Reality check
An International Profit Associates Buy-Sell Agreements Article
John, Mark, and David (names changed) are shareholders in a general contractor
operating within the commercial construction industry. Lockstar was incorporated
in 1998. The company officially began operations in 1999 and the shareholders
have grown the business at a phenomenal rate of 107% from inception through 2002.
All three shareholders contributed equally to the success of the company. John
managed the administrative and financial aspects of the company, Mark served as
the project manager for each job, and David oversaw sales and marketing.
Each shareholder had a $500,000 life insurance policy with the company as the beneficiary.
The shareholder interest and allocated stock are:
John 45% interest, holding 400 voting shares and 50 non-voting shares
Mark 30% interest, holding 195 voting shares and 105 non-voting shares
David 25% interest, holding 195 voting shares and 55 non-voting shares
Gross sales are:
Fiscal 2000 - $3.6 million
Fiscal 2001 - $13.1 million
Fiscal 2002 - $15.9 million
When the company was incorporated, a buy-sell agreement constructed by John's
attorney/brother-in-law was put in place. According to the buy-sell agreement,
the book value of the stock, both voting and non-voting, is valued at $1 share.
The agreement states that the value of the stock, as finally determined for estate
tax purposes, shall be based on the companyıs book value. Book value, as stated
in the agreement, is the companyıs ³assets less its liabilities as shown on the
balance sheet of the company as of the end of the most recent month prior to the
event giving rise to the purchase². Neither the agreement nor the price per share
was updated since the company incorporated in late 1998.
In February of 2003, Mark fell from a scaffolding unit mounted on the fourth floor
of a commercial unit undergoing construction. The fall eventually proved fatal as
Mark died three days later from severe head trauma. Mark was survived by his two
children; he was divorced at the time of his death.
According to the buy-sell agreement, the company has first right of refusal for a
deceased ownerıs shares. The company purchased Markıs voting and non-voting shares
for a total of $207,647, or 30% of $692,158 (the book value of the company as of the
date of death). The estate tax return for Markıs estate was filed in November and
listed the value of Markıs stock in the company as $207,647. Other assets listed on
the return included his home ($490,000), two cars ($12,000 and $18,000), a speed boat
($195,000), his retirement account ($492,000), various personal effects including
jewelry and artwork ($35,225), and various items of furniture and household items
($10,300).
Three months after the filing, a notice is sent by the Internal Revenue Service to
John, who is the appointed trustee of Markıs estate, stating the estate tax return
is undergoing an examination (i.e., an audit) to determine if the estate tax return
undervalues Markıs ownership in the company. Later, John receives another notice
stating that the value of Markıs stock in the company is in question and a formal
investigation has been initiated. The letter also requests a copy of the stock
valuation. When the estate tax return was being prepared, John never had the company
professionally appraised.
However, as a result of the IRSı notification John immediately engaged Accountancy
Associates to conduct a business valuation of the company as of the date of Markıs
death. The findings are as follows:
It is Advisors estimate that the fair market value of the company is $5,349,982 for
100% of the combined outstanding common stock; 10,000 shares of stock are authorized
and 1,000 (790 voting & 210 non-voting) are issued.
The pro rata interests are:
John Smith 400 voting shares at $5,515/share and 50 non-voting shares at $5,446/share
Mark Jones 195 voting shares at $5,515/share and 105 non-voting shares at $5,446/share
David Allen 195 voting shares at $5,515/share and 55 non-voting shares at $5,446/share.
The difference in the value of Markıs stock reported on the estate tax return and the
value calculated in the Accountancy Associates report results in an undervaluation of
$1,439,608 ($1,647,255 - $207,647). The actual, fair market value of the stock now
places Marks estate at well above the $1.5 million estate tax exemption.
Because the stock value listed on the return was so grossly undervalued, the IRS can
assess an undervaluation penalty of 40% of the difference between the clientıs value
of the stock and the value calculated by International Profit Associates - Accountancy Associates. The penalty totals
$575,000; this amount does not include the estate tax that is due on Markıs estate as
a result of the re-calculation of the stock.
View International Profit Associates tax related information.