MPI Resources

Delaware Court Determines ISN Value, Despite Divergent Expert Opinions

The Delaware Court of Chancery recently determined the value of ISN Software Corporation stock to be $98,783 per share, 158% more than the merger price. ISN did not rely on a financial advisor, investment bank, or fairness opinion, but self-determined that its stock was fairly valued at $38,317 per share. Petitioners Polaris and Ad-Venture objected, and promptly filed suit. With experts for all parties submitting wildly different valuations, the Vice Chancellor was forced to rely on his own, hybrid discounted cash flow (“DCF”) analysis, and ultimately pegged ISN’s fair value well above the merger price. Litigators would be remiss in neglecting to glean insight from the published opinion, which covers critical valuation parameters, including cash flow projections and discount rate factors.

Morrissette: Tax Court Clarifies Treatment of Split-dollar Life Insurance Arrangements

By Joseph C. Hassan, CFA, ASA

In April 2016, the Tax Court entered a summary judgment on Estate of Clara M. Morrissette v. Commissioner of Internal Revenue. The case centered on two split-dollar life insurance arrangements entered into by the decedent’s revocable trust and three distinct trusts in 2006. The revocable trust contributed $29.9 million to the trusts. The trusts used these funds to purchase life insurance policies covering the decedent’s three sons. In 2013, the IRS issued a notice of deficiency against the estate in the amount of $13,800,179 plus a penalty of $2,760,036. 1 The IRS characterized the $29.9 million contribution as a taxable gift, and classified the split-dollar life insurance arrangements as loans.2 The estate challenged this classification, arguing that the arrangements should be governed by the so-called “economic benefit” regime.3 The Tax Court agreed with the estate, issuing a partial summary judgment under Rule 121(a) of the Tax Court Rules of Practice and Procedure that the economic benefit regime applies to the split-dollar arrangements in this case.

Delaware Court Delivers on Dell Value

Vice Chancellor Laster’s recent decision in the Delaware appraisal action involving Dell, Inc. determined that Dell’s stock was valued at $17.62 per share, or some 26% above the going private offer worth $13.96 per share.1 The four day trial included testimony from both Petitioners’ and Respondent’s valuation experts, as well as testimony from the investment bankers who originally advised Dell’s board of directors. Ultimately, the Vice Chancellor developed a hybrid valuation model, selecting what was deemed to be the most reliable data from each of the experts, in arriving at his opinion on the value of the shares. Litigators would be remiss in neglecting to glean insight from the published opinion which speaks to critical valuation parameters, including financial forecasts, growth rates, taxes, and the cost of capital.

Judge Grants Class Certification for AMD Shareholders Guided, in Part, By Halliburton II

The Honorable Yvonne Gonzalez Rogers, in the Northern District of California, issued an order last week granting class status to an action brought under Rule 10b-5 of the Securities Exchange Act against Advanced Micro Devices, Inc. (Babak Hatamian, et al. v. AMD, et al., 14-cv-00226 YGR). Judge Gonzalez Rogers referenced Halliburton II standards, among others, in deciding two key issues – namely, whether Plaintiffs are entitled to invoke a presumption of reliance under the “fraud-on-market” theory to show reliance classwide; and whether Plaintiffs can show that a common damages methodology can be applied to all class members.

Redstone: Tax Court Upholds a 43 Year Old Gift Tax Deficiency

By Bjorn A. Midtlyng, CFA

In December 2015, the Tax Court rendered its opinion on Sumner Redstone v. Commissioner of Internal Revenue. The focus of the dispute was whether a stock transfer made by Sumner Redstone in 1972 was a gift for Federal gift tax purposes, or, as Sumner Redstone claimed, was a transfer for “adequate and full consideration in money or money’s worth.”1 Following an examination that concluded in early 2013, the IRS issued against Sumner Redstone a gift tax deficiency of $737,625 for the calendar quarter ending September 30, 1972.2 In addition, the IRS determined an additional $368,813 for fraud,3 $36,881 for negligence, 4 and $184,406 for failure to file a timely gift tax return. 5 Ultimately, after a trial, the Tax Court found that the transfer was a taxable gift but Sumner Redstone was not liable for any additional penalties.

Giustina Decision Reversed and Remanded for Recalculation

By: Todd G. Povlich, ASA

According to the Ninth Circuit, the answer to the question above is “Absolutely.” This case involved a limited partnership owning timberlands that was formed 15 years prior to Mr. Natale B. Giustina’s death. After the family’s lumber mills were sold, timberlands owned for decades within the family’s business entities were transferred to a new partnership in order to effect a family ownership and management restructuring. The timberlands continued to be held and managed by the partnership and there was no desire or intention to liquidate these assets at the time of Mr. Giustina’s death. In Tax Court, Judge Morrison opined that 25% weight ought to be given to the liquidation value of the partnership, and 75% weight ought to be given to its going concern value, which was determined through a capitalization of cash flow method.

Oppressive Shareholder Value Slashed by New Jersey Court

In a recent decision in New Jersey Superior Court involving cross claims of shareholder oppression pursuant to N.J.S.A. §14A:12-7, the Court found it appropriate to apply a marketability discount to the value of the privately-held company stock at issue in determining the buyout price to the oppressive shareholder. As New Jersey is typically a “Fair Value” jurisdiction, marketability discounts are applied only under what is found to be “extraordinary circumstances,” such that failure to do so would unjustly enrich the oppressing shareholder or otherwise fail to adequately compensate the prevailing party.