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Through A Microscope - Look Who's Watching Now! (Part 3 of 3)

Aug 18, 2007
This article examines the impact on taxpayers and appraisers as well as their advisors of the new Federal provisions of the Pension Protection Act. For appraisers performing valuations for federal tax purposes in accordance with the Pension Protection Act (PPA), signed into law in August 2006, stipulates new penalties and stiff sanctions if the appraisers or appraisals fail to meet the new qualifications.

The Implications for Appraisers

Appraisers are now required to operate under quite a few important professional accountabilities. In varying federal tax matters, highly inaccurate appraisals would be subject to substantial monetary penalties, in some cases, forfeiting of 125 percent of the appraiser's fee. Appraisers need to be aware of the declarations and announcements of the IRS disciplinary office, which has significantly enhanced standards of appraiser conduct, and to bar from appearing before the IRS those appraisers who fail to adhere to the set standards.

The investigative process can result in an appraiser being placed on the disqualification list. As such they can not reapply to the Office of Professional Responsibility for recertification to practice for five years. However, even if they are granted the authority to practice in five years, they are still unable to submit large appraisals to the IRS for another three years due to the qualified appraiser requirement of not being on the disqualified list for the three years prior to the appraisal being performed.

I believe that the appraisal industry, tax advisors and taxpayers should expect the regulatory regime over valuation work to continue to expand in the near future.

The Implication for Taxpayers
The new regulations have outcomes not only for the appraisers but for the taxpayers and their advisers as well those who hire appraisers in connection with planning transactions and filing returns.

The taxpayers and their advisors now need to put in extra effort to select an appraiser who is knowledgeable and experienced enough to steer clear of any violation of Section 6695A or Section 6701 or any other ethical norm. This is necessary because once an appraiser is disqualified all appraisals previously prepared by the appraiser (whether they gave rise to the disqualification or not) become disqualified in the eyes of the IRS. In other words, the appraiser's work will not be accepted by the IRS as a result of the disqualification. Consequently, it becomes important for taxpayer to select an appraiser based on the quality of work performed, the background and experience of the appraiser so they do not run into problems at a later date. The cliche "you get what you pay for" seems to come to mind when I read through this provision.

Considerations for Survival

It is clear that appraisers need to be extra cautious and avoid all temptation to fall into the net of penalties cast by the PPA. In the light of this new law it is necessary to collect and organize all case information strictly based on facts. Appraisers must focus on arriving at their conclusions via a reasonable, objective path in accordance with the valuation standards. Other factors to consider and integrate into the valuation process include the following:

1. Don't be an advocate for the client's position.
2. Don't value an entity or asset that is outside your area of expertise or authority.
3. Disclose all known, relevant facts in your report
4. Obtain a representation letter from your client on key issues/assumptions.
5. If you feel pressure or are being influenced to arrive at a preconceived value or result, do not take the engagement, or remove yourself from it.
6. Use an appropriate, extensive information gathering process.

One way to move a long way down the road of avoiding be captured in the net of penalties cast by PPA is to have an organized manner in which to collect information, data and facts surrounding the case. By using a detailed process you will gain the ability to create a fact specific and fact supported conclusion based specifically on the information related to the client and case at hand.

We use a secure, automated web-based interview questionnaire. This tool has an initial base of 105 questions in multiple categories. All questions are editable and additional questions may be added as needed. We can modify the questionnaire so it is specific to a client, to allow for unique questionnaires for each client.

We have found that the use of a questionnaire process such as this provides all of the initial information prior to the site tour and management interview to allow for a highly focused and more productive site tour and management interview process.

No matter what interview or questionnaire tools you decide to use by considering the following factors (which are included in the automated web-based interview questionnaire) you will be in a much better position to support your conclusions and in developing an appropriate value based on the specific facts in a case.

1. Basic information such as valuation date, purpose, intended use, valuation date and standard of value as well as a list of data requested for the valuation.
2. Entity information as to capital and legal structure such as, C-Corporation, S-Corporation, Partnership, Proprietorship, LLC, LLP, FLP.
3. Company history including,(a) product lines/services, (b) customers, (c) locations, (d) marketing activities, (e) distribution methods, (f) employees, (g) acquisitions, and (h) ownership.

Other categories include questions related to:

1. Prior transactions,
2. Products or services,
3. Customers,
4. Competition,
5. Suppliers,
6. Operations,
7. Intangibles,
8. Sales,
9. Marketing,
10. Management,
11. Industry,
12. Economy,
13. Financial information
14. Related party information
15. Company expectations and
16. Litigation & claims.

By focusing your data collection efforts in a detailed organized fashion and constructing your conclusions in a reasonable, objective fashion while satisfying the requirements of the established valuation standards, you will find that you will substantially reduce your exposure to the penalty provisions and the teeth of the Pension Protection Act.

Prevention is better than cure. By adhering to norms and being organized and cautious about the whole process would ensure that you have nothing to fear. Educating yourself about the new law and its implications will further minimize your chances of getting in the way of PPA radar and getting penalized heavily.
About the Author
Mel Abraham CPA, CVA, ABV, ASA, CSP - author & Adjunct Professor (USD Law School. Further, for access to an audio presentation on IRS penalties and the PPA visit http://www.valuationeducation.com/penalties.html. He can be reached at mel@melabraham.com.
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