Ira’s Advice Column

Fresh Air & Cold Water for the Perplexed Family Business

Do your kids want your business for nothing, but encourage you to enjoy your retirement in high style? Did Mom always like you best, and now your siblings aren’t speaking to you, and worse, not doing what you tell them to? Are your family members charging their vacations to the company card? Are you having trouble building a board because nobody wants to give you advice they know you won’t follow?

IF SO, YOU MIGHT BE SUFFERING FROM FAMILY BUSINESS SYNDROME!!

That’s where this column might come in handy. I will attempt to lend you some perspective and a fresh outlook on your family business problems. Simply email me your question about your family business challenge, and I’ll reply online.

PLEASE NOTE: Your identity will not be disclosed, and Ira reserves the right to edit the question for clarity and some degree of general relevance. Ira Bryck will be saved harmless from any reader’s claim that their understanding or implementation of the advice in this column had an adverse effect. The column is for general informational purposes only. It is not intended as legal, accounting or psychological advice. Accordingly, readers should not act upon information in this column without seeking professional advice.
© 1994-2018 Ira Bryck – no reproduction or use without prior written consent.

Dear Ira, 

I have been researching for any issues relating to my father selling his family business to my brother well below FMV to be able to pass the company on for future generations.

The business was not properly appraised due to the nature of the business being an S – Corp? At the time of the sale tremendous pressure was applied arguing the fear of a buy sell agreement needing to be broken as the agreed price was set too low with the previous partners.

During the sale, an offer was made from a large corporation for around $10-11 million dollars. My brother purchased the company outright for $5 million of which $1 million was to be paid over the course of 10 years. Inventory was paid in full and there was around a $1 million in the checking account to help him survive.

After less than 5 years, the business was sold for $20 million. Nothing was done to make such a drastic increase in value other than the buyer wanting desperately to own the company. Legal deadlines approached making the purchase price escalate in order to secure the sale.

I am trying to find out what went wrong with the way this should have been handled during the initial sale to my brother. I have discussed this in detail and found that a stipulation should have been entered into the contact. In the event of a sale over a predetermined amount of years a portion of the profit from the sale revert back to my father. My fathers expectations were not met in the sale. The price was intended for future generations and in my opinion, money should be paid back to may father.

Is there such a stipulation, and is it common practice?

Any advice concerning this would be greatly appreciated.

Thanks,

Screwed

PLEASE NOTE: I have invited my colleague, Michael Camerota, a business intermediary with Touchstone Advisors, to be my guest respondent to this letter:

Dear Screwed,

You raise a number of issues, which affect family, legal, valuation and other.  Allow me to deal with at least the following four issues:

1. How and why was the business valued at only $5 million for a sale to your brother?
2. Why would a large corporation make an offer of $10 million around the same time as the sale to your brother and why would another company pay $20 million just five years later?
3. Why was the business sold to your brother with all of its inventory at no additional cost and with $1 million in the checking account?
4. In a sale among family members, how common is it to have a stipulation providing that in the event of a second sale during a predetermined period, a portion of the purchase price be returned to the Seller.

Below are my responses:

Issue #1:

The first thing to understand is that the same business may be appraised to be worth very different values depending upon both the purpose of the appraisal and the standards used in the appraisal.  For example, in a divorce situation, the husband’s appraiser would likely value his business for substantially less than the wife’s appraiser in a situation where she is looking to be paid some percentage of its value.  Similarly, the same appraiser might arrive at three different values for the same business if the purpose of each appraisal was.

1. An appraisal for estate tax purposes in which the higher the value the more taxes to be paid;
2. An appraisal for a buy-sell agreement where neither partner knows which one will die first; or
3. An appraisal to provide to a particular buyer interested in purchasing the business.

In this situation, your father may simply have wanted to sell the business to your brother at a discount; perhaps in return for his help in building the business over the years.  I can’t know from the situation presented.  In the alternative, if there was a buy – sell agreement, your father may not have wanted to sell to your brother at a price higher than he agreed to sell to his previous partners and may even have been prohibited from doing so.

The point is that especially in family situations, it is not uncommon for a sales price to be on the “low” (or even “high”) side due to extenuating circumstances and feelings.

Issue #2:

In the case of valuations for estate and gift tax, divorce, and buy- sell agreements, the standard usually required and generally used is a detailed set of rules set forth in IRS Revenue Ruling 59-60 which lay out how such a valuation is to be performed.  These rules assume a “hypothetical” buyer and seller, under no compulsion to act, having full knowledge of the facts, and paying all cash for the business.  In the case of the two buyers willing to pay substantially more for the business, the “fair market value” standard as defined in Revenue Ruling 50-60 simply does not apply.  The buyers you mention:

1. Likely had both synergistic and strategic reasons for purchasing the business: it was worth much more to them than to any “hypothetical buyer”.
2. Were likely under some “compulsion” to buy (note your statement that the last buyer “wanted the company desperately” and that “legal deadlines approached making the price escalate”) and
3. Likely structured the purchase with some cash, some debt and perhaps an earnout;
4. Almost certainly required the seller to execute a non-compete agreement, which is not taken into consideration when computing “fair market value”.

Issue #3;

Businesses of the size you present are almost always sold with the inventory included.  They are also usually sold with both accounts receivable and accounts payable included and sometimes with the cash necessary to operate the business.  These items can be viewed as the “gas in the tank” that go with the business and without which the business could not operate.  One can argue that $1 million in cash was excessive in this particular case but the fact that some cash was left in the business does not trouble me.

Issue #4:

A stipulation such as the one your refer to would perhaps have been appropriate in this situation, depending upon the intentions of your father which appear to be unknowable at this point.  Nevertheless, in my experience, such stipulations are not at all common in transfers among family members.

Sincerely,

Michael W. Camerota, JD, M&AMI, Touchstone Advisors, Enfield, CT 06082

[email protected] www.touchstoneadvisors.com

Right now I’m a university student and I will be graduating in a year. My dad runs his own businesses in Mexico and they have been very successful. The problem is, he is not capable of teaching me how to run them. He is the type of person that has very little patience and will get angry at anyone for anything, even small things like moving a calculator from one place in the desk, to another place of the same desk (I’m not kidding). My sister already graduated and tried to work for him and failed. She decided to look for another job. The problem was that he expected her to magically know everything there was to know about the businesses without him teaching her anything, and for her to start making decisions. Of course it doesn’t work that way. The employees wouldn’t tell her what to do because they had their own jobs and didn’t know what responsibilities to give her, and my dad would just tell her to get involved in everything and check everything in the businesses (whatever that means). I also have a little brother that just started university, but my dad is always saying that my brother can’t run the businesses either because he doesn’t care about them and he is irresponsible. In the end, my dad, along with my mom, have come to the conclusion that I’m the only hope of the family businesses. They always tell me that I’ll have to be the head of the businesses and somehow integrate my brother and my sister. This has also created problems between us because it is obvious to everyone that my dad has a preference towards me, and my brother and sister feel my dad hates them (which, unfortunately, might be the case). The sibling rivalry is not a big problem though, I know I’ll be able to solve that. My main concern is that once I graduate, my dad expects me to do what he has been doing for almost 40 years without any coaching. I have already told him that he’ll need to teach me what he does, how he talks to important clients, how to make decisions, etc. and he says he will, but I know he expects me to arrive knowing everything. And the thing is, he never liked school and he never finished high school, so it’s not so much that he doesn’t want to teach me, it’s that he does not know how to teach me. Of course there is more to the story, but it would be too long to write, so I’m just giving the basic and most important details here. I feel that I am losing my time studying Finance at the university because they are just teaching me how to be an employee and basic finance stuff. I’m not learning anything about running a company, making decisions, negotiating with clients, etc. So basically, I need to know how to run multiple businesses that have relationships with companies in France, Colombia, and the United States before I graduate. What advise can you give me? I’ve come to the conclusion that I have to teach myself how to run a business before I graduate, but I don’t know where to start. Could you recommend me some books to read, documentaries to watch, or classes to take?

Thank you so much for your time,

Dear Need to Learn,

They say the best way to learn something is to teach it, and in your case, you may need to teach the teacher how to teach. You both may end up learning quite a bit.

You need to take the lead in this situation, defining the rules of engagement. Tell your father that you would like to join the business for a 1 year trial run, with a goal of learning all that it takes to run the company EVENTUALLY. Explain that you currently don’t even know what you need to know, and what you don’t know, and that you will spend 2 months shadowing him and other managers, with no job responsibilities. You are there to create a job description and career track for yourself, able to delve into any area of the company, meet with customers, suppliers, expert advisors. The result of all this will be information gathering, finding your most effective role and path forward, and navigating a realistic mentor/mentee relationship with your father, as well as from all others that have perspectives and data that you need.

The 2 month shadowing would create the job description for the 1 year trial period. The trial period would equip you both to have an informed discussion about your career, that you now can’t have.

You might also consider starting a book study group with your father and some key managers, where you all read a business book and discuss it, maybe facilitated by a talented local business professor. This will be a good education for all, and build a good team spirit for you, your father, and the key managers. You can ask for recommendations on books, but Good to Great by Jim Collins would be a good start. Another good one is The Idea Driven Organization, by Alan Robinson and Dean Schroeder.

This may be a challenge for your father, if he is not experienced or confident as a student, but you can insist that to make your partnership with him a success, you need to prepare, including preparing him, to accept you with a realistic plan.

Once he agrees to this in theory, create a written battle plan / curriculum / time line, that you both sign. Choose a trusted person to oversee this relationship, or perhaps a small board of advisors, that could meet with you quarterly, to discuss an agenda of business and family business issues.

As far as a good book about family business, to get a better grasp on what should happen, and what often does, but shouldn’t happen, I’d recommend Succeeding Generations by Ivan Lansberg.

As I said in the beginning, this plan involves you taking the bull by the horns. But that could be a lot less risky than not having a grip, once you get on.

Please let me know how this is progressing (hopefully it will) or what happened when you suggested it.

Good luck!

Ira

Dear Ira;

My husband owns a business with his mother.  He started it with his father and mother being silent partners while he and his brother ran the business, also as partners.  His brother was bought out of the business, his father died and his other brother has never  been a part of the business.  His mom said she made it  very clear, to the son who was bought out, that if she dies her shares in the business go directly to my husband.  If there is nothing in writing how can I be sure the shares will stay with my husband?

Promises, promises

Dear Promises,

As the cliché goes: “a verbal contract isn’t worth the paper it’s written on” and without doubting the good intentions of anyone involved, your husband and you could make a calm and logical case that you like to sleep at night, and need to have everything in writing, legally bulletproof, to avoid any future misunderstanding that would upset the family.

Your mother in law should have a legally binding will, along with other health care directives, and you can lovingly insist that your family benefit from the clarity those documents, and the decisions and discussions that they necessitate, happen asap.

Making the transfer of stock explicit might also mean a discussion about what else, aside from the stock, might go to whom. If your husband gets stock, his brothers could get other assets. I can’t avoid pointing out that you quote your mother in law saying “if she dies.” The correct word choice, for all of us, is “when,” not “if.”

I hope this helps.

Ira

Dear Ira,

I am in deep doo-doo.

My husband, who owned a successful sole proprietorship, was diagnosed with pancreatic cancer last year. Just before he underwent surgery to remove it, he turned the business into a corporation with himself, me and his two grown sons as officers. He was scared he was going to die and thought that would solve all our problems. Far from it.

We have never successfully been able to have a board meeting due to the fact that one of his sons gets mad about something and storms out. Consequently there is no charter, no clear chain of command, And no clear duties for anyone.
I’ve tried all year to get my husband to make plans for the future. We have two small children together and I also have a daughter from my first marriage to support.

His sons have both been very hostile towards both him and myself, demanding to see our personal finances, access to our bank accounts, and have tried to turn my husband against me by repeatedly accusing me of wanton spending. The truth is his medical bills and treatments take up a full third of our income, my husband has done everything for the business and both his grown sons have done less than little (one of them sleeps on the job repeatedly and has to have his work re-done constantly. The other does little to nothing). I myself haven’t done much but that’s because caring for him and my kids is like having two full time jobs.

My husband owns 51% of the company, which I am supposed to inherit.
Unfortunately my husband’s health has taken a turn for the worse. He hasn’t been doing well anyway, but the last few days he has been forgetting the day of the week and cant remember anything important I’ve tried to tell him. Caring for him has been a full time job this last year, but now even more so because his balance is off and I’ve needed to walk with him everywhere. Stubborn man doesn’t even realize he’s not coherent no matter how hard I try to tell him.
In the meantime his oldest son has decided to wage full-fledged war against me. He sent me a bunch of nasty texts calling me every name in the book (which I didn’t return in kind.), accused me of wasting all the company money, and threatened that I should “enjoy it while it lasts”. He accused me of manipulating my husband and being lazy and called me names. All unprecipitated.
Yesterday I got sick of being accused of spending all the money. I made a household budget and showed it to him, and told him that a full third of our income has been going to his dad’s medical issues. (Bills, insurance, pills, etc). His response was chilling. He said, well, other people in the company need to be paid (meaning him and his brother) and we want to expand. I told him we need a check this week to keep his dads medical (his medical ins. Alone is almost $1000 a month due to preexisting conditions) and he just looked at me. My husband was right there but he wasn’t coherent enough to understand what was going on.
It also turns out that his other son has power of attorney, because he never changed it over to me. He’s always just trusted that his sons would do what is best for him and for me and my kids. I didn’t, but unfortunately any time I tried to bring it up we’d get into a fight and I’d get nowhere. Now unfortunately I’m being proven right.

I don’t know what to do. I don’t care about the business. I would just let them have it, except their dad needs the money from it in order to survive. I’ve run my own business successfully in the past, and in fact I gave up my own successful business to move across the country and be with my husband. We are in a very specialized field, so finding work somewhere else wont be too much of a problem.

I really just want to get the hell out of here and take my husband and kids with me. But I cant. I’m trapped. And I don’t know what recourse I have. I feel the storm coming and I’m totally unprepared.
My next step is to get power of attorney transferred to me. My husband already said we should (he does have interludes of lucidity). But after that I’m at a loss. He cant or won’t stand up to his sons, and I believe they are going to screw us all.

Please help me if you can.

Kind regards

Beleaguered

Dear Beleaguered,

I feel for you in your very complex and painful dilemma. Just when you could use the support of your husband’s sons, who are your business partners, instead you need to defend yourself from their attacks.

So you need a battle plan, beginning by first taking stock of your options. As you note, you could let go of the business and make a living elsewhere, and be able to focus on your husband’s care. If you were to offer it to them for sale, what amount would/could they agree to, that would provide you with what your husband needs to make ends meet?

You don’t seem at all confident that the sons have the skills or motivation to succeed at running the company. Is there an objective and trusted expert that could analyze and report the likely results of them as owners/operators, to give you all a reality check, and help them see any flaws in that plan? Or possibly, inform you that they could succeed, more than you suspect?

If they were convinced they could succeed at running the company, even after they were to hear a negative prediction, you could give them a time period to get bank or alternative financing. It doesn’t sound like your relationship lends itself to you holding paper, financing the sale yourself.

You feel hurt and misunderstood by their attacks on your motives and character. They may not have the ability to see you for who you are, but it doesn’t mean you can’t state your position clearly in writing, and give them the opportunity to read it. Could you make it a condition of entering into a negotiation with them that they have to read your statement out loud, without any hostile response, and express their understanding of it? Would it be satisfying to you to be understood, even at that basic level? And if they won’t do that, you don’t discuss with them how they might take over the company? (You might offer this as a 2 way deal, where you need to read and understand their position, stated logically and respectfully.)

You have more power in the situation than you may realize, especially if you do get power of attorney. You have the power to say no, the power to not engage, the power to do nothing, the power to set your terms for discussion.

You need to prioritize, but some multitasking is likely. Job One is taking care of your husband, but at the same time find the people who can help you in your delicate dealings with his sons. You need to create a flow chart that shows you your choices at each stage of your dealings with your partners (if they say yes, then A; if they say no, then B). You need to get your husband, in his lucid moments, to make some decisions with you, and take the needed actions.

It would be great if you could sit down with these 2 men and have a reasonable discussion. You all have skin in the game, and have reasons to create a win/win. It would be helpful to bring in a neutral facilitator with business knowledge, who can keep it all on track, so you each get as much of what you need, and keep the negativity and bad behavior in check. But at the same time, realize what power you have in the exchange- referred to in the world of mediation as BATNA- best alternative to a negotiated agreement- in your case, the power to say no.

Good luck.

Ira

My father in law helped my husband purchase a pool business with 60 clients back in 2001. It’s a Sole Proprietorship in my husband’s name. It was purchased with money that my husband’s grandfather left for him (my father in law’s dad) when he died.

My father in law has always done the book keeping. And keeps every detail to himself. My husband has steadily grown the business from 60 clients to 160 clients. We now have 3 part time workers as the referrals keep coming.
My husband is a worker though.. 14 hour days in the blistering heat. He’s a simple Go-with-the-flow kind of guy, daddy’s boy, easy, lives very simply, never asked questions and was fine having his father do the books. When my husband and I married in 2008 we combined finances and I was shocked the first year of our marriage when tax return time came around and we owed. Haha. That was the beginning of me being kept in the dark. So I tried to ignore what my husband’s father was up to with the business and just busted my own tail with my job as a sales person. Life was good financially because I was so busy setting and achieving sales goals for myself and such. Plus I was bringing in just as much money as he was while at my job so we didn’t need to stir the pot in the finances with my father in law yet…

Here we are 5 years later with 3 kid-s one who turns 4 next week- and I’m pregnant with my 4th. I’ve left work after the second and third child were born. Those would be our twins (20 months old). Our pool business income is all we have. It’s successful and we keep getting more and more clients which is great, but my father in law is so hesitant to talk about anything business finances related. Especially when it comes to paying us more. (That topic keeps coming up with new expenses for the kids… Little league, swim lessons, preschool… etc) The business is growing, my husband is working longer and harder because of the demand, yet we are getting paid the same. My father in law has refused to share his bookkeeping with us. He says it’s too complicated. He must be paying himself something that he is unwilling to share with us or something. I’ve come to that conclusion.  He will not provide a basic profit and loss sheet for my husband because he says it’s too much work and he doesn’t have time for that. Besides he says he just does it all at the end of the year before taxes anyway.  He claims since he’s out in the field sometimes helping with repairs and does monthly billing he cannot adhere to me or my husbands basic financial requests of a simple monthly profit and loss sheet. Why can’t we know what the business makes and spends? If he is going to be so possessive over these books he needs to provide that to us? We don’t even know where the heck they could be… I didn’t even know if the business was solely in my husbands name until we refinanced our home this year and they needed the business license certificate. I figured my father in law was part owner or something by the way he made me feel when we would ask about money from it. It’s like we are kids asking our daddy for money to go to the movies…. We feel we have to disclose what we want to spend our money on in order for him to even have a conversation with us about it.

I’m so angry. By Feb 2015 we will have 4 children under the age of 4, we cannot make any new financial plans or decisions based on the fact that asking my father in law to share the company information and see our assets and pay ourselves more is out of the question. My mind is going to crazy places right now thinking of what he could be doing perhaps even illegally for short term gain. He’s been stressed since the housing crisis and owns a couple of homes and one that is upside down.

I asked again for a monthly profit and loss sheet and what the balance looks like in the business account (which he calls business reserve… we are entitled to know that) He yelled at me and told me today for the first time that he feels like I am assuming he’s stealing from the business…. Which is crazy because all I’ve been asking for is a monthly profit and loss sheet for our own peace of mind for my small family’s future. He obviously is hiding something or he’s just the world’s most controlling father to his 36 year old son, and thinks I’m some dumb housewife that doesn’t need to know what’s going on.

My question is, how do I get all of the cards laid out on the table with him? Are there professionals that pretty much show up at his door step and say hey, your son wants to see the true assets of his company and what the company is paying for for yo,u and if the money is just sitting perfectly in a beautiful business account it if it’s been used by you and your upside-down mortgage. And what about his secret books that he won’t share with us? My husband at age 36 is finally ready to learn the business side if things rather than just being a work horse.

The only thing we’ve made headway in is that this Saturday we’ve arranged for him to chat with his dad and show him a few things. By the way this was not easy to arrange. I forced the meeting to happen. I’m very annoyed I can’t be there because this will be all new info to my (god bless him hard working blue collar husband) so I hope my father in law actually divulges info to him. The only reason I’m letting this happen without me there is because I want to give my husband the benefit of the doubt. He loves his father so much.

But I can tell by the reluctance of info that his father is sharing that we will be having this conversation again.

Sincerely

Dear Sheep in Law,

As I’ve noted many times in this column, I receive letters from people I don’t know, and only hear one side of the story. I would be making a big mistake in assuming that anyone feeling disregarded, kept in the dark, and suspecting their father in law could be hiding money from his son and your family is seeing the situation calmly and objectively.

But assuming for a moment that the situation is as you represent it, I cannot imagine a rationalization for your husband being kept out of the financial information loop, or for an owner of a small business to have his salary determined by a non owning bookkeeper, even if it’s his beloved father.

I don’t have a way to know if your understandable anger and frustration has crossed a line, and your father in law feels backed into a corner, but I’d suggest your best defense/offense is to calmly support your husband’s right to have full access to the books, to have an objective explanation of the state of the business, to have your father in law following a job description that outlines the appropriate authority and control for a non owning bookkeeper, and have all your husband’s questions answered to his full satisfaction.

I am not trying to marginalize you or your role as your husband’s supporter, life mate and advocate. I just think you’ll win the battles and the war if you’re clear that your husband is the person who has the authority to see all the information, to control the company, and to determine his father’s role in the company, assuming your husband is truly the sole owner of the company.

Your husband might tactfully, lovingly, respectfully, but firmly tell his father that he wants to hire his own financial analyst to explain to him the state of the business; that he’s starting a new chapter in how the company is managed, with the owner taking more control of the financials, as is the owner’s obvious right.

This person should be an experienced CPA with auditing talents, and skills in simultaneous translation from accounting to English; and a lot of people skills, to boot.

If something is truly haywire in the way your father in law is handling the money, your husband needs to find out. If there is some other explanation for what is going on, you are fully deserving to know what that is. You need to figure out how to change the perception of you from black sheep to loyal and upstanding wife and respectful but respected daugher in law, and help this situation get straighten out without unnecessary grief.

I hope this helps.