The questions and answers below are a continuation of the interview between Howard Lewis, the Executive Director of Institute of Business Appraisers (IBA) and Jim Hitchner, editor in chief, of the Financial Valuation and Litigation Experts newsletter. The culmination of this dialog portrays IBA Headquarters vision on the Future of Business Valuation in the United States.

1.     In the interview Howard Lewis was asked to provide a short summary of what is currently going on in your organization and then a short summary of what you intend to do in the future.�
      a. Standards – IBA created joint task force with NACVA to explore the unification of IBA and NACVA standards, as the first step toward a profession-wide unification effort. Task force drafted completely new principles-based standards, currently in exposure draft within the organizations.
      b. Certifications/accreditations – IBA’s ABAR credential and the workshop course (1044) was reintroduced in February, 2009. It has received the highest customer satisfaction scores of any course in IBA’s history. In that short period of time, over 75 members and non-members have completed the requirements and been accredited. IBA reviewed and revised the requirements for its CBA – Certified Business Appraiser – credential, especially for candidates who hold a BV credential from a peer association. IBA will soon announce the succession plan for its Qualifications Review Committee for the CBA, introducing a new Chair, a new process, and the continued commitment to the highest peer review standards in the BV profession. IBA announced the sun setting of its “junior” “AIBA” credential – Accredited by the IBA, and developed procedures to support the development of AIBA holders to the CBA credential.

2. Same question. What is currently going on in your organization and then a short summary of what you intend to do in the future?
      a. Organizational structure – IBA completely reengineered its member governance structure and all elements of the related processes. We created four new Boards and four new Committees. We established elections for the Board positions and have held two elections in the past year and a half. Committees are volunteer groups and all four are fully staffed and all Boards and Committees are actively engaged in improving IBA member services. IBA introduced organization-wide voting for its Board of Governors. Three-quarters of the Governors (as of June, 2008) have retired and been replaced by Governors elected by membership or appointed, per the governing rules, by the Executive Director. IBA’s Board of Governors elected a Chair (for the first time in IBA’s history), and the Board now includes a significant percentage of women Governors (again, for the first time in IBA’s history).
      b. Services – IBA completely reengineered the Sales Transaction Market Database, the largest and oldest in the BV profession. We introduced a web application, providing access to members and subscribers on a 24/7 basis, and added 3,000 new transactions in the past six months alone.
      c. Other – We moved into our new headquarters on NW 5th Street in Plantation, hired several new staff members, and look forward to continuing to serve all our members in the fine fashion for which IBA has always been known.

3.   At the leadership/committee level, what do you believe the relationship is amongst the four groups?
      IBA has a strong alliance with NACVA, as a result of the reorganization of IBA in June, 2008. NACVA provides administrative support, facility planning, education support, and several other services to IBA, in exchange for appropriate compensation. IBA and NACVA have joined together to produce annual conferences in 2009 and 2010, and are currently working on the 2011 conference. Members of both organizations report the highest customer satisfaction with the joint conference. IBA communicates regularly with all peer BV associations in an effective manner.

4.   Do you believe there will ever be convergence in the four BV standards of all four groups? This is the number one challenge facing our profession. IBA and NACVA decided in late 2009 to form a joint task force to study the issue of standards unification. IBA believes that a successful effort in this initial endeavor will stimulate the rest of the profession to join the effort towards convergence.

5. Mr. Lewis was asked to provide a short summary of what is currently going on in the organization and a short summary of what is intend for the future of IBA.
      a. Membership growth – IBA membership overall is stable. IBA’s most significant growth is in the ABAR credential (see 1(b)).
      b. Education – IBA thoroughly reviewed every core and advanced course in its curriculum in 2010, completely revising and replacing the following major courses: 8002A/B with 8003/4 (core business appraisal courses – previously mostly lecture, now highly interactive); 1010 (report writing) – completely revised the content and the approach; this course is now hands-on, interactive; 1044 (ABAR – Business Appraisal Review Accreditation Workshop) – replace the former 2-day course with the present 4-day course, thoroughly revamping the material, case studies, approaches, examination and peer review studies; 1006 – Exam Preparation for the CBA credential – converted to distance-learning, thereby saving students considerable travel, lodging, and tuition expense; 7100 (BVAL – Business Valuator Accredited for Litigation) – completely revised the course, using a team of five subject matter experts – leading practitioners from the profession.

6.   What is your view on international BV standards? IBA monitors the IVSC activities and annual releases. IBA recently appointed one of its members to a task force whose charter includes reviewing FASB and IASB standards for valuation implications.

7. Do you believe any BV service line areas have become more commoditized? What about in the future? Yes and no! The body of knowledge and range of applications, while vast, is still finite and all the associations participate in many related aspects of the profession’s service lines. That said, the cultures, histories and areas of focus of each of the associations is significantly different and, where different, represents a continuing specialization, not commoditization.

8.   What do you believe the growth service areas in the BV profession are currently? (a) Appraisal quality and therefore the increasing importance of review appraisers. (b) Valuation forensics. (c) Damages evaluations. (d) Financial accounting valuation.

9.   What do you believe the growth service areas in the BV profession will be in the future? Same as #8.

10. Will BV continue to grow at the same rapid pace as in the last ten years or so? I doubt it. In the next ten years, additional specialization will be the focus of many practitioners.

11. It is often heard that the BV profession is, unfortunately, a bad mouth business? In other words many individual BV analysts seem to have, let’s just say, very strong opinions about certain other BV analysts. What is your view on this? I’ve worked in manufacturing, education, engineering, government, the private sector and the BV member services environments. I see no significant difference between any of these environments. People are people.

12. What do you believe are the best reasons to do volunteer work for BV Groups? Why do people donate hundreds, and sometimes thousands of hours to a BV group or multiple BV groups?
      The best way to learn is by association. The more involved members are in the governance of their association, the more there is to learn from others. It also builds character to assume leadership roles in any organization, and name recognition in the profession is a giant “plus” that results from dedicated service of this nature.

13. What do your members complain the most about concerning your group?
      Too many emails. Confusing standards across the profession.

14. What do you think your members like the most about your group?
      The willingness to “share the wealth,” that IBA has always been known for. Also, members are enthusiastic about recent changes at IBA, especially the commitment to member satisfaction and the opportunities now afforded to affect the association’s future direction.

15. What do you believe are the top three or so issues/challenges that are confronting BV analysts and the profession?
      1 – the “competition” from BV practitioners, who are less qualified, less educated, and compete on a low-bid basis
      2-  the proliferation of confusing, and complex models (such as DLOM) that are so hard to comprehend and explain to others
      3 – standards confusion – see above comments on unification efforts

16. Do you think the BV profession is getting more specialized and, if so, how? Has the sun set on BV generalists?
      As I’ve said previously, complexity and specialization are two issues confronting the profession. There will be more specialization. That said, generalists are vital parts of the profession and always will be. The sun will set on BV generalists when there are no more general practitioner MDs.

17. What is the biggest change you have seen in the BV profession during your tenure and what is the biggest change you anticipate in the profession going forward?
      The biggest change is a negative one. Some, not all, of the organizations have reduced their standards for accreditation, making it easier to qualify but weakening the very strength of the profession we have always been known for. Organizations that maintain their qualification standards or seek recognition for their credentials in the broader industry will continue to be known as the organizations with the greatest commitment to quality and standards.

18. What advice would you give to someone who is thinking about getting into the BV business?
      Find a mentor. Plan your education. Choose areas of interest. Investigate all training and networking opportunities. Make a lot of money.

Mark S. Farha

06-02-2010

A lack of formal business training may adversely impact recent legal graduates’ practices in two ways. Lawyers entering solo practices or small firms that must manage their own practices will lack the knowledge base to do so effectively. Lawyers representing businesses will be less effective representing and developing clients. The information below is a quick introduction to what recent law graduates should know about accounting, finance, marketing and management.

• Accounting and finance. Lawyers managing solo or small firm practices must develop procedures to account for client billing, collections and expenses and to ensure their records will withstand an Internal Revenue Service audit.

With regard to billing, attorneys may opt to simply keep track of hours, and bill clients manually, using a typical word processing program. However, there are other software solutions specifically for billing, such as Timeslips. Typically, multiple billing parties with different rates will need specialty billing software, whereas a solo may not.

To maintain records of expenses and revenues, it is important for an attorney to consult with a CPA to determine items that may be deductible expenses for IRS purposes. A CPA will often work with a bookkeeper who will maintain accounting records for the law practice, typically using QuickBooks. The attorney may transmit monthly statements and receipts to the bookkeeper, who will maintain records. Another alternative is for attorneys to purchase QuickBooks and maintain records themselves or through an office administrator. Again, billing clients accurately and regularly while ensuring compliance with IRS rules is the goal.

A lawyer managing a solo practice or a small firm should consult a CPA to understand the advantages of tax-deferred retirement accounts such as a SEP-IRA. If a lawyer works for a firm that has its own internal procedures, these internal management principles are nonissues. However, if an attorney lacks tax and accounting expertise, that attorney must involve a CPA or tax attorney to make sure that transactions are handled in a manner that is tax efficient.

A firm is no different than its clients: Tax considerations drive many decisions, such as choice of entity and the manner of structuring a transaction. Business lawyers would benefit from taking CLE courses or night classes at a local college that address basic accounting and financial issues, to allow them to identify issues they should delegate to other professionals.

Appraising the value of a business is an issue that pervades many business transactions. Business lawyers and litigators who handle commercial matters should learn the basic precepts of business valuation. It is not uncommon for a less sophisticated client who is buying or selling a business to ask his lawyer to advise him of the appropriate sales price. While giving a precise answer may be unadvisable, a lawyer should at least be able to describe various methods of valuation, such as book value, discounted cash flow analysis, comparables and multiples of earnings per share. Again, CLE, college courses, and various books and articles can give attorneys a basic introduction to key concepts. For those willing to invest the time, a few hours in finance and accounting at any local college is very valuable.

• Marketing and management. To represent a business client effectively, a lawyer should understand the client’s product or services, how the client markets those products or services, and how the clients manages the business. Indeed, it is paramount that a lawyer takes the time to learn the client’s business early in the engagement. Oftentimes, a chalkboard session with the client to learn more about her company’s products or services is most beneficial.

Additionally, a lawyer should learn client development skills to ensure long-term success. For solo and small firm lawyers, developing a well-optimized website is important; optimization means key word searches will bring the lawyer’s website to the top of the lists resulting from Internet searches. Television and other forms of advertising may also be effective primarily for lawyers that represent individuals in divorce, bankruptcy, personal injury and other matters where the prospective clients are likely to turn to advertisements to locate a lawyer.

Many lawyers believe networking is the cheapest and most effective form of “advertising” because they prefer referrals as their primary source of business. The following are sample activities that may serve this function: attending local and state bar functions; serving on local and state bar committees; drafting CLE articles and giving CLE presentations; becoming involved in civic organizations, such as local charities, the chamber of commerce or other organizations; and becoming involved in a local alumni association.

For lawyers working for firms with existing infrastructure, the management component will be largely preordained. However, small firm or solo lawyers must address numerous practice management issues such as hiring, supervising and possibly terminating administrative staff; setting up filing systems; and choosing and maintaining IT systems. The solo and small firm sections of the Texas and local bar associations provide resources, as does the State Bar of Texas’ website.

Mark S. Farha is a Dallas solo. He holds an M.B.A from Southern Methodist University Cox School of Business and a J.D. from Vanderbilt University Law School. He focuses on business law. His e-mail address is mark@businesslawyer.net.

Posted with permission from Mark S. Farha and Law.com

Law.com: Accounting, Finance, Marketing and Management for Recent Law Grads 6/1/10 10:50 PM

http://www.law.com/jsp/law/LawArticleFriendly.jsp?id=1202459061250

The business appraisal profession is growing rapidly, and with these changes comes the requirement for frequent and dynamic education that meets the needs of our ever-changing business landscape.

Featured in Wall Street Journal’s MarketWatch News site and CBS’ Money Watch, IBA’s new certification workshops, 8003 Introduction to Business Appraisal and 8004 comprehensive Certified Business Appraiser, are receiving accolades nationwide. In every profession there are noted practitioners whose quality and competence stand out from the rest. In the field of business appraisal, these “stand-outs” are Certified Business Appraisers (CBA).

Effective August 1, 2010, all new business appraisers applying for IBA’s Certified Business Appraiser (CBA) designation will be required to complete IBA’s newly developed accreditation workshops 8003 Introduction to Business Appraisal and 8004 comprehensive Certified Business Appraiser (CBA) Workshop (accredited member exemptions may apply). These workshops have been redesigned By KC Conrad, CBA, CBI, CMEA, ASA and Dennis Bingham, MCBA, CFM, CMA, BVAL to enable CBA candidates to succeed in both IBA’s accreditation examination and peer review processes, as well as in the development of their appraisal practices.

Who Should Attend? The CBA credential’s reputation of excellence is unrivaled, and is sought by ABVs, ASAs, AVAs, CPAs, CFAs, CVAs, business brokers, business consultants, financial analysts, real estate appraisers, real estate brokers, and investment bankers all over the world.

Course Dates and Locations
The 8003 Introduction to Business Appraisal will be held in:

August 9–13, Newport Beach, CA at the Island Hotel
October 25–29, Washington, DC, at the Marriott Wardman Park Hotel November 8–12, Chicago, IL, the Hotel Monaco
December 6–10, Las Vegas, NV, the Mirage Hotel

The 8004 comprehensive Certified Business Appraiser (CBA) Workshop will be held in:

September 20-24, Dallas, TX, CA at the Fairmont Hotel
October 25–29, Washington, DC, at the Marriott Wardman Park Hotel
December 6–10, Las Vegas, NV, the Mirage Hotel

Throughout the new 8003 and 8004 workshops, students build a full business appraisal skills inventory through the integration of financial modeling, interactive valuation simulations, and small group think tanks. The new 8003 and 8004 workshops will supersede IBA’s Essentials of Business Appraisal Workshops 8002A and 8002B after July 30, 2010. (IBA 8002B will be offered once more July 26-29 in Orlando, FL for those who have taken IBA 8002A.) Additionally, CBA candidates are encouraged, but are not required to attend IBA’s 1010 Advanced Report Writing and Analysis Workshop and the 1006 Preparation for the CBA Examination course or webinar. Please visit www.go-iba.org to review a list of all CBA accreditation requirements or contact IBA headquarters at (800) 299-4130.

The Pioneer of Business Appraisal
The Institute of Business Appraisers was the first organization to adopt business appraisal standards and ethics. Established in 1978, the Institute is the pioneer in business appraisal education and professional accreditation. IBA offers four business appraisal certifications which include the Certified Business Appraiser (CBA), the Accredited in Business Appraisal Review (ABAR), the Business Valuator Accredited in Litigation (BVAL), and the highly-acclaimed Master Certified Business Appraiser (MCBA) designations. 

About IBA —The Institute of Business Appraisers is the oldest professional society devoted solely to the appraisal of closely-held businesses.  IBA’s education focuses on showing students “how to” perform the work. Our education courses provide a unique, hands-on, interactive approach to learning. IBA measures success by the professional advancement of its members. Headquartered in Fort Lauderdale, FL, and the Institute’s members receive free technical support and FREE access to IBA’s Market Database, the industry’s largest database of closely-held comparable business sales. To learn more about the benefits of an IBA membership, visit www.go-iba.org or call 800-299-4130.

The United States Tax Court, in a memorandum decision (Scheidelman v. CIR, T.C. Memo. 2010-151, No. 15171-08), dated July 14, 2010, sustained deficiencies and penalties assessed against the taxpayer, disallowing deductions claimed for charitable contributions of an historic façade easement. Most tax valuation disputes center on the value of the property. The IRS rarely asserts deficiencies and even more rarely tries cases on the basis of the qualifications of the appraiser or the quality of the appraisal. I believe Scheidelman is an important signal, from the IRS and the Tax Court, and the appraisal community is well advised to take heed.

     Notwithstanding the memorandum nature of the decision, the IRS and its appraisers will understandably see this decision as further reason to inquire deeply and analyze critically both appraiser qualifications and appraisal quality. In this instance, the IRS argued that the taxpayer’s appraisal did not satisfy the requirements of Regulation Section 1.170A-13(c), which specifies the elements required to be contained in a qualified appraisal. The fact that this matter involves a charitable contribution deduction is less important than the understanding that comes from an analysis of the Service’s approach to appraiser qualifications and appraisal quality. Most of the evidence at trial dealt with the valuation of the property. The Court opined, “Because we conclude that the Drazner report is not a qualified appraisal, we do not discuss this evidence or reach a conclusion as to the value of the easement.” I admit that I argued for years that the IRS should pay more attention to the rules governing appraiser qualifications and appraisal quality and, I admit, I am glad they are doing so. It makes the value of our profession’s education and accreditations more important than ever, and IBA is uniquely positioned to address the specific issue of “what constitutes a qualified appraisal?”

  Appraisers interested in learning some of the ways that IRS appraisers review appraisal reports can attend IBA’s course Business Appraisal Review (ABAR) Accreditation Workshop held in Newport Beach California on August 9-12, 2010 and Washington, D.C. on October 25-28, 2010.

   Course 1044 and the associated ABAR accreditation ensures that practitioners and firms are equipped to optimize the quality of business appraisals produced by firm associates by teaching a 5 step process for reading and critically evaluating the quality of a business appraisal report. Avoid potential penalties by ensuring that your reports meet a strict quality assurance protocol as demonstrated in IBA’s ABAR accreditation workshop. You and your taxpayer can both be penalized if your appraisal is determined to be disqualified.

   Appraisers interested in distance learning can now attend the Accredited in Business Appraisal Review (ABAR) Designation Available via Distance Learning- A Four Part Webinar Series held on September 13, 2010, October 12, 2010, November 05, 2010, and December 03, 2010. Contact IBA at 800-299-4130 for details or to receive a personal consultation on how your firm can benefit from the ABAR workshop.

On July 29, 2010 the Institute of Business Appraiser (IBA) will co-host a cutting edge two hour webinar to address the economic loss claims that inundate the gulf coast region as a result of the BP Oil Spill. Businesses throughout the gulf coast region have already felt the impact of the Deepwater Horizon Oil Spill. However, there is no estimate that can predict how far reaching of an economic impact the BP Oil Spill will have on small businesses around the country. 

On May 27 at a Senate hearing in Washington, D.C., Small Business Development Center director, Carmen Sunda, testified as to how the spill is affecting businesses, such as fishermen, seafood processors, used car dealership owners, and construction contractors in the gulf coast region. 

In her testimony Mrs. Sunda stated, “The worst part is that it has no foreseeable end. People can’t estimate the value of their long-term losses or the long-term impact, because they can’t define ‘long-term’ – does it mean this season, a few years, or a life-time?”  Every day, more businesses will be impacted by the spill. Unlike other catastrophes, there is a system in place to file claims for businesses and individuals that have incurred losses. 

IBA’s webinar, Loss Claims Resulting from the Deepwater Horizon Oil Spill and the BP Claims Process, will help business appraisers, financial professionals, legal professionals, and business owners understand the claims process. The webinar presented by, M. Jason Weil, Esq. and moderated by IBA Governor, Marcie D. Bour CPA/ABV, ABAR, CVA, CFE, BVAL, CFFA, will cover the legal basis for claims and cover the claims process. Attendees will learn when it is appropriate to file claims and which damages should be included in separate claims. The webinar will also address which documents are required to support claims and what options are available to a business when its claim is denied.

The webinar presenter, M. Jason Weil, holds a law degree from Nova Southeastern University, Sheppard Broad School of Law, a graduate degree in Computer Science from Harvard University, and a Bachelors of Arts degree majoring in Psychology from the University of Colorado in Boulder, Colorado. Prior to his legal career, Mr. Weil worked in several industries, including health care, telecommunications, and the internet as a business analyst and technology developer. Prior to joining Krupnick Campbell Malone Buser Slama Hancock Liberman & McKee as an associate in the areas of international and environmental law, he practiced in the areas of bankruptcy, probate, and commercial litigation. Jason is a member of the American Bar Association and is an admitted member of the Florida Bar, and the United States District Courts for the Southern and Middle Districts of Florida.

The webinar moderator, Marcie D. Bour, is President of the Florida Business Valuation Group and a member of the American Business Appraisers National Network. She provides business appraisal services, forensic accounting and litigation consulting services. She has over 25 years of professional experience. She has extensive experience in preparing business damages and has worked on a number of claims and has lead a team of experts in developing a three day, Business Interruption Losses and Claims, workshop.  Marcie is an IBA Governor and was IBA’s Chair of the NACVA/IBA 2010 Consultants Conference. More 

Click here to learn more and register for this important webinar. Financial professionals interested in learning how to calculate damages are encouraged to attend, Business Interruption Losses and Claims, a three day workshop scheduled in Newport Beach, California on August 9-11 and Atlanta, Georgia on November 15-17, 2010.

 This Loss Claims Resulting from the Deepwater Horizon Oil Spill and the BP Claims Process two-Hour Live Webinar Presentation was developed in partnership with the Institute of Business Appraisers, the Consultants Training Institute, and the National Association of Certified Valuation Analysts. 

IBA’s major recommendations were:

IRS should, at a minimum, develop a set of objective standards by which the “more likely than not” exception to the penalty can be evaluated. These standards may include a presentation of the appraiser’s experience, accreditation, training and other measurers of knowledge, skill, and ability to be used as a temporary safe harbor from imposition of the penalty.

 IRS staff members authorized to assert the penalty must be fully trained as appraisers and should be accredited and held to the same standards to which the IRS now holds private sector appraisers.

 IRS should consider creating a panel of professional appraisers, representing the major appraisal organizations, to evaluate the credibility of the work of appraisers against whom an assertion of the penalty is being considered. 

IRS letter 4477, currently proposed to be issued to appraisers notifying them of the penalty examination, should be replaced with a less formal contact to address the potential for misuse of the notification process. 

IRS should consider using business appraisers holding a credential in appraisal review, such as the IBA’s ABAR accreditation, to assist in the determination of the applicability of the penalty, especially under the “more likely than not” exception.

Click “here” for a link to the original IBA eNews article.

 IBA received the IRS’ response to the recommendations. As a result, IRS is revising the Letter 4477, and reviewing issues involving the “more likely than not” standard. The text of IRS’ letter follows: 

The IRS Office Servicewide Penalties met with you in February to talk

about IRC Section 6695A, Penalty for the Substantial and Gross Valuation

Misstatements Attributable to Incorrect Appraisals. This included a

discussion about what is working and what needs improvement relating to

field examiner procedures for implementing IRC Section 6695A.

I would like to update your organizations about two of the issues we are

currently working on as a result of this meeting.

We are revising the Appraiser Appointment Letter 4477. This is

taking longer than expected because this letter has to go through a new

IRS review process designed to simplify correspondence.

Some of the eight Appraiser Organizations requested that the IRS

to suspend enforcement until the phrase “more likely than not” is

defined. The phrase “more likely than not” relating to assessing the

penalty is contained in IRC 6695A(c) Exception. It states: “No penalty

shall be imposed under subsection (a) if the person establishes to the

satisfaction of the Secretary that the value established in the

appraisal was more likely than not the proper value.” The IRS is

reviewing this request. 

Thank you for your continued support as we review your concerns and work

towards resolution of issues. I look forward to working with your

organizations to refine and improve our processes.

Susan Deidrich
SB/SE Exam Policy: Sr Mgr Servicewide Penalty Program
IRS

Fort Lauderdale, FL —June 5, 2010—The Institute of Business Appraisers is very pleased to announce the electees for each of our four IBA Boards. They are as follows: 

It is in IBA membership’s interest to provide for member oversight of critical IBA activities. IBA’s leadership supports this by our Board and Committee structures. Boards and Committees work to support innovative member services through course and product development, research, authorship, instruction and setting the highest example of ethical conduct and standards.

Congratulations to all newly elected IBA Board members. IBA members who are interested in becoming active in an IBA committee are encouraged to contact IBA Headquarters at 800-299-4130 to learn more.

The Pioneer of Business Valuation
The Institute of Business Appraisers was the first organization to adopt business appraisal standards and ethics. Established in 1978, the Institute is the pioneer in business appraisal education and professional accreditation. IBA offers four business appraisal certifications, which include the Certified Business Appraiser (CBA), the Accredited in Business Appraisal Review (ABAR), the Business Valuator Accredited in Litigation (BVAL) and the highly acclaimed Master Certified Business Appraiser (MCBA) designations. 

About IBA —The Institute of Business Appraisers is the oldest professional society devoted solely to the appraisal of closely-held businesses.  IBA’s education focuses on showing students “how to” perform the work. Our education courses provide a unique, hands-on, interactive approach to learning. IBA measures success by the professional advancement of its members. Headquartered in Fort Lauderdale, Fl, and the Institute’s members receive free technical support and FREE access IBA’s Market Database the industry’s largest database of closely-held comparable business sales. To learn more about the benefits of an IBA membership, visit www.go-iba.org or call 800-299-4130.

Lewis, executive director of the Institute of Business Appraisers, once served as national program director for valuation services at the IRS; joins other appraisal stakeholders to offer feedback on IRS section 6695A penalties

New Carrolton, MD

February 18, 2010

My name is Howard A. Lewis. I’m the Executive Director of the Institute of Business Appraisers, located in Plantation, Florida. I’m also the former National Program Manager of the IRS Engineering and Valuation Program. I held that position from June 2000 to August 2008, when I retired from the Service. The Institute of Business Appraisers, or, the “IBA,” is the nation’s first and oldest appraisal membership association. Mr. Raymond Miles, who continues to serve as a consultant, founded IBA in 1978. The IBA is the only association specializing in business appraisal. It’s nearly 2,000 members come from all parts of the United States and many foreign countries, and typically hold accreditations from IBA and or one or more of the other appraisal organizations, including those represented here today.

While at the Internal Revenue Service, I was the first to identify the problem with the Circular 230 regulations linking Code section 6701 to the professional responsibility rules governing appraiser practice. I strongly advocated for breaking that link and such was accomplished in the Pension Protection Act of 2006. The purpose was to enable more effective administration of the professional responsibility rules affecting appraisers and the intended result was accomplished with the enactment of section 6695A and subsequent announcements by the Internal Revenue Service.  However, some important issues regarding administration of that section have arisen and I am pleased to discuss some of these with you today, representing the members of the Institute of Business Appraisers.

The IBA, and I am certain we are joined by our colleagues here today representing other professional associations, strongly supports the efforts of the Internal Revenue Service to improve and enhance it’s oversight and administration of appraisers of all disciplines, including business appraisers. The IBA appreciates this opportunity to address several issues of importance as the Service continues to develop its approaches and procedures involving penalties under section 6695A.

I’d like to focus this afternoon on three areas I believe are important to the Service and the professional appraisal community. First, I’d like to discuss the importance of appraisal credentials, both in the private and public sector and make a recommendation that would improve the Service’s ability to administer section 6695A. Second, I will point out a few elements of the Service’s current penalty implementation procedures, reflected in the Commissioner’s memorandum of August 18, 2009 and in the statute itself that IBA believes may be improved to better serve both the interests of appraisers and of federal tax administration. Third, I’d like to share with you a few recommendations from the field, having spoken to and heard from a representative sample of members of the IBA, who have spent decades in the profession and have a lot of experience with tax examinations involving appraisal issues. Finally, if time permits, I will make a brief comment on my perspective as a former national program manager, now serving as the leader of the nation’s pioneer business appraisal membership association.

First, my advice. To better understand my recommendation, it is important to reflect on the context of the penalties under section 6695A from the perspective of who can assert the penalty. IRS notes, in the referenced memorandum of August 2009, Revenue Agents, E & G Attorneys and Tax Compliance Officers have responsibility for asserting IRC section 6695A penalties. Examiners are encouraged to submit referrals to LMSB’s Field Specialists Engineers for assistance or consultation. Depending on the facts and circumstances of the related tax case, additional Engineer support may be warranted to fully develop the penalty case particularly if the Engineers were not involved during the related tax examination. Clearly, the procedure allows IRS staff who are not certified appraisers, and even who are not appraisers at all, to assert a penalty under section 6695A. At the same time that the Service has aggressively and, I add, smartly, elevated the appraiser qualifications and appraisal standards for certain tax-related appraisals, the Service has failed to upgrade its own appraisal staff’s credentials to ensure equity and fairness in administering over this section. I am fully aware that the Service strives to hire only certified appraisers. I implemented that change during my leadership of the program. No argument there. However, there remains no requirement or incentive, other than a personal one, for IRS appraisal staff to maintain and or improve their credentials once on board. Further, we all know the workload is enormous and resources are limited. Thus, IRS has no choice but to assign valuation issues to non-certified staff and even to non-appraisal staff. Management does this carefully and with the utmost regard for customer service. I know that personally. However, penalty administration must be dealt with separately and differently. Penalties involve not only monetary amounts but also the real risk of suspension from practice, which could well mean the end of a professional’s career. The appraiser and his or her family has a lot at stake and the Service must ensure that only the most qualified staff are authorized to investigate, evaluate, and assert penalties under section 6695A, even if that means creating a special team, hiring more staff, or foregoing penalty examinations if properly credentialed staff are not available. IBA and its affiliates, would be pleased to assist the IRS with training, continuing education and a fast-track accreditation process, to help accomplish these goals.

Second, as to another element of the August memorandum and the statute itself. It is no surprise to anyone in this room that the “more likely than not” exception to the 6695A penalty has caused, and understandably and appropriately so, a great deal of confusion and concern among tax and appraisal professionals. With rare exceptions, it may be extremely difficult for an appraiser to demonstrate that his or her opinion falls within the boundaries of this exception. Most IRS staff would agree, and I have no doubt that, an appraiser would rarely make an adjustment to a value claimed by a taxpayer if the IRS appraiser believed the taxpayer’s appraiser was more likely than not correct as to their opinion of value. Surely a criminal or other sensitive investigation may provide an exception but, normally, if I believed the taxpayer’s appraiser was more likely than not correct, I wouldn’t propose an adjustment in the first place. Without an adjustment, there’s obviously no 6695A penalty. Long term, I believe statutory change may be necessary. Short term, I believe the Internal Revenue Service should consider developing a standard by which, for the purpose of asserting the penalty, the appraiser’s opinion would be judged under the more likely than not exception. The standard would, in my opinion, include an analysis of the compliance by the appraiser with generally accepted appraisal standards, whether the appraiser’s work was reviewed by a qualified third party, such as one holding the appraisal review designation from the Institute of Business Appraisers or its equivalent, whether the appraiser had sufficient experience in appraising the particular type of property under consideration, and similar objective standards of professional appraisal practice. Another element of the penalty administration process I would like to comment on involves the not atypical situation of a taxpayer who, for any number of reasons, including strategic, nuisance value, or otherwise, decides to agree to an appraisal adjustment in exchange for the Service’s concession of one or several unrelated issues. Having over 32 years of experience in the field as an IRS valuation engineer and as a management team member from first level through national program manager, I assure you that this common, every day process will result in inadvertent and apparent valuation misstatements unless recognized and dealt with. A compromised value is not necessarily the correct value and appraisers must be assured that their professional opinions will not be misinterpreted due to a decision made by their client that has nothing to do with value.

Third, some interesting and relevant field observations. Several members suggested the creation of an appraisal review board, perhaps similar to the Commissioner’s Art Advisory Panel. This board could be formed with representatives of the major membership associations, together with certified IRS appraisers. The board could serve as an independent group to assist the IRS in evaluating penalty applications. Many members suggested the development and use of a checklist, similar to the one I described earlier. The checklist could assist the Service in determining the credibility of appraisal reports in instances where the more likely than not exception should apply. Another group of members suggested that the Service compile, redact and summarize actions taken involving assertion of 6695A penalties against appraisers, pointing out the salient facts and circumstances and trends, if any, identified by the IRS in its penalty administration process. I think these suggestions are very good ones and IBA hopes the IRS will consider them.

Finally, a personal note. After 32-1/2 productive, enjoyable and successful years at the IRS, I’ve spent the last year and a half working with some of the finest appraisers and leaders in our profession. One observation rings home again and again. The vast majority of appraisers in our profession are competent, knowledgeable, ethical and truly focused on performing their work on the highest quality basis. They strive for excellence, resent incompetence and are continually looking for ways to become better at their jobs and to help others improve their skills as well.

It is an honor to be here today to speak with you.

The Coming Tidal Wave

There will be over 800,000 middle market businesses with an estimated total value of $3.3 trillion disposed of between 2011 and 2029. Are you prepared to capitalize on this opportunity? Find out how from Dennis J. Roberts, CPA/ABV, CVA, CMAP in his revelatory presentation, “The Coming Tidal Wave,” at the NACVA/IBA 2010 Annual Consultants’ Conference. Chairman of The McLean Group, LLC, Mr. Roberts has more than 35 years of accounting transactional and investment-banking experience involving a multitude of transactions across a wide variety of industries and markets.

The magnificent Fontainebleau Miami Beach hotel will host the NACVA/IBA 2010 Annual Consultants’ Conference—the year’s first and foremost gathering of the business valuation/financial forensics/consulting industry’s brightest visionaries, June 2−5, 2010. Stay abreast of the latest developments in your discipline. And leap ahead of the curve on theory that will have a major impact on the future of your practice.

This always highly anticipated superconference will feature 12 tracks, including: Business Valuation, Financial Forensics, IBA Symposium, Academic Research, International Valuation, Practice Management, Industry Standards, ValuSource Software, and NACVA Recertification. And new this year: Mergers and Acquisitions, Matrimonial Litigation, and Healthcare Consulting.

Choose from 70 presentations. Earn up to 30 hours of CPE. Check out state-of-the art products and services designed to enhance your practice and facilitate your workflow. And network with friends, acquaintances, and speakers for your own personal development and pleasure.

Click here to view the 2010 conference agenda.

Register and pay by January 31, 2010 for:

Registration
To register, click the appropriate button below for the Registration Form, print, complete, and mail or fax it to either NACVA: 801-486-7500 (or complete the form, scan, then e-mail to nacva1@nacva.com, or call NACVA Member Services: 800-677-2009) or for IBA registrations—fax: 954-827-0131, e-mail registration@go-iba.org, or call 800-299-4130.

Register with NACVA National Association of Certified Valuation Analysts 1111 Brickyard Road, Suite 200 Salt Lake City, Utah 84106-5401 Telephone: (801) 486-0600� Fax: (801) 486-7500 Internet: www.nacva.com

Register with IBA Institute of Business Appraisers P.O. Box 17410 Plantation, FL 33318 Telephone: (954) 584-1144 Fax: (954) 827-0131 Internet: www.go-iba.org