Successfully sell your business

Have you thought of using a transition plan when selling your business?  The process to sell a business is not quick and easy.  At the moment it is taking about 8 months to sell a business, if it sells.  This means the business is available for about 6 months.  The buyer and seller then complete negotiations on the purchase price including the terms of the deal.  The next main step is to start the due diligence and if both buyer and seller are still in agreement, escrow opens and then hopefully about 3 to 4 weeks later, escrow closes and the business moves from the seller to the buyer.

Even if the business closes escrow, almost without exception the buyer wants the seller to continue in an active role in the business in some capacity for a period of time.  The buyer wants time to meet and get to know the employees, set up arrangements with suppliers, put basic items in place like bank accounts, and a myriad of other items.  At the end of the day, however, it all needs to make sense for both the seller and the buyer and the best way to do that is to build a transition plan.
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Buying or selling a business is a complex matter.  There is no question about it.  The complexities start from the moment a buyer and seller start interacting.  These include, for example, the buyer not having any history or knowledge about the operation of the business and so have to rely entirely on the representations of the seller.  Conversely, the seller lives and breathes the business, knows its ups and downs as well as its strengths and weaknesses.  My Golden Rule when assisting with a business transaction is for each party to put their feet in the shoes of the other party.  In other words, the seller should see things from the buyer’s perspective and the buyer should see things from the seller’s perspective.
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Not everyone will agree but I am sure it’s closer to the truth than one might think: buying or selling a business is unlike anything else of value. To support my argument there are a number of reasons. Let’s look at some of them.

The price of a business is determined by a valuation. The rules of a valuation come from the law and then legal cases as well as the Internal Revenue Code and custom. The price for most other items of value are determined by market comparables (for example, when valuing a house), looking up a book or some online site such as Kelly Blue Book (for cars) or results from eBay or some other online service (for any item you can think of). That is, there is no legal interference with the value of any these items except a business.
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Whether we are a business or an individual we need to understand ‘our tax position.’ Perhaps you are a business owner who is thinking about selling your business?  You have been doing this for many years and you have made the decision to sell and move to something new.  You are probably burned out, have a concern about your health and decided to move to a bigger and better idea.  Congratulations!

So step one is the decision to sell.

What should step two be?
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When talking about good strategies to limit the amount of tax the owners or the business has to pay, there are three issues to consider.

The first issue, which tends to be the most obvious but also the most difficult, is to encourage business owners to take advantage of solid tax planning.  The demands of owning and operating a business especially during a difficult economy does not seem to provide a good Return On Investment for the time or money it may cost to find out the best direction to go.  By avoiding good tax planning can in turn mean the business pays more than its fair share of tax at both the business and personal level and that does not make a lot of sense.
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The obvious question to ask when you plan to sell your business is “How much of the final purchase will I get to keep?”  That seems a very fair and reasonable question.

Unfortunately, it is not a quick and simple answer.  The buyer of your business will make a final decision to buy the business based on the maximum operational cash flow they can get from the deal.  The seller has a different agenda which is to maximize the amount of the purchase they get to keep after paying all taxes.
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How do I minimize the tax I pay when I sell my business? You have made the decision to sell your business.  You have decided what you will move to once the business is sold.  You have a valuation so you know what your business is worth.  You’ve looked at the business with fresh eyes and have it looking good so when a buyer comes along they will like what they see.  As they say in the Classics, you are all dressed up and ready to go or as I like to call it, you are seller strong.  That is, you know where you are going and how you want to get there.

However, there is a final piece you need to know so you can maximize the value from selling your business and this is to understand how much tax you will have to pay.  This may seem like a waste of time and money but in fact it is the opposite; and here’s why.
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If you are thinking of selling your small business, one of your first questions to answer is more than likely; where do I start?

One of your first starting points is to be clear exactly what you are selling.  This may seem obvious but many sellers think they will deal with it when they get an offer.  So let’s break this down and look a little more closely at it.

In simple terms, the two most important things to a buyer when looking to buy a business are current cash flow and potential.  From the buyer’s perspective, the cash flow is the fuel that feeds the business to pay the suppliers, employees, landlord, tax man, lenders and to keep the business going.  In addition, they need cash flow to feed their family, pay the mortgage, pay any loans and have something left over after all their work and capital investment in the business with a little in reserve in case something unexpected happens.
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Not everyone will agree but I am sure it’s close to the truth that buying or selling a business is unlike anything else.  Here are four reasons.

First, the price to list a business for sale generally comes from a valuation.  The rules of a valuation come from the law and legal cases as well as the Internal Revenue Code and custom.  The price for most other items of value come from market comparables (for example, when valuing a house), looking up a book or some online site such as Kelly Blue Book (for cars) or results from eBay or some other online service (for any item.)  That is, there is no legal interference with the value of any of these items except a business.
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Over the years, the sale of many businesses includes a component of seller finance.  Since August 2008, a component of seller finance for privately held companies has become much more the norm as banks and third party lenders have been reluctant to lend.  It’s become important not only because the banks have reduced their amount of lending but also because the banks are now reluctant to loan as much of the purchase price.  For example, in previous years, if the buyer brought a down payment of 20 per cent the bank was willing to lend the remaining 80 per cent.

So the good old days are now behind us with the banks now preferring the buyer to bring a down payment of 20 per cent, the seller to carry a note of 20 per cent and the banks will then fund 60 per cent as long as the seller moves into second position.
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How do I know the value of my business?  The main starting point for business owners thinking of selling their business is a valuation.  Almost without exception, business owners think their business is worth much more than it really is, so a Brokers Opinion of Value helps the business owner understand the price at which the business will likely sell.

Just as importantly, it also gives me, the broker, a chance to look at the financial statements of the business to know what’s going on and ask questions a buyer will ask.  That is, the question I try to answer when putting together a valuation is “What will the buyer see?”  By asking this question, I can isolate the strengths and weaknesses of the business and provide an impartial view of the chances of the business actually selling as well as point out any potential deal killers a seller may not see.
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If you embrace the saying “Two things in life are certain: death and taxes” and you own a business, it is a good idea to put a plan in place to protect the business. You protect the business not only when you own and operate it but just as importantly when you decide it is either time to sell so you get the best and highest price possible or if you decide to transfer it to your children or employees, it is in the best condition possible.

If the plan is to transition the business to a new owner and do it over a one to three year time period, the best way to do everything correctly is by using an Exit Plan. So what’s an Exit Plan?
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In most business transactions it is standard to include a Covenant Not To Compete. The logic is simple. The current owner of the business decides they want to sell and a buyer wishes to buy the business. As one of the conditions of buying the business, the buyer stipulates that the seller cannot open the same type of business that the seller currently operates as the buyer is concerned the existing customers will want to do business with the seller rather than transfer their loyalty to the buyer.

When used as a part of a change of ownership on a business between a buyer and a seller, the seller agrees not to engage in the same business or a similar business in a particular area for a period of time. Both these items form part of the negotiations. Generally the buyer wants the geographic area to be as large as possible while the seller as small as possible. Additionally, the buyer wants the time period to be as long as possible while the seller wants it to be as short as possible. Obviously, if the seller is retiring and no longer wishes to be active in a business, the time and geographic area may be of little concern and so they are willing to accept whatever the buyer wants.
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If you own a business and have a partner and have not put a legally binding Buy-Sell Agreement together it is probably the most important document you need to accomplish as soon as you can.  Hopefully you never need to put your Buy-Sell Agreement in motion but if you do, you want to execute what’s important to you and your partner so it saves time, money and provides the peace of mind it is supposed to provide.

Who needs a Buy-Sell Agreement?

The answer to this question is very simple – any business that has two or more partners.  To put together an effective Buy-Sell Agreement consider three things.  First, it requires all main parties to agree to it.  That often takes time and discussion so make an agreement to start now.  Secondly, where possible, try to formulate the Buy-Sell Agreement so that any loss is measurable and an insurance policy can cover any losses.  Third, for the best Buy-Sell Agreement, put it together when emotions are low.  Something I repeatedly see in business is that when emotions are high, clear thinking and intelligence are low.
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One of the questions I am asked from entrepreneurs going in to business for the first time is what legal entity do I think they should use. My suggestion is that they simply open their business as a sole proprietor and once the business becomes established, then look to research and understand the different options and their costs so they create the right legal entity.

For some situations there is no choice but to move to a specific legal entity. For example, if two friends wish to create a business and they want it to be a partnership, then a legal entity that serves that need is required. In other cases, some professions require a legal entity, for example, an accountant, attorney and a medical practitioner. However, for a retailer, distributor, restaurateur or manufacturer it probably does not have that urgency and can wait. Most small business owners believe they need the legal protection of a separate legal entity to protect their personal assets but you can solve this problem with a good business insurance policy; which you will need for your business anyway.
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