Health Care Foresic Aalysis Isights Reasos to Coduct the Health Care Itagible Asset Valuatio Robert F. Reilly, CPA Health care istitutios (particularly ot-for-profit etities) are ofte ivolved i regulatory, taxatio, ad trasactio-related disputes I such disputes, the value of the health care etity s assets (both tagible ad itagible) is ofte a issue i the cotroversy. This discussio summarizes the valuatio of health care etity itagible assets for regulatory, taxatio, litigatio, ad other purposes. Itroductio There are umerous reasos why a valuatio aalyst may be asked to coduct a health care idustry itagible asset valuatio. First, this discussio cosiders the types of itagible assets that are commoly foud i the health care idustry. Ad, this discussio idetifies the types of health care etities that commoly ow or operate these itagible assets. Secod, this discussio reviews the various types of itagible asset valuatio aalysis. Third, this discussio summarizes the differeces betwee a otatioal valuatio ad a trasactioal valuatio, particularly with regard to health care itagible assets. Fourth, this discussio lists the most commo categories of reasos to coduct the valuatio. Fifth, this discussio describes may of the idividual reasos to coduct the valuatio. Fially, this discussio summarizes who should perform the idustry itagible asset valuatio. Ad, this discussio cosiders whether that determiatio of the appropriate type of valuatio aalyst is affected by the reaso for the aalysis. There are may parties who may ask the aalyst to value the health care itagible asset. Most commoly, such requests come from the itagible asset ower or operator. As described below, the health care idustry ower/operator may have various otatioal or trasactioal reasos to value the itagible asset. The aalyst may also serve the iformatioal eeds of other parties who will trasact with the ower/operator, such as a potetial buyer, licesee, creditor, parter or other ivestor, joit veturer, or cotract couter-party. I additio, aalysts are ofte retaied by legal cousel represetig various parties i a dispute ivolvig the health care itagible asset. Ofte, the valuatio aalyst serves as a idepedet adviser to a cliet with respect to the itagible asset. However, the aalyst may also be a employee of the health care ower/operator or of some other party iterested i the itagible asset. Typically the qualitative ad quatitative aalysis will ot be affected by whether the aalyst is a idepedet adviser to a cliet or a employee workig for a employer. Of course, the iformatioal eeds of the various parties may be differet. For example, the buyer or licesee cliet may be very iterested i the developmet history of the itagible asset. I cotrast, the ower/operator employer does ot eed a refresher course i the developmet history of its ow itagible asset. The employer may simply eed a estimate of the itagible asset value for property taxatio, isurace, strategic plaig, or some other purpose. Whether the aalyst is a idepedet adviser or a employee, a importat first step i the aalysis www.willamette.com INSIGHTS SPRING 2013 83
is to lear the reaso for the itagible asset valuatio. Uderstadig this reaso will help the aalyst decide whether the cliet/employer really eeds a value estimate or some other ecoomic metric related to the health care itagible asset. Types of Health Care Itagible Assets Exhibit 1 presets a oexhaustive list of the types of itagible assets that are typically idetified i health care idustry valuatios. Types of Itagible Asset Valuatio Aalyses Health care ower/operators (ad other parties) ofte ask for a itagible asset valuatio whe they do t really eed a valuatio. Therefore, let s review Exhibit 1 Commo Health Care Idustry Itagible Assets Medical, detal, ad other professioal liceses Certificates of eed Patiet relatioships Patiet files ad records (maual ad electroic) Electroic medical records computer software Medical ad admiistrative assembled workforce Office systems, procedures, ad mauals Positio or statio procedures ad mauals Facility operatig liceses ad permits Physicia (ad other professioal) employmet agreemets Physicia (ad other professioal) ocompetitio agreemets Executive (ad other admiistrator) employmet agreemets Executive (ad other admiistrator) ocompetitio agreemets Admiistrative services agreemets Medical (ad other professioal) services agreemets Facility or fuctio maagemet agreemets Equipmet ad other supplier purchase agreemets Service marks ad service ames Joit veture agreemets A professioal s persoal goodwill A etity s istitutioal goodwill Equipmet use or licese agreemets Medical (other professioal) staff privileges Joit developmet or promotio agreemets the differet types of itagible asset aalyses. After cosiderig this list, the aalyst ca provide the type of service that the cliet really eeds. Ower/operators, legal cousel, ad other parties ofte refer to all of these types of ecoomic aalyses as a valuatio: 1. Valuatio the estimate of a defied stadard of value for the itagible asset; the valuatio date ca be retrospective (as of a historical date), cotemporaeous (as of a curret date), or prospective (as of a future date). 2. Evaluatio a assessmet of the potetial ecoomic beefits of the itagible based o some (typically hypothetical) future coditios; this aalysis could project future reveue produced, services provided, royalty icome geerated, expeses saved, or some other ecoomic beefit. A itagible asset evaluatio ofte ivolves a what if assessmet of possible alterative use scearios. 3. Ecoomic damages a measuremet of the lost profits, lost value, royalty rate, or other damages measure suffered by the itagible asset ower/ operator due to the wrogful actios of aother party; the wrogful actios are typically a breach of cotract or a tort. The ecoomic damages are typically measured by a geerally accepted damages measuremet method, such as oe of the but for methods, the with ad without damages method, or the royalty rate method. 4. Licese royalty rate a estimatio of the arm s-legth royalty rate that a licesee would pay to a licesor for a licese to use the health care itagible asset; the licese fee (typically expressed as a royalty rate) is market-derived i that it assumes idepedet parties eterig ito the licese agreemet. The royalty rate is typically a fuctio of both (a) the ecoomics of the subject itagible asset ad (b) the terms ad coditios of the subject licese agreemet. 5. Itercompay trasfer price a determiatio of the price related to a trasfer of a itagible asset betwee cotrolled etities uder commo owership; the trasfer price is determied as a proxy for a arm s-legth price that would be 84 INSIGHTS SPRING 2013 www.willamette.com
egotiated for the itagible asset trasfer betwee urelated parties; the itercompay trasfer price is typically used for either (a) fiacial accoutig purposes or (b) federal or state icome tax accoutig purposes. 6. Remaiig useful life a estimate of the remaiig time period (i.e., the remaiig useful life) over which the itagible asset will geerate ecoomic beefits to the ower/operator; this aalysis ofte also ecompasses the coclusio of a value decay rate or depreciatio rate i.e., the expected rate of the decrease i itagible asset value over time. This life estimate is typically used for either (a) fiacial accoutig purposes or (b) icome tax accoutig purposes. It may be easier to describe trasactioal valuatios first. I a trasactioal valuatio (or related aalysis), there is a actual itagible asset trasfer pedig. The trasactio ca be a sale (a trasfer of all rights) or a licese (a trasfer of some rights). The trasactio ca be a secured fiacig (this trasactio also ivolves a trasfer of some legal rights). I a trasactioal valuatio, the followig typically occurs: 1. There is a trasfer of cash or some other valuable cosideratio. 2. There is a trasfer of some or all of the legal rights related to the itagible asset. 3. A egotiatio betwee two or more parties ivolved i the trasactio takes place. The aalyst may be asked to coclude ay of these itagible asset ecoomic metrics for either otatioal purposes or trasactioal purposes. Types of Health Care Etities Exhibit 2 presets a oexhaustive list of health care idustry participats. These etities are typically the ower/operators of the health care itagible assets listed i Exhibit 1. Notatioal Aalyses versus Trasactioal Aalyses The valuatio aalyst ca perform most itagible asset aalyses for either otatioal purposes or trasactioal purposes. As explaied below, the purpose of the aalysis may or may ot affect the followig: 1. The aalytical approaches ad methods used 2. The aalysis coclusio reached Noetheless, the purpose of the aalysis (as otatioal versus trasactioal) is typically a fuctio of the reaso to coduct the itagible asset valuatio (or other aalysis). Ad, the aalyst should uderstad the followig: 1. The reaso for performig the aalysis 2. Whether that reaso is satisfied by a otatioal aalysis or a trasactioal aalysis Notatioal valuatios are ofte performed for fiacial accoutig, taxatio plaig ad compliace, strategic plaig, or regulatory compliace purposes. Of course, these purposes are all impor Fairess opiios, solvecy opiios, ad adequate cosideratio opiios are examples of trasactioal valuatio opiios related to a health care itagible asset sale, licese, or other trasfer. I cotrast, i a otatioal valuatio (or related aalysis), the health care itagible asset does ot actually trasfer. I a otatioal valuatio, typically there is oe of the followig: 1. Trasfer of cash or other cosideratio 2. Trasfer of some or all of the itagible asset legal rights 3. Negotiatio betwee idepedet parties Exhibit 2 Types of Health Care Etities That Ow/Operate Itagible Assets Ambulatory care ceters Ambulatory surgical ceters Home health care agecies Urget care ceters/cliics Dialysis/other specialty cliics Primary care ad specialty medical practices Primary care hospitals Specialty (e.g., psychiatric) hospitals MRI ad other imagig ceters Primary care ad specialty detal practices www.willamette.com INSIGHTS SPRING 2013 85
tat. Ad, the otatioal valuatio may affect the ower/operator fiacial statemets, ad it may affect the ower/operator icome, gift, or estate, or property tax expese. Similarly, the otatioal valuatio may affect whether the health care ower/operator has complied with a ot-for-profit etity regulatio, a debt coveat, or a joit veture agreemet. Ad, the otatioal valuatio may affect the health care ower/operator s future plas for a iitial public offerig, a commercializatio program, or a restructurig of corporate assets. However, i the case of the otatioal valuatio, either the itagible asset trasactio is already completed or it is ot yet cotemplated. Usually, o cash chages hads. Or, if cash chages hads (e.g., to pay taxes), it does t ivolve the trasfer of the itagible asset. Ad, the ower/operator is typically egotiatig with itself as to the followig: 1. Which foreig or domestic subsidiary should ow the itagible asset 2. What the itercompay royalty rate or other trasfer price will be for the use of that itagible asset Litigatio-related valuatios fall ito either category of trasactioal valuatio or otatioal valuatio. If the fider of fact s decisio result i a trasfer of owership for the itagible asset, the the valuatio could be cosidered trasactioal. If the fider of fact s decisio results i a moetary damages award, the the valuatio may be cosidered otatioal. While a judicial award may result i moetary damages, the itagible asset owership will ot trasfer betwee idepedetly egotiatig parties. Categories of Reasos to Value Itagible Assets Exhibit 3 presets some of the categories of reasos why a valuatio aalyst may be asked to value a health care idustry itagible asset. May of the idividual reasos will be described i the ext sectio. The Exhibit 3 list is ot iteded to be comprehesive. Rather, this list is illustrative of the may reasos why a health care ower/operator, legal cousel, or other party may ask the aalyst to value a itagible asset. Idividual Reasos to Value Health Care Itagible Assets The first category of idividual reasos relates to the health care itagible asset sale, licese, or other trasfer. Depedig o the circumstaces, most itagible assets ca be sold: 1. idepedetly as idividual assets, 2. separately from a health care etity but as part of a portfolio of two or more assets, or 3. collectively as part of the assets of a health care etity. I ay of these two circumstaces, the aalyst ca be asked to estimate a defied stadard of value for the to-be-trasferred itagible assets. Alteratively, the aalyst could be asked to opie o the fairess of the pedig or completed sale trasactio. That fairess opiio could ecompass the price of the proposed trasactio, the terms of the proposed trasactio, or other trasactioal factors. Aalysts are sometimes asked to opie o the solvecy of the old health care ower/operator after the itagible asset sale or other trasfer. Ad, aalysts are sometimes asked to opie o the solvecy of the ew health care ower/operator after the itagible asset purchase, particularly if the purchase is fiaced. Itagible assets may trasfer betwee for-profit etities ad ot-for-profit etities. Such trasfers occur regularly i the health care idustry. They also occur i the educatio, charitable istitutio, museum ad cultural istitutio, ad other ot-forprofit idustries. I such istaces, the itagible assets could be trasferred idividually, or they could be trasferred as part of a goig cocer busiess. To comply with regulatory requiremets related to private iuremet ad excess beefits, the valuatio aalyst may be asked to prepare a fair market value valuatio. I order to give assurace to the trasactio participats, the fair market value valuatio will have to coclude that the ot-for-profit buyer did ot pay more tha fair market value for the itagible asset ad the ot-for-profit seller did ot receive less tha fair market value for the itagible asset. The above-metioed trasactioal fairess opiios ad fair market value valuatios apply to licese trasactios, as well as sale trasactios. I trasactios where there are o taxatio compli- 86 INSIGHTS SPRING 2013 www.willamette.com
Exhibit 3 Categories of Reasos to Value Health Care Itagible Assets 1. Trasactio pricig ad structurig Pricig the arm s-legth sale of a idividual itagible asset or a portfolio of two or more itagible assets Pricig the arm s-legth licese of a idividual itagible asset or a portfolio of two or more itagible assets Calculatig a exchage ratio betwee two owers for two respective itagible asset portfolios Measurig the equity allocatios i a ew health care etity or joit veture whe oe or more parties cotribute itagible assets Measurig the asset distributios i a liquidatig health care etity or joit veture whe oe or more of the parties receives itagible assets Pricig the trasfer of a itagible asset betwee two wholly owed subsidiaries (or betwee two uequally owed subsidiaries) of a cosolidated health care etity 2. Fiacig collateralizatio ad securitizatio Usig a itagible asset as the collateral i either a cash-flow-based or a asset-based debt fiacig Arragig the sale/liceseback fiacig of a health care itagible asset 3. Taxatio plaig ad compliace Formig a itagible asset holdig compay ad structurig the itercompay itagible asset licese to the taxpayer s operatig compaies Performig icome tax basis purchase price allocatios (amog the acquired tagible assets ad itagible assets) i a taxable health care etity acquisitio (e.g., a Iteral Reveue Code Sectio 1060 asset acquisitio) Quatifyig the amortizatio deductio for a purchased itagible asset Valuig itagible assets i the taxpayer corporatio isolvecy exemptio (Sectio 108) related to cacellatio of debt (COD) icome recogitio Valuig corporatio itagible assets related to built-i gai (BIG) tax deferral upo the health care etity electio to covert from C corporatio to S corporatio Supportig the charitable cotributio deductio for a doated itagible asset Estimatig the arm s-legth price (ALP) for the cross border trasfer ad use of a multiatioal health care corporatio s itagible asset (Iteral Reveue Code Sectio 482 compliace) Complyig with state ad local ad valorem property taxatio of either taxable or tax exempt itagible assets Defedig agaist IRS allegatios of private iuremet, excess beefits, or itermediate sactios with regard to itagible asset trasfers betwee a for-profit etity ad a ot-for-profit etity 4. Regulatory Compliace ad corporate goverace Estimatig the fair market value of the itagible asset sale, licese, or other trasfer betwee a for-profit etity ad a ot-for-profit etity Performig the fair market value (asset-based approach) valuatio of a goig cocer health care etity to be sold betwee a for-profit etity ad a ot-for-profit etity) Documetig the custodial ivetory ad maagemet of owed ad licesed itagible assets Assessig the adequate isurace coverage for owed ad licesed itagible assets Defedig agaist ifrigemet, misappropriatio, diversio, other torts, breach of cotract, ad other wrogful acts to itagible assets Defedig agaist allegatios of dissipatio of health care etity assets 5. Bakruptcy ad reorgaizatio Valuig a itagible asset that is pledged as collateral for secured creditor fiacig Usig a itagible asset as collateral for debtor i possessio (DIP) secured fiacig Opiig o the fairess (to creditors) of the sale or licese of a itagible asset as a DIP cash geeratio spi-off opportuity www.willamette.com INSIGHTS SPRING 2013 87
Exhibit 3 Categories of Reasos to Value Health Care Itagible Assets (cot.) Valuig a itagible asset i the performace of the debtor corporatio solvecy or isolvecy tests (particularly the balace sheet test) with respect to fraudulet trasfer claims ad preferece actios Measurig the impact of the itagible assets o the pla of reorgaizatio of the bakruptcy ower/operator 6. Fiacial accoutig ad fair value reportig Preparig the acquisitio accoutig (i.e., trasactio purchase price) allocatio amog acquired tagible assets ad itagible assets Testig for goodwill impairmet ad for other itagible asset impairmet Preparig the post-bakruptcy fresh start accoutig for the emergig etity tagible assets ad itagible assets of a health care etity emergig from bakruptcy 7. Foresic aalysis ad dispute resolutio Calculatig a itagible asset lost profits, reasoable royalty rate, or other ecoomic damages aalysis i ifrigemet or other tort claims Measurig itagible asset lost profits or other ecoomic damages i breach of cotract, licese, or ocompete/odisclosure agreemet damages claims Estimatig itagible asset valuatio i codematio, expropriatio, emiet domai, or dissipatio of corporate asset claims 8. Strategic plaig ad maagemet iformatio Formig a itagible asset joit veture agreemet, joit developmet agreemet, or joit commercializatio agreemet Negotiatig a iboud or outboud itagible asset use, developmet, commercializatio, or exploitatio agreemet Idetifyig ad egotiatig of itagible asset licese, spi-off, joit veture, ad other commercializatio opportuities ace cosideratios, oe or more licese trasactio participats may wat the aalyst s assurace that the licese is fair to the licesor, the licesee, or some other specified party. Sometimes, the health care ower/operator (or the associated board of directors) wats the fairess opiio assurace. Sometimes, a miority stockholder, a parter, a joit veturer, or some other party wats the fairess opiio assurace. Itagible assets are ofte trasferred i the formatio of a ew health care etity ad i the asset distributio of a dissolvig health care etity. I the multi-ivestor formatio of a ew busiess, it is ot ucommo for oe ivestor to cotribute cash, aother ivestor to cotribute tagible assets, ad aother ivestor to cotribute itagible assets. This sceario is particularly commo whe the ew busiess is structured as a partership or joit veture. Of course, it is easy to value the oe ivestor s cash ivestmet. It is more challegig to value the ext ivestor s cotributed tagible assets. Ad, a valuatio aalyst may be asked to value the fial ivestor s cotributed itagible assets. The valuatio of the health care etity cotributed assets is eeded for two reasos. First, the ivestors eed to kow their icome tax basis i their equity iterest (whether partership uits, member uits, joit veture owership percetage, etc.). Secod, the ivestors eed to kow their relative equity owership. That relative equity owership is typically based o the asset cotributios. So, let s assume that parter A cotributes $2,000,000 of cash, parter B cotributes $3,000,000 of real estate ad equipmet, ad parter C cotributes $5,000,000 of itagible assets. Abset some cotrary cotractual agreemet, oe would expect the equity allocatio to be 20 percet, 30 percet, ad 50 percet to A, B, ad C, respectively. Likewise, itagible assets are ofte distributed i the dissolutio of the health care etity. Such distributios happe i both volutary dissolutios ad ivolutary dissolutios. Ad, such distributios may be plaed (e.g., a joit veture that reaches its 10-year agreemet term) or uplaed (e.g., the widig dow of a fiacially troubled health care etity). 88 INSIGHTS SPRING 2013 www.willamette.com
Let s cotiue with the illustratio from the previous example. Let s assume that a 10-year term joit veture betwee A, B, ad C rus its course. At the ed of 10 years, let s assume there is o cash left, the tagible assets have depreciated dow to $1,000,000 i value, ad the itagible assets are ow valued at $4,000,000. That $4,000,000 itagible asset value would be provided by the valuatio aalyst. I this dissolutio example, there are $5,000,000 of total assets to distribute. Based o the abovedescribed equity allocatio, the joit veture assets would be distributed based o the followig values: Ower Distributio A $1,000,000 B 1,500,000 C 2,500,000 Total $5,000,000 I order to achieve this asset allocatio, all of the remaiig assets could be sold for cash. The, the cash could be distributed to the joit veturers. Or, if the itagible asset portfolio could be subdivided, the some of the patets could be distributed to A, some of the itagible assets could be distributed to B, ad the remaiig itagible asset portfolio could be retured to C. Such a allocatio would require a valuatio of the compoet itagible assets. Ad, most likely, A ad B would eter ito use licese agreemets with C. I those agreemets, C would pay A ad B royalty paymets that would equal (o a preset value basis) their asset allocatios. Ad, the owership of the itagible assets would revert to C at the ed of the licese term. Agai, the valuatio aalyst would be istrumetal i desigig such a licese agreemet, icludig the selectio of the royalty paymet ad the licese term. For legal, accoutig, ad operatioal reasos, the itagible asset ower/operator may trasfer itagible assets betwee cotrolled etities (e.g., betwee wholly owed subsidiaries of a paret corporatio). Eve though (ad, arguably, because) there are o idepedet parties ivolved, the valuatio aalyst may be asked to value the itercompay itagible asset trasfer. Depedig o the structure of the trasactio, there may or may ot be taxatio or accoutig implicatios to the itercompay trasfer. Certaily, the paret compay would wat to keep track of what cotrolled etity ows what corporate asset (whether it is tagible or itagible). The above-described itercompay trasfer becomes particularly oteworthy whe the itagible asset is trasferred betwee a wholly owed subsidiary ad a less tha wholly owed subsidiary. I such a istace, the miority equity ivestor wats to esure that the itagible asset trasfers are occurrig at a fair, arm s-legth price. I additio, the miority ivestor wats to esure that ay itercompay itagible asset liceses (ad licese fees) are set at a fair, arm s-legth price. The secod category of idividual reasos relate to itagible-asset-related fiacig trasactios. Itagible assets are sometimes used as collateral to allow the health care ower/operator to obtai fiacig. This collateral pledge occurs whe there is a more active secodary market for the subject itagible asset. I such a case, the creditor ca feel more comfortable about acceptig the itagible asset as debt collateral. A example of such relatively liquid itagible assets are drug formula patets ad FDA approvals i the pharmaceuticals idustry. This collateral pledge also occurs whe the debtor has o other assets to pledge as collateral. Let s cosider the case where the debtor etity has already pledged its ivetory, receivables, real estate, ad equipmet as prior loa collateral. The creditor may accept certai itagible assets as collateral, because there are o other uecumbered collateral assets available. Health care ower/operators may also eter ito itagible asset sale/liceseback trasactios as a form of structured fiacig. Such sale/liceseback trasactios are most commo with itellectual property. Whe the itagible asset serves as debt collateral, the health care ower/operator is repayig pricipal ad iterest to the fiacial istitutio. The itagible asset title does ot chage hads, uless the debtor defaults ad the creditor has to foreclose o the collateral property. Whe the itagible asset is subject to a sale/ licese agreemet, the itagible asset title passes from the ower/operator to the licesor. The prior ower/operator becomes a licesee. The licesee pays licese fees or royalties to the licesor. At the ed of the licese term, the itagible asset title typically reverts back to the ower/operator. For both of the above-described fiacig trasactios, the aalyst may be asked to estimate a defied value for the subject itagible asset as of a curret date that is, the iceptio of the fiacig agreemet. The aalyst may also be asked to predict www.willamette.com INSIGHTS SPRING 2013 89
a defied value for the health care itagible asset as of a future date that is, the termius of the fiacig agreemet. The third category of idividual reasos relate to taxatio plaig ad compliace. Withi this category, the subcategories of idividual reasos iclude icome tax, gift ad estate tax, ad property tax. With regard to federal icome taxatio, there are umerous idividual reasos to value itagible assets. Perhaps the most commo icome tax reasos relates to busiess acquisitio purchase price allocatios. I this situatio, a target health care etity is purchased by a acquirer busiess. A total purchase price is paid for the target health care etity. Ad, the total purchase price has to be allocated amog all of the acquired assets. The most commo purchase price allocatio situatios iclude the followig: 1. A cash for assets type of acquisitio, where the acquisitive trasactio is accouted for uder Sectio 1060 2. A cash for stock type of acquisitio, where the acquisitive trasactio is accouted for by the electio of a deemed liquidatio uder Sectio 338(h)(10) I both of these istaces, the acquired assets typically iclude Sectio 197 itagible assets. I both of these istaces, there is a priority of the purchase price allocatio amog the categories of acquired assets. I both of these istaces, the asset categories iclude the followig: 1. Idetifiable itagible assets (as the peultimate category) 2. Goodwill ad goig cocer value (as the last category) Aother commo icome tax reaso relates to the trasfer of itagible assets betwee domestic ad foreig subsidiaries of a multiatioal corporatio. The icome tax implicatios of such iteratioal trasfers are primarily cotrolled by the Sectio 482 regulatios. There are two types of itercompay trasactios regardig multiatioal health care etity itagible assets. First, such trasactios may ivolve the trasfer of the fee simple iterest owership betwee commoly cotrolled subsidiaries. The trasfer ca be from a U.S. subsidiary to a foreig subsidiary, or vice versa. This type of itercompay trasactio requires the aalyst to estimate the fair market value of the trasferred itagible asset as of the trasfer date. The purpose for the valuatio is to determie: 1. the tax basis of the itagible asset to the trasferee etity ad 2. ay gai or loss related to the asset trasfer. Secod, such trasactios may ivolve the itercompay licese of the trasferred itagible asset betwee commoly cotrolled subsidiaries. The trasactio could be a use licese betwee the foreig subsidiary licesor ad domestic subsidiary licesee. I that case, the licese royalty paymet will be from the U.S. subsidiary to the foreig subsidiary, ad the multiatioal taxpayer s U.S. taxable icome would decrease. Or, the trasactio could be a use licese betwee the U.S. subsidiary licesor ad the foreig subsidiary licesee. I that case, the licese royalty paymet will be from the foreig subsidiary to the U.S. subsidiary, ad the multiatioal taxpayer s U.S. taxable icome will icrease. This type of itercompay trasfer requires the aalyst to estimate a fair arm s-legth price for the itercompay use licese. This arm s-legth price should be cocluded i compliace with the specific itercompay trasfer price measuremet methods allowed i the Sectio 482 regulatios. There are other reasos to value health care itagible assets for federal icome tax purposes. A aalyst may be asked to estimate the fair market value of a itagible asset that is the subject of a charitable cotributio. A ower/operator may eed a valuatio of a health care etity s itagible assets to help support a worthless stock deductio. The taxpayer may also eed a valuatio of a health care etity s itagible assets i order to support a coclusio that the etity was isolvet. Such a isolvecy fidig ca be used to offset the recogitio of cacellatio of idebtedess icome. 90 INSIGHTS SPRING 2013 www.willamette.com
Aother commo reaso to value itagible assets relates to a health care etity s coversio from C corporatio status to S corporatio status. At the date of the coversio, the health care etity will eed a valuatio of all of its tagible asset sad itagible assets. Such a valuatio is used to measure the amout of built-i gai (BIG) related to each of the corporatio s assets. The coversio corporatio ca avoid the paymet of tax o the BIG if the health care etity ows the assets for te years after the date of the tax status coversio. This topic is discussed further i the previous article. I additio to federal icome tax, there are state icome reasos to value health care itagible assets. May multistate corporatios have created itellectual property holdig compaies. Usig such a structure, the paret corporatio trasfers its itellectual property to a subsidiary. That subsidiary has the resposibility to hold, protect, develop, ad commercialize the paret s itellectual property. As part of its fuctio, the holdig compay may licese the corporatio s itellectual property to third-party licesees. The holdig compay may also licese the corporatio s itellectual property to other paret corporatio uits that operate i other states. Effectively, the corporatio operatig uits pay a itercompay licese royalty paymet to the itellectual property holdig compay subsidiary. That holdig compay subsidiary is domiciled i a state where such royalty icome is exempt from state icome tax. So, the operatig busiess uits claim a tax deductio for the licese paymet expese i the states i which they operate. Ad, the itellectual property holdig compay does ot pay icome tax o the licese icome. Therefore, the paret corporatio may recogize a decrease i its overall state icome tax expese. As part of the above-described itercompay itellectual property trasfer, first, the corporate taxpayer will eed a valuatio of the itagible assets that are trasferred from the paret corporatio to the itellectual property holdig compay. Secod, the holdig compay will eed a aalysis of the fair arm s-legth price that it should charge to the corporatio s operatig uits for the use of the itagible assets. I additio to icome tax, health care itagible assets may have to be valued for trasfer tax reasos, specifically gift tax ad estate tax. Decedet-owed itagible assets (icludig professioal liceses) are icluded i the decedet s taxable estate. The appropriate stadard of value is fair market value. I additio, the decedet may ow a closely held health care etity or a professioal practice. I that case, the value of itagible assets could be the pricipal compoet of the value of the closely held health care busiess or professioal practice. The fourth category of idividual reasos to value a health care itagible asset relates to regulatory compliace ad corporate goverace. Health care itagible asset sale or licese trasactios betwee for-profit etities ad ot-for-profit etities were discussed above. Whe the trasactio relates to health care idustry etities, idustry regulatory issues (i additio to taxatio regulatory issues) provide a reaso for the itagible asset valuatio. Related to health care idustry trasactios, the parties must comply with the Ati-kickback statutes, the Stark statutes, ad various Office of Ispector Geeral ad State Attorey Geeral regulatios. The health care itagible asset valuatio ca documet compliace with the appropriate statutory authority ad admiistrative ruligs. Such a valuatio may be importat whether the health care idustry trasactio relates solely to trasferred itagible assets or to itagible assets as a compoet of a trasferred busiess eterprise. Corporate officers ad directors sometimes face allegatios of breach of fiduciary duty, misappropriatio, gross egligece, dissipatio of corporate assets, ad similar claims. Depedig o the specific claims, a itagible asset valuatio may help to prove or disprove such allegatios. A valuatio that demostrates corporate ivestmet, developmet, protectio, commercializatio, ad appreciatio of the compay itagible assets may help defeat allegatios agaist officers ad directors. O the other had, a valuatio that documets a compay s lack of ivestmet ad developmet, www.willamette.com INSIGHTS SPRING 2013 91
iadequate protectio, o commercializatio efforts, ad depreciatio of the health care itagible assets may provide evidece of dissipatio of corporate assets or other related allegatios. The fifth category of reasos to value a health care itagible asset relates to bakruptcy ad reorgaizatio proceedigs. As metioed above, the debtor compay s itagible assets are sometimes pledged as collateral for the followig reasos: 1. Secured fiacig i the ormal course of busiess 2. Debtor-i-possessio (DIP) fiacig The idetificatio ad valuatio of itagible assets is ofte a importat compoet of the solvecy (or isolvecy) coclusio regardig the debtor compay. Such a coclusio is a importat cosideratio i the bakruptcy issues related to the followig: 1. Fraudulet coveyace claims 2. Preferece paymet claims Itagible assets ofte provide a source of cash flow geeratio for the DIP. Eve if they were ot actively ivolved i itagible asset commercializatio activities previously, DIP compaies ca eter ito itagible asset sale or licese trasactios. The DIP ca sell (ad possibly licese back) a itagible asset that has a greater value to the market tha it does to the DIP. I additio, the DIP ca licese certai itagible assets (particularly itellectual property) to ocompetitor licesees, geeratig licese icome i the process. I additio, itagible asset owership, protectio, ad commercializatio are ofte importat compoets of the DIP compay s proposed pla of reorgaizatio. A itagible asset valuatio ca be used by the DIP, creditors, ad other parties to the bakruptcy to support ad/or challege the proposed pla of reorgaizatio. The sixth category of reasos to value a health care itagible asset relates to fiacial accoutig ad fair value reportig. The Fiacial Accoutig Stadards Board (FASB) promulgates U.S. geerally accepted accoutig priciples (GAAP). GAAP is codified i the FASB Accoutig Stadards Codificatio (ASC). Several of the ASC topics relate to the fair value valuatio of itagible assets. ASC 820 relates to fair value measuremets ad disclosures. ASC 820 provides the fair value defiitio, the fair value measuremet hierarchy, ad other measuremet ad disclosure guidace related to both tagible assets ad itagible assets (ad to liabilities, as well). ASC 805 relates to the acquisitio accoutig with respect to busiess combiatios. The ASC 805 guidace relates to the fair value valuatio of both acquired assets (icludig idetifiable itagible assets) ad liabilities. ASC 350 relates to the tests for goodwill impairmet. ASC 350 provides guidace for the followig: 1. The test for determiig whether recorded goodwill should be impaired 2. How the goodwill impairmet (if required) should be measured ASC 360 relates to the test for impairmet related to other log-lived assets (icludig loglived itagible assets). ASC 360 provides guidace related to the followig: 1. The test for determiig whether a recorded log-lived asset should be impaired 2. How the log-lived asset impairmet (if required) should be measured ASC 852 relates to accoutig for corporate reorgaizatios. This ASC topic addresses the accoutig ad fiacial statemet disclosure of a debtor compay that emerges from chapter 11 bakruptcy protectio. I certai specified circumstaces, such reorgaized etities will adopt fresh-start reportig upo their emergece from chapter 11. Such fresh-start reportig icludes the fair value valuatio of the reorgaized etity s assets (icludig itagible assets) ad liabilities. The seveth category of reasos to value a health care itagible asset relates to foresic aalysis, litigatio claims, ad dispute resolutio. Litigatio claims ivolvig itagible assets geerally fall ito two categories: 1. Breach of cotract 2. Torts Of course, a breach of cotract claim requires that there be some type of cotractual relatioship betwee the parties. I a tort claim, there is o cotract betwee the parties. Rather, oe party owes a duty to the other party. Ad, the allegatio is that the first party violated that duty. Commo examples of breach of cotract claims iclude alleged violatios of a itagible asset purchase or other trasfer agreemet, use licese agreemet, developmet agreemet, commercializatio agreemet, or joit veture agreemet. 92 INSIGHTS SPRING 2013 www.willamette.com
Commo examples of tort claims iclude breach of fiduciary resposibility, ifrigemet, emiet domai ad expropriatio actios, iterferece with busiess opportuity, fraud ad misrepresetatio, slader, ad libel. For each of these types of litigatio claims, there are geerally accepted methods ad procedures for measurig the ecoomic damages suffered by the aggrieved party. These ecoomic damages methods ad procedures typically fall ito four measuremet categories: 1. Measuremet of ower/operator lost profits related to the wrogful acts 2. Measuremet of a fair royalty rate to compesate the itagible asset ower/operator for the wrogful acts 3. Measuremet of a decrease i the itagible asset value due to the wrogful acts 4. Measuremet of the ujust erichmet eared by the damagig party The eighth category of reasos to value a health care itagible asset relates to strategic plaig ad maagemet iformatio. These reasos geerally relate to the questio: How ca the ower/ operator beefit i the future from the itagible asset use (or forbearace of use)? The first reaso i this category relates to the cotrol of the ower/operator s itagible asset. The ower/operator ca use the valuatio to ivetory ad to cetralize iteral cotrol procedures related to the etity s itagible assets. The secod reaso relates to the protectio of the ower/operator s itagible asset. The ower/ operator ca use the valuatio for the followig reasos: 1. To assess the adequacy of the etity s isurace o its itagible assets 2. To documet owership ad value of itagible assets i order to prosecute ifrigemet ad other damages claims The other reasos i this category geerally relate to itagible asset commercializatio opportuities Based o the itagible asset valuatio, the ower/operator could ivestigate ad eter ito licese agreemets, techology sharig agreemets, joit developmet agreemets, joit commercializatio agreemets, ad joit veture agreemets. The ower/operator could develop ad implemet odisclosure ad ocompetitio agreemets. Ad, the ower/operator could explore cashgeeratig itagible assets ad other opportuities. Who Is the Appropriate Itagible Asset Valuatio Aalyst? There are may categories of professioals who perform health care itagible asset valuatio (ad related) aalyses. Each of these categories of professioals has certai pros ad cos related to who is best qualified to perform the valuatio aalysis. To some extet, the selectio of the type of valuatio professioal is a fuctio of the ower/operator s reaso to coduct the itagible asset valuatio. The various categories of itagible asset valuatio aalysts iclude the followig: 1. Academics 2. Ecoomists 3. Idustry cosultats 4. Licesig executives 5. Accoutats 6. Appraisers Each of these professioals brigs certai experiece ad expertise to the valuatio assigmet. Each of these professioals ca coclude a quatitative value (or damages, trasfer price, etc.) coclusio. A importat cosideratio for the ower/operator is: What other advice or service is desired i additio to the quatitative coclusio? The health care ower/operator may wat to aswer that questio i cosultatio with other professioal advisers who may be ivolved with the itagible asset valuatio purpose (e.g., legal cousel, tax adviser, auditor, baker). I additio to reportig the itagible asset value coclusio, the health care ower/operator www.willamette.com INSIGHTS SPRING 2013 93
may wat the selected aalyst to assist with: the followig 1. Preparig a offerig documet or other sales memoradum to begi the process of sellig the itagible asset 2. Negotiatig the terms of a licese or other commercializatio agreemet 3. Idetifyig licesor or licesee cadidates for a potetial agreemet 4. Advisig with regard to the fiacial accoutig for a itagible asset trasactio 5. Advisig with regard to the tax aspects for a itagible asset trasactio 6. Advisig the ower/operator o how to optimize the use of its itagible assets 7. Preparig the itagible asset compoets of a bakruptcy pla of reorgaizatio 8. Fidig a iterested fiacig source 9. Appearig before a govermet regulatory authority 10. Providig a expert witess report ad courtroom expert testimoy Differet professioals have differet skills ad differet credetials that may make them more or less suitable for each of the above-metioed tasks. I such istaces, the ower/operator should decide what skills or credetials are eeded i additio to the ability to coclude a itagible asset value. That is, for the specific assigmet, the ower/ operator may eed a valuatio aalyst who is also a Ph.D., a CPA, a tax expert, a health care idustry expert, a experieced licese egotiator, a licesed appraiser, ad so forth. I selectig the valuatio aalyst who is best suited for a particular assigmet, the health care ower/operator (perhaps i cosultatio with legal cousel) should thik through the iteded purpose of ad the iteded audiece for the itagible asset valuatio. Based o these cosideratios, the ower/operator ca decide if the appropriate valuatio aalyst eeds sale/licese egotiatio expertise, bakig coectios, health care idustry experiece, accoutig ad auditig credetials, expert testimoy experiece, or other relevat experiece. I this selectio process, the health care ower/ operator should realize that some categories of aalysts subscribe to codified professioal stadards ad other categories of aalyst may subscribe to more iformal (or o) professioal stadards. Some categories of aalysts have achieved professioal credetials; these credetials are typically eared through educatio, examiatio, compliace with codes of ethics, ad adherece to published professioal stadards. Other categories of aalysts do ot have professioal orgaizatio credetials. This fact does ot make these idividuals ay less professioal. Such idividuals may have perfectly adequate experiece ad expertise. The ower/operator has to decide if a certai set of professioal credetials is importat to the subject valuatio assigmet. Summary There are umerous idividual reasos to coduct a health care itagible asset valuatio. This discussio summarized may of these reasos ad cosidered the commo categories of these idividual reasos. Uderstadig the reaso for the itagible asset aalysis is a importat prerequisite to coductig the valuatio, both for the aalyst ad the health care ower/operator. This is because a itagible asset valuatio may ot be the type of aalysis that the ower/operator really eeds. Rather, the ower/operator may really eed a ecoomic damages measuremet, a licese royalty rate aalysis, a itercompay trasfer price study, a commercializatio potetial evaluatio, or some other type of itagible asset aalysis. I additio, a clear defiitio of the reaso for the valuatio will allow the aalyst to uderstad if (1) ay specific aalytical guidelies, procedures, or regulatios apply ad (2) ay specific reportig requiremet applies. For example, itagible asset valuatios prepared for fair value accoutig purposes should meet specific ASC 820 fair value accoutig guidace. Itagible asset valuatios performed for itercompay trasfer price tax purposes should comply with the guidace provided i the Sectio 482 regulatios. Likewise, itagible asset valuatios prepared for Sectio 170 charitable cotributio purposes should comply with specific reportig requiremets. The idividual reasos for the health care itagible asset valuatio may ifluece the stadard of value applied, the valuatio date selected, the valuatio approaches ad methods applied, the form ad format of valuatio report prepared, ad eve the type of professioal employed to perform the valuatio. Robert Reilly, CPA, is a maagig director of the firm ad is residet i our Chicago office. Robert ca be reached at (773) 399-4318 or at rfreilly@willamette.com. 94 INSIGHTS SPRING 2013 www.willamette.com