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 Alexander Malshakov 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.