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Monthly Archives: August 2013

New Law Could Force Structural Changes on Some Florida LLCs by Richard A. Berkowitz

Posted on August 28, 2013 by Richard Berkowitz, JD, CPA

Investors doing business as Florida limited liability companies, or LLCs, need to understand a new state law altering LLC rules and regulations.

 

On June 14, 2013, Florida Gov. Rick Scott signed into law a bill that creates new rules for limited liability companies, applicable to new LLCs formed on or after Jan. 1, 2014, and to all LLCs starting Jan. 1, 2015.

 

Operating agreements that govern LLCs supersede certain requirements of the Florida LLC law. Like similar laws in other states, the LLC law in Florida is known as a “default statute” because it provides standard rules for LLC governance unless the company’s operating agreement overrides them.

 

But in its new incarnation, the state law will have a larger number of mandatory requirements for running LLCs that cannot be waived through an LLC operating agreement.

 

The new law expands from six to sixteen the number of LLC requirements in the statute that will be immune to variation through an LLC operating agreement.

 

This is one reason why the law could force changes in the way some Florida LLCs operate. Law firm Akerman Senterfitt issued an online advisory May 22 calling the new LLC law “a complete re-write” of the ground rules for running a Florida limited liability company.

 

A note to clients issued May 22 by law firm Baker Hostetler cited several examples of how the new law could lead to changes in LLC operating agreements. For example, an effort to alter the right of an LLC member to approve a merger would be unenforceable under the new law, even if members of a limited liability company authorized such action in the company’s operating agreement.

 

Baker Hostetler reported that other unenforceable clauses in LLC operating agreements include those that shield an individual from personal legal liability, alter the ability of a member to terminate his or her membership in an LLC, or change the capacity of an LLC to sue or be sued.

 

The new Florida LLC law could have a widespread impact across the state, forcing many limited liability companies to amend their operating agreements to ensure their terms remain legally enforceable.

 

Their tax benefits and flexible operating structures have made LLCs the business entity of choice for many investors.  The limited liability company is the most popular type of business entity in Florida based on the number of annual new LLC filings. They increased to 169,450 last year from 152,275 the year before and 138,287 in 2010, according to the Florida Department of State.

 

Among active Florida business entities statewide, the most common type is the domestic for-profit corporation. There were 759,931 of them as of March 13, according to the Department of State. The comparable number of LLCs was 706,223, making them the second-most common type of active business entity, well ahead of other types, including limited partnerships and general partnerships.

 

The new Florida LLC law could put this popular form of organizing a business in even greater demand. Among other business-friendly features, the new law will allow a non-U.S. company to operate as a domestic LLC while retaining its status as a foreign entity. “This should promote foreign investment in Florida,” law firm Bilzin Sumberg reported in client alert on its website.

 

Bilzin Sumberg also said in its client alert that the new law allows for two types of managerial structures for LLCs, which can be managed by their members or by one or more managers. Bilzin Sumberg reported that the new state law eliminated a provision in the old law allowing for “a somewhat unique third category of management, the ‘managing member,’ which has caused a great deal of confusion over the years.”

The new state law “should make the use of a Florida LLC more attractive for business owners considering the use of an LLC,” Louis T. M. Conti, a partner in the Tampa office of law firm Holland & Knight, wrote in a recent report on the LLC legislation.

Conti said in a May 21 report on the Holland & Knight website that the new state law modernizes the regulation of Florida limited liability companies by incorporating elements of a model LLC law that other states have embraced.

For example, the new law adopts the language of the model law in clarifying the duty of care that LLC members must exercise in making business judgments. Under the new law, LLC members will have a “duty to refrain from engaging in grossly negligent or reckless conduct, willful or intentional misconduct, or knowing violation of the law,” Conti reported.

But he also warned: “Businesses that are currently LLCs operating in Florida should consult with counsel to determine whether changes to their operating agreements should be made in light of the new LLC act.”

Entrepreneurs and business executives who need assistance navigating the new rules of LLC laws can contact our business consulting practice.

 

 

About the Author: Richard A. Berkowitz JD CPA is CEO of Berkowitz Pollack Brant and leads the firm’s Business Advisory practice. For more information, call (305) 379-7000 or contact info@bpbcpa.com.

 

 

 

 

 

Business Valuation in a Volatile Economy by Sharon Foote

Posted on August 23, 2013 by Scott Bouchner

Valuing a closely held business, even in “normal” economic times, is rarely straightforward given the myriad of internal and external factors that can influence business value.  In a volatile economy it can be even more challenging. 

Despite the last recession officially ending in mid-2009, overall economic growth remains modest.  While the housing market has shown some improvement since the recession ended, unemployment still lingers above pre-recession levels.  Economic growth, although expected to remain positive, could be negatively impacted by government spending cuts and the macro economic issues affecting the U.S.’s trading partners. The implications of a volatile economy on publicly traded companies are immediately visible via the stock market, but what happens to the value of closely held businesses?

It is often said that valuing a business can be as much art as it is science.  In an unstable economy, the “art” part of the process may be even more marked.   Economic conditions can impact each of the three basic approaches to determine the value of a closely-held business:  the income approach, the market approach and the asset approach. 

Income Approach

In applying an income approach, future economic benefits that accrue to shareholders are discounted or capitalized to determine value.  In its simplest terms, for a stable business, the subject company’s future cash flows divided by an appropriate rate of return equals the business’ value, which is known as the Capitalization of Economic Income method. 

In those instances where future earnings are expected to differ materially from historical operations, a Discounted Economic Income approach may be used in which future economic benefits are projected and discounted to back to their present value.  Both methods require the determination of a discount rate or capitalization rate that takes into consideration the time value of money and risk inherent in the projected cash flows.

In volatile economic times, because the past may not be a reliable indication of the future, projected earnings may be impacted by anticipated changes in the economy, the structure of the subject company or its operations.  To the extent that future earnings can be projected with less certainty, the discount rate may also be affected since an investor would likely require a higher rate of return to reflect the increased risk during a volatile economic time.      

Market Approach

When applying the market approach, the business appraiser estimates a company’s value by establishing valuation multiples based upon publicly traded companies (i.e. the Guideline Company method) or acquisitions of closely-held businesses (i.e. the Prior Transactions method) and applying these multiples to the subject company.

The Guideline Company method requires the business appraiser to identify and determine the level of comparability between the privately held subject company and its publicly traded counterparts, and make adjustments to account for differences.  Valuation multiples for public companies, which are often subject to large fluctuations under periods of changing economic conditions, should be taken into consideration by the practitioner.

Publicly traded entities, however, are often too large to be considered sufficiently comparable to closely held companies due to such factors as: depth of management, access to capital, diversification of products and services, customers and vendors as well as other factors.  Consequently, this method is less often utilized when valuing smaller closely-held businesses that lack sufficient comparability to larger publicly traded companies operating in the same industry. 

The Prior Transactions method estimates the value of a business by comparing the subject company to recently sold businesses.  Unlike public markets, valuation multiples have been less likely to fluctuate for privately held companies over time.  Changes in value are more likely to be reflected in a business’s earnings stream due to changes in revenues, profit margins and/or expenses.  Merger and acquisition activity, however, usually falls significantly during a recessionary period, and may result in larger discounts for marketability due to the smaller pool of buyers and sellers in the marketplace.

Asset Approach

The asset approach estimates the market value of the individual assets and liabilities of a business in coming to a value conclusion.  During an economic downturn, a company’s asset values may be lower (cash, accounts receivable, inventory, property, plant and equipment, and others), liabilities may be higher if a business utilizes more debt for working capital, and equity may decrease due to lower earnings, all of which negatively impact business values under an asset approach. 

Although operating companies are traditionally valued utilizing an income or market approach or some combination of the two, in situations where the business being valued has experienced negative cash flows and lacks meaningful comparables in the marketplace, the business appraiser may place greater weight on the asset approach.

The residual effects of a volatile economy on the value of a privately held business come from many factors.  Even in challenging economic times, however, owners of closely held businesses that have shown some decline in value may be able to take advantage of tax savings opportunities by transferring a larger share of closely held business interests to future generations.

If you or your clients contemplate making such a gift or sale of an interest in a privately-held business, now may be an excellent time to do so.  BPB and PWA are ready to help you.

 

About the Author: Sharon F. Foote ASA CFE is a manager in the Forensics and Business Valuation Services practice of Berkowitz Pollack Brant. For more information, call (305) 379-7000 or e-mail sfoote@bpbcpa.com.

 

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Posted on August 20, 2013 by Richard Berkowitz, JD, CPA

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Commercial Insurance Recoveries from Hurricanes and Other Disasters by Daniel S. Hughes

Posted on August 16, 2013 by Daniel Hughes

Hurricanes are one of the most significant environmental catastrophes that threaten the state of Florida, the Gulf Coast region and areas as far north as New York and New Jersey. Property owners are likely to suffer millions of dollars in property damage and many businesses may be forced to shut down temporarily or permanently. Hurricanes, like any disaster, require an expedient and well-thought-out plan to minimize the economic losses of those affected.

In the aftermath of a storm the route of recovery for each business will be determined based on the specific facts and circumstances giving rise to the loss after consultation with the appropriate professionals (i.e. lawyers, accountants, and/or governmental officials).  

Some businesses may obtain benefits from federal or state emergency fund programs but most will turn to their commercial insurance policies for recovery.  Whichever route of recovery is chosen the key tasks will be:

  • Determining,
  • Quantifying, and
  • Supporting the claimed physical and/or economic damages

Following are some tips to assist businesses with planning and gathering key documents to support a claim that results from the adverse impacts of hurricanes and other natural disasters. 

Physical Damages

Activities which are undertaken during the initial days after a loss may include:

–        Analysis of the cause and origin of the loss

–        Structural analysis of the remaining facilities

–        Determination of the scope of physical damage

–        Consensus on scope of damage with insurer’s representative

–        Conduct a count of damaged/destroyed inventory

It’s recommend that business owners create a video recording of the damage as soon as possible after the loss.  A narrated video provides an inexpensive ounce of prevention if there are future disputes with insurers about specific damage.  Once the above items are completed, the company should quickly begin repairs. 

The ability to recover dollars a business owner spends to repair or replace damaged property or the costs associated with removal and clean up will generally require evidence to show that it is loss-related, as well as corresponding repair estimates or actual invoices and evidence of payment for the repair/remediation work performed. 

These documents should be safely kept and clearly marked “Hurricane Loss.” A business should consider special coding within its accounting system in order to improve organization and ease retrieval of the information. This also segregates these expenses from normal operating costs. 

Economic Damages and Lost Profits

Typically businesses that have been impacted by disasters such as hurricanes will claim for their resulting lost profits.  Forensic analyses can be conducted to provide an estimate of lost profits resulting from the incident. 

Once a forensic accountant is engaged, the next step is to begin gathering and analyzing the financial data of the business.  The range of financial data requested typically includes:    

  • Historical financial statements (including balance sheets, profit and loss statements, and statements of cash flows)
  • Tax returns
  • Budgets and forecasts
  • Detailed inventory reports and fixed assets registers
  • Industry performance reports and statistics
  • Other appropriate operational data that can be useful to demonstrate and project performance 

It is also valuable to gather relevant and appropriate documentation to support a loss or claim for economic damages attributable to a specific event. The types of records to obtain and track can include:

  • Order, reservation, or event logs for orders placed or reservations made for the upcoming six to twelve months 
  • Other evidence that could demonstrate planned or future business activity. 

Cancellations are often related to a loss. In these instances, it is important to keep a record of the name and contact information for the business or individual that placed the original order or reservation along with an estimate of the revenues lost as a result of the cancellation. 

Obviously data is important to validate a claim. Other documentation that may useful includes:

  • Pre-hurricane, prospective budgets or forecasts
  • Performance at locations that are not impacted by the incident
  • Industry forecasts or projections
  • Invoices and payments made to mitigate the loss
  • Other information about accounting, finance, valuation and business issues relevant to evaluating economic damages 

  

Conclusion

In the aftermath of any disaster, an expedient and well-thought out plan and response is critical to minimizing the losses and ensuring the long-term viability of a business. Dedication of resources to manage and navigate the claims process will increase the likelihood of a favorable settlement.

Forensic accountants can play a significant role in assisting with the financial recovery. We have extensive experience in helping clients prepare, document and defend commercial insurance claims that result from natural or man-made crises.

 

 

About the Author: Daniel Hughes CPA/CFF is a director in the Forensic and Business Services practice of Berkowitz Pollack Brant. For more information, call (305) 379-7000 or e-mail dhughes@bpbcpa.com.

Tax Breaks for Renting Your Vacation Home by Cherry Laufenberg

Posted on August 13, 2013 by Cherry Laufenberg

Vacation homes can create tax opportunities and responsibilities for owners. The IRS’s definition of a vacation home includes an apartment, condominium, stand-alone house,  mobile home or a boat. Taxpayers are allowed some deductions for their vacation home and the rules are different for properties that are rented to others.

Here are some things to keep in mind about personal use and rental use.

  • If a property is used as a home, the owner’s rental expense deduction is limited. For example, a deduction for rental expenses can’t be more than the rent received.
  • If the property is used as a home and is rented fewer than 15 days per year, rental income is not required to be reported.
  • Deductible expenses for personal use include costs such as mortgage interest, property taxes and casualty losses.
  • In most cases, homeowners can deduct the expenses associated with renting out the property, including listing fees, broker commissions and caretaker expenses.  The deductions may be limited if the owner also uses the home as a residence.
  • If the homeowner personally uses the property and sometimes rent it to others, special rules apply. Expenses are divided between the rental use and the personal use with the number of days used for each purpose determining how to divide the costs.
  • Rental income and deductible rental expenses are reported on Schedule E, Supplemental Income and Loss.

As with most tax and deduction scenarios, proper recordkeeping is important. I you are considering acquiring a rental property or vacation home, talk to one of our personal tax and real estate CPAs first. We can help determine the most advantageous structure for the transaction and provide guidance on setting up a recordkeeping system.

 

 
About the Author: Cherry Laufenberg CPA is a senior manager in the Tax Services practice of Berkowitz Pollack Brant. For more information, call (954) 712-7000 or e-mail claufenberg@bpbcpa.com.

 

Berkowitz Pollack Brant Makes Florida Trend’s Best Companies to Work For List

Posted on August 12, 2013 by Richard Berkowitz, JD, CPA

MIAMI- August 1, 2013 – Berkowitz Pollack Brant Advisors and Accountants has been selected as one of Florida Trend’s Best Companies to Work For for the second consecutive year. 

 

Companies were selected for the list through a rigorous program which included a comprehensive questionnaire about benefits, culture, leadership, trust and communication. In addition, every employee was surveyed for his or her anonymous opinion about leadership, job satisfaction, work environment and overall engagement. The firm had 100 percent survey participation by its 170 employees.

 

“We are proud that our unique firm culture was recognized by Florida Trend,” said Richard A. Berkowitz, CEO of Berkowitz Pollack Brant. “We’ve worked hard to create an environment where people can build satisfying, successful careers, work with interesting clients and advance their knowledge.”

 

 

About Berkowitz Pollack Brant Advisors and Accountants

For more than 30 years the advisors and accountants of Berkowitz Pollack Brant have solved problems, provided knowledge and helped their clients reach their goals. The firm and its affiliates Provenance Wealth Advisors and BayBridge Real Estate Group have offices in Miami, Ft. Lauderdale and Boca Raton, Florida.

 

Berkowitz Pollack Brant has been named one of the top 100 firms in the U.S. by both Accounting Today and INSIDE Public Accounting and was named one of Florida Trend’s Best Places to Work in 2012.

 

One of the largest firms in South Florida, it is comprised of talented and resourceful professionals who provide consulting services with an entrepreneurial focus. Specialty areas include domestic and international tax planning and compliance, corporate and commercial audits, forensics and litigation support, business valuation, and wealth management and preservation.

 

State and Local Governments Face Tougher Enforcement of Federal Securities and Pension Regulations by Deede Weithorn

Posted on August 08, 2013 by

Public bodies that sell bonds or pay pensions face intensified enforcement of federal laws to protect investors and government employees from fraud and other misconduct. More cities, counties and states have recognized the need to measure and minimize their compliance risks as the federal crackdown enters its fourth year.

The Enforcement Division of the U.S. Securities and Exchange Commission in January 2010 created a unit that focuses on regulatory violations in connection with municipal securities and public pensions. The unit is working closely with the Internal Revenue Service to enforce tax-exemption regulations and other IRS rules governing municipal finance.

The unit’s track record so far suggests that even small public bodies can face big compliance risks. The Municipal Securities and Public Pensions Unit has brought SEC enforcement actions against large financial institutions as Bank of America and Goldman Sachs In addition, it has brought actions against the states of Illinois and New Jersey and the cities of Harrisburg, Pennsylvania; South Miami, Florida; and Miami, Florida.

“Municipalities in South Florida and elsewhere cannot rely on a lack of internal procedures or experience in debt offerings to excuse fraudulent disclosures made to investors,” Eric L. Bustillo, director of the SEC’s Miami Regional Office, stated in the agency’s May 22 press release on the South Miami matter.

The SEC’s focus on municipal securities and public pensions centers on five types of misconduct. These include offering and disclosure fraud, tax- or arbitrage-driven fraud, public corruption including “pay-to-play” bribery schemes, public pension accounting and disclosure violations, and asset valuation and pricing fraud.

Among other milestones in the federal crackdown, New Jersey in 2010 became the first state that the SEC charged with violating federal securities laws. Illinois became the second in March of this year. Both states settled charges of pension accounting and disclosure violations without admitting or denying the SEC’s findings. New Jersey stumbled by selling more than $26 billion of bonds from 2001 to 2007 with offering documents falsely describing two state pension funds as adequately funded. An SEC investigation of the state of Illinois uncovered similar failures to disclose pension liabilities in offering materials for $2.2 billion of bond issues.

South Miami got in trouble for compromising the tax-exempt status of two 2002 bond issues totaling $12 million. The city sold the bonds at a favorable tax-exempt interest rate to fund construction of a mixed-use development encompassing retail stores and what was supposed to be a public parking garage. Between the first bond issue and the second one, the city changed a lease agreement to grant the private developer control of both the stores and the garage, instead of just the stores, as they initially agreed.

The SEC charged that the lease change transformed the entire development to a private business use, jeopardizing the tax-exempt status of the bonds, and that the city failed to disclose the change in offering materials for the second bond issue. South Miami also improperly loaned proceeds from the first bond issue to the private developer. South Miami this year reached settlements with both the SEC and the Internal Revenue Service. The city paid the IRS $260,345 and voided, or “defeased,” a portion of the two bond issues at a cost of $1.16 million.

The city also agreed to a cease-and-desist order from the SEC without admitting any wrongdoing. Bondholders ultimately were unharmed as a result of the city’s settlements and payments. The SEC order requires South Miami to retain and follow the recommendations of an independent third-party consultant who for three years will conduct annual reviews of city policies, procedures and practices in disclosing information for municipal securities offerings.

Liability lurks even for public bodies that issue misleading statements outside the confines of disclosure statements for securities offerings. This year the SEC for the first time charged a municipality with securities fraud other than offering disclosure violations in its case against Harrisburg, Pennsylvania. Harrisburg misled investors in the city’s bonds by failing to issue audited financial statements from 2009 to 2011. The city also violated federal securities laws by issuing public reports in 2009 about its budget and fiscal condition that misstated or omitted critical facts about its financial conditions and credit ratings.

The feds certainly are getting the message out. The enforcement crackdown is encouraging many public bodies with bond debt or pension obligations to turn to independent consultants for advice on compliance and, if need be, guidance during the process of a formal or informal SEC investigation. Governments of all sizes increasingly realize they could tumble into non-compliance without effective policies for retaining documents, shaping information technology systems to fit their document-retention needs, ensuring regulatory compliance and maintaining compliance standards.

Berkowitz Pollack Brant’s SEC Monitoring has experience helping municipalities and governments establish internal controls protocols, monitoring programs and responses to investigations.

 

About the Author: Deede Weithorn is an associate director in the Audit and Attest practice of Berkowitz Pollack Brant and leader of the firm’s Government and Compliance practice. For more information, call (305) 379-7000 or e-mail dweithorn@bpbcpa.com.

 

Minimize the Risk Of Fraud in Your Business by Stephen Nouss

Posted on August 05, 2013 by Steve Nouss

This article originally appeared in The Miami Herald’s Business Monday section on July 29, 2013

 

Much like a yearly physical or a maintenance program on an automobile, a fraud review can identify potential problems before they become impactful.

The Association for Certified Fraud Examiners reports that five percent of business revenue around the world, approximately $3.5 trillion, is stolen through fraud every year.

Organizations of all sizes are exposed to fraud risks.  Defined as an intentional act or omission designed to deceive others, large-scale fraud has led to the downfall of entire organizations, massive investment loss, significant legal costs and erosion of confidence in capital markets.  Fraud can damage the reputation, brand and image of an organization, sometimes beyond repair.

During difficult economic times companies do more with less. This often results in cuts to positions in accounting, finance, legal, environmental, payroll and marketing.  These cutbacks can reduce a company’s system of checks and balances and create an environment at risk for fraud.

No employer wants to believe that its staff is anything but honest and trustworthy. Unfortunately, operating under stressful conditions for sustained periods can cause employees to feel slighted or unappreciated. They can develop the motive and the rationale to perpetrate bad behavior.

It is impossible to prevent all fraud, but companies can implement plans to avoid certain situations, ensure controls are in place and deter or detect fraud early.  For example, if a Highway Patrol Car is parked in the median of the turnpike, everyone slows down and keeps below the speed limit. The act of conducting a fraud check-up and risk assessment can have the same effect.

 

Most companies have some solid controls around cash, inventory and fixed assets.  But many fail to protect items that can have even more value: intellectual property, customer lists or business practices.  

 

While corruption heads the Top 10 list for types of frauds; bribery, embezzlement, extortion, favoritism and political contributions are not as common in mid-sized companies. More prevalent situations include:

 

  •       Skimming – all the money does not make it into the company’s bank account

 

  •       Larceny – cash, inventory or property walks out the door
  •       Overbilling – customers are overcharged for a product or service
  •      Disbursements – fake invoice payments or payroll checks are sent to a fictitious location

 Even seemingly small frauds such as check tampering or inflated expense reimbursements can lead to significant losses.

Information technology is also an area ripe for fraud.  Many people think that having physical control over computers, utilizing passwords for access and maintaining a firewall will keep a company well protected.  These steps are a good start but they are rarely enough.

Data integrity is critical, and theft of sensitive business information or financial data can cripple a company.  Hacking, economic espionage, web defacement, sabotage, viruses or unauthorized access could result in a major crisis and extensive recovery time, not to mention the reputational hits a company will take.

What Can A Company Do? The best way to catch fraud is through tips. Anonymous fraud hotlines are popular, very economical and effective.  Outsourcing entities provide the service on a 24x7x365 basis via web, telephone, fax or mail. 

 

The duration of a typical fraud-based scheme is 20 to 30 months, so there is plenty of time to catch it with good controls.  Good internal controls or and internal or external audit may detect fraudulent situations.

A high level fraud check-up / review can give you an indication as to where you stand on the fraud landscape and whether you should review the high risk areas in more detail.  A comprehensive risk assessment conducted by a CPA or certified fraud examiner provides a review of a company’s governance structure, internal controls, and checks and balances systems. It is important to identify possible risk, the likelihood it may occur and significance of exposure followed by the approach to respond to the risk.  Once you have the controls in place it is important to test and monitor the controls to ensure that both the design and effectiveness are working as intended. 

 

J. Stephen Nouss CPA CGMA is chief consulting officer at Berkowitz Pollack Brant Advisors and Accountants. He is an experienced fraud consultant and assists companies in developing internal controls and enterprise risk management systems. For more information, call (305) 379-7000 or e-mail snouss@bpbcpa.com.

 

The Critical Role of a Forensic Accountant in Negotiating Prenuptial Agreements By Sandra Perez

Posted on August 01, 2013 by Sandra Perez

Couples about to marry often enter into prenuptial or premarital agreements that, among other things, set out the division of property and the treatment of future earnings and spousal support in the event of a divorce or death.  At the time of divorce, when emotions are running high, it is not uncommon for these contracts to be challenged by a spouse who is unhappy with the terms of the agreement.  

 

Under Florida law, there are three limited ways in which a party may seek to invalidate a prenuptial agreement.  He or she must prove that (1) the agreement was not entered into voluntarily; (2) the agreement was the product of fraud, duress, coercion or overreaching; or (3) the agreement was unconscionable at its execution and the disputing  party was not given (and did not waive) full and complete financial disclosure. 

 

Element number three, full and complete financial disclosure, is an area that is the subject of much controversy in dissolution proceedings.  Engaging a forensic accountant during the preparation of the prenuptial agreement can help resolve issues relating to adequate financial exposure. This benefits both the spouse who seeks the protection of a prenuptial agreement and the spouse against whom enforcement may be sought. 

 

Attorneys on either side of the negotiation may find that an accounting professional, especially a forensic accountant trained in family law matters, can quickly identify and resolve issues relating to financial disclosure that typically come up in a divorce proceeding. These are the issues that can affect the distribution of assets and determination of alimony to the disputing spouse.

 

First, a forensic accountant can identify all significant assets and debts of both parties as well as their respective incomes. The accountant can assist by explaining any complicated transactions to the questioning party and can help gather the supporting documentation necessary for presentation.  Conversely, the forensic accountant can also identify any questionable transfers of money or other assets and demand an explanation prior to the execution of the prenuptial agreement. 

 

This provides benefits to both parties.  The spouse seeking the agreement can support the claim that he or she made full financial disclosure by pointing to the engagement of a credible forensic accounting professional trained in family law.  Likewise, the spouse who is being asked to sign the agreement can make educated decisions regarding agreements relating to equitable distribution and alimony. 

 

 

 

Providing an accurate picture of the relative financial status of the parties is imperative. Where there are hard-to-value assets. For example, if one spouse owns 100% of a privately held company, a forensic accountant with business valuation credentials can help set a value for the asset.  In these instances, the use of an accounting professional lends credibility and integrity to the valuation and makes it less susceptible to future question. 

 

Further, a valuation of closely held companies is highly beneficial in order to preserve any non-marital components, including future enhancement from distribution, to the non-owner spouse in the event of a divorce where the prenuptial agreement is challenged.

 

Clearly, without full and complete disclosure, which includes supporting documentation, one could argue that had they known of the previously undisclosed items or values they would not have entered into the existing agreement.

 

One additional way an accountant can be extremely helpful is by evaluating the tax implications of components of the prenuptial agreement.  This can save both parties time and money in the event of a dissolution if the distribution plan has provisions that already address the tax consequences.

 

The process of negotiating a prenuptial agreement can be slow and arduous at a time when the parties simply want to sign the agreement and get on with their marriage.  However, by engaging an experienced forensic accountant, lawyers can help their clients obtain the necessary information to streamline the process and they will have added a layer of protection against an attack on the validity of a prenuptial agreement because the disclosures will have been fully vetted, questioned and evaluated by a trained professional.  

 

 

 

About the Author: Sandi Perez CPA is director of the Family Law Forensics practice at Berkowitz Pollack Brant Advisors and Accountants. For more information, call (954) 712-7000 or e-mail info@bpbcpa.com.

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