrinsic Value - Fountain v. Fountain (2002)

2. Black Scholes Method

Valuing Closely Held Corporations and Professional Practices

“Further, in reviewing the trial court’s valuation of an ongoing business or an interest therein for purposes of equitable distribution, the task of the appellate court is to determine whether the approach used by the trial court reasonably approximates the net value of the business interest…. If it does, the valuation will not be disturbed.”

If no credible evidence is presented as to value of business, the court does not have to value it. Grasty v. Grasty (1997)

Factors to be Considered under Revenue Ruling 59-60

1. The nature of the business and the history of the enterprise from its inception.

2. The economic outlook in general and the condition and outlook of the specific industry in particular.

3. The book value of the stock and the financial condition of the business.

4. The earning capacity of the company.

5. The dividend paying capacity.

6. Whether or not the enterprise has goodwill or other intangible value.

7. Sales of the stock and the size of the block of the stock to be valued.

8. The market price of stocks of corporations engaged in the same or similar line of business having their stocks actively traded in the free and open market, either on an exchange or over the counter.

Approaches to Valuation

1. Income Approach

A. Capitalization of Earnings

B. Capitalization of Discounted Cash Flow

C. Capitalization of Discounted Net Income

2. Asset Based Approach

A. Adjusted Book Value

B. Liquidation Value

C. Capitalization of Excess Earnings (Rev. Ruling 68-609)

3. Market Comparable Approach

A. Sales of Comparable Companies

B. Arms-Length Transactions

C. Prior Sales of Company Stock

D. Consideration of Restrictive Agreement (Buy-Sell) - Fox v. Fox (1991)

E. Use of Industry Standard Approaches (Rules of Thumb) - Smith v. Smith (1993)

4. Trial Court is permitted to average the approaches utilized by the experts - Sharp v. Sharp (1994)

5. To Challenge methodology, the party must object to the admissibility of the evidence - Walter v. Walter (2002)

Capitalization of Excess Earnings (Revenue Ruling 68-609)

1. Average Earnings Normalized $ 50,000.00

2. Average Tangible Assets 200,000.00

3. Fair Percentage Return (10%) 20,000.00

4. Average Earnings Attributable to

Goodwill or Excess Earnings (1. - 3.) 30,000.00

5. Capitalized Averaged Earnings

Attributable to Goodwill at 20%

(Multiply by 5 to get the value of

Goodwill) 150,000.00

6. Add 2. And 5. For Total Business Value $350,000.00

Capitalization Rates1. The rate used to convert income into an asset.

2. Determine the discount rate, which represents the total annually compounded rate of return the investor requires over the life of the investment.

3. Capitalization rate is discount rate minus long term growth. C = D - g

4. A capitalization rate reflects risk.

5. A capitalization rate may be expressed in a percentage or a multiple (I.e., a 25% capitalization rate results in a multiple of 4).

6. Capitalization rate equates to P.E. (Price Earnings Ratio)

7. Court can choose it’s own capitalization rate - Smith v. Smith (1994)

Build-Up Method1. Risk-free, long-term (20 yr.) government

bond rate 7.30%

2. Equity (common stock) risk premium 7.40%

3. Small company risk premium 5.10%

4. Specific company risk premium 8.00%

(Determined by appraiser)

5. Discount rate 27.80%

Less long-term growth of - 5.00%

Equals Capitalization rate of 22.80%

Example of Weighted Value

Year Net Income Weight Weighted Net Income

1985 $ 95,000 1 $ 95,000

1986 $102,000 2 $ 204,000

1987 $115,000 3 $ 345,000

1988 $140,000 4 $ 560,000

1989 $154,000 5 $ 770,000

Total $606,000 15 $1,974,000

$1,974,000 ÷ 15 = $131,600

Discounts or Premiums

A. Minority Interest Discount v. Control Premium

B. Lack of Marketability Discount (Liquidity)

C. Discount for Loss of Key Man

D. Discount for Trapped-In Capital Gains - Davis v. Commissioner (Discount allowed for trapped-in capital gains although there was no sale or contemplated sale of the asset on the date of separation.)

E. But…Dolan v. Dolan (2002) - the value of commercial real estate should not be adjusted for capital gains distribution did not

contemplate an immediate sale

F. Clark v. Clark (1980) - Alimony

G. Shannon Pratt

The Trial Judge as Gatekeeper for Expert Testimony

1. Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993)

Scientific testimony

2. Kumho Tire Co. v. Patrick Carmichael (1999)

Expanded to technical or other specialized testimony

3. Howerton v. Arai (2003)

Danbert applied in N.C.

4. Walter v. Walter (2002)

Applies to valuation methodology if there is objections

5. Rule 702 - “If scientific, technical or other specialized knowledge will assist the trier of fact… a witness qualified as an expert… may testify hereto in the form of an opinion.”

The Trial Judge as Gatekeeper for Expert Testimony

6. Questions for the trial judge:

A. Whether testimony is based on scientifically valid reasoning or methodology

B. Whether the reasoning or methodology can properly be applied to the facts at issue

7. Factors to consider in determining admissibility:

A. Whether theory or technique can be and has been tested

B. Whether it has been subjected to peer review and publication

C. The known or potential rate of error

D. Whether the theory or technique has achieved general acceptance in the relevant field