Coming to grips with succession planning

Clarke McEwan Accountants

With around 70 per cent of all Australian businesses being family-owned and operated, and an estimated $4.3 trillion of wealth locked up in these firms, having a succession plan to capitalise on this value when choosing to exit the business is crucial.

What exactly does 'succession planning' mean?

Business succession describes the process of a business owner transitioning out of the business. There are many different ways this can be achieved, which is why having a plan is essential to ensure the right option is chosen and that the relevant steps are taken to achieve a desirable outcome.

Why is it relevant to you as a business owner?

Building and running a business is hard work. So, it makes sense that when it comes time to exit, you would want to receive the best possible value for your efforts, and the best outcome for the business you have put your blood, sweat and tears into. For this reason, having a succession plan is so important for every business owner.

A succession plan allows a business owner to identify their company's opportunities for improvement and to scale, but also its impediments to growth, which might turn off prospective new owners and/or diminish the value of the business.

Additionally, developing and following a plan will allow you to minimise tax liabilities, plan ahead for life after the business (whatever that may entail) and ensure the transition – for yourself, your staff, your customers and the business itself – runs as smoothly as possible.

What are the different options for exiting a business?

There are a number of different paths owners can choose from when it comes time to exit their business. The most common ones are:

Sell the business: This is probably the most recognised form of exiting a business, allowing the owner to receive a lump sum payment for the asset they have built up.
Business merger: Similar to a sale, merging with a competitor can allow for one owner to hand over the reins to another, while simultaneously offering additional value to employees and customers.
Pass the business down (to children or other relatives): Many businesses retain family ownership over a number of generations, allowing owners to bring in new ideas and enthusiasm for younger generations without losing the family's connection to the business through a sale.
Employee or management buyout: It is possible for a buyer or group of buyers to come from within the business itself. This may involve a single or group of employees coming together to take over, or other directors, managers and board members buying out the share held by a co-owner.
Stock market listing: Many start-ups choose to embark on an IPO to take the business into public ownership once it reaches a certain size.
Shut the business down: The simplest and most final way of exiting a business is to simply shut the doors and cease trading.

What should business owners know about succession planning?

Many business owners – especially those without a succession plan in place – are often shocked at how long it can take to exit a business, and exactly what is involved.

For instance, business advisers generally suggest that it takes between 18 months to 2 years to properly prepare a business for sale.

This is primarily because of the amount of behind-the-scenes work required. New owners, whether buyers, merger prospects or buyout parties, will want to see evidence of the company's performance, levels of debt, revenue structure, productivity, staffing levels and turnover rates, supply agreements, customer contracts and more.

In addition, they want the business owner to effectively provide a "brain dump" of everything they know about the business to ensure a smooth transition into operating under new management. This includes operational procedures and process, passwords, relevant contact lists as well as ideas and opportunities to further scale and grow the business.

Having this process clearly documented will substantially increase the level of interest from prospective buyers, and how much they are ultimately willing to pay for the business.

It is also important for suppliers and customers to have confidence in any change in management or ownership. The sudden and seemingly unplanned exit of a business owner can lead both suppliers and customers to question the viability of the business, taking their custom elsewhere.

Business owners should also be aware that their company may hold more assets or value than they realise. For instance, some services firms wrongly believe that without the owner, there is no business. However, their customer base, for example, could be of substantial monetary value to competitors or other parties.

Finally, it is important to note that a business owner will generally be required to continue working within the business for a period of time (generally six to 12 months) to ensure a smooth transition to the new owners. A portion of the sale price is sometimes tied to this requirement being met.

What happens if there is no plan in place?

After spending years or even decades building up a successful business, no one wants to go out on a sour note. While the lack of a succession plan doesn't guarantee failure, there are some definite risks that a company without a plan may face, such as:

- Accepting a lower offer for the business and/or its assets than what they are really worth.
- Limiting the number of interested parties that the business may otherwise have attracted.
- Scaring off a key customer who gets spooked by the unknown implications of the transition, in turn destroying cash flow and goodwill.
- Discovering that the preferred exit option is unavailable. Sadly, this a growing problem for many business owners who aspire to pass it onto their children, only to discover the next generation either can't afford or have no desire to take
over the business.
- Being forced to delay retirement in order to generate the desired returns from the business.

Case study: Tom and Mary

Tom and Mary have run a successful printing supplies business for over 20 years and are now approaching retirement. They worked hard to build up the business from scratch and built a highly loyal customer base.

As such, Mary and Tom want to see these customers continue to receive the trusted service to which they are accustomed, and for the business to continue growing once it moves to new management. They would have liked their dedicated employees to take over and continue running the business, rather than sell out to an unknown party, but were concerned about the financial and logistical viability of this option.

In a bid to explore their options in more detail and receive bespoke advice on how best to manage their eventual exit from the business, Tom and Mary decided to work with an external consultant familiar with succession planning.

Using the advice of their business consultant, Mary and Tom have been able to overcome their initial fears and begin the process of transferring ownership of the business to their staff. Consultations have determined which employees will be involved in the buyout and how much each will contribute, allowing each member of staff to begin exploring their own options to finance the purchase.

Major customers have been thrilled with the news they will continue to be dealing with the same people they know and trust, and Tom and Mary are now at ease that their legacy and customers will continue to operate in good hands.

#businessplanning #successionplanning #retirement #businesssuccession #planning #exitplan #goodwill #clarkemcewan #businesstransition

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Bill proposing increased threshold for instant asset write off passes Senate

By Clarke McEwan • 27 Apr, 2024

A bill proposing to increase the instant asset write off threshold in Div 328 of ITAA 1997 from $1,000 to $20,000 has been introduced in the Parliament and awaits approval.

Budget 2024-25

By Clarke McEwan • 18 Apr, 2024

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The assault on professional services

By Clarke McEwan • 18 Apr, 2024

The assault on professional services The ATO has signalled that it is willing to pursue professional services firms who divert profits to avoid tax. Two new cases before the Administrative Appeals Tribunal demonstrate how serious the Australian Taxation Office (ATO) is about making sure professional services firms - lawyers, accountants, architects, medical practices, engineers, architects etc., – are appropriately taxed. In both cases, the ATO pursued the practices using Part IVA. Part IVA is an area of the income tax law that enables the Tax Commissioner to attack schemes or arrangements undertaken to obtain a tax benefit, enabling him to cancel any benefit derived by the scheme. That is, you could have a legally viable structure in place but if the only purpose of that structure is to reduce tax, then the Commissioner can use Part IVA to remove the tax benefit. And, if Part IVA applies, you may end up with an additional tax liability as well as an administrative penalty of either 25% or 50% of the tax shortfall amount. Broadly, the cases involved a solicitor who controlled a number of practice trusts that derived profits through marketing and facilitating tax planning arrangements. While the arrangement in each case was complex and involved a large number of steps, the practice trusts ensured their business profits weren’t subject to tax by essentially making trust distributions on paper through a series of trusts and ultimately to either a company that had existing tax losses, or a tax-exempt entity. However, the real funds relating to the trust distribution (less a commission paid for the use of these entities) were ultimately received by the solicitor or their associated entities in the form of a loan. Professional practices have been in the ATO spotlight for many years now for the way they distribute profits. Back in 2021, the ATO finalised its guidance on the allocation of professional firm profits, putting in place a series of risk ratings and gateway tests. These two cases however demonstrate the ATO’s willingness to pursue the issue in the courts using the Commissioner’s powers in Part IVA. For professional services firms, it’s important to be aware that there are several ways in which the ATO can potentially challenge arrangements involving the distribution of profits from a professional practice. For example: If a trading entity derives personal services income that mainly relates to the skills and efforts of a particular individual, the ATO has certain expectations around ensuring the profits are assessed to the individual performing the work. If a trading entity doesn’t derive personal services income but income from a business structure involving a professional practice, the ATO has set out its compliance approach to targeting arrangements that don’t result in a reasonable level of profit being taxed in the hands of the individual practitioners. If a trust makes paper distributions to loss entities to ‘soak up’ deductions or losses, there are integrity rules in section 100A, another area of tax law under intense scrutiny, that need to be considered.

How much is my business worth?

By Clarke McEwan • 18 Apr, 2024

How much is my business worth? For many small business owners, their business is their largest asset and for many, one that is expected to help fund their retirement. But what is your business really worth and what sets a high value business apart? Every business owner is naturally curious about just how much their business is worth. However, for every business that sells at an attractive price, there are others that struggle to sell, let alone fetch a premium. The question is, what makes a difference? When you come to sell a business the first question is, what are you selling? In most cases, this is fixtures and fittings, plant and equipment, stock on hand, and the goodwill of the business. Generally, a buyer won’t want to purchase your liabilities or your business structure, nor will they want to collect your outstanding debtors. Most business sales become a sale of business assets. These assets are relatively easy to value with the exception of the goodwill. The value of plant and equipment and trading stock can generally be agreed. The tension tends to be around the value of the goodwill because goodwill is made up of many intangible assets that can’t be readily quantified. We can all agree that there is value in these assets but the question is, how much? Goodwill is basically the value of the future free cashflow of the business. Based on how your business is structured, it is the value of the profits the business can generate in the future. This is what a buyer is prepared to pay for. If a buyer has a reasonable certainty of profits and free cashflow in the future, then this is worth something. By comparison, a start-up business will have a higher level of risk and no certainty that profits can be generated. In general, a new business may need to trade for a number of years at a loss before it can establish itself and generate profits. Goodwill is what you are prepared to pay to avoid the risk and the ‘time to establish’ factor. So, what influences business value and what will people pay for? A history of profits, profits, and more profits Returns on capital invested (better than 30%) Strong growth and growth prospects Brand name and value A business not dependent on the owners A strong, verifiable customer list Monopoly income – exclusive territories A sustainable competitive advantage Good systems and procedures It is possible to get a price that is widely different from the norm. Unique businesses, unique circumstances, and unique opportunities can always produce ‘an out of the box’ price. If you can build something unique, then you may achieve a price beyond normal expectations. At the end of the day however, the market will set the price. If you are planning on selling your business, identify who your buyers might be. There could be a purchaser who is prepared to pay a large premium to own your business because of the accretive value or because it is pivotal to their growth strategy. And, even if you are not thinking about selling your business, the reality is that one day you will. If you build your business with this in mind, then you should look to do the things that will grow your business value from year to year.

Non-compete clauses and worker restraints under review

By Clarke McEwan • 18 Apr, 2024

Non-compete clauses and worker restraints under review A new issues paper from Treasury’s Competition Review questions whether non-competes and other restraints are limiting job opportunities and movement. A recent Australian Bureau of Statistics (ABS) survey found that 46.9% of businesses surveyed used some kind of restraint clause, including for workers in non-executive roles. The survey also found 20.8% of businesses use non-compete clauses for at least some of their staff and 68.2% for more than three-quarters of their employees. Over the last 30 years, Australia has seen a decline in job mobility. Australia is not alone in this and other advanced economies have experienced the same issue. While restraint clauses are not the only factor contributing to the decline – an ageing population and a rise in post-pandemic market concentration in some industries has also contributed, it is specifically the role of restraints that is the focus of the Competition Review issues paper (submissions close 31 May 2024). From an economic perspective, declining job mobility impacts wage growth and innovation as restraints prevent access to skilled workers within the economy. Productivity is a key concern as Australia’s productivity has declined in the last 20 years. The review states that, “The direct consequence of a non-compete clause is that it hinders competition among businesses: it disincentivises workers from leaving their current job, creating a barrier to the entry of new businesses and the expansion of existing businesses.” For business however, this is the point - restricting the knowledge developed by a worker during their employment from benefiting a competitor, limiting the likelihood of a ‘mass exodus’ of key workers from the business to a competitor, preventing clients from employing key workers, and protecting the value of the business by preventing employees from walking away with customers that were hard won, at a cost, by the business. However, the impact of restraints appears to be a psychological deterrent given that most are not contested. Of the 115 matters relating to restraints of trade between 2020 and 2023 dealt with by Legal Aid NSW, only one business commenced proceedings in court against a former worker. And, a further study indicates that where employers seek legal redress in the courts, they are more likely than not to fail. The international trend is to either ban restraints for workers under a certain income level and time limit restraints for higher paid workers, or to limit the duration of restraints generally but specify a level of compensation to the worker for the restraint period. Non-compete clauses prevent workers from joining a competitor or starting a new business in competition with their current employer for a period of time. Non-solicitation clauses prevent workers from soliciting former customers and co-workers. Non-disclosure clauses prevent workers from disclosing confidential information relating to their employment.

Warning on SMSF asset valuations

By Clarke McEwan • 18 Apr, 2024

Warning on SMSF asset valuations The ATO has issued a warning to trustees of SMSFs about sloppy valuation practices. ATO data analysis has revealed that over 16,500 self managed superannuation funds (SMSFs) have reported assets as having the same value for three consecutive years. With many of these assets residential or commercial Australian property, you can forgive the ATO for being incredulous. For trustees of SMSFs, where asset values are consistently reported at the same value, it’s likely your SMSF will be flagged for closer scrutiny by the ATO. The value of assets in your SMSF impacts on member balances and by default, can impact the amount you can contribute, ability to segregate assets for exempt current pension income, the work test exemption and access to catch-up concessional contributions. And, as we move closer to the implementation of the Division 296 $3m superannuation tax, valuations will be very important for anyone with a member balance close to or in excess of $3m. If the asset is an in-house asset, for example a related unit trust, then an accurate valuation is essential to ensure the fund remains within the 5% in-house asset limit. If the value of in-house assets rises above 5% of total assets, the asset/s need to be sold to bring the limit back below 5%. Valuing at market value Each year, the assets of your SMSF must be valued at ‘market value’ and evidence provided to your auditor. Broadly, market value is the amount that a willing buyer of the asset could reasonably be expected pay to acquire the asset from a willing seller assuming that the buyer and seller are dealing at arm’s length, and everyone acts knowledgeably and prudentially. It’s a common sense test that looks at the value you could reasonably expect to achieve for an asset. If your SMSF holds collectible and personal use assets like artwork, jewellery, motor vehicles etc., a valuation must be performed by a qualified independent valuer on disposal. This does not necessarily mean that an independent valuation needs to be completed every year but at least every three years would be prudent. If you are not utilising an independent valuer, you will still need to make an active assessment based on market conditions. For example, if you hold artwork and the artist who created your investment artwork died, has this changed the value? Are the primary and secondary markets for the artwork transacting at a higher value? Leaving the value of the asset at its acquisition price calls into question the rationale for acquiring the asset within the fund in the first place. If the asset is unlikely to add any value to your retirement savings, then should it be held in your SMSF when you could achieve a higher rate of return elsewhere? In most cases, the ATO require trustees to value an asset based on “objective and supportable data”. This means that you should document the asset being valued, a rational explanation for the valuation, and the method in which you arrived at it. Valuing real property Commercial and residential real estate does not need to be valued by an independent valuer. But, if there have been significant changes to the property, the market, or the property is unique or difficult to value, it is a good idea to have a written independent valuation from a valuer or estate agent undertaken (their report should also document the valuation method and list comparable properties). If you are completing the valuation yourself, ensure that you document the time period the valuation applies to and the characteristics that contribute to the valuation. For example, a 10 year old brick four bedroom property on 640m 2 of land in what suburb and any features that make it more or less attractive to a buyer, for example proximity to transport. And, you should access credible sales data either on similar properties in the same suburb that have sold recently or from a property data service. More than one source of data is recommended. The estimates on a lot of online property sales sites are general in nature and not reliable for a valuation of a specific property. The average price change for the suburb however could be used as supporting evidence of your valuation. For commercial property, net income yields are required to support the valuation. Where the tenants are related parties, for example your business leases a commercial property owned by your SMSF, you will need evidence that a comparative commercial rent is being paid and the rent is keeping pace with the market. Valuing unlisted companies and unlisted trust investments Valuing unlisted companies and unlisted investments can be difficult. The financials alone are not enough. But, if your SMSF invested in an unlisted company or shares in a unit trust, then there is an expectation that the trustees made the decision to make the initial acquisition based on the value of the asset, its potential for capital growth and income generation. That is, if you assessed the market value going into the investment, then it should not be a stretch to value the asset each year. The difficulty for many investors is that in unlisted companies or trusts, the initial investment was broadly equivalent to the cash requirements of the activity being undertaken. Generally, the starting point is the value of the assets in the entity and/or the consideration paid for the shares/units. For widely held shares or units, this is the entry and exit price. Where property is the only asset, then the valuation principles for valuing real property are likely to apply. Where there is no reliable data or market We’ve seen a few scenarios where the assets purchased or created by the SMSF have no equal or there is no market – the true extent of the value will only really be known when the asset is realised. These unusual items default to either a professional valuation or a viable market assessment. This might be a derivative of the purchase price or data from a related market. Valuations and the impending Division 296 tax on super earnings The value of assets will be particularly important for those with super balances close to or above the $3m threshold for the impending Division 296 tax on fund earnings. Because the tax will measure asset values and tax the growth in earnings above the $3m threshold, accurate valuations will be important to ensure that the fund does not pay tax when it does not need to, and to reduce the likelihood of anomalies artificially inflating tax payable.