Qualified Appraisals and Qualified Appraisers

Qualified Appraisals and Qualified Appraisers

Expert Tax Valuation Witness Reports, Testimony, Procedure, Law, and Perspective

Devitt, Michael R.; Sannicandro, Lawrence A.

John Wiley & Sons Inc

12/2017

256

Dura

Inglês

9781119437574

15 a 20 dias

Descrição não disponível.
Foreword by Shannon P. Pratt xvii Foreword by Jay E. Fishman xix Preface xxi Chapter 1 Tax Valuation and the Necessity for Expert Appraisals 1 Summary 1 The Need for Valuation Experts 1 Valuation in Tax Reporting 2 Valuation in Tax Litigation 3 Valuation in Business and Familial Matters 4 Valuation Calculation Standards 4 Fair Market Value Defined 5 Implied Assumptions 6 Cash Value and Market Value 7 Computing Fair Market Value 7 Step 1: Calculating Net Asset Value 8 Step 2: Applying Discounts and Premiums 9 Common Tax Appraisal Reports 9 Appraisal Reports to Support Tax Reporting Positions 9 Appraisal Reports to Support Tax Litigation 10 Proliferation of Litigation 10 Conclusion 11 Chapter 2 Qualified Appraisal 12 Summary 12 Defining Qualified Appraisal 12 Situations in Which a Qualified Appraisal May Be Required 13 Qualified Appraisal Requirements for Charitable Contribution Deductions Context 14 Requirements 15 Legislative History 16 Statutory Definition of a Qualified Appraisal 18 Regulatory Definition of a Qualified Appraisal 18 Requirement 1: The 60-Day Requirement: Treas. Reg. 1.170A-13(c)(3)(i)(A) 19 Requirement 2: The Qualified Appraiser Requirement: Treas. Reg. 1.170A-13(c)(3)(i)(B) 19 Requirement 3: The Substantive Requirements: Treas. Reg. 1.170A-13(c)(3)(i)(C) 20 Requirement 3.1: Property Description: Treas. Reg. 1.170A-13(c)(3)(ii)(A) 20 Requirement 3.2: Tangible Property: Treas. Reg. 1.170A-13(c)(3)(ii)(B) 21 Requirement 3.3: Date of Contribution: Treas. Reg. 1.170A-13(c)(3)(ii)(C) 21 Requirement 3.4: Terms of Agreement: Treas. Reg. 1.170A-13(c)(3)(ii)(D) 22 Requirement 3.5: Identifying Information of the Qualified Appraiser: Treas. Reg. 1.170A-13(c)(3)(ii)(E) 23 Requirement 3.6: The Qualifications of the Qualified Appraiser: Treas. Reg. 1.170A-13(c)(3)(ii)(F) 24 Requirement 3.7: Statement of Preparation for Income Tax Purposes: Treas. Reg. 1.170A-13(c)(3)(ii)(G) 24 Requirement 3.8: Date(s) of Appraisal: Treas. Reg. 1.170A-13(c)(3)(ii)(H) 25 Requirement 3.9: Appraised Fair Market Value: Treas. Reg. 1.170A-13(c)(3)(ii)(I) 25 Requirements 3.10 and 3.11: Valuation and Basis Used to Determine Fair Market Value: Treas. Reg. 1.170A-13(c)(3)(ii)(J) and (K) 26 Requirement 4: No Prohibited Fee Arrangement: Treas. Reg. 1.170A-13(c)(3)(i)(D) 27 The Qualified Appraisal Requirement and Pass-Through Entities 27 Interplay of the Qualified Appraisal and Appraisal Summary Requirements 28 Litigation Concerning Qualified Appraisals 29 Conclusion 29 Chapter 3 Qualified Appraiser 31 Summary 31 Legislative History 31 Statutory Requirements 32 Statutory Requirement #1: Appraisal Designation or Certain Minimum Education and Experience Requirements 33 Statutory Requirement #2: Regularly Performs Appraisals for Compensation 34 Statutory Requirement #3: Verifiable Education and Experience 34 Statutory Requirement #4: Not Prohibited from Practice by 31 U.S.C. 330(c) 34 Regulatory Requirements 35 Appraiser's Declaration 35 Regulatory Requirement #1: Declaration That Individual Is an Appraiser: Treas. Reg. 1.170A-13(c)(5)(i)(A) 36 Regulatory Requirement #2: Declaration That the Appraiser Is Qualified to Value the Property: Treas. Reg. 1.170A-13(c)(5)(i)(B) 36 Regulatory Requirement #3: Declaration That the Appraiser Is Not an Excluded Person: Treas. Reg. 1.170A-13(c)(5)(i)(C) 36 Regulatory Requirement #4: Declaration That the Appraiser Understands Consequences of Fraudulent Valuation: Treas. Reg. 1.170A-13(c)(5)(i)(D) 38 Additional Declaration Requirements of Notice 2006-96 38 Denial of Appraiser Status 39 Appraisals by More than One Appraiser 40 Appraisal Fees 40 Judicial Interpretation of the Requirements 41 Sufficiency of Documentation 41 Scrutiny of Qualifications 42 Excluded Parties 42 Multiple Appraisers 42 Conclusion 42 Chapter 4 Substantial Compliance vs. Strict Compliance 43 Summary 43 Overview of the Strict and Substantial Compliance Doctrines 43 Applicability of the Substantial Compliance Doctrine 44 Judicial Approaches to the Substantial Compliance Doctrine 45 Survey of Cases Applying the Substantial Compliance Doctrine 45 Bond v. Commissioner: The First Application of the Substantial Compliance Doctrine in the Context of the ualified Appraisal Regulation 46 Post-Bond Decisions: Cases Finding Substantial Compliance 47 Supplemental Information from Form 8283 47 Sufficient Information for IRS to Evaluate Reported Contributions as Intended by Congress 48 A New Trend? 48 Post-Bond Decisions: Cases Finding No Substantial Compliance 49 Absence of Qualified Appraisal 49 Flawed Appraisal Reports 50 Post-Scheidelman Cases 53 Judicial Approaches to the Strict Compliance Doctrine 53 The Substantial Compliance Doctrine in the Appellate Courts 54 Reasonable Cause: Codification of the Substantial Compliance Doctrine 55 Conclusion 56 Chapter 5 Government Expert Witnesses 58 Summary 58 The Government's Need for Expert Testimony 58 IRS Criteria for Expert Selection 59 Internal IRS Valuation Experts 60 IRS Hiring, Training, and Evaluation of Internal Valuation Experts 62 Hiring 62 Training 62 Performance Evaluation and Management Oversight 63 IRS Use of Internal Valuation Expert Witnesses 63 Advantages to Using an Internal Valuation Expert as an Expert Witness 63 The Inherent Bias Problem 63 Court Reactions to Government Employee Expert Witnesses 64 Government's Decision to Not Present an Expert Witness 66 Conclusion 67 Chapter 6 The Practicalities of Selection and Preparation of Experts 68 Summary 68 Selecting an Appraiser 68 Education, Training, Professional Experience, and Accrediting Organization Participation 69 The American Society of Appraisers 69 The Appraisal Institute 70 The Institute of Business Appraisers 70 The National Association of Valuers and Analysts 71 The American Institute of Certified Public Accountants 71 Being a Good Communicator 71 Offering a Neutral, Detached Opinion of Value 71 Avoiding the Bias Perception 71 Selecting the Expert Who Prepared the Appraisal That Supports the Tax Reporting Position 72 Early and Significant Appraiser Involvement 72 Appraiser Scheduling and Availability 73 Correcting Errors in the Expert's Report 73 "Skeletons in the Closet" 73 Acquainting the Expert with the Cast of Characters and Venue 73 Attorney Comprehension of Expert Opinions 74 Planning the Testimony 74 Expert Testimony Preparation 74 Conclusion 75 Chapter 7 From Daubert to Boltar 76 Summary 76 Standard of Admissibility for Expert Witness Testimony-The Federal Rules of Evidence 76 Daubert and Its Progeny in Courts Other than the Tax Court 77 Boltar as the Modern Incarnation of Daubert in the Tax Court 81 Daubert Challenges Generally 82 Illustrations of Daubert Factors in Practice 83 Factor 1: Has the theory or technique been tested? 83 Factor 2: Has the theory or technique been subjected to peer review and publication? 84 Factor 3: Is there a known or potential rate of error or standards for the theory or technique applied? 86 Factor 4: Has the theory or technique gained general acceptance? 88 Factor 5: Is the expert testifying about matters growing naturally and directly out of research conducted independent of the litigation? 90 Factor 6: Has the expert unjustifiably extrapolated from an accepted premise to an unfounded conclusion? 93 Factor 7: Has the expert adequately accounted for obvious alternative explanations? 95 Factor 8: Is the expert being as careful as he would be in his regular professional work? 96 Factor 9: Is the field or expertise claimed by the expert known to reach reliable results for the type of opinion the expert would give? 97 Factor 10: Has the theory or method offered by the expert been put to any non-judicial use? 97 Factor 11: Whether the expert's opinion fails to square with a judge's opinion and common sense 97 Conclusion 98 Chapter 8 Discovery of Expert Material 99 Summary 99 Overview of Discovery 99 Important Limitations on Discovery 100 The Attorney-Client Privilege 100 Work Product 101 Unfairness Doctrine 102 The IRS's Summons Authority 102 Procedures with Respect to Expert Witnesses Prepared in Connection with Litigation 103 Discovery in the Courts 103 Tax Court 104 General Provisions Regarding Discovery 105 Interrogatories 107 Production of Documents 108 Depositions 110 Admissions 112 U.S. District Courts 113 General Provisions Regarding Discovery 113 Interrogatories 117 Production of Documents, Electronically Stored Information, and Other Similar Items 117 Depositions 118 Admissions 119 Court of Claims 119 Expert Should Be Present at Opposing Expert's Deposition 119 Conclusion 119 Chapter 9 Expert Appraisal Reports 120 Summary 120 Valuation Standards 120 Revenue Ruling 59-60 121 USPAP Generally 122 Compliance with USPAP 122 Noncompliance with USPAP Does Not Render an Expert Report Unreliable 122 Appraisal Reports Generally 122 Fair Market Value 123 Contents of the Appraisal Report 123 Table of Contents 123 Executive Summary or Cover Letter 123 Body of Report 124 Identifying the Retaining Party and Other Intended Users 124 Type of Appraisal 125 Standard of Value and Source 125 Effective Date of the Appraisal and the Date of the Report 126 Purpose of the Appraisal and Its Intended Use 128 Summary of the Scope of Work 128 Summary of Information Considered 129 Describing the Subject Property, the Type of Asset, the Interest Valued, and Geographic Data 131 How Title Is Held 132 Restrictions, Hypotheticals, and Limiting Conditions 132 Highest and Best Use 132 Valuation of the Subject Property 132 Summary of Approaches Utilized 134 Reconciliation 135 Consider a Regression Analysis 135 Conclusion of Value 136 Appraiser's Signature 136 Signed Certification 136 Addenda 138 Work File as Support for an Appraisal Report 138 Contents of Work File 138 Retention Period 139 Conclusion 139 Chapter 10 Assessing the Quality of the Appraisal Report 140 Summary 140 Required Items Under the USPAP and Revenue Ruling 59-60 140 Making the Report Understandable to the Audience 142 Replicability 142 Completeness 142 Internal Consistency 142 Reconciliation 143 Regression Analysis 143 Forecasting Future Results 144 Economic and Industry Sections 144 Supporting Exhibits 144 Comply with Applicable Court Rules 145 The Tax Court 145 The District Courts 146 Conclusion 146 Chapter 11 Concurrent Evidence: A Novel Approach to Expert Testimony 147 Summary 147 A New Approach to Expert Testimony 148 Our Long and Deep Distrust of Partisan Experts 148 Court-Appointed Experts 151 Heating Up the Tub: The Concurrent Evidence Method 152 Expert Bias 155 Foreign Court Experiences 155 American Experience with Concurrent Experts 157 Suggested Four-Stage Hot Tub Approach for Tax Court Judges 159 Stage One: Pretrial Expert Meeting and Joint Report 160 Stage Two: The Expert Oath 161 Stage Three: The Trial Hot Tub Conversation 161 Stage Four: Cross-Examination and Rebuttal 163 Common Misperceptions of the Concurrent Witness Model 164 Myth 1: Concurrent Testimony Replaces the Traditional Model 164 Myth 2: The Consent of Both Parties Is Needed 164 Myth 3: More Work Is Created for the Trier of Fact 164 Myth 4: Concurrent Evidence Is Received Off the Record 165 Myth 5: The Concurrent Witness Model Is an Auction 165 Myth 6: The Lawyers Lose All Control in the Courtroom 165 Myth 7: Hot Tubbing Is Prevalent in Tax Cases 165 Practical Benefits and Claimed Drawbacks 166 Conclusion 169 Chapter 12 Penalties Associated with Faulty Appraisals 170 Summary 170 The Importance and Prevalence of Penalties in Modern-Day Appraisal Practice 170 Framework for Examination 171 Accuracy-Related Penalties Possibly Applicable to Client-Taxpayers 171 The Substantial Valuation Misstatement Penalty 172 Imposition of the Penalty 172 Substantial Valuation Misstatement Penalty Applies on a Property-by-Property Basis 172 Dollar Limitation for Substantial Valuation Misstatements 173 Substantial Valuation Misstatements and Pass-Through Entities 173 Increase in Penalty Rate for Gross Valuation Misstatements 174 Defenses 174 The Gross Valuation Misstatement Penalty 176 Gross Valuation Misstatement Applies on a Property-by-Property Basis 177 Dollar Limitation for Gross Valuation Misstatements 177 Gross Valuation Misstatements and Pass-Through Entities 177 Elimination of Reasonable Cause Exception 178 The Applicability of the Gross Valuation Misstatements to Transactions Determined to Lack Economic Substance 178 Estate or Gift Tax Valuation Understatements 180 Civil Penalties Potentially Applicable to Appraisers 180 The Section 6695A Accuracy-Related Penalty 180 The Statute 181 Statute of Limitations and Collection of Penalty 182 Affirmative Defenses 182 Referral for Professional Sanctions 182 Paid Preparer Penalty-Section 6694 182 The Statute 183 Appraisers as Paid Return Preparers 185 De Minimis Exception 185 Affirmative Defenses 186 Aiding and Abetting an Understatement of Tax-The Section 6701 Penalty 186 The Statute 187 Coordination with Other Penalties 188 Injunctions against Appraisers 188 Effect of Imposition of the Section 6701 Penalty 188 Professional Sanctions 189 Circular 230 Generally 189 Disqualification of Appraisers under Circular 230 189 Monetary Penalty 189 Conclusion 190 Chapter 13 Attorney Involvement 191 Summary 191 Framework for Examination 191 Attorney Involvement in Selecting the Appraiser 192 An Appraiser's Ability to Withstand a Daubert Challenge 193 The Importance of Having the Attorney Engage the Appraiser 193 Attorney Involvement in the Appraisal Process 194 The Fact-Gathering Process 194 The Report Preparation Process 195 The Review Process 196 Sanctions for Improper Attorney Assistance 197 The Tax Preparation Process 198 Coordinating the Attorney's and the Appraiser's Involvement in Negotiations with Tax Authorities 198 Attorney Involvement in Litigation Where Expert Reports Will Be Submitted 199 Discovery and the Expert Appraiser 200 Submitting the Expert Appraisal Report to the Court 200 Motions in Limine 201 Rebuttal Reports 202 Qualifying the Appraiser as an Expert and Satisfying Daubert 203 Cross-Examination and Rehabilitation 203 Cross-Examination 203 Rehabilitating the Expert Witness 203 Conclusion 204 Chapter 14 Common Errors with Appraisal Reports and How to Avoid Them 205 Summary 205 Common Defects with Appraisals 205 Defect 1: Untimely Appraisal Report 206 Requirement and Error 206 Remedy 206 Defect 2: Inadequate Description of Property 207 Requirement and Error 207 Remedy 207 Defect 3: Failing to Analyze Agreements and Restrictions with Respect to the Property 208 Requirement and Error 208 Remedy 208 Defect 4: Qualifications Not Disclosed 209 Requirement and Error 209 Remedy 209 Defect 5: No Statement That Appraisal Was Prepared for Federal Tax Purposes 210 Requirement and Error 210 Remedy 210 Defect 6: Wrong Measure of Value 210 Requirement and Error 210 Remedy 212 Defect 7: Lack of Reconciliation 213 Requirement and Error 213 Remedy 214 Defect 8: Consideration of Subsequent Events 215 Requirement and Error 215 Remedy 216 Defect 9: Tax-Affecting S Corporations 216 Requirement and Opportunity for Error 216 Remedy 217 Potential Defect 10: Failure to Include a Regression Analysis 217 Conclusion 218 Table of Cases 219 About the Authors 223 Index 225
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