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Five Ways to Protect Yourself When Selling Your Business

I read with interest a report of April 23, 2008, entitled “Millions involved in local business purchase scam” published in the Christian County Headliner News. As a certified public accountant that has represented buyers/sellers in business sales transactions and also as Managing Partner of Sunbelt Business Advisors – a business brokerage firm, I thought it beneficial to write about the many red-flags that were present in the article. Red flags that others should be aware of and protect themselves against as they attempt to either sell or buy a business.

SMALL BUSINESSES ARE NORMALLY SOLD AS AN ASSET PURCHASE AND NOT A STOCK PURCHASE. This transaction appears to have been a stock purchase and not an asset purchase. This should have been one of the first very large red flags. Small, privately held businesses are almost never sold as a stock purchase. A stock purchase means the current owners legal entity-the company, continues on instead of the new buyer creating a new company. In a stock purchase the new owners get everything the sellers business owns – bank accounts, receivables, any potential and actual liabilities. This includes contingent liabilities the new owner may not even know about. Additionally, a stock purchase does not allow a new owner to get stepped up basis of the company furniture, fixtures and equipment. The stepped up basis of the FF&E could mean thousands of dollars in tax savings to a new owner that would be very beneficial the first few years of ownership. A buyer walking in and immediately wanting to purchase the stock of business and assume all liabilities, potential future liabilities – known or unknown and leaving the additional depreciation on the table is almost unheard of. A normal asset purchase agreement (not a stock purchase) would have generally excluded cash and bank accounts of the prior company. The new owners in an asset purchase agreement, unlike a stock purchase would not have been able to transfer funds from the company accounts. They would need to open new bank accounts in their new company name.

AT CLOSING, BUYERS FUNDS SHOULD BE AVAILABLE. Apparently this deal closed without confirmation or having actual funds from the buyer. No business purchase transaction should close without having funds available and present at closing. This would be the same as selling your house to someone, closing the transaction, but the buyers not having loan approval yet. You wouldn’t do it and neither should sellers of small businesses.

ALWAYS USE A QUALIFIED CLOSING ATTORNEY. The sale of a business should be closed by a qualified closing attorney. Qualified closing attorneys will have their own space and normally not need to use others. A qualified closing attorney will make sure all legal documents are in order; make sure funds are available to pay the seller and file all required legal and IRS documents. Anyone selling or purchasing a business should insist upon having a qualified closing attorney conduct the closing. The absence of a qualified closing attorney should be a red flag.

USE A QUALIFIED BUSINESS BROKER – DON’T TRY IT ALONE. Not using a qualified, professional business broker is another red flag. Can business deals be completed without using a business broker? Certainly! One can also write their own contracts without using an attorney or prepare their own tax return without using a CPA, but it isn’t necessarily the smartest thing to do. Especially when talking about the sale of a business which is probably one of the largest if not the largest asset a person owns. Something as important as this should not be attempted alone. A qualified business broker will help educate the seller as to the process, help establish a valid market price, effectively market the business, screen buyers, and help qualify buyers, assist with negotiations, work with existing seller CPA and attorney, and work with closing attorney and overall management of the process and be there to advise the seller as to red flags!

NEVER CHANGE THE BANK ACCOUNTS UNTIL YOU HAVE YOUR MONEY. Another subtle, but yet red flag is it appears the seller changed the signature cards at the bank(s) and the names of the people allowed access. Even in a stock purchase, the current bank account holder – the seller would have to have the bank change the names and cards. Obviously, if this did in fact happen, it happened prior to the seller having funds from the buyer. The new buyer also apparently had the “keys” to the business before the seller was paid the purchase price. It is like selling your car to someone and agreeing to be paid at some future date; while you watch the “new buyers” that you just met drive off into the sunset with your car. You probably will never see your money or your car.

Most small business stories like your article remain non-public. Just like most financial frauds that occur at small businesses. People do not like to talk about the failures of small business transactions but, they are happening all the time and all across the country. It is very important that sellers and buyers understand the process of selling/buying a business, watch for red flags and use qualified professionals to help them in the process. Doing so will save them money, time and effort and make for a much better business transaction.

Tax Liens Vs Tax Deeds – Which is the Best Investment?

Frequently I’m asked the question what is more profitable, investing in tax lien certificates or tax deeds. Whether tax lien investing or tax deed investing is better for you depends on the state that you live in and what your goals are. If you are looking to pick up property under market value than you are better off with tax deeds than with tax liens. If you do your homework and purchase tax liens on good properties, the chances of foreclosure are slim. And in some states, even if the lien is not redeemed, you may not be able to get the property.

In the State of Florida for example, if your lien does not redeem during the redemption period, the property goes into a tax deed sale in order to satisfy your lien. If you did your due diligence and purchased a lien on a decent property, in order to get the property, you will have to bid against other investors at the deed sale. So if you want to invest in Florida, and you are interested in obtaining property, then deed investing is the way to go, not lien investing. If, however, you are not interested in owning property, but just want to get a higher return on your money than you could in the bank, then tax liens are the way to go. In Florida, as long as you do your due diligence, you won’t have to worry about the possibility of owning the property.

If you live on the west coast, you might want to consider investing in tax deeds instead of tax liens. That’s because the states on the west coast are deed states and not lien states. Yes, you could travel to the closest lien state, but that would eat into your profits. And yes, you could invest online but then you have to deal with increased competition and higher costs. Also, would you purchase a property that you did not physically look at first? Even though with tax lien investing, you are not purchasing the property, you’re only buying a lien on the property; your lien is only as good as the property that guarantees it.

If you are interested in either owning the property or getting a very good return on your investment and you live in or near a redeemable deed state, than you should consider investing in redeemable deeds. Redeemable deeds are kind of in-between tax liens and tax deeds. You purchase the tax deed at the sale, but there is a redemption period in which the previous owner can come back and redeem the deed from you. They have to pay a pretty hefty penalty in most redeemable deed states in order to do so, and the penalty is on the total amount that you bid at the sale. In Texas the penalty is 25% and in Georgia it’s 20%. Not a bad rate of return! Another great thing about redeemable deeds is that the larger counties with bigger cities can have a tax sale a few times a year or even every month. That’s better than waiting for a tax sale only once a year as in most states that sell regular tax deeds or tax liens.