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Philip H. Kanyuk CPA/CFF/ABV, ASA

Does Your Business Have Value?

Many business owners believe that their business ownership represents their most valuable asset and that the value can be recognized in short order once the owner decides to retire and sell out. This is not always the case.

As baby boomers are considering retirement, they should be making business succession plans. Unless the business is a franchise, there generally is no simple turnkey option for transitioning the ownership. Oftentimes, the buyer wants a smooth transition with the seller staying on board to make introductions to both customers and suppliers. Ownership retention compensation plans should be considered and will add to the amount realized at sale. Without the ownership retention plan, the business may not be nearly as valuable as if there was a retention plan in place.

A sale to a key employee or an employee stock option plan (ESOP) might also be a way to exit the company. The ESOP sell-out can be done for a 100% interest or lesser percent with ownership maintaining a portion of the business ownership.

The seller-financed option also tends to increase the sales price and can give the owner comfort that they realize value from the company without losing complete control as the note is secured by the business. If the note holder defaults, the business reverts back to the seller. If the buyer defaults, there are risks and benefits to this option. I know of one seller that sold the same business three times over a seven-year period. The benefit is that the seller realized two additional down payments that were sizable and many monthly payments before default occurred. The downside was that the business’s value reduced each time it was sold and there was no clean exit.

If you want to sell your business, don’t wait until the year that you want to depart. Plan ahead. Start the process sooner to ensure you will be able to find a quality purchaser with the right terms and realize optimal value.

Phil Kanyuk is on the Board of the LIAFPN and the Partner in Charge of Business Valuation and Forensic Accounting Services at Satty Partners, a Long Island accounting firm. He can be reached at 516-408-6610.

Daniel A. DeGeorgia, QKA

Update on New York State Non-Compete and LLC Transparency Laws

Several months ago, the New York State Legislature passed laws banning the enforceability of non-compete clauses in New York and providing for certain disclosures regarding the beneficial owners of New York LLCs. Given the Byzantine nature of the New York legislative process, Governor Hochul was not required to act on these proposed statutes until December, and she did so over the weekend, as follows:

1. Non-compete law is vetoed. The Governor vetoed the proposed law banning non-competes. The proposed law was extremely broad, and Governor Hochul had previously expressed her real concern was that non-compete clauses should not be able to be imposed on “lower paid” employees. There had been some discussion between the Governor and the legislature regarding setting an annual salary floor above which non-compete clauses could be enforced against employees, say in the $250,000-$300,000 range, but in the final analysis, the parties could not agree and the Governor vetoed the bill. It is expected that a new bill may be considered in the 2024 session of the legislature.
2. LLC transparency law approved with modifications. Unlike its Federal counterpart, the Corporate Transparency Act, which becomes effective January 1, 2024, the proposed New York law would make the LLC beneficial ownership information part of a database which could be accessed by any member of the public. The Governor signed a modification to the law which would limit such access only to law enforcement agencies, which amendment now has to be approved by the legislature as well. It is also expected that the New York law will have a one-year delayed effective date if and when approved.

We also want to remind clients that the Federal Corporate Transparency Act has a one-year grace period with respect to entities created prior to January 1, 2024, i.e., such entities must make their initial CTA filings at any time prior to January 1, 2025. (Entities created in 2024 will have 90 days after formation to file.) We are in the process of investigating service companies being established to assist clients with respect to such filings, so please contact the firm if you require such a referral. Remember, there are both civil and criminal penalties for noncompliance with the filing requirements.

Daniel A. DeGeorgia is a Member of the LIAFPN and a Partner in the Long Island office at Danziger & Markhoff LLP, a Law Firm handling Pension and Tax compliance. He can be reached at (631) 501-9800 (Ext. 40).

Lawrence Scherer, Esq., CPA, LL.M. Taxation

The 2024 Estate and Gift Tax Numbers are In!

The Federal Estate Tax Exclusion amount has been increased from the current $12.92 million per person to $13.61 million per person starting 1-1-24. Further, due to inflation indexing, the current $17,000 per person per year annual exclusion has increased by $1,000 to $18,000 starting 1-1-24.

Initial Filings Under Federal Corporate Transparency Act.

In a previous issue of the LIAFPN Newsletter, Laurence Bloom, CPA, summarized the requirements and penalties associated with the Federal Corporate Transparency Act (the “FCTA”). Companies will have different initial filing dates based on when the company was formed. For entities formed during 2024, there is a 90-day window for compliance. For entities formed before 1-1-24, the initial filing must be made prior to 1-1-25. After 1-1-25, updating reports must be filed within 30 days of any change in beneficial ownership. Examples of changes that must be reported under FCTA are: (i) if a 25% or greater owner changes their residence; or (ii) if a beneficial owner transfers their interest to a trust or to another individual.

Gov. Hochul Vetoed Consent to NYS Jurisdiction.

The Governor vetoed a bill that would have required every corporation registered to do business in New York to consent to jurisdiction in the NYS courts. Had this passed, NY trial attorneys could sue out-of-state corporations in NYS courts based on conduct that took place anywhere in the world simply because the company did business in the state. Any corporation or other type of business registered to do business in New York would have been subject to lawsuit in the NYS tort-friendly courts. The effect of forced NYS jurisdiction would have caused unwarranted pressure on those entities to settle claims and pushed companies to leave the state or forgo doing business in New York, as well as bog down an unacceptably slow court system.

In addition to being a co-founder of the LIAFPN, Larry Scherer has a strong background in Trust & Estates and Elder Law, and serves as Managing Member of Scherer & Pudell, PLLC, a Transactional Law Firm in Garden City, NY. He can be reached at (516) 747-7007.

Neil Himmelstein

All Term Insurance Is Not Created Equal

Term insurance has been portrayed on the radio and TV and by many misinformed people as a commodity. However, price is only one consideration. There are several other features that make a huge difference from carrier to carrier.

Underwriting: When purchasing term online or from an order taker who is only looking at price, or relying on an electronic application, you could suffer adverse results. Electronic underwriting checks the Medical Information Board and prescription database, motor vehicle report, and consumer information behind the scenes. Based on that data, it spits out an offer or decline which might be an inaccurate portrayal of your overall health condition. Once the application is done, their findings are reported to the Medical Information Board, which could ruin your future insurability with all carriers. You are best to work with a qualified professional who can give you an assessment and discuss proactive things you have done by having good living habits and education. Underwriters work with Debits and Credits. You get NO Credit if you are underwritten by AI.

Conversion Privileges: Having the availability to convert your term to a permanent policy later on at your health today is huge. Every carrier and every product has different privileges (some have none) for how many years you can convert to their top-tier products and how many total years you can convert. Additionally, several companies have left the market or taken their best portfolios out of New York, leaving you with extremely expensive products to convert to.

Living Benefits: Many products have living benefits even on term! Disability waiver (which you have to pay for) allows you to keep your coverage even if you can’t work due to disability and often can be converted to a permanent policy down the road that you might not have to pay for. These benefits can include Chronic Illness, Terminal Illness, and Critical illness coverage (at no charge).

Recommendations:

• Review your term policies annually to make sure what you have works.

• If buying new, consult us so we can guide you to the right product that fits your needs.

Every policyholder’s situation is different. Un-monitored policies, particularly if they have loans on them, need to be addressed. We recommend that your life policies, like your taxes, be reviewed on an annual basis.

In addition to being a co-founder of the LIAFPN, Neil is a seasoned insurance professional and heads up the Main Street Planning Group in Center Moriches, NY, and is the host of a weekly radio show, “The Main Street Code For Financial Success”. He can be reached at (631) 647-4697.

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