Will Your 409A Valuation Report Hold Up to the IRS Challenge? 3 Key Things to Look For

As businesses navigate the complexities of valuation, assessing the robustness of 409A valuation reports becomes essential, especially in light of potential IRS scrutiny and audit review. In this article, we discuss three key aspects that can significantly impact the validity and reliability of your 409A valuation report.

1. A Precise Purpose

An IRC 409A valuation report is essential for several purposes but is primarily used to ensure compliance with tax regulations. The reason(s) for a 409A valuation report should be transparent and clearly defined to provide all stakeholders with concise information. A summary of reasons for obtaining a 409A valuation is as follows:

Compliance with IRS Regulations – Safe Harbor Protection:

By adhering to the safe harbor valuation methods, companies can benefit from a presumption of reasonableness, reducing the risk of IRS challenges.

  • Independent Appraisal Presumptions – The valuation report must be done by an independent, qualified, third-party appraisal firm, and with no conflict of interest. Compliance with GAAP standards, while not mandatory, can support the overall valuation methods.
  • Formula Based Valuations – The valuation report must use consistent fair market value formulas when valuing the company stock (i.e., earnings or revenue multiples). 
  • Illiquid Startup Presumptions – The valuation of a startup must be done by a qualified individual in good faith, using reasonable effort to determine the fair market value. It must be done consistently across similar scenarios and across time.  

Determination of Fair Market Value:

  • Setting an Exercise Price: The valuation report determines the fair market value of a company’s common stock, which is crucial for setting the exercise price of stock option grants to avoid them being considered as deferred compensation under Section 409A. This price should be explicitly stated and clearly displayed in the valuation report. 
  • Equity Compensation: The valuation report should help ensure that equity compensation granted to employees (i.e., stock options, warrants, or restricted stock units) is priced correctly and maintains the tax-advantaged status.

2. A Simple Signature

A recent trend in the valuation industry is the use of simplified, limited purpose valuations that ultimately lack the signature of a qualified appraiser, which can limit the viability of the analysis for ASC 718 purposes, as well as IRC 409a (and similar tax valuation) purposes. The IRS can challenge a company valuation simply due to the lack of a signature. Litigation typically involves situations where the absence of a signature raises questions about the authenticity or quality of the valuation process and adherence to professional best practices.

While the IRS does not explicitly dictate through its guidance that a 409a valuation requires a signature to be valid, there are multiple tax law cases where the lack of a signature caused doubt in the validity of a valuation. A few examples are outlined below.

  • Transfer Pricing: In transactions, especially involving related parties, the IRS may challenge the valuation of transferred assets between entities if the necessary documentation, including signed agreements or valuations, is not provided. Lack of signatures on transfer pricing documents could possibly lead to IRS disputes over the accuracy and fairness of the valuation methods used.

Example: Amazon.com, Inc. v. Commissioner of Internal Revenue (2017)[1]:

The IRS questioned Amazon’s transfer pricing methods related to the intercompany transactions between its U.S. parent company and its Luxembourg subsidiary. The IRS claimed that Amazon had incorrectly undervalued certain intangible assets transferred to the Luxembourg subsidiary, thus decreasing its taxable income in the United States.

One of the points the IRS raised was the absence of signed contracts and documentation backing the valuation of these intangible assets. Transfer pricing rules mandate multinational corporations to record and validate the arm’s length nature of their intercompany transactions, including the valuation of any transferred assets.

Throughout the litigation process, the IRS contended that Amazon had not provided sufficient documentation, including signed contracts and valuation reports, to support the transfer pricing modifications made by the company. The lack of appropriate documentation and signatures cast doubt on the precision and legitimacy of Amazon’s valuation techniques, leading to a disagreement over the amount of taxable income attributable to its U.S. operations.

This case emphasizes the necessity for multinational corporations to comply with transfer pricing laws and regulations, including the need for signed documentation and valuation reports which substantiate their transfer pricing strategies. Inadequate documentation can lead to IRS objections, modifications to taxable income, and potentially substantial tax liabilities for the involved company.

  • Employee Stock Ownership Plans (ESOPs): Valuations of ESOPs require formal appraisals and documentation signed by authorized parties. If these signatures are missing or if there are discrepancies in the signatures provided, the IRS may question the validity of the valuation and its compliance with regulatory requirements.

Example: Brundle v. Commissioner(2013)[2]:

The Tax Court examined the valuation of company shares held by an ESOP to ascertain the deductible contributions made by the employer. The IRS disputed the valuation approach employed by the ESOP trustee and questioned the sufficiency of the documentation underpinning the valuation.

A primary concern raised by the IRS was the absence of signed appraisal reports and other corroborating documentation that validated the valuation of the company shares which were allocated to the ESOP participants. ESOP valuations are pivotal as they establish the fair market value of company shares for tax-deductible contributions and participant account allocations.

Throughout the litigation process, the IRS contended that the ESOP trustee had not sufficiently documented and substantiated the valuation conclusions drawn. This encompassed shortcomings in the appraisal reports, missing signatures on crucial documents, and inadequate rationale for the applied valuation methodology.

The Tax Court’s ruling underscored the significance of comprehensive documentation and adherence to valuation norms in ESOP transactions. It emphasized that ESOP trustees must deliver believable and well-substantiated valuations, including signed appraisal reports by competent appraisers, to resist IRS scrutiny and ensure adherence to tax regulations.

  • Gift and Estate Tax Valuations: Valuations of gift and/or estate tax purposes require signed appraisal reports to substantiate the stated values of assets transferred. If the required signatures are absent or if there are doubts about the authenticity of the signatures provided, the IRS may challenge the valuation, potentially resulting in increased tax liabilities for the parties involved.

Example: C.F. Estate, Inc. vs. Commissioner[3]:

The Tax Court evaluated the worth of an estate’s holdings where the IRS disputed the absence of adequate records and signatures on finalized valuation reports. The court stressed the necessity of having signed valuation reports from competent  qualified appraisers to validate the worth of assets for tax considerations, particularly in intricate estates or privately owned businesses. The lack of these signatures can result in IRS objections and potentially adverse tax consequences for the estate. This highlights the need for taxpayers and estates to ensure that all necessary paperwork is correctly prepared, signed, and complies with regulatory norms to resist IRS examination.

3. A Clear Conclusion

A clear conclusion of the subject interest value is paramount for a quality 409A valuation report. If your report doesn’t clearly show per share equity value and the basis of that value (control v. non-control; marketable v. non-marketable), it raises doubt about the quality of the report and the validity of analyses that rely on it. Consider the following when evaluating a potential 409A:

  • Regulatory Compliance: A 409A report is needed to ensure compliance with IRS regulations regarding the fair market value of private company stock options. Qualified appraisal reports performed by qualified appraisers will limit the potential for unintended tax consequences.
  • Accurate Stock Option Pricing: A per share equity value is essential for setting the exercise price of stock options, which impacts employee compensation, company financial reporting, and potential tax obligations of both employees and the company. If the appraisal report does not show the per equity value, it may lead to potential negative tax consequences.  
  • Investor Confidence: To the extent a 409A is scoped for multiple stated purposes, such as management planning and reporting, investors could rely on the report to assess the company’s worth and make informed investment decisions. Consideration needs to be taken to ensure management and investors are not misled and that additional information is contained and supported within the report to aid in its usefulness for this intended purpose. 
  • Financial Reporting: To the extent a 409A is used for financial reporting purposes, namely ASC 718, clearly stated valuation conclusions support transparent and reliable financial reporting, ultimately aiding stakeholders in understanding the company’s financial health. Considerations for differing standards of value and other nuanced areas of valuation must also be addressed and documented within the appraisal report.

How Centri Can Help

Centri’s valuation experts ensure exceptional quality in all client deliverables. Each valuation undergoes a multi-tier quality review process led by experienced engagement partners and our seasoned quality control national office professionals. With decades of expertise in the valuation field, our quality control team ensures that appraisals prepared for ASC 718, IRC 409A, and other tax valuation purposes will have the partner’s signature and a clear conclusion, instilling confidence that the valuation report will withstand a professional review.  Contact us to learn how we can help your company.


[1]https://casetext.com/case/amazoncom-inc-v-commr-2/

[2] https://casetext.com/case/brundle-ex-rel-constellis-emp-stock-ownership-plan-v-wilmington-trust-na-1

[3] https://casetext.com/case/indopco-inc-v-commissioner-of-internal-revenue

Curtis Farrow

Partner | Private Equity & Venture Capital Practice Leader | CPA, ASA

Curtis is a Partner at Centri Business Consulting and the leader of the firm’s Private Equity & Venture Capital Practice. He has more than 11 years of experience and has supported many clients in achieving their growth initiatives in connection with M&A, capital raising, reorganizations, and carve-outs, as well as successful liquidity events for stakeholders via IPOs, de-SPACs, reverse mergers, and other M&A transactions. Curtis joined Centri in November 2019, where he combines his strong expertise in business and intangible valuation with his knowledge of accounting to identify, address, and resolve business issues for investors and entrepreneurs.. View Curtis Farrow's Full Bio

Mike Fazzolari

Director | MBA, FMVA, ABV

Mike is a Director at Centri Business Consulting. He has 15 years of professional experience, including valuation, investment banking, financial analysis, and project management, of which 10 years are related to valuation. View Mike Fazzolari's Full Bio

Sabastian Keister

Senior Analyst

Sabastian is a Senior Analyst at Centri Business Consulting. He has more than 2 years of experience in complex financial instruments, 409a valuations, and purchase price allocations. View Sabastian Keister's Full Bio

About Centri Business Consulting, LLC

Centri Business Consulting provides the highest quality advisory consulting services to its clients by being reliable and responsive to their needs. Centri provides companies with the expertise they need to meet their reporting demands. Centri specializes in financial reportinginternal controlstechnical accounting researchvaluationmergers & acquisitions, and tax, CFO and HR advisory services for companies of various sizes and industries. From complex technical accounting transactions to monthly financial reporting, our professionals can offer any organization the specialized expertise and multilayered skillsets to ensure the project is completed timely and accurately.

Philadelphia
Eight Penn Center
1628 John F Kennedy Boulevard
Suite 500
Philadelphia, PA 19103
New York City
530 Seventh Avenue
Suite 2201
New York, NY 10018
Raleigh
4509 Creedmoor Rd
Suite 206
Raleigh, NC 27612
Tampa
615 Channelside Drive
Suite 207
Tampa, FL 33602
Atlanta
1175 Peachtree St. NE
Suite 1000
Atlanta, GA 30361
Boston
50 Milk St.
18th Floor
Boston, MA 02109
Tysons Corner
1775 Tysons Blvd
Suite 4131
McLean, VA 22102
Denver
One Tabor Center
1200 17th St.
Floor 26
Denver, CO 80202
Centri Everywhere
1-855-CENTRI1
virtual@CentriConsulting.com

11/07/2024

Is Your Finance Team Ready for FASB’s New Segment Expense Disclosure?

Chief Operating Decision Makers (“CODM”): Have you discussed with your finance team...

Read More

11/07/2024

The Impact of Segment Reporting: What Auditors Need to Know Now

Attention Auditors: Since FASB has announced ASU 2023-07 and the required updates...

Read More

11/06/2024

New York Department of Financial Services Guidance on AI-Related Cybersecurity Risks

On October 16, 2024, the New York Department of Financial Services (“NYDFS”)...

Read More