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What You Should Know About Marital vs. Non-Marital Assets in a Divorce

David Anderson is principal of David Anderson & Associates, a Philadelphia forensic accounting firm that provides a full range of forensic accounting services including fraud investigation and fraud deterrence programs in Philadelphia and the Delaware Valley.

One of the key tasks in a divorce is identifying the marital versus the non-marital assets of the divorcing couple.

To obtain a better understanding of the key issues involved regarding marital versus non-marital assets, David Anderson, principal of David Anderson & Associates, a Philadelphia forensic accounting firm that provides marital dissolution and business valuation services in Philadelphia and the Delaware Valley, interviewed Kathy Bloom, Esquire. Ms. Bloom is an attorney-mediator who is the Managing Partner of the family law firm of Bloom Peters, LLC; the firm has offices in Horsham, PA and Mount Laurel, NJ.

Ms. Bloom began by stating that Pennsylvania, New Jersey, and Delaware are “equitable distribution” states (as opposed to states like California which are community property states).  This means that the courts decide what they consider to be an equitable or fair distribution of the marital assets between the divorcing spouses (whereas in community property states the parties are generally entitled to a 50/50 distribution of marital assets).

As a result, it is very important to distinguish between marital and non-marital assets.  Such assets include homes and other real estate, vehicles (including cars, trucks, boats and planes), personal property (including art, collectibles, antiques, jewelry, furnishings, clothing, etc.), investment accounts, bank accounts and investments in businesses.  In Pennsylvania, 529 education accounts not held in trust are also considered marital assets regardless of the source of the contributions.

Ms. Bloom stated that the delineation between marital and non-marital assets is not based upon the name in which the assets are held, but rather when the assets were acquired.  If the assets were acquired prior to the marriage or after the date of separation (or date of filing for divorce, depending upon the state of residence), they are generally considered non-marital assets.  Assets acquired during the marriage as well as the increase in value of non-marital assets during the marriage are marital assets.

Of course, there are always exceptions to the above.  If there is a pre-nuptial agreement providing for segregation of certain non-marital assets and their subsequent earnings or increase in value, these can remain non-marital assets.  Another exception can occur for non-marital assets acquired by inheritance or gift during the marriage.  If those assets are segregated from marital assets, they can retain their non-marital status (although any earnings or increase in value during the marriage will still be considered as marital assets).

If non-marital assets are “comingled” with marital assets, these non-marital assets can become marital assets.  This can happen when one or both spouses put non-marital assets into a common marital asset.  For example, if both spouses contribute non-marital assets to a common joint account (such as a checking account or investment account) or to a commonly owned asset (such as a home, car, or real estate), over time the non-marital asset may become indistinguishable from the marital asset.

There are even exceptions to some of these exceptions.  Some Pennsylvania counties (such as Bucks County) employ the concept of “vanishing or diminishing credit”.  In Bucks County, this credit is applied ratably over a twenty-year period (over a ten year period for Montgomery County).   For example, if a spouse contributed $20,000 of non-marital funds towards the purchase of a jointly owned home, and the couple divorces fifteen years later, the contributing spouse may claim a diminishing credit and be considered to still retain a 25% non-marital interest in the original $20,000 contribution.  While Bucks County commonly applies a diminishing credit, in other Pennsylvania counties, it is generally up to the judge to determine whether any credit remains in similar circumstances.

Issues can also arise if one or both spouses withdraw funds, marital or separate, before final distribution.  If any of those funds are invested (such as in a house, real estate or investment account), the increase in value of such investment may or may not be considered a marital asset.  As a result, Ms. Bloom recommended that any such distribution prior to the final divorce decree be subject to an agreement between the parties regarding any increase in value.

As can be seen from the above, there are many key issues involved in determining marital versus non-marital property. Very often, the parties will need to engage a forensic accountant to trace both marital and non-marital assets throughout a marriage, particularly if some of the non-marital assets have been comingled with marital assets.

If you need of a marital dissolution accountant in Philadelphia, or if you require any other services of a forensic accounting expert in Philadelphia and the Delaware Valley, please contact the Philadelphia forensic accounting firm of David Anderson & Associates by calling David Anderson at 267-207-3597 or emailing him at david@davidandersonassociates.com.

About David Anderson & Associates

David Anderson & Associates is a Philadelphia forensic accounting firm that provides a full range of forensic accounting services in Philadelphia and the Delaware Valley.  The experienced professionals at David Anderson & Associates provide forensic accounting, business valuation, fraud investigation, fraud deterrence, litigation support, economic damage analysis, business consulting and outsourced CFO services.  Company principal David Anderson is a forensic accounting expert in Philadelphia with more than 30 years of experience in financial and operational leadership positions. He is a Certified Public Accountant, a Certified Fraud Examiner and a Certified Valuation Analyst.  Anderson also has served as a divorce accountant or marital dissolution accountant in Philadelphia and the Delaware Valley.

Part Five: Taking a Closer Look at Business Valuation

David Anderson is principal of David Anderson & Associates, a Philadelphia forensic accounting firm that provides a full range of business valuation and other forensic accounting services in Philadelphia and the Delaware Valley. This is the final installment of a five-part series in which Anderson reviews the basics of business valuation.

The process of determining the worth of a business is a complicated one.  A business valuation expert must undertake a series of preliminary steps to set the groundwork and then consider the value of the business from three very distinct approaches before forming a professional opinion as to the initial value.  With this process completed, there remains just one final step: considering potential adjustments to the initial value.

“The process is complex,” said David Anderson, principal of David Anderson & Associates, a Philadelphia forensic accounting firm that provides a full range of business valuation and other forensic accounting services in Philadelphia and the Delaware Valley.  “There are myriad factors that must be considered and weighed by the valuator to reach the point of establishing initial value.  But that initial value still is not accurate until possible adjustments to the value are considered.”

Anderson said business valuation experts must consider four types of potential adjustments:

  • Non-operating asset adjustments
  • Control adjustments
  • Marketability adjustments
  • Other adjustments

 

  • Non-operating asset adjustments involve assets and associated liabilities that are not part of the normal operations of a business, according to Anderson, a business valuation expert in Philadelphia and the Delaware Valley. As an example, Anderson explained, a food processing company may own a collection of artwork that is not related to its business operations.  Or, a computer consulting firm may own an office building (with a mortgage) that it does not use but leases out to other companies.
    • Valuators may remove these assets and liabilities from consideration during the business valuation process to assess more accurately the worth of the actual business operations, Anderson said. But once the initial value of the business has been established, these assets and liabilities must be considered because they are owned by the business and therefore affect its overall value.
  • Control adjustments may be warranted if a business valuation expert is considering the value of some, but not all, of the shares of a business, Anderson said. If the shares being valued would give a buyer control of the business, they carry a higher value than other shares.
    • For example, Anderson said, a buyer would have control of the company if either the shares are more than 50 percent of the total or they give the buyer more than 50 percent of the total voting rights (assuming a simple majority is all that is required). However, if the shares represent a “minority interest” in the company, the buyer would not have control or significant influence in company operations.  Under that circumstance, Anderson said, the buyer is likely to demand a price adjustment known as a discount for lack of control.  The specific discount (usually a percentage of the price per share) is typically based on data from sales of shares in publicly held corporations.
  • Marketability adjustments come into play when privately held businesses are being valued, Anderson said. Typically, there are no readily available public markets for privately held businesses.  As a result, it is more difficult to sell shares in a privately held business because it likely will take longer and cost more to find a buyer.
    • A buyer of shares in a privately held business, therefore, is likely to demand a price discount known as a discount for lack of marketability. The specific discount (usually expressed as a percentage of the value of the business or of the price per share) is typically based on the valuation method(s) selected by the business valuation expert, information regarding marketability discounts of comparable companies, and the particular facts and circumstances of the business being valued.
  • Other adjustments the business valuation expert must consider determining if they are applicable include:
    • Built-in gains discount
    • Blockage discount
    • Key person discount (also known as personal goodwill discount)
    • Restrictive agreement discount
    • Investment company discount
    • Lack of voting rights discount

Once all potential adjustments have been applied as necessary, the business valuation expert can finally arrive at a final value for the business.

“As you can see, the process of valuing a business is quite involved,” Anderson said.  “When a business valuation is made for tax, divorce or litigation purposes, the best way to properly protect the rights of the persons for whom the valuation is being performed is to have the valuation conducted by a qualified, experienced business valuation expert who follows professional business valuation standards.”

If you require the services of a business valuation expert in Philadelphia or any other forensic accounting services in Philadelphia and the Delaware Valley, please contact the Philadelphia forensic accounting firm of David Anderson & Associates by calling David Anderson at 267-207-3597 or emailing him at david@davidandersonassociates.com.

About David Anderson & Associates

David Anderson & Associates is a Philadelphia forensic accounting firm that provides a full range of forensic accounting services in Philadelphia and the Delaware Valley.  The experienced professionals at David Anderson & Associates provide forensic accounting, business valuation, fraud investigation, litigation support, economic damage analysis, business consulting and outsourced CFO services.  Company principal David Anderson has more than 30 years of experience in financial and operational leadership positions and is a Certified Public Accountant, a Certified Fraud Examiner, a Certified Valuation Analyst, and a business valuation expert in Philadelphia.

Part Four-Taking a Closer Look at Business Valuation

David Anderson is principal of David Anderson & Associates, a Philadelphia forensic accounting firm that provides a full range of business valuation and other forensic accounting services in Philadelphia and the Delaware Valley. This is the fourth of a five-part series in which Anderson reviews the basics of business valuation.

Business valuation experts must undertake a series of preliminary steps to set the groundwork for determining the worth of a business.  Once those steps are complete, valuators must consider three very distinct approaches to valuing a business.

In earlier postings, David Anderson, principal of David Anderson & Associates, explained the first three steps of the business valuation process — determining the standard of value, deciding on the premise of value, and normalizing financial statements.

In this fourth installment of the series, Anderson reviews the three most-commonly-used approaches to valuing a business: The Income Approach, the Asset-based Approach, and the Market Approach.

“Professional business valuators are required to consider all three approaches,” said Anderson, a business valuation expert in Philadelphia and the Delaware Valley.  “In the end, a business valuation expert must use his or her judgment to determine the best approach or combination of approaches to arrive at a business valuation that is as fair and accurate as possible.”

The most common approaches a business valuation expert will consider are the three noted below:

  • Income Approach values a business by using one or more methods to convert anticipated economic benefits (earnings or cash flow) into a single present amount. There are two primary methods under this approach:
    • Capitalization of Earnings/Cash Flows Method, which is used when there has been a steady level of historical growth, and the
    • Discounted Earnings/Cash Flow Method, which is used when there have been fluctuations in historical growth and when the company can reasonably project earnings for the next five or more years.
  • Asset-based Approach values a business by calculating the value of net assets, which is the difference between total assets and total liabilities. There also are two primary methods under this approach:
    • The Book Value Method, which calculates the net asset value as shown on the books of the business – typically at historical cost, and the
    • Adjusted Net Asset Method, which adjusts the value of assets and liabilities to the fair market value as of the valuation date.
  • Market Approach values a business by comparing it to sales of similar businesses. There are four primary methods under the Market Approach:
    • Analyze transactions of comparable publicly held companies;
    • Analyze transactions of comparable privately held companies;
    • Analyze prior transactions involving shares of the company itself, and lastly,
    • Analyze the ability of the company to pay shareholder dividends and compare that to dividends paid by comparable companies.

“The specific methods used depends on the facts and circumstances surrounding the business being valued,” said Anderson, whose company – David Anderson & Associates – is a Philadelphia forensic accounting firm that provides a full range of business valuation and other forensic accounting services in Philadelphia and the Delaware Valley.

“For example,” Anderson said, “if there are no comparable market transactions or an insufficient number to be meaningful, the Market Approach may not be useful.”

Once the value of the business has been set under each of the approaches, the business valuation expert must determine whether one of the values is the best representation of the true value of the business or if a weighted blend of the values provides a more accurate final business value, he said.

Anderson gives the example of valuing a startup business with little profitability.  The Income Approach might yield a very low value because the startup hasn’t had time to show historical growth, while the Market Approach might result in a considerably higher value based on the sale of comparable businesses.

“Under this scenario, some valuators would select the Market Approach as being most indicative of value and others might choose a blend of the Income Approach and Market Approach with a higher weight on the Market Approach,” he explained.  “It all comes down to the professional judgment of the business valuator, based on his or her experience and knowledge about the business being valued.”

At this point, the complex process of business valuation is nearing the end.  But there is still one major step remaining before a final determination on the worth of a business can be made: Consideration of certain adjustments for non-operating assets as well as control, marketability, and other adjustments.  Anderson will explore these adjustments in the next and final installment of “Taking a Closer Look at Business Valuation.”

If you require the services of a business valuation expert in Philadelphia or any other forensic accounting services in Philadelphia and the Delaware Valley, please contact the Philadelphia forensic accounting firm of David Anderson & Associates by calling David Anderson at 267-207-3597 or emailing him at david@davidandersonassociates.com.

About David Anderson & Associates

David Anderson & Associates is a Philadelphia forensic accounting firm that provides a full range of forensic accounting services in Philadelphia and the Delaware Valley.  The experienced professionals at David Anderson & Associates provide forensic accounting, business valuation, fraud investigation, litigation support, economic damage analysis, business consulting and outsourced CFO services.

Company principal David Anderson has more than 30 years of experience in financial and operational leadership positions and is a Certified Public Accountant, a Certified Fraud Examiner, a Certified Valuation Analyst, and a business valuation expert in Philadelphia.

Part Three: Taking a Closer Look at Business Valuation

David Anderson is principal of David Anderson & Associates, a Philadelphia forensic accounting firm that provides a full range of business valuation and other forensic accounting services in Philadelphia and the Delaware Valley. This is the third of a five-part series in which Anderson reviews the basics of business valuation.

Determining the worth of your business can be quite complicated. Before the actual business valuation can begin, several steps must be taken.

“The value of a business often depends on the earnings it generates,” said David Anderson, a business valuation expert in Philadelphia and the Delaware Valley and principal of David Anderson & Associates.

“Small business owners” he said, “have a fair amount of latitude in choosing how they report the financial operations of their business, often selecting alternative accounting practices that lessen their income tax obligation.”

In two earlier posts, Anderson explained the first two steps of the business valuation process — determining the standard of value and deciding on the premise of value.  This third in a series of articles examines the steps a business valuation expert sometimes must take to bring a company’s financial statement on an equal footing.

Because of these alternative practices, he explained, a business valuation expert frequently needs to adjust the historical financial statements before implementing selected business valuation approaches and methods.  Making these adjustments is often referred to as “normalizing” the financial statements.

“Normalizing the financial statements should provide the valuator with a more economically realistic picture of the value of the assets and the financial operating results of the business,” Anderson explained.

These financial statement adjustments represent estimates and often fall into one of the three categories as noted below:

  • Comparability adjustments are intended to make the company more comparable to guideline companies or companies within the industry group that were used in comparative ratio analyses.
    • For example, if the company being evaluated used the last in, first out (“LIFO”) inventory method of accounting while the industry group uses the first in, first out (“FIFO”) inventory method, this adjustment would give a valuator a clearer picture of how the company’s financial statement compares to others in its industry.
  • Non-operating or non-recurring adjustments are removed from the income statement because they are either unrelated to the business operations or unlikely to recur in the future. Non-operating assets or liabilities are elements of the balance sheet that are removed so a more appropriate value of the operating company may be determined. These assets or liabilities are then added or subtracted to the resulting computed value to arrive at the total equity value of the company.
    • An example of these types of adjustments would be the costs associated with discontinuing a portion of the business.
  • Discretionary adjustments are those expenses that are usually under the sole discretion of management, or more typically, the owners of the business. Often these expenses are between the company and the owners of the company (i.e., related party transactions).  These adjustments are most appropriately made when valuing a controlling interest in the company and they generally represent the difference between the actual recorded book expense and the expense that would be incurred if transacted between the company and an independent third party.
    • Examples of these types of adjustments include: Officer’s and owner’s compensation, owner’s perquisites, entertainment expenses, automobile expenses (e.g., personal use of company cars), compensation to family members, and other related party transactions.

Once these three types of “normalization” adjustments have been made to the financial statements, Anderson said, the business valuation expert can begin to analyze the value of the business under each of the different valuation approaches and methods.

In upcoming weeks, Anderson will continue to explore the process business valuation experts undergo to determine the worth of a business.

If you require the services of a business valuation expert in Philadelphia or any other forensic accounting services in Philadelphia and the Delaware Valley, please contact the Philadelphia forensic accounting firm of David Anderson & Associates by calling David Anderson at 267-207-3597 or emailing him at david@davidandersonassociates.com.

About David Anderson & Associates

David Anderson & Associates is a Philadelphia forensic accounting firm that provides a full range of forensic accounting services in Philadelphia and the Delaware Valley.  The experienced professionals at David Anderson & Associates provide forensic accounting, business valuation, fraud investigation, litigation support, economic damage analysis, business consulting and outsourced CFO services.  Company principal David Anderson has more than 30 years of experience in financial and operational leadership positions and is a Certified Public Accountant, a Certified Fraud Examiner, a Certified Valuation Analyst, and a business valuation expert in Philadelphia.

Part Two: Taking a Closer Look at Business Valuation

David Anderson is principal of David Anderson & Associates, a Philadelphia forensic accounting firm that provides a full range of business valuation and other forensic accounting services in Philadelphia and the Delaware Valley. This is the second of a five-part series in which Anderson reviews the basics of business valuation.

Knowing how to calculate a value of your business that is fair and accurate is a skill with which every corporate principal should be familiar.

“You don’t want to rely on estimates, gut instinct, or rumored calculation methods to determine business value,” said David Anderson, principal of David Anderson & Associates, a Philadelphia forensic accounting firm that provides a full range of business valuation and other forensic accounting services in Philadelphia and the Delaware Valley.  “When you need to know the true worth of your business, you need to understand the process.  And you need the expertise of a highly qualified business valuation expert.”

In the earlier introductory segment of this five-part blog series, Anderson covered the first step of business valuation: Determining the standard of value.

“The second step in ascertaining a company’s worth,” he said, “is to decide on the premise of value.”

The premise of value is the type of transactional circumstances underlying the business or property being valued, Anderson said, adding that there are four premises of value:

  • Going Concern Value
  • Book Value
  • Liquidation Value
  • Replacement Value.

Going Concern Value is the most frequently used premise of value. This method assumes the business is operating and producing revenues . . . and will continue to do so.

Book Value is the difference between a company’s total assets that have been adjusted for depreciation, depletion, and amortization and the amount of total liabilities as listed on the balance sheet.  Assets such as real estate, collectibles, and artwork are recorded at historical cost and therefore may be undervalued on the balance sheet.  Intangible assets such as patents, copyrights and trademarks also may be undervalued.

Interestingly, many buy-sell and shareholder agreements use Book Value to establish share value when a shareholder wishes to sell shares back to the company or when shares are purchased after a shareholder is terminated or dies.  In these cases, disputes often arise when the Book Value of the shares is significantly less than the Going Concern value.

Liquidation Value is the net amount realized if the business is terminated and the assets are sold individually.  Liquidation Value typically results in the lowest of the premises of value, Anderson said.

Replacement Value generally is used for specific assets and refers to the current cost of property equivalent to the property being valued.  Replacement Value is often used in insurance contracts for calculations involving real estate or tangible personal property and in construction or manufacturing agreements.

“Determining these two crucial steps — the standard of value and the premise of value — will allow a business valuation expert to select the appropriate valuation methodology to decide your company’s worth,” Anderson said.

Over the next several weeks, Anderson will post additional articles on the specific methods business valuation experts use to establish value, the effect non-operating assets have on business valuation and discounts for lack of control and lack of marketability.

Coming up next in Part Three, an examination of the steps a business valuation expert sometimes must take to bring a company’s financial statement on an equal footing.

If you require the services of a business valuation expert in Philadelphia or any other forensic accounting services in Philadelphia and the Delaware Valley, please contact the Philadelphia forensic accounting firm of David Anderson & Associates by calling David Anderson at 267-207-3597 or emailing him at david@davidandersonassociates.com.

About David Anderson & Associates

David Anderson & Associates is a Philadelphia forensic accounting firm that provides a full range of forensic accounting services in Philadelphia and the Delaware Valley.  The experienced professionals at David Anderson & Associates provide forensic accounting, business valuation, fraud investigation, litigation support, economic damage analysis, business consulting and outsourced CFO services.  Company principal David Anderson has more than 30 years of experience in financial and operational leadership positions and is a Certified Public Accountant, a Certified Fraud Examiner, a Certified Valuation Analyst, and a business valuation expert in Philadelphia.

Part One: Taking a Closer Look at Business Valuation

David Anderson is principal of David Anderson & Associates, a Philadelphia forensic accounting firm that provides a full range of business valuation and other forensic accounting services in Philadelphia and the Delaware Valley. 

This is the first of a five-part series in which Anderson reviews the basics of business valuation.

Do you know what your business is worth? If not, you probably should.

There are many reasons why it’s important to know. These can range from business reasons, such as calculations related to any acquisitions or mergers, to personal issues of estate planning and resolution to marriage dissolution.  When the time comes, understanding how a fair and accurate business valuation is determined is of paramount importance.

“The first step in valuing a business is to determine the standard of value,” said David Anderson, principal of David Anderson & Associates, a Philadelphia forensic accounting firm that provides a full range of business valuation and other forensic accounting services in Philadelphia and the Delaware Valley.  “This is the type of value that is being requested for the business.  The three most common standards of value are fair market value, fair value and strategic/investment value.”

The IRS defines fair market value as “The price at which the property would change hands between a willing buyer and a willing seller, when the former is not under any compulsion to buy and the latter is not under any compulsion to sell, both parties having reasonable knowledge of relevant facts.”

Fair market value is the most widely recognized and accepted standard of value, according to Anderson, a business valuation expert in Philadelphia and the Delaware Valley.  Fair market value is used to establish value for all Federal tax matters, including estate tax, gift tax and income tax, he said.  This standard also is used for many purchase, sale, and merger transactions; for buy-sell agreements; for regulatory valuations; and for most litigation matters, including partner/shareholder disputes, divorces, and economic damage cases.  Fair market value takes into consideration discounts for lack of control and lack of marketability.

Fair value generally is defined as fair market value without considering discounts, Anderson said.  Fair value principally is used to value the shares held by a company owner with a minority interest when that person believes he is being forced to receive less than adequate compensation for his shares.  Fair value is the standard of value used in divorce cases in New Jersey.  Additionally, fair value with a discount for lack of marketability is used in divorce cases in New York.

Strategic/investment value is the value to a particular investor based on individual requirements and expectations, according to Anderson.  This standard most often is used for a purchase, sale, or merger in which the buyer expects to realize certain synergies with the seller’s business.  Strategic/investment value typically is higher than fair market value because of these synergies.

“The standard of value is one of the key components used to determine the valuation methodology to be employed and, ultimately, the business valuation expert’s decision on the value of your business,” Anderson said.

Over the next several weeks, Anderson will post additional articles on the specific methods business valuation experts use to determine value, the effect non-operating assets have on business valuation and discounts for lack of control and lack of marketability.  Up next in “Part Two: Taking a Closer Look at Business Valuation:” Determining the premise of value, the type of transactional circumstances that underlies the business or property being valued.

If you require the services of a business valuation expert in Philadelphia or any other forensic accounting services in Philadelphia and the Delaware Valley, please contact the Philadelphia forensic accounting firm of David Anderson & Associates by calling David Anderson at 267-207-3597 or emailing him at david@davidandersonassociates.com.

About David Anderson & Associates

David Anderson & Associates is a Philadelphia forensic accounting firm that provides a full range of forensic accounting services in Philadelphia and the Delaware Valley.  The experienced professionals at David Anderson & Associates provide forensic accounting, business valuation, fraud investigation, litigation support, economic damage analysis, business consulting and outsourced CFO services.  Company principal David Anderson has more than 30 years of experience in financial and operational leadership positions and is a Certified Public Accountant, a Certified Fraud Examiner, a Certified Valuation Analyst, and a business valuation expert in Philadelphia.

Interview Replies Can Separate Fraudsters from Non-Fraudsters

David Anderson is principal of David Anderson & Associates, a Philadelphia forensic accounting firm that provides a full range of forensic accounting services including business valuation, fraud investigation, and fraud deterrence programs in Philadelphia and the Delaware Valley.

Interviews with employees, customers, vendors, and other key individuals are an important part of any fraud investigation.  Such interviews, says a leading Philadelphia forensic accountant, can help provide an understanding of the business, uncover potential fraud, frame the size and scope of the fraud, and identify potential fraudsters.

However – according to David Anderson, a Certified Fraud Examiner – the suspected fraudster(s) typically are the last to be interviewed because the certified fraud examiner wants to be able to confront the suspected fraudster(s) with all or most of the facts and other information order to elicit an admission.

Based upon his experience with such interviews, Philadelphia forensic accountant Anderson said he has observed some significant differences between fraudsters and non-fraudsters.  Some of these observations are:

  • Non-fraudsters, said Anderson, a forensic accounting expert in Philadelphia with experience in conducting fraud investigations and establishing comprehensive fraud deterrence programs in the Delaware Valley, are typically eager to provide information as part of the interview process. For example, Anderson said that when he has asked about areas of weakness that could permit someone to commit fraud, non-fraudsters will usually provide such information (of which they are aware), and even try to speculate about areas of potential weakness of which they have little or no knowledge. Fraudsters will typically claim that they are not aware of any such weaknesses, and that it is impossible for someone to commit fraud at the company.
  • Non-fraudsters are typically emphatic about how a potential fraudster should be punished. For example, they will state that the person should be fired immediately. Fraudsters will be significantly less emphatic. Certified Fraud Examiner Anderson said they will often suggest that there might have been an acceptable reason as to why the potential fraudster would have committed the fraud.  They will also typically suggest that the company should be lenient with such a person, including giving that person a second chance.
  • Non-fraudsters do not typically hesitate in their answers to questions. As Anderson – a Philadelphia forensic accountant and principal of David Anderson & Associates, a Philadelphia forensic accounting firm that provides a full range of fraud investigation and fraud deterrence programs in the Delaware Valley – explained, fraudsters will be hesitant and may even repeat the interviewer’s question (to buy time to think about their answer), especially when the question starts to touch on areas related to their fraud.
  • Non-fraudsters, Anderson said, are also typically emphatic when asked if they have ever done anything improper. For example, the typically non-fraudster will immediately and forcefully say “No!” Fraudsters are typically less emphatic and may even deflect. In one case, the fraudster responded (earlier in the interview), “Well, to be honest, I have taken home paper clips, pens, and paper a few times, and I remember that once, there was a fifty-cent error on my expense reimbursement which I never told anyone about”.  (It was only much later in the interview that the fraudster admitted to having taken tens of thousands of dollars in a billing scheme).

If you require the services of a Certified Fraud Examiner in Philadelphia or any other forensic accounting services in Philadelphia and the Delaware Valley, please contact the Philadelphia forensic accounting firm of David Anderson & Associates by calling David Anderson at 267-207-3597 or emailing him at david@davidandersonassociates.com.

About David Anderson & Associates

David Anderson & Associates is a Philadelphia forensic accounting firm that provides a full range of forensic accounting services in Philadelphia and the Delaware Valley.  The experienced professionals at David Anderson & Associates provide forensic accounting, business valuation, fraud investigation, fraud deterrence, litigation support, economic damage analysis, business consulting and outsourced CFO services.  Company principal David Anderson is a forensic accounting expert in Philadelphia who has more than 30 years of experience in financial and operational leadership positions and is a Certified Public Accountant, a Certified Valuation Analyst, and a Certified Fraud Examiner in Philadelphia.

A Basic Action You Can Take to Reduce Business Fraud

David Anderson is principal of David Anderson & Associates, a Philadelphia forensic accounting firm that provides a full range of fraud investigation, forensic accounting, and marital dissolution services in Philadelphia and the Delaware Valley. . . . In this blog installment, Anderson discusses a simple change every business can take to help stem internal fraud.

During the past two years, the most frequent fraud I have investigated has involved a trusted employee with the ability to write and sign checks. In such instances, these individuals write checks to themselves or a compatriot but record the checks in the company’s accounting system as having been written to either a vendor or another employee. Each employee was able to take more than $100,000 from their employer using this simple scheme. In most cases, these frauds were perpetrated over many months.

In every case investigated, the employer failed to take the one basic action that could have prevented the fraud:  reviewing the monthly bank statements and copies of the paid checks.  In each case, performing this one action – which typically takes less than one hour a month – would have allowed the business owner to notice the multiple checks written to each employee or compatriot.  Additionally, the business owner also may notice that account balances as shown on the bank statement are lower than the business owner may have been told.

Here are a few additional factors to consider:

  • In about 50 percent of the cases I investigated, the trusted employee was not able to sign the checks but was provided with a signature stamp of the owner’s signature. This situation puts the business at even higher risk of fraud.
  • If your bank doesn’t routinely provide hard copies of paid checks with its bank statement, you should spend the extra money to obtain them. Going online to inspect each paid check is considerably more time consuming, and asking your trusted employee to print out each check affords the employee the opportunity to “hide” the evidence. For example, not printing out the suspect checks by claiming that they haven’t been paid yet.
  • You also should consider having bank statements sent directly to your house instead of to the office. Again, this prevents your trusted employee from potentially altering the bank statements. In one case, the employee downloaded a copy of the bank statement as a .pdf, and then used software to alter the document and hide the evidence of fraud.
  • If you believe that this action is still too time consuming for you, you should consider having either your outside accountant or a third party (such as a forensic accountant) regularly perform this action for you.

Do you need the services of a Certified Fraud Examiner? If so, you should speak with one from an experienced firm that provides forensic accounting services in Philadelphia and the Delaware Valley. You can do this by contacting the Philadelphia forensic accounting firm of David Anderson & Associates by calling David Anderson at 267-207-3597 or emailing him at david@davidandersonassociates.com.

About David Anderson & Associates

David Anderson & Associates is a Philadelphia forensic accounting firm that provides a full range of forensic accounting services in Philadelphia and the Delaware Valley.  The experienced professionals at David Anderson & Associates provide forensic accounting, business valuation, fraud investigation, fraud deterrence, litigation support, economic damage analysis, business consulting and outsourced CFO services.  Company principal David Anderson is a forensic accounting expert who has more than 30 years of experience in financial and operational leadership positions and is a Certified Public Accountant, a Certified Fraud Examiner, and a Certified Valuation Analyst.

Your Best Expert Witness is an Independent Expert Witness

David Anderson is principal of David Anderson & Associates, a Philadelphia forensic accounting firm that provides a full range of fraud investigation, forensic accounting, and marital dissolution services in Philadelphia and the Delaware Valley.

Expert witnesses who are called to testify in litigation are not – contrary to what some people believe – supposed to be advocates for the side that hired them, but rather serve as independent experts applying their education and experience to the matter.

It should, instead, be the client’s attorney who serves as the advocate for his or her client, said David Anderson, principal of David Anderson & Associates, a Philadelphia forensic accounting firm that provides a full range of fraud investigation and fraud deterrence programs in the Delaware Valley.

Forensic accountants, business valuators, and CPAs engaged as expert witnesses are subject to professional standards that generally require them to maintain their independence (there are some exceptions, such as those related to preparation of tax returns).  Additionally, expert witnesses also may be required by certain government regulations to maintain their independence.

In discussing independence, Anderson, a Certified Fraud Examiner who recommends every organization enact a comprehensive fraud deterrence program created by an experienced firm that provides forensic accounting services in Philadelphia and the Delaware Valley, said the professions generally identify two sub-categories of independence:

  • Independence in fact, and
  • Independence in appearance.

Independence in fact refers to the expert’s mental attitude regarding the matter.  It most often reveals itself in the expert’s reports and/or testimony.  It should not matter which side has engaged the expert.  The expert’s conclusions should be the same (subject to certain assumptions).

However, the expert’s independence could be called into question if:

  • The expert has made certain assumptions (at either the request of the client or the attorney) that clearly are unreasonable, and which benefit the side that engaged him or her. For example, if the expert has assumed a mature business would have been able to grow its revenues at a 20 percent rate solely from its existing products for each of the next 10 years or has assumed employees would accept a 50 percent wage decrease for the next ten years.
  • The expert asserts, without providing any corroborating evidence, certain questionable actions of the side that engaged him or her were reasonable. For example, testifying that certain funds improperly taken by an employee without authorization were advances on his or her inheritance because the employee expected to eventually inherit the business.

Independence in appearance, said Certified Fraud Examiner Anderson, refers to how an uninterested third party might view the expert’s independence considering certain facts.  For example:

  • Does the expert have a financial stake in the side that engaged him or her?
  • Does the expert have a familial relationship with anyone on the side that engaged him or her?
  • Is the expert currently performing work for the attorney on another matter or does the expert have an ongoing working relationship with client that engaged him or her?
  • Is the expert owed money by the side that engaged him or her? If so, is it possible that the expert’s report or testimony could be affected by the potential of non-payment in the event the client does not like his or her conclusions or testimony? This is one of the reasons Anderson said he requires upfront retainers and payment in full prior to releasing a draft report or testifying.
  • Does the expert have, or has the expert had, a past adverse relationship with one or more of the parties or attorneys on the opposing side?
  • Has the expert agreed to make certain changes to his or her report or proposed testimony due to pressure or specific direction from either the attorney or the client? This also touches on the concept of making unreasonable assumptions. A recent prominent Federal Tax Court case – Exelon Corp v. Commissioner – was lost, in part, to the expert doing just that.
  • Is most of the expert’s work performed for either plaintiffs or defendants – the so-called “hired gun” – and not a balance of both?

Independence is a critical aspect of being an expert witness.  The decider of fact – whether a judge, jury, or arbitrator – often will consider the expert’s independence in deciding on the credibility of the expert.  As a result, expert witnesses must be independent in both fact and appearance.

If you are involved in, or are anticipating, a legal proceeding, either as a plaintiff or defendant, make sure you have an expert witness who truly is independent. David Anderson is a Certified Fraud Examiner with experience providing forensic accounting services in Philadelphia and the Delaware Valley.

If you require the services of a Certified Fraud Examiner or any other forensic accounting services in Philadelphia and the Delaware Valley, please contact the Philadelphia forensic accounting firm of David Anderson & Associates by calling David Anderson at 267-207-3597 or emailing him at david@davidandersonassociates.com.

About David Anderson & Associates

David Anderson & Associates is a Philadelphia forensic accounting firm that provides a full range of forensic accounting services in Philadelphia and the Delaware Valley.  The experienced professionals at David Anderson & Associates provide forensic accounting, business valuation, fraud investigation, fraud deterrence, litigation support, economic damage analysis, business consulting and outsourced CFO services.  Company principal David Anderson is a forensic accounting expert who has more than 30 years of experience in financial and operational leadership positions and is a Certified Public Accountant, a Certified Fraud Examiner, and a Certified Valuation Analyst.

 NOTE: David Anderson’s forensic accounting blog will be on hiatus through the holidays and the beginning of the new year; it will return on Monday, January 11, 2021. Have a safe and enjoyable holiday season!

 

A Look at How Forensic Accountants Assess the Reliability of Documents

David Anderson is principal of David Anderson & Associates, a Philadelphia forensic accounting firm that provides a full range of fraud investigation, forensic accounting, and marital dissolution services in Philadelphia and the Delaware Valley.

My previous blog discussed how forensic accountants assess the credibility of interviewees.  This blog focuses on how I assess the reliability of documents I analyze in performing my work.

As a forensic accountant, I am asked to analyze various information provided to me, including that contained in documents, business databases, and testimony.  Generally, in performing this analysis for litigation, I assign the highest reliability to preprinted historical documents (concurrent with the time of the matter giving rise to the litigation) that have been filed with a governmental agency or a court, and which contain a signed affidavit attesting to the truthfulness and completeness of the document.

My scale of reliability for these types of information goes from highest reliability to lowest reliability as follows:

  • Preprinted historical documents (concurrent with the time of the matter giving rise to the litigation) that have been filed with a governmental agency or a court, and which contain a signed affidavit attesting to the truthfulness and completeness of the document (for example, a signed Federal income tax return which was timely filed);
  • Signed preprinted historical documents (concurrent with the time of the matter giving rise to the litigation) that have been filed with a governmental agency or a court, and which do not contain a signed affidavit attesting to the truthfulness and completeness of the document (for example, a fully signed and dated contract filed with a regulatory agency);
  • Unsigned preprinted historical documents (concurrent with the time of the matter giving rise to the litigation) that have been filed with a governmental agency or a court, and which do not contain a signed affidavit attesting to the truthfulness and completeness of the document (for example, non-contract documents filed concurrently with the above-cited contract);
  • Publicly available or proprietary databases commonly used by forensic accountants and investigators (for example, Bureau of Labor Statistics Compensation tables);
  • Signed preprinted historical documents subject to audit (for example, signed and dated contracts examined by financial auditors);
  • Unsigned preprinted historical documents subject to audit (for example, vendor invoices examined by financial auditors);
  • Signed preprinted historical documents not subject to audit (for example, signed and dated purchase orders);
  • Unsigned preprinted historical documents not subject to audit (for example, customer billing invoices);
  • Signed handwritten historical documents subject to audit (for example, a signed and dated handwritten explanation provided to a financial auditor as to why a customer was granted a credit against a billing invoice);
  • Sworn testimony of third parties not named in or involved in the litigation (for example, a customer’s sworn affidavit that he/she did not receive certain billed shipments);
  • Unsigned handwritten historical documents subject to audit (for example, dated handwritten notes about a customer’s complaint that he/she did not receive certain billed shipments which were examined by financial auditors);
  • Signed handwritten historical documents not subject to audit (for example, the same as above but signed and dated by the employee at the time, and which was never examined by financial auditors);
  • Unsigned handwritten historical documents not subject to audit (for example, the same as above, but never signed by the employee and which was never examined by financial auditors);
  • Sworn testimony of parties involved in the litigation.

It may seem strange I would assign the lowest level of reliability to sworn testimony from the parties in litigation, but this is because such testimony can be colored by the stake each party has in the litigation.

The same applies to certain documents supplied by each party; for example, in one recent case, one side presented me with unfiled, unsigned, and undated business tax returns as evidence of their income (loss), but then refused to provide me access to their books and records to verify the reliability of the business tax returns.

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When you need the services of a Certified Fraud Examiner or any other forensic accounting services in Philadelphia and the Delaware Valley, please contact the Philadelphia forensic accounting firm of David Anderson & Associates by calling David Anderson at 267-207-3597 or emailing him at david@davidandersonassociates.com.

About David Anderson & Associates

David Anderson & Associates is a Philadelphia forensic accounting firm that provides a full range of forensic accounting services in Philadelphia and the Delaware Valley.  The experienced professionals at David Anderson & Associates provide forensic accounting, business valuation, fraud investigation, fraud deterrence, litigation support, economic damage analysis, business consulting and outsourced CFO services.  Company principal David Anderson is a forensic accounting expert who has more than 30 years of experience in financial and operational leadership positions and is a Certified Public Accountant, a Certified Fraud Examiner, and a Certified Valuation Analyst.

Making Sure Your Forensic Investigation Interviewees are Credible

David Anderson is principal of David Anderson & Associates, a Philadelphia forensic accounting firm that provides a full range of fraud investigation, forensic accounting, and marital dissolution services in Philadelphia and the Delaware Valley.

A key part of any fraud or forensic-based investigation – says David Anderson, principal of David Anderson & Associates, a Philadelphia forensic accounting firm that provides a full range of fraud investigation and fraud deterrence programs in the Delaware Valley – is to interview people involved in the matter.

Here’s a first-person description by Anderson on how a Certified Fraud Examiner, such as himself, vets the information from, and performance of, interviewees in an investigation of financial malfeasance.

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As a forensic accountant, I not only must interview individuals who play key roles in a case I am investigating, but also determine each one’s credibility.  In such situations, I have the same issues when judging credibility and reliability as a juror does when hearing testimony in court.

When documentation and independent verification is lacking, a forensic accountant must rely upon the credibility of these interviewees.  To determine the credibility and reliability of such persons, the forensic accountant must consider the factors detailed below.

To begin with, I consider the totality of what each person is saying to me and ask myself if he or she has been consistent within each interview and across multiple interviews.  If the interviewee has been consistent, that is a point in favor of credibility.

I also seek to determine if the interviewee’s information is consistent with other interviewees, and with documentation and other evidence I have gathered.  If these factors are consistent, I place more credibility in that interviewee.

Another key factor is the extent to which an interviewee requests me to focus or not focus my investigation in a direction or on a person.  I must also consider how that affects his or her credibility.

For example, if I have been hired by a family-owned business to investigate potential fraudulent activities on the part of a family member, and an interviewee is extremely negative about the family member, I must question whether his or her information is truly reliable or has been colored by interviewee’s animosity towards the other family member.

Additionally, if the interviewee requests I present findings that are inconsistent with documented information and/or information provided by other interviewees, this also affects my view of the interviewee’s credibility.

Other interview aspects I must also assess include:

  • Inconsistencies in memory about an event – does the person display good memory about certain events and poor memory about others? What if the poor memories occur only for suspected items?
    • In one case, the interviewee identified the step-by-step procedures and bases for approval of certain valid transactions, but then could not remember why she approved certain improper transactions.
  • Does the person act defensively when interviewed about suspected items, even when not accused of wrongdoing?
  • Does the person claim others approved his or her improper actions?
    • For example, in one instance, the interviewee claimed the company’s tax accountant authorized him to not report certain revenues on the company’s tax return.
    • In another instance, the interviewee told me a now-deceased executive had long ago informed him the certain improper transactions were acceptable to company management, and that was why the interviewee approved more recent improper transactions.
  • Does the person promise to get back to me with documentation for certain transactions, but later fails to provide such while attempting to avoid speaking with me?

Only after considering such factors as I have detailed above can the forensic accountant determine whether to rely on such persons, especially when documentation and independent verification is lacking.

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If you’re not getting the answers, or results, you want in your internal investigations, maybe you should be working with a Certified Fraud Examiner from an experienced firm that provides forensic accounting services in Philadelphia and the Delaware Valley.

When you need the services of a Certified Fraud Examiner or any other forensic accounting services in Philadelphia and the Delaware Valley, please contact the Philadelphia forensic accounting firm of David Anderson & Associates by calling David Anderson at 267-207-3597 or emailing him at david@davidandersonassociates.com.

About David Anderson & Associates

David Anderson & Associates is a Philadelphia forensic accounting firm that provides a full range of forensic accounting services in Philadelphia and the Delaware Valley.  The experienced professionals at David Anderson & Associates provide forensic accounting, business valuation, fraud investigation, fraud deterrence, litigation support, economic damage analysis, business consulting and outsourced CFO services.  Company principal David Anderson is a forensic accounting expert who has more than 30 years of experience in financial and operational leadership positions and is a Certified Public Accountant, a Certified Fraud Examiner and a Certified Valuation Analyst.

Anderson to Present National Webinar on Forensic Accounting Services

On Tuesday, November 24, David Anderson, CPA, CFE, CVA — principal of David Anderson & Associates, a Philadelphia forensic accounting firm that provides litigation support services and expert witness testimony in Philadelphia and the Delaware Valley — will co-present a nationally broadcast webinar entitled Forensic Accounting Services: AICPA Standards, Engagement Considerations, Analyzing Data, Expert Witness Testimony.

The webinar – hosted by Strafford Publications, Inc., an online legal education firm based in Atlanta – will discuss the ins and outs of providing litigation consulting, and forensic accounting services and give a presentation on the Statement on Standards for Forensic Services from the American Institute of Certified Public Accountants (AICPA).

There are a limited number of free tickets available through David Anderson and Associates on a first-come, first-served basis. Interest individuals should contact David Anderson at david@davidandersonassociates.com

In addition, Anderson and his co-presenter, Yigal Rechtman, CPA, CFE, CITP, CISM, a partner at RSZ Forensic Associates in New York, will discuss techniques for giving expert testimony and facing cross-examination.  Anderson and Rechtman also will provide information about key caveats when it comes to accepting forensic accounting engagements, and the circumstances under which such engagements should be declined.

Another segment of the webinar will analyze how these forensic accounting engagements are structured; how relevant data is accumulated and analyzed; and how a forensic accounting report is prepared.

The AICPA is the national professional organization of Certified Public Accountants in the United States, with more than 418,000 members in 143 countries in business and industry, public practice, government, education, student affiliates, and international associates

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If you require the services of a forensic accounting expert in Philadelphia and the Delaware Valley, please contact the Philadelphia forensic accounting firm of David Anderson & Associates by calling David Anderson at 267-207-3597 or emailing him at david@davidandersonassociates.com.

About David Anderson & Associates

David Anderson & Associates is a Philadelphia forensic accounting firm that provides a full range of forensic accounting services in Philadelphia and the Delaware Valley.  The experienced professionals at David Anderson & Associates provide forensic accounting, business valuation, fraud investigation, fraud deterrence, litigation support services, economic damage analysis, business consulting and outsourced CFO services.  Company principal David Anderson is a forensic accounting expert in Philadelphia with more than 30 years of experience in financial and operational leadership positions. He is a Certified Public Accountant, a Certified Fraud Examiner and a Certified Valuation Analyst.  Anderson also has provided expert witness testimony in the Greater Philadelphia area and served as a forensic accounting consultant on both civil and criminal cases.

Forensic Accountants Employ Graphics to Aid Courtroom Comprehension

David Anderson is principal of David Anderson & Associates, a Philadelphia forensic accounting firm that provides a full range of fraud investigation, fraud deterrence programs, and forensic accounting services in Philadelphia and the Delaware Valley.

The task of explaining complex matters to jurors and presenting them with reams of financial information can seem nearly impossible.  In most cases, individuals serving on a jury have little to no understanding of financial analysis or statements and the job of introducing complex spreadsheets and large amounts of data can be intimidating and mind boggling.

However, it’s a key role played by forensic accountants who are called on to offer expert witness testimony to make even the most complicated financial data understandable.

“Presenting complex financial information in a way that allows jurors to grasp its meaning can have a significant impact in the presentation of a case,” said David Anderson, principal of David Anderson & Associates, a Philadelphia forensic accounting firm that provides litigation support services and expert witness testimony in Philadelphia and the Delaware Valley.  “It is the financial data that often can make a difference between winning a case and losing a case, or between a significant jury award or a paltry one.”

Anderson, a forensic accounting expert in Philadelphia and the Delaware Valley, recalled one case in which he was asked to prepare detailed financial reports for a jury and provide expert witness testimony during the trial.  Anderson said the case centered around a claim by his client (the plaintiff) that the actions of the defendants had caused the client to lose sales and, therefore, profits.  (NOTE:  The company name, amounts and dates in the examples below have been changed to protect client confidentiality.)

As a result of a thorough analysis of the data, Anderson’s report to the plaintiff’s counsel included the following three spreadsheets:

“Imagine yourself sitting on a jury and being confronted with these schedules,” said Anderson, whose full range of forensic accounting services in Philadelphia and the Delaware Valley includes litigation support services and expert witness testimony in Philadelphia.  “The columns of numbers would have been difficult to remember and even harder to understand.  And they would not have had the intended impact on the jury.”

Anderson did not present the schedules as they appeared in his report to the counsel, but instead reduced the information to a simplified set of color-coded charts:

“These charts made it much easier for the jury to see the impact of the defendant’s actions and to visualize the amount of losses suffered by the plaintiff in each quarter,” said Anderson, a forensic accounting expert in Philadelphia whose company offers a full range of forensic accounting services in Philadelphia and the Delaware Valley.

Anderson said another method of getting the point across to a jury is with the strategic use of color and the intensity of the color.  Another chart from Anderson’s expert witness testimony before the same jury was the following:

“The dark blue color evokes a feeling of strength as opposed to the light blue color, which appears to be weaker,” explained Anderson, a forensic accountant who provides litigation support services in both civil and criminal cases. “It’s this strategic use of color that can leave the subtle impression in the jurors’ minds that my loss calculation for the plaintiff is stronger and, therefore, more reliable than the defendant’s loss calculation.”

These are just two examples of how a forensic accountant providing expert witness testimony can assist in the successful presentation of a case to a jury.

If you require litigation support services or expert witness testimony in Philadelphia, or require the services of a forensic accounting expert in Philadelphia and the Delaware Valley, please contact the Philadelphia forensic accounting firm of David Anderson & Associates by calling David Anderson at 267-207-3597 or emailing him at david@davidandersonassociates.com.

About David Anderson & Associates

David Anderson & Associates is a Philadelphia forensic accounting firm that provides a full range of forensic accounting services in Philadelphia and the Delaware Valley.  The experienced professionals at David Anderson & Associates provide forensic accounting, business valuation, fraud investigation, fraud deterrence, litigation support services, economic damage analysis, business consulting and outsourced CFO services.  Company principal David Anderson is a forensic accounting expert in Philadelphia with more than 30 years of experience in financial and operational leadership positions. He is a Certified Public Accountant, a Certified Fraud Examiner and a Certified Valuation Analyst.  Anderson also has provided expert witness testimony in the Greater Philadelphia area and served as a forensic accounting consultant on both civil and criminal cases.