S.C. Supreme Court Considers Appropriate Application of the "Income Approach" Valuation in Dissolution Action

The South Carolina Supreme Court determined that an appraiser report lacking "normalization adjustments" failed to meet the valuation standards agreed to by the parties, and warranted reversal of the trial court's order approving the valuation.

In Blackburn v. TKT and Associates, two corporate shareholders filed a dissolution action alleging that two other shareholders were inappropriately taking the profits of the corporation in the form of excessive salaries.

Following a bench trial, the trial court agreed that the defendant shareholders had "improperly drained the assets" of the corporation, determined that the defendant shareholders should pay plaintiff shareholders the fair value of their shares, and ordered an appraisal.

The parties chose an appraiser, and selected the "income approach" method for valuing the corporation. The terms of the appraiser's engagement further provided that the appraisal would be done in accordance with the Statement of Standards for Valuation Services of the American Institute of Certified Public Accountants (AICPA) and National Association of Certified Valuation Analysts (NACVA).

The appraiser made no "normalizing adjustments" to take into account the excessive salaries of the defendant shareholders. Such an approach was inconsistent not only with AICPA standards, but also with the trial court order concluding the defendant shareholders' salaries were excessive.

Popular posts from this blog

Legalized, But Regulated: Commercial Hemp in South Carolina

Image
On December 20, 2018 the Agricultural Improvement Act of 2018  (the "2018 Farm Bill") became law.  Following closely on the heels of the 2018 Farm Bill, on March 28, 2019 the South Carolina Hemp Farming Act  ("S.C. Hemp Farming Act") was signed into law.  The following is a brief overview of the status of hemp (also called "commercial hemp" or "industrial hemp") farming and regulation in South Carolina in the wake of the 2018 Farm Bill and the S.C. Hemp Farming Act. Background The terms "hemp" (which has non-drug connotations and uses) and "marijuana" (no further explanation necessary) describe the same plant genus: cannabis. The difference between the two is generally based on the relative amount of tetrahydrocannabinol (THC) contained in the plant. Hemp plants are cultivated to produce fiber and seeds and very little if any THC. Marijuana plants, on the other hand, are cultivated to produce more THC. THC...
Read more

What Authority the Principal Chose: Arredondo, POAs, and Arbitrability

Image
It was only a matter of time before arbitrability (the enforceability of an agreement to arbitrate) put a South Carolina courts in the position to construe the language in a power of attorney ("POA"). And this opinion did.  I try to view these decisions through the lens of how an attorney practicing in South Carolina might learn from them. And this decision, like some others involving the FAA and arbitrability, (for example, Grant v. Kuhn Chevrolet  or Herron v. Century BMW  , had the litigator and the drafter in me scratching my head.  Or at least I was confused until I learned about what had happened legislatively in the time since the POAs at issue in Arredondo were scrutinized by three (3) South Carolina courts. This decision, involving a POA executed before January 1, 2017, is likely an anomaly or a one-off, as going forward the S.C. Uniform Power of Attorney Act (SCUPOA) provides a guide for the creation of POAs that may avoid the necessity for so much j...
Read more

The SC Insurance Data Security Act: Ask Some Questions to Evaluate Your Security Program

Image
The  South Carolina Insurance Data Security Act  (“Act”), fashioned after the  NAIC Insurance Data Security Model Law  (Model Law), went into effect on January 1, 2019. South Carolina was the first state in the nation to pass this legislation, and others (Ohio, Mississippi), have followed suit. The Act requires that each South Carolina person licensed or authorized by the South Carolina Department of Insurance (DOI) a “Licensee” must implement, no later than July 1, 2019, a “comprehensive written information security program” (“Program”) designed to protect nonpublic information (NPI) and the security of the Licensee’s information system. In addition, the Act requires a Licensee to report to the Director of the DOI within 72 hours following an actual or potential “cybersecurity event.” S.C. Code Section 38-99-40(A) (Section 6(A) of the Model Act). While South Carolina Licensees (hopefully) are well down the path to meeting the Act’s requirements, the...
Read more