March 21, 2013 – Hesch – Porter Valuation Interview Edition






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Don’t help open a Chick-Fil-A next to your KFC!

While physician recruitment agreements are a terrific tool to expand a practice or bring much needed specialists to an area, they may also result in a medical practice recruiting its own competition! For several years, the Stark Law explicitly forbade non-compete clauses in physician recruitment agreements, forcing practitioners to make a difficult choice.

Fortunately, the Center for Medicare and Medicaid Services (CMS) recently changed its position on prohibiting non-compete clauses under the Stark Law because it found that the ban on non-compete clauses discouraged medical practices from recruiting new physicians. Non-compete provisions are now acceptable under the Stark Law provided that the restrictions do not “unreasonably restrict the recruited physician’s ability to practice medicine in the geographic area served by the hospital.” 42 CFR 411.357(e)(4)(iv).

In its Advisory Opinion No. CMS-AO-2011-01 (available by CLICKING HERE), CMS provided some guidance about what types of non-compete restrictions would be acceptable under the Stark Law. The Advisory Opinion approved a non-compete provision included in a physician recruitment contract between a Hospital, Medical Practice, and a Pediatric Orthopedist. The Medical Practice was unwilling to hire the Pediatric Orthopedist without a non-compete clause.

The Advisory Opinion evaluated the non-compete provision based on the “totality of the circumstances” and found that the proposed clause did “not unreasonably restrict the Physician’s ability to practice medicine” based on four factors:

  1. The time restriction of one year was reasonable.
  2. A distance restriction of 25 miles was reasonable.
  3. The Pediatric Orthopedist would still be able to practice at a hospital within the Hospital’s geographic service area—there was at least one hospital further than 25 miles away but still within Hospital’s geographic service area.
  4. The non-compete agreement complied with applicable state and local non-compete provision laws.

While these details were helpful, those drafting physician recruitment agreements are still without hard guidelines and instead are left to do some guessing.

So what can we determine based on the Advisory Opinion? At the very least, state law provides the outer limits of a reasonable non-compete provision. Florida Statutes Section 542.335 (available by CLICKING HERE) permits restrictive covenants provided “such contracts are reasonable in time, area, and line of business,” and provided the covenant protects a “legitimate business interest,” like an “ongoing business or professional practice.” Section 542.335(d)(1) indicates that courts must presume that a non-compete is reasonable if it is less than six months in duration and unreasonable if it is longer than two years. Thus, a party wishing to overcome the presumption of unreasonableness for non-compete provisions exceeding the statutory maximum must prove that the desired duration is reasonable. Balasco v. Gulf Auto Holding, Inc., 707 So. 2d 858, 860 (Fla. 2d Dist. App. 1998); Flickenger v. R.J. Fitzgerald & Co., Inc., 732 So. 2d 33, 34-35 (Fla. 2d Dist. App. 1999). Non-compete provisions lasting between six months and two years apparently carry no presumption of reasonableness.

The regulations define the “geographic area served by the hospital” as “the area composed of the lowest number of contiguous zip codes from which the hospital draws at least 75 percent of its inpatients.” 42 CFR 411.357. In structuring non-compete agreements, it is important to to ensure that the physician can still practice within the hospital’s geographic service area upon termination. To comply with requirement, upon the physician’s termination, the practice could inform the physician of which zip code region is available, and the physician can work at any practice or hospital of his or her choice within that zip code region. This ensures that the recruited doctor will be able to practice locally while providing the practice with some degree of control.

Aside from identifying geographic restrictions as a “legitimate business interest,” the Florida Statutes do not provide specific geographic restrictions for non-compete provisions. The 25 mile limit is a good starting point. But in the Advisory Opinion, CMS noted that there were at least three hospitals within a one hour car drive. Whether this 25 mile restriction would hold up in an area with significantly fewer hospitals—or an area with only one hospital—remains to be seen.

The agreement might also prevent the physician from recruiting or soliciting any patients from the practice or from accepting patients of the practice in his or her new practice.

In addition, we recommend that drafters include a few provisions that outline the “legitimate business interests” being protected by the non-compete provision. This helps to eliminate any issue concerning “legitimate business interests” under Florida Statutes Section 542.335.

Assuming that these non-compete provisions do not unreasonably restrict the physician’s ability to earn a reasonable living or to provide medical services on a full-time basis to other individuals in the practice’s geographic service area, we believe that they will comply with the Stark Law, and other healthcare lawyers have agreed.

We welcome your suggestions for keeping non-compete clauses “reasonable.”


The following is a transcribed excerpt from a Bloomberg/BNA webinar that Alan Gassman and Chris Denicolo gave with John Porter of the Baker Botts law firm, and Professor Jerry Hesch of the Berger Singerman law firm and of the University of Miami, on March 7, 2013, entitled “Don’t Discount Discounts.”

If you are interested in watching the recording of this webinar, please contact Mark Carrington at for pricing and other information.

The excerpt below describes the importance of getting qualified appraisals for use in reporting gifts or installment sale transactions that were made for estate planning purposes.


Alan Gassman: Sometimes clients have engaged in installment sales to a defective grantor trust or discounted gifting and do not want to pay for expensive appraisal reports or discounted gifting and do not want to pay for expensive appraisal reports or even file a gift tax return that would disclose an installment sale where discount are being made. Many clients would simply rather let their children deal with the IRS later if there is going to be an audit after death.

Jerry Hesch:  Well you have to tell people about the question on the estate tax return that asks “Have you ever done an intra-family sale in the past?” What you’re doing, basically the IRS is going to know about what you are doing. A lot of people say “We’ll pay off the installment note before you die so there’s no note in your gross estate and nothing shows up.”

Now with that question on the estate tax return, the IRS is going to know about the sale so my advice to the client is the IRS is going to ask about it. They might as well ask about it now to get finality because if you want to leave it open it’s going to be a question years from now. The records might not be available. You might not be available. I think you have to decide whether you want finality now or whether you want to leave it open until death? Make sure the client makes that choice, not you.

I basically like disclosing everything currently, just so if there are any questions we can get them resolved now rather than later. If you get them resolved now, you don’t have the exposure of having it fail later with lots of assets in the trust.

John Porter: It’s ultimately a client decision. It’s based on the facts and circumstances that exist. You might have a senior family member who is up in years, and is not that interested in filing the gift tax return and possibly having an audit occur during his or her life. So they may decide that dealing with an IRS challenge is somebody else’s problem, but my preference would be to go ahead and get the statute of limitations started because you not only have gift tax and interest issues, you also have potential transferee liability issues.

There’s a case that’s now being pursued in the 5th Circuit Court of Appeals and the question becomes whether the transferee liability is limited to the value of the assets you received or whether it includes interest on top of the assets. Over a long period of time, that can be a pretty big number. In most cases, I would lean towards going ahead and getting it filed and getting the ball rolling.


Alan Gassman: When you disclose the discount sale, how much detail do you have to put on the gift tax return to get the statute running?

I’ve heard different lawyers say you might be able to just kind of put minuscule disclosure on it and that might be enough.

John Porter: Well, we have the Section 6501 Treasury Regulations, Alan, and I think obviously if you have a qualified appraisal, then you satisfy it. If you don’t, I think the Treasury Regs. pretty well lay out that you have to describe the method used to determine the value of the property transferred, including financial data relied on in determining the value of the interest and any restrictions on the transferred property considered in determining the fair market value of the property, as well as a description of the discounts applied.

There are a few other things in there as well. I don’t think it’s as simple as some people might say: just putting a number or even putting a computation down. My preference would be if you’re going to go that route, you ought to put the transaction documents in there. You ought to put the organizational documents in there. You ought to have a pretty detailed description of how you determined value because if you’re going to disclose without the qualified appraisal, you certainly want to try to get the statute running. That’s the whole purpose of filing a gift tax return. I would include more rather than less.

Chris Denicolo: Jerry, any thoughts on that?

Jerry Hesch: Including more, because it gives the revenue agent whose auditing it a chance to look at all the material. If you don’t include everything, or you don’t include sufficient information, then the revenue agent is going to have questions, and then that means they’ll have to get back to you.

They’ll have to initiate an audit or something and if you have enough information so that all the questions the revenue agent may ask can be resolved by the information you have supplied to the revenue agent, they might just say everything looks good on the in-house audit and not initiate a regular audit. So my view is to have all of the information that a revenue agent would want access to, so that he or she can decide whether or not to proceed with an audit or just accept it. I agree with John that more information is better, but you don’t have to overwhelm them with everything. Just enough that will answer all the questions that may arise.

Alan Gassman: Thanks Jerry. Of course in some situations the planning has been so effective that the clients will not have to file an estate tax return. This probably makes the consideration of whether they have filed a gift tax return moot from a practical standpoint. If you’re really sure that the family is going to be below an estate tax filing threshold as the result of this sale and the other things you’re doing for them, then maybe you would lean toward not disclosing the sale.


Chris Denicolo: Over and over again, lawyers are having to re-explain to clients why they have to pay thousands of dollars for a valuation report that tells them a percentage that they thought they knew anyway. What’s the best way to explain this to clients right now John?

John Porter: Well, the best explanation is if you’re under a gift tax or estate tax audit or an appeal during litigation, the strongest evidence of value is the appraisal. I’ve tried plenty of valuation cases, and I’ve never tried a case where I’ve been able to sit in the witness box and testify about value. The Service and the courts are going to look at an appraisal.

It may tell you that the discounts are what you thought they were, but the best money you can spend in these cases is on a qualified appraisal. If you get to the audit level, your return finds its way to the service center in Covington, Kentucky. There’s a big stack of them that the local examining agents go to review and decide which ones to take to the field audit. Human nature would tell you that the ones that don’t have the appraisals attached or the ones that have shoddy appraisals or cookie cutter appraisals attached, as I’ve heard examining agents say, those are the ones that are likely going to get challenged.

I think the lack of an appraisal or, alternatively, the lack of an appraisal coupled with a failure to reasonably disclose how valuation is determined or a shoddy appraisal, is going to significantly increase your chances of audit. What I like to tell people is it’s like the Fram Oil Filter commercial, you can pay me now or you can pay me later. We’ve got plenty of cases that have landed on my desk where the planning has been done somewhere else.

The client doesn’t want to pay for an appraisal, and we tell them that before we can get this case to appeal and pursue litigation, we need to get an appraisal of this interest. So frankly it’s some of the best money you can spend for a good, solid, well-qualified appraisal because that’s going to carry the day. It’s going to be Exhibit A in your valuation position.


Alan Gassman: Now John, we’re seeing some of the regional CPA firms doing the appraisals for their own clients on transactions that they’ve engineered, and we see some of the CPA firms say we shouldn’t do the appraisal because it won’t be viewed as independent. What’s going on in the real world with that?

John Porter: We’ve seen some of that too. There are certain circumstances: (1) the transaction was engineered or recommended by the CPA firm; (2) the CPA firm filed the gift tax returns; and (3) the CPA firm does the appraisal. I had a case a number of years ago where that was the case and it was a big eight accounting firm so that’ll tell you how long ago it was. We got hired after the fact because the CPA firm was also defending the audit, and the examining agent laughed and said there has to be a conflict of interest in there somewhere.

I think if you’ve engineered the transaction (engineered is probably not the right word to use), but if you’re the one who is recommending the transaction and you’re the one who’s doing the appraisal, I think that has the potential to taint the expert witness, particularly if that person’s testifying in court and particularly if the transaction itself, as opposed to just valuation, is under scrutiny. My preference would be to have an independent appraiser, independent from the transaction, do the valuation analysis. I think it’s just much cleaner to do it that way.


Alan Gassman: Okay, great. Now are the courts still insisting on segregating by asset class within the valuation report?

John Porter: If you have a marketable securities type entity (a holding entity may be another way to put it), I don’t know that I would say the courts are insisting on it. But certainly when you’re doing a net asset value approach, Alan, and you’ve got an asset holding company, many appraisers will determine the lack of control discount using data that relates to each asset class of the entity. So if you’ve got a marketable securities partnership that also holds real estate, you would often see the experts rely on the closed-end funds for the securities component and the partnership profile’s data involving real estate partnerships for the lack of control discount associated with the real estate component.

The lack of marketability discount typically relates to the entity as a whole and issues associated with marketability. Of course operating entities are really a different animal completely, but that is an approach that many appraisers rely on. Basically, courts deal with the evidence that they’re presented, and many courts have adopted that approach as well. One examples of this is the McCord case where we saw the IRS appeal settlement guidelines. That’s the approach determining the lack of marketability discounts. I think certainly that’s one of the major accepted or primary accepted methods in determining lack of control discounts for a holding entity.

Alan Gassman: Very good observations. Jerry, any comments?

Jerry Hesch: My view is you’ll actually save money by paying for a qualified appraisal now because you’re less likely to get audited if the appraisal is really good. What I tell the clients is if you get audited, the legal costs you’ll have to pay all of us in defending your audit might exceed the cost of what you would have paid for the appraisal, so from my pure financial point of view, if you pay now you can actually save money that you would not to have to spend in the future.

John Porter: A point to be made is a good appraisal doesn’t guarantee that you’re not going to get audited and that the Service is not going to challenge it, but you’re in such a better position if you have a good quality appraisal than you would be if you didn’t.


Alan Gassman: One story that comes to mind that some people might be able to use. We had a client who refused to get an appraisal a few years ago. I wrote him a couple letters. I recommended an appraisal. He chose not to get an appraisal. They audited the return and the IRS asked if we had an appraisal and I said we didn’t have an appraisal for this one, but a couple of months before this transaction, another client had a very similar entity and did have an appraisal. We used the number from that appraisal and I presented the IRS with the whited out version, because back then we used to use white out before PDFs, and that worked! So that might just be a back pocket strategy.


Alan Gassman: I guess another consideration though is if we had a client that did a December 31, 2012 transaction like all the rest of our clients that waited until the last minute, and we have an appraisal for that, it’s probably a pretty good idea to use that client’s new $130,000 allowance early this year. Jerry, what are you seeing people pay for an update of a valuation report a year later, because this goes to this whole concept of whether you should be gifting every year or every other year as the CPI kicks up the exemption amount?

Jerry Hesch: The updates are really very inexpensive, because they have all of the information and it’s really just a question of evaluating the most recent figures and including them in the formula. So the updates have been extremely reasonable, often 10% to 15% of what the original appraisal cost was.

Alan Gassman: I think one thing that the lawyer needs to do is when you’re out looking for an appraiser you need to ask him what the update is going to cost, and try to get that as part of the deal because there are going to be a lot of updates.


Alan Gassman: A lot of times here in Florida, the client says “Why do I need to get my real estate appraised when the county property appraiser does this each year?”

Generally, in our counties here in west Florida, the tax assessor just value amount is just about spot on 80% or 90% of the time. But if the client wants an appraisal, if it’s commercial property, they usually need an MAI appraisal which is not “made as instructed,” it’s just expensive. Alternatively, sometimes there are real estate brokers out there who aren’t licensed to give appraisals, but they certainly know the real estate market and, whether or not it’s right, they are often willing to write letters for people they know saying here is what a particular property will sell for. So John, what are you finding, when you deal with the IRS in different ways of valuing real estate?

John Porter: I think ultimately it’s facts and circumstances. If you’ve got an entity that has a substantial amount of real estate in it, we’ve seen people rely on the local assessor’s numbers. We know that the Treasury Regs say that’s not the end all. The key ultimately is being able to demonstrate that you have a fair market value and a reasonable basis for having determined that fair market value. My preference would be to have the real estate valued, but again it’s not always the case that you’re going to get that. Sometimes the Service will push back, and sometimes they don’t. For example, if you had a sale of real estate shortly at some point near the valuation date, then our experience is the Service will try typically to use that number and will accept that number. I think my preference would be to have a valuation but as a practical matter, that’s not always feasible or possible. If you don’t have a valuation per se, then what you have to do is value it based on a reasonable methodology, and whether that’s getting a broker to give you an opinion of value or whether it’s using the local tax assessor appraisal numbers depends on your particular situation.

Chris Denicolo: Jerry, any thoughts on that?

Jerry Hesch: The best indication of value is what the property sold for recently, so that makes it really easy. So, if the property just sold, you purchased the property and now you want to get an appraisal report for it, your purchase price is probably the best indication. But you know, I agree with John. It’s facts and circumstances, and all appraisal reports are comparable sales anyway.

We thank Jerry Hesch and John Porter not only for the above comments, but also for all of the guidance that they have provided to members of our profession. Estate tax planning would not be the same without these two extremely brilliant and generous authors, speakers, and practitioners.

Stay tuned for future Thursday Reports, in which we will share John and Jerry’s views on valuation adjustment clauseses, the step transaction doctrine, and other items of interest.

Jerry Hesch’s contact information is as follows:

Jerome M. Hesch
Berger Singerman
1450 Brickell Avenue, Suite 1900
Miami, Florida 33131
Phone: (305) 755-9500
Fax: (305) 714-4340

John Porter’s contact information is as follows:

John W. Porter
Baker Botts
One Shell Plaza
910 Louisiana Street
Houston, Texas 77002-4995
Phone: (713) 229-1597
Fax: (713) 229-2797


Make sure you can afford the big bucket of Original Recipe (and maybe some extra biscuits)!

With the tax laws going up and the stock market performing in recent months, we are finding that more clients are willing to talk about setting up a personal budget to help enhance savings, reduce unnecessary spending, and organize their financial lives. We have developed a Microsoft Excel spreadsheet (available upon request) that shows many categories of expenses, and this can be a good starting point for clients wishing to budget. Our spreadsheet will help clients identify expenditures they might otherwise overlook and takes into account costs ranging from household pest control to children’s allowance.

Many of our clients use Quicken to pay their bills, and it is very simple to export data directly from Quicken to our spreadsheet. Additionally, clients who like to charge a lot of their expenses to credit cards that earn awards points or frequent flyer miles will be pleased to know that American Express (our platinum card people), Chase Bank, and many other credit card companies allow exporting expenditure details directly into Excel or Quicken from their websites.

We will not have estates to plan if clients spend all of their earnings and more. Clients who measure their personal spending on a monthly basis and review it spend less and learn to get “dopamine hits” off of meeting savings goals instead of buying things they do not really need. See the streaming video “Advertising and the End of the World” on for an interesting viewpoint on this and share it with your clients.


To view a chart of this month, last month’s, and the preceding month’s Applicable Federal Rates, because for a sale you can use the lowest of the 3 please click here.



THURSDAY, MAY 16, 2013
The Florida Bar Annual Wealth Protection Seminar: “How a Lawyer Can Protect a Client’s Wealth” Mark your calendars for this exciting event in Miami, Florida. Speakers include Jonathan Alper, Esq. on Where Does Florida Law Stand on Fraudulent Transfers” Mitchell Fuerst, Esq. on Introduction to Professional Privilege in Wealth Protection Cases – Civil v Criminal; Tax v Non-Tax; When to Claim the Fifth; How to Do it Right. Michael Markham, Esq. on Recent Asset Protection Case Decisions, Legislation, and Their Importance in Protection Planning Denis Kleinfeld, Esq. on Where to Situs a Trust – An Analysis of U.S. Asset Protection States and Alan Gassman, Esq. on Using Estate Planning Techniques to Optimize Family Wealth Preservation. For more information please email


THURSDAY, MARCH 28, 2013, 4:00 – 4:50 pm.
Please join us for the 444 Show – a monthly CLE webinar sponsored by the Clearwater Bar Association and moderated by Alan S. Gassman. This month’s topic is Divorce Law 101 for Lawyers and CPAs with Ky Koch, Mike Lewis and Judge Muscarella. To register for the webinar please visit or email

MONDAY, APRIL 1, 2013, 12:30 – 1:00 p.m.

On the first Monday of each month the Clearwater Bar Association presents Lunch Talk. A free monthly webinar series moderated by Alan S. Gassman. This month’s speaker is Linda Chamberlain speaking on How to Write a Contract to Preserve Family Relationships When One or More Family Members are Paid for Caring for Mom and Dad. To register for the webinar please visit or email

Alan S. Gassman, J.D., LL.M. is a practicing lawyer and author based in Clearwater, Florida. Mr. Gassman is the founder of the firm Gassman, Crotty & Denicolo, P.A., which focuses on the representation of physicians, high net worth individuals, and business owners in estate planning, taxation, and business and personal matters. He is the lead author on Bloomberg BNA’s Estate Tax Planning and 2011 and 2012, Creditor Protection for Florida Physicians, Gassman & Markham on Florida and Federal Asset Protection Law, A Practical Guide to Kickback and Self-Referral Laws for Florida Physicians, The Florida Physician Advertising Handbook and The Florida Guide to Prescription, Controlled Substance and Pain Medicine Laws, among others. Mr. Gassman is a frequent speaker for continuing education programs, publishes regularly for Bloomberg BNA Tax & Accounting, Estates and Trusts Magazine, Estate Planning Magazine and Leimberg Estate Planning Network (LISI). He holds a law degree and a Masters of Law degree (LL.M.) in Taxation from the University of Florida, and a business degree from Rollins College. Mr. Gassman is board certified by the Florida Bar Association in Estate Planning and Trust Law, and has the Accredited Estate Planner designation for the National Association of Estate Planners & Councils. Mr. Gassman’s email is

Thomas J. Ellwanger, J.D., is a lawyer practicing at the Clearwater, Florida firm of Gassman, Crotty & Denicolo, P.A. Mr. Ellwanger received his B.A. in 1970 from Northwestern University and his J.D. with honors in 1974 from the University of Florida College of Law. His practice areas include estate planning, trust and estate administration, personal tax planning and charitable tax planning. Mr. Ellwanger is a member of the American College of Trusts and Estates Counsel (ACTEC). His email address is

Christopher Denicolo, J.D., LL.M. is a partner at the Clearwater, Florida law firm of Gassman, Crotty & Denicolo, P.A., where he practices in the areas of estate tax and trust planning, taxation, physician representation, and corporate and business law. He has co-authored several handbooks that have been featured in Bloomberg BNA Tax & Accounting, Steve Leimberg’s Estate Planning and Asset Protection Planning Newsletters, and the Florida Bar Journal. He is also the author of the Federal Income Taxation of the Business Entity Chapter of the Florida Bar’s Florida Small Business Practice, Seventh Edition. Mr. Denicolo received his B.A. and B.S. degrees from Florida State University, his J.D. from Stetson University College of Law, and his LL.M. (Estate Planning) from the University of Miami. His email address is

Kenneth J. Crotty, J.D., LL.M., is a partner at the Clearwater, Florida law firm of Gassman, Crotty & Denicolo, P.A., where he practices in the areas of estate tax and trust planning, taxation, physician representation, and corporate and business law. Mr. Crotty has co-authored several handbooks that have been published in BNA Tax & Accounting, Estate Planning, Steve Leimberg’s Estate Planning and Asset Protection Planning Newsletters, Estate Planning magazine, and Practical Tax Strategies. Mr. Crotty is also the author of the Limited Liability Company Chapter of the Florida Bar’s Florida Small Business Practice, Seventh Edition. He, Alan Gassman and Christopher Denicolo are the co-authors of the BNA book Estate Tax Planning in 2011 & 2012. His email address is

Thank you to our law clerks that assisted us in preparing this report:

Kacie Hohnadell is a third-year law student at Stetson University College of Law and is considering pursuing an LL.M. in taxation upon graduation. Kacie is also the Executive Editor of Stetson Law Review and is actively involved in Stetson’s chapter of the Student Animal Legal Defense Fund. In 2010, she received her B.A. from the University of Central Florida in Advertising and Public Relations with a minor in Marketing, and moved to St. Petersburg shortly after graduation to pursue her Juris Doctor. Her email address is

Eric Moody graduated from Stetson University College of Law in December 2012 and is currently seeking admission to the Florida Bar. He is considering pursuing an LL.M. in estate planning. While at Stetson, Eric was an Articles and Symposia Editor for the Stetson Law Review. In 2009, Eric received a B.S. in Business Management from the University of South Florida. Eric’s email address is

Carly Ross is a third-year law student at Stetson University College of Law. She is the Notes and Comments Editor for Stetson Law Review, and a member of Stetson’s Jessup Moot Court Team. She graduated from the University of North Carolina at Chapel Hill in 2010 with majors in History and Political Science. Carly’s email is

Jonathan DeSantis is in his final year at Stetson University College of Law. Originally hailing from Philadelphia, Jonathan received a B.A., with honors, in Criminal Justice from Temple University. Jonathan serves as a Senior Associate on the Stetson Law Review and is the immediate past president of the American Constitution Society. His email address is

We would also like to give a special thanks to Jimmy Nipper for handling all of the technological aspects of the Thursday Report!