Advisory Relationship

In our first blog in this series, “Selling My Business, What Should I Expect,” we talked about what to expect in the sale process to a third party. If you haven’t read it, I’d suggest reading it to set the stage for this discussion on business valuation and how it fits into exit strategy. If you did read it, give it a quick reread: “A complimentary hour with David David Shavzin, Exit Strategist / M&A Advisor Value Creation, Exit Strategy, Business Sales Founder and President, Exit Planning Exchange Atlanta 770-329-5224 // david@GetOnTheValueTrack.com // 

A common area of confusion among advisors is understanding the difference between a “Main Street” business, a “Middle Market” business and a “Mom and Pop” business. Main Street Businesses The term “Main Street” is defined by the International Business Brokers’ Association and other professional intermediary organizations as any company with a Fair Market Value of less than $3,000,000. That is about the upper limit of a business that can be purchased by an individual using “normal” 20% down financing. They are making the acquisition for the purpose of earning a living. Main Street businesses typically calculate cash flow as Seller’s Discretionary Earnings (SDE). As discussed by Scott Gabehart, the creator of BizEquity valuation software, SDE is a better measure of a business’s return on owner labor, rather than return on investment. SDE includes the benefits of ownership including salary, employer taxes, distributions, health insurance, vehicle and other perks of ownership. It also includes non-cash tax deductions such as depreciation. The average selling price for an owner-operated business in the United States is 2.3 times its SDE. That cash flow must support any debt as well as provide a living for the principal operator. If we extrapolate from the average multiple (which is accurate based on my past experience as a business broker), we would say that “Main Street” encompasses businesses that produce up to $1.3 million in cash flow. That number is pretty high, and actually crosses the threshold of where Private Equity companies typically seek acquisitions. At that level a buyer would have to have $600,000 for a down payment and about $25,000 a month to cover debt service. In reality, companies that generate more than $500,000 a year in adjusted EBITDA cash flow (not counting owner compensation) are more commonly sold for multiples of EBITDA. At that size, a multiple of four times adjusted cash flow is pretty common, and would classify a company with up to about $750,000 in adjusted cash flow as “Main Street.” Mom and Pop Businesses exitplannerssurvey.com This article was originally published by John F. Dini, CBEC, CExP, CEPA on ExitMap.com.

The problem that sometimes occurs when working with a business owner who is considering exiting their business is the strong link between the owner and his business – that is the challenge that the owner has difficulty viewing their life after they exit the business and separate from the business. There are several approaches to address this problem: Work with the owner to understand both the push and pull factors that are driving them towards considering exiting the business.  This will help clarify the “why” and likely reveal a partial description of what life will look like after their exit. Work with the owner to write down a few paragraphs that describe what they will likely be doing after they exit. Go through the 8 exit options defined by The Exit Planning Institute with the owner and identify the top exit options that they are considering.  This will help to understand their true motives for exiting. This will help highlight what is most important:  Maximum payout?  Taking care of their current employees?  Maintaining the legacy? Some other motivation? Complete a basic wealth management analysis to determine if the business owner will have enough money to fund their planned lifestyle, including a reasonable estimate of the net proceeds they will receive from the sale of their business. This process is one of discovery – trying to understand all of the exit drivers and all of the obstacles that might prevent an owner from selling, even in the face of a reasonable offer to purchase their business.

After fifteen (15) years of training advisors and working with business owners, the IEPA has been involved with more than 100 exit plans. One of our learnings is that the business owner was better prepared and got a better result from their exit when they engaged in an exit planning process prior to commencing their exit transaction. At the IEPA we focus on three (3) dimensions of ‘readiness’ for a business owner. First is that owner’s personal readiness for an exit, Next is the company’s readiness for an exit, and Finally, we want to understand if the market timing/readiness is right for an exit. Starting with #3, market timing, we saw in 2021 that exit activity was an all-time high for lower middle-market ($5mm to $100mm in value) businesses.  As previous newsletter mentioned, this is due to the perfect storm of aging boomers, COVID and a new administration threatening to raise taxes.  For those owners who experienced an exit in 2021, most likely it was at a high value and the seller had leverage through the process.  Markets are not always this accommodating.  The more owners understand market timing, the better prepared they will be for an exit. Moving to Company readiness we want owners to understand that the exit from their business is materially different from selling a home or real estate, which many business owners think will be a similar process.  Privately held businesses sometimes take years to prepare for an exit.  And, the more time that an owner has to prepare, the better result they will get. Finally, the personal readiness of an owner is of paramount importance to a successful exit.  We often-times compare the running of a business to the driving of a motorcycle.  The business is the engine of the motorcycle; however, the personal goals of the owner are the steering wheel.  And, while the business engine keeps the ‘wealth’ running and growing, it is the business owner’s personal goals that will steer the business exit in the direction that that owner most wants to go.  For example, if a business owner wants his / her children to take over and run the business, that is where the owner will ‘turn’ the business.  By contrast, if an owner wants to sell for the highest value, the owner will ‘steer’ the company in that direction. Aside from the exit path that the owner desires, there is also the emotional separation from the business as well as a business owner figuring out how he / she will spend their time in a productive and fulfilling manner away from the business. An Exit Planning Process Compartmentalizes the Issues for the Owner Not only is a business exit the largest emotional and financial transaction of most business owners’ life, but it is also very complex – an exit planning process simplifies this complexity for the owner When a professional advisor / consultant can take an owner through an exit planning process, that owner has the opportunity, over the period that the planning process occurs, to learn about and reflect on their personal readiness, to evaluate the company’s readiness and to understand market timing.  An exit planning process helps an owner become clear on that owner’s goals as well as the exit options available to best meet those goals. By going through a step-by-step process, the advisor creates the time and space for a business owner to consider what they most want the future to look like for both themselves and their companies (and all involved with both aspects of that owners’ life). Exit Planning Leads to Better Results for Business Owners and Advisors In addition to helping an owner gain clarity to transact confidently, the exit planning process also leads to better results.  It is logical that preparation leads to superior outcomes.  However, for a variety of reasons, most business owners do not know that ‘exit planning’ exists as a service.  As a result, many owners attempt exits with little to no preparation and often-times suffer the consequences of a variety of failures along the way. The advisor who takes the business owner through an exit planning process also achieves a significant victory – i.e., succeeding in assisting an owner navigate the complexity that would have prevented a successful exit.  Given that most business owners work for decades to build their overall wealth in their privately held business, it is the advisor who can assist that owner who wins the role of Most Trusted Advisor and earns additional business and a very strong relationship with that business owner. Concluding Thoughts Business owners can level the playing field of many of these disadvantages and challenges that they face with an exit by seeking out exit planning professionals and engaging in an exit planning process.  When business owners invest the time and money to prepare themselves for an exit, experience shows that better results follow.

Ninth article in a series . . . If you work as a business advisor, you know that engagements can be unpredictable.  Whether helping the owner take advantage of a changing marketplace, or optimizing the business to prepare it for sale, these initiatives typically involve significant planning, coordination, and effort from both advisors and their clients.  Despite the best of intentions, these large-scale projects don’t always proceed smoothly. There are many things that can affect the advisor-client relationship and make it harder for clients to accomplish the tasks associated with the project.  This is the ninth and final article in a series highlighting matters that should be considered by advisors and clients before they agree to work together. “Many of life’s failures are people who did not realize how close they were to success when they gave up.”  – Thomas Edison By their very nature some projects are long, involved, and complex.  Even short-term projects can run into delays, complications, and unforeseen difficulties that extend the duration of the work.  If clients lose interest or give up easily in the face of obstacles, they may find it hard to remain enthusiastic and engaged throughout the course of the project, threatening its success. Consider the case of Leslie.  An accountant by training, she was also an accomplished cook who found great satisfaction baking bread for her family and friends.  When the pandemic struck her accounting practice dwindled, and Leslie found herself making more loaves than ever before.  She decided that this was her opportunity to make a career change.  Leslie hired an advisor to craft a detailed roadmap, listing the tasks ahead of her and suggestions for how to approach them.  Leslie had already drafted a business plan, so she and her advisor turned their attention to securing funding and finding suitable space.  With her accounting background Leslie easily understood the various loan options available, but she was disappointed to learn that the pandemic had slowed approval decisions and caused some institutions to tighten their lending standards.  Although she was excited about finding a space for her bakery, she found the real estate hunt to be physically and emotionally draining.  It seemed as if every commercial space she saw had a significant flaw; either the rent was too high, the cooking area required too much renovation, parking was difficult, and so on.  After three months of looking for a loan and a location Leslie felt discouraged, and she asked her advisor if they could put the project on hold for a few weeks.  Two months later she took a part-time accounting job with an old friend. Given the magnitude of this project, Leslie’s advisor probably should have tried up front to gauge her ability to persevere by saying, “I’m eager to help you succeed.  Tell me about other big projects or initiatives you’ve pursued besides this one.” Sometimes an advisor can forestall a client’s discouragement by discussing the project and identifying challenges in advance.  The advisor might have said, “Let’s review the steps and timeline for this project so you can see the entire sequence and get a feel for the scope of what we’ll be doing together.  Before we begin each stage of the project, we should go over the specific tasks each of us will tackle.  That will give us a chance to spot any potential delays or hurdles we should watch out for.” Not all clients give up easily.  Some are more than willing to stick with a long-term project even if obstacles are encountered.  They will likely remain interested and engaged throughout the course of the project and anticipate the same from their advisor.  Such persistence is a strength, but both parties should be willing to switch gears if they find themselves investing too much energy pursuing the impossible.  The advisor might say, “I appreciate your effort to stick with this project even if it hits some roadblocks.  That kind of persistence will help us carry this past the finish line. That said, we will also need to be willing to switch gears if we find ourselves trying to make the unworkable work.” This is the final article in the series titled “Assessing the Advisor-Client Relationship”.  Each week, I explored a new element affecting the advisor-client relationship in some detail.  These articles were intended to help you understand potential opportunities and obstacles when working on long-term strategic engagements. Please feel free to reach out for more information or assistance proactively assessing the potential advisory relationship.

Eighth article in a series . . . If you work as a business advisor, you know that engagements can be unpredictable.  Whether helping the owner take advantage of a changing marketplace, or optimizing the business to prepare it for sale, these initiatives typically involve significant planning, coordination, and effort from both advisors and their clients.  Despite the best of intentions, these large-scale projects don’t always proceed smoothly. There are many things that can affect the advisor-client relationship and make it harder for clients to accomplish the tasks associated with the project.  This article is the eighth in a series highlighting matters that should be considered by advisors and clients before they agree to work together. “Whether you think you can, or you think you can’t – you’re right.”   – Henry Ford You may provide clients with terrific suggestions and outstanding advice, but in most instances it remains up to them to follow through with your guidance.  Even if your client has the time, motivation, and skills necessary to carry out your recommendations, they may struggle if they doubt their own abilities.  If your clients don’t believe in themselves, they may hesitate to act, sabotage their own effort, request easy solutions that prove to be insufficient, or reject your advice altogether. Consider the case of Brandon, the 37-year-old owner of a small firm that fabricates custom architectural detailing for historic buildings.  Brandon invested in the equipment necessary to make interior and exterior pieces from limestone and terra cotta, but his time and energy had been consumed helping his employees produce products that were precisely crafted and historically accurate.  Knowing that he needed to get the word out about his business, Brandon hired a marketing consultant.  The advisor put together a comprehensive plan that included producing short videos highlighting product installations, and he identified opportunities for Brandon to speak at upcoming conferences geared toward architects and contractors.  Brandon knew that these were worthwhile steps he could take.  Unfortunately, he disliked public speaking and he was reticent about appearing on camera.  Deep down, he simply didn’t see himself as someone who could market his business.  He declined the advisor’s suggestions and settled instead for a refreshed website that he hoped might showcase his firm’s work. In their first meeting, the advisor might have asked Brandon about past challenges by inquiring, “what sort of business problems have you faced before and how do they compare to this one?”  The advisor could have added, “I want to address any concerns you have about this project.  As you think about marketing your firm, are there any aspects of doing so that might be a stretch for you?”  In response, Brandon might have mentioned his discomfort serving as the public face of his company, and the advisor could have tailored his recommendations accordingly.  For example, he could have suggested that Brandon help write scripts for the videos and ask his employees if they wanted on-camera roles. Clients won’t always admit that they lack confidence in their ability to resolve business problems.  Advisors need to be attuned to signals that their client is uncomfortable.  In the scenario above, Brandon might have verbally agreed that speaking to architects was a good idea, but his facial expression was probably less than enthusiastic. This is the eighth in a weekly article series titled “Assessing the Advisor-Client Relationship”.  Each week, I will explore a new element affecting the advisor-client relationship in some detail.  These articles will help you understand potential opportunities and obstacles when working on long-term strategic engagements.  The next article, the last in this series, will explore the client’s level of persistence. Please feel free to reach out for more information or assistance proactively assessing the potential advisory relationship.

Seventh article in a series . . . If you work as a business advisor, you know that engagements can be unpredictable.  Whether helping the owner take advantage of a changing marketplace, or optimizing the business to prepare it for sale, these initiatives typically involve significant planning, coordination, and effort from both advisors and their clients.  Despite the best of intentions, these large-scale projects don’t always proceed smoothly. There are many things that can affect the advisor-client relationship and make it harder for clients to accomplish the tasks associated with the project.  This article is the seventh in a series highlighting matters that should be considered by advisors and clients before they agree to work together. “If I would have listened to the naysayers, I would still be in the Austrian Alps yodeling” – Arnold Schwarzennegger As an advisor, most of your interactions will be solely with the business owner unless the project intentionally involves other staff.  In some cases, the owner may even ask you to act on their behalf; for example, you may be asked to identify and screen high level job candidates.  But no matter how the project is structured, there will likely be other stakeholders who have opinions, needs, and priorities that differ from those of your client. Consider the case of Kevin, who built a business providing damage restoration and clean-up services for residential customers.  His 10-person crew operated out of 5 trucks.  Kevin wanted to expand into two adjacent counties to take advantage of their rapid growth in population.  His  advisor suggested that he solicit commercial accounts, even though doing so would require additional skills and credentialing for his staff. Kevin was excited about the prospect of gaining new clients.  He told his team that the advisor would help identify potential commercial customers and determine what specific remediation services they might need.  The next day Kevin’s Service Manager asked to speak with him.  He was concerned that handling commercial accounts could be complicated and potentially unsafe and he didn’t think the current crew would be able to master the specialized training needed to address chemical spills and hazardous waste clean-up.  Kevin was more optimistic than his Service Manager, but he was worried about creating ill will and he didn’t want to provoke a power struggle over the issue.  He told his advisor the growth strategy would need to focus solely on the residential market. Change, even that which is well-conceived and communicated, is not always welcome by those affected by it.  Clients like Kevin are vulnerable to objections raised by others, which can undo hours if not weeks of planning.  His advisor might have seen evidence of Kevin’s vulnerability if he had explored this early on by saying, “Kevin, tell me about a business situation where you had to make a tough choice.  For example, letting go of someone even though it was difficult, or choosing an option that displeased an important stakeholder.” Even if a client appears confident in their ability to secure the backing of stakeholders, the advisor should review various scenarios with them beforehand.  The advisor might introduce the topic by saying, “If our work leads to new initiatives or even modest changes in your operations, it’s possible there could be some pushback.  As the project unfolds, we should schedule time periodically to discuss the best way to communicate changes, and plan how to respond to any stakeholder objections.” This doesn’t mean that stakeholder objections are to be viewed as obstacles or irritants.  To the contrary, advisors should help clients give strategic thought and consideration to potential stakeholder concerns and adjust their planning accordingly.  For example, in the scenario above, Kevin’s advisor should have thought about how his recommendation might impact the staff.  He might have then proposed an incremental approach to staff training and service roll-out. This is the seventh in a weekly article series titled “Assessing the Advisor-Client Relationship”.  Each week, I will explore a new element affecting the advisor-client relationship in some detail.  These articles will help you understand potential opportunities and obstacles when working on long-term strategic engagements.  The next article will explore the client’s sense of self-efficacy. Please feel free to reach out for more information or assistance proactively assessing the potential advisory relationship.

Sixth article in a series . . . If you work as a business advisor, you know that engagements can be unpredictable.  Whether helping the owner take advantage of a changing marketplace, or optimizing the business to prepare it for sale, these initiatives typically involve significant planning, coordination, and effort from both advisors and their clients.  Despite the best of intentions, these large-scale projects don’t always proceed smoothly. There are many things that can affect the advisor-client relationship and make it harder for clients to accomplish the tasks associated with the project.  This article is the sixth in a series highlighting matters that should be considered by advisors and clients before they agree to work together. “Progress is impossible without change, and those who cannot change their minds cannot change anything.”   – George Bernard Shaw Business advisors frequently ask me about a behavior they find counterintuitive and puzzling.  They’re approached by prospective clients who have identified them as exactly the expert they need, they ask for recommendations, they seem on board with a proposed plan of action, but then they ultimately reject the advisor’s good counsel. Consider the case of Scott, the 47-year-old founder of a firm that provided security personnel for commercial clients such as hotels, office buildings, and retail merchants.  His clients were increasingly interested in advanced technology rather than simply relying on security guards.  Scott believed technology was unreliable, and he felt the best solution was to deploy additional personnel.  Most of his clients resisted that approach, and Scott was concerned about the long-term viability of his business.  He sought guidance from an advisor who had experience consulting with corporations around large-scale security upgrades.  The advisor affirmed that many clients were implementing technological solutions, but he also opined that security technology is only as good as the people monitoring it.  He advised Scott to focus on building a smaller but more technically proficient team of guards who could augment and interact seamlessly with the security systems being purchased by his clients.  Scott quickly dismissed this suggestion and the advisor, noting that the last thing that made sense to him was to field fewer personnel. Clients like Scott who have firmly held ideas about their business may not view problems the same way the advisor does.  They may overlook factors that contribute to a business problem, making it harder to implement an effective solution.  In some cases, they find it difficult to accept the advisor’s recommendations. Both parties should have an initial discussion to explore the degree to which client feels comfortable with the advisor’s perspective.  In some instances, the Advisor may find it helpful to give client additional time to consider and embrace certain proposed ideas and solutions.  Here is one way to begin the discussion: “I want to make sure we have a shared understanding about the challenges facing the business and how to address them.  It’s important that throughout this project you’re comfortable with my observations, ideas, and proposals.  I wouldn’t expect you to instantly agree with everything I suggest, but if you’re not fully on board with something we need to talk about it, o.k.?  So, based on what we’ve discussed thus far, how does it sit with you?  Is there anything you have some reservations about?  Anything you would like time to consider further? It may become apparent that a client is so wedded to their beliefs that they rebuff the advisor’s suggestions.  If they still seem open to dialogue, an advisor might try the following approach: “My sense is that you have some strong convictions about your business.  No doubt they’re rooted in years of experience.  The same is true for me.  In my experience, clients aren’t always 100% on board with certain recommendations when they first hear them.  I totally understand; my suggestions may seem like an outsider’s perspective, but I trust you can see the advantage in that.  If you aren’t fully comfortable with an idea I propose, let’s discuss it and see if we can fit it within your framework.  I would hate to see us overlook a potential solution.” This is the sixth in a weekly article series titled “Assessing the Advisor-Client Relationship”.  Each week, I will explore a new element affecting the advisor-client relationship in some detail.  These articles will help you understand potential opportunities and obstacles when working on long-term strategic engagements.  The next article will explore the client’s ability to resist pressure from various stakeholders. Please feel free to reach out for more information or assistance proactively assessing the potential advisory relationship.

Fifth article in a series . . .  If you work as a business advisor, you know that engagements can be unpredictable.  Whether helping the owner take advantage of a changing marketplace, or optimizing the business to prepare it for sale, these initiatives typically involve significant planning, coordination, and effort from both advisors and their clients.  Despite the best of intentions, these large-scale projects don’t always proceed smoothly. There are many things that can affect the advisor-client relationship and make it harder for clients to accomplish the tasks associated with the project.  This article is the fifth in a series highlighting matters that should be considered by advisors and clients before they agree to work together. “How does a project get to be a year behind schedule?  One day at a time.”  – Fred Brooks Once clients decide to reach out to a business advisor they may convey a sense of urgency about getting started.  Eager to see results, they quickly fill out and return initial documents and questionnaires.  As an advisor you know that projects benefit from forward momentum and progress helps sustain the advisory relationship; you welcome their enthusiasm. However, as the project gets underway some of these very same clients slow down.  Their need no longer seems so pressing, they postpone meetings and put off making decisions.  The project becomes bogged down by delays and distractions.  When the client does act it’s last-minute, hurried, and subject to error. “I like work: it fascinates me. I can sit and look at it for hours.”   – Jerome K. Jerome Research indicates that approximately one-fifth of the adult population regard themselves as having great difficulty initiating or completing tasks and commitments (Harriott and Ferrari, 1996).  Procrastination takes multiple forms.  Many people don’t like being rushed, others don’t like to make decisions, and some simply use their time poorly. Consider the case of Elaine, the 35-year-old owner of a light fixture business founded by her father.  Elaine took the reins from him six months earlier, and she wanted to expand their product line considerably.  She hired an advisor to help her decide which new products to focus on, secure funding to cover development costs, and weigh moving to an upgraded manufacturing facility.  The first two meetings between Elaine and her advisor were animated; they seemed to energize one another as they discussed possibilities for the firm’s future.  The advisor mentioned that grant money might be available for Elaine’s expansion. The advisor downloaded the grant application and emailed it to Elaine, along with detailed information about design trends and forecasts in the lighting industry.  She checked in with Elaine five days later.  Elaine apologized and said she hadn’t yet opened the email, but she promised to do so later that afternoon.  They agreed to talk again in a few days but when the advisor phoned, Elaine’s voicemail greeting indicated that she would be out of the office for a week.  The project limped forward but Elaine missed the deadline for the grant application. Had the advisor been aware of Elaine’s tendency to procrastinate, she could have taken steps to mitigate its effect on the project.  She could have emphasized the grant application deadline and provided Elaine with an estimate of how long it would take to complete it.  More broadly, she could have listed the steps and tasks associated with the project, and with Elaine’s input drafted a timeline that laid out responsibilities and deadlines.  Here are some things she might have said: “This project has a couple of deadlines we should keep in mind; let’s review them so you don’t miss any opportunities.” “To help you plan, I thought you might like to see how much time other clients spent completing various tasks associated with this sort of project.” “I’ve drafted a timeline that can help us stay on track.  I’d like to go over it to see if it seems reasonable or needs any adjustments.” Could the advisor have recognized Elaine’s tendency to procrastinate up front?  Possibly. In their first meeting she might have asked Elaine some questions to assess how she gets things done, such as: “Tell me about other initiatives you’ve spearheaded. What was it like getting from the planning stage to completion?” “As you think about working on this project, what are some other things on your plate that will compete for your time?” Sometimes, if overused, our strengths can work against us.  Consider the client who meets business deadlines far in advance, makes decisions without delay, and accomplishes tasks promptly. This type of client doesn’t waste time and will likely expect the same from the advisor. That’s generally a good thing, but you should ensure that the client doesn’t feel undue pressure to complete assignments or make crucial decisions too quickly.  You could say: “Your diligence will really help us stay on track.  I’ll do my best to keep things moving on my end as well.  That said, it’s possible there will be a few decision points where I may actually tap the brakes to make sure we’re covering all our bases.” This is the fifth in a weekly article series titled “Assessing the Advisor-Client Relationship”.  Each week, I will explore a new element affecting the advisor-client relationship in some detail.  These articles will help you understand potential opportunities and obstacles when working on long-term strategic engagements.  The next article will explore the client’s openness to new ideas. Please feel free to reach out for more information or assistance proactively assessing the potential advisory relationship. Reference: Harriott, J., and Ferrari, J. R. (1996). Prevalence of procrastination among samples of adults. Psychological Reports. 78, 611–616.

Fourth article in a series . . . If you work as a business advisor, you know that engagements can be unpredictable.  Whether helping the owner take advantage of a changing marketplace, or optimizing the business to prepare it for sale, these initiatives typically involve significant planning, coordination, and effort from both advisors and their clients.  Despite the best of intentions, these large-scale projects don’t always proceed smoothly. There are many things that can affect the advisor-client relationship and make it harder for clients to accomplish the tasks associated with the project.  This article is the fourth in a series highlighting matters that should be considered by advisors and clients before they agree to work together. “The past cannot be changed.  The future is yet in your power.”   – Mary Pickford Clients vary in the degree to which they think about and plan for the future of their business.  Those who give sufficient thought to long-range planning will be better positioned to respond to future opportunities and challenges. They will make better informed long-term business decisions that are more consistent with their goals. Advisors should consider how the current project contributes to the client’s business in the long run.  They should also be alert to matters that need to be resolved before the project begins.  They can begin the discussion by asking, “What impact do you expect this project will have on your business?” or “How does this project fit within the context of your long-range business goals?” Not every client has a strong future orientation.  They may be preoccupied with current affairs, or they believe that if they concentrate on matters at hand then the future will take care of itself.  Some people, because of their unique history, may not be wholly comfortable focusing on the future let alone planning for it.  They may dwell on the challenges they envision or the uncertainties they’re experiencing. Consider Paula, a mid-career architect with an expanding practice she could no longer keep up with on her own.  She debated whether to invite a junior colleague to join her in the business, but she had experienced several downturns in her profession over the years and she worried that growth would be difficult to sustain. With all the unknowns, she found herself unable to focus beyond the next couple of years with any degree of confidence.  She decided to hire an advisor to help her map out and execute a strategic plan.  As the advisor inquired about her goals for the practice, Paula grew quiet and non-committal.  Her advisor made the following observation: “My sense is that you’ve not had a chance to do much long-range preparation. That’s understandable; you’ve got a lot on your plate right now plus you’ve seen your share of recessions.  So, before we focus on specific goals let’s step back a bit and talk about the broad range of possibilities for your practice.” Paula became more comfortable with the conversation, especially after her advisor pointed out that by planning for the future, she would be better positioned to take advantage of opportunities that might emerge. Feeling that Paula was now more open to establishing short-term and long-term goals, her advisor suggested that they work on a planning exercise in their next meeting. Clients are more apt to accept an advisor’s recommendations if they see that there is a clear path linking the present to a desired future state.  Sometimes they just need a little help to be more forward thinking. This is the fourth in a weekly article series titled “Assessing the Advisor-Client Relationship”.  Each week, I will explore a new element affecting the advisor-client relationship in some detail.  These articles will help you understand potential opportunities and obstacles when working on long-term strategic engagements.  The next article will explore the client’s tendency to procrastinate. Please feel free to reach out for more information or assistance proactively assessing the potential advisory relationship.  

Third article in a series . . . If you work as a business advisor, you know that engagements can be unpredictable.  Whether helping the owner take advantage of a changing marketplace, or optimizing the business to prepare it for sale, these initiatives typically involve significant planning, coordination, and effort from both advisors and their clients.  Despite the best of intentions, these large-scale projects don’t always proceed smoothly. There are many things that can affect the advisor-client relationship and make it harder for clients to accomplish the tasks associated with the project.  This article is the third in a series highlighting matters that should be considered by advisors and clients before they agree to work together. “In life, change is inevitable.  In business, change is vital”    – Warren G. Bennis It’s very common for clients to seek a business advisor to help them make modifications or improvements to their business.  They may genuinely want things to be different, but that doesn’t necessarily mean that they are comfortable initiating and implementing changes to their business. Consider the case of Sam, the 70-year-old owner of a firm that brokered construction equipment.  Sam hoped to fund his retirement from the sale of the business, and he engaged an advisor to help him streamline the operation so that it would be more appealing to a buyer.  Sam had an encyclopedic knowledge of nearly every piece of large machinery east of the Mississippi and he was acquainted with many of the larger buyers and sellers in the region.  The advisor recommended that Sam embrace the Internet and list his inventory on his website.  Sam felt his success was due to his telephone outreach to prospects and he wasn’t keen on shifting toward an online approach.  He rejected the advisor’s advice and terminated the engagement. Advisors should discuss the amount of change that will likely be required to meet the goals of the project, and they should explore the prospective client’s attitude toward change.  The advisor may acknowledge that change can be difficult, but both parties should focus on the benefits that will accrue from the change(s) rather than the effort involved.  Here is one way to begin the conversation: “This project could involve making some significant changes to your business.  Please tell me about a past instance when you modified your standard operating procedure.  What led up to it, and what was it like for you and your employees?” The advisor should listen to determine whether the client was proactive in making the change, or at least didn’t wait until the situation was dire.  Was the client nervous about the prospect of change or did they see it as a potentially helpful step?  Did the client accept guidance from experts and advisors regarding the change?  Did the client take an active role in implementing the change and help staff adjust to it? If the client appears reticent about making changes, the advisor might say the following: “My sense is that all things being equal, you’re not necessarily inclined to make changes in your business. That’s understandable; even if it leads to a good outcome, change isn’t always easy.  Let’s talk about how much and what type of changes this project might involve.  That way, if there are certain things you would be uncomfortable with, we’ll know that ahead of time and can discuss options and alternatives.” It’s possible that a client may be extremely eager to make changes and solicit (if not expect) suggestions from their advisor.  This may appear to be a client strength, but keep in mind that our weaknesses are often our strengths taken to excess.  Both parties will need to ensure that the client’s embrace of change doesn’t inadvertently lead to the pursuit of unnecessary modifications.  If the client appears too eager to make changes or wants to make too many, too quickly, the advisor might counsel: “I can appreciate how invested you are in making changes, but we also need to make sure we’re strategic in how we roll them out.  Let’s talk about which ones should be prioritized, how we can get the most leverage out of them, and so forth.” This is the third in a weekly article series titled “Assessing the Advisor-Client Relationship”.  Each week, I will explore a new element affecting the advisor-client relationship in some detail.  These articles will help you understand potential opportunities and obstacles when working on long-term strategic engagements.  The next article will explore the client’s future time perspective. Please feel free to reach out for more information or assistance proactively assessing the potential advisory relationship.

Second article in a series . . . If you work as a business advisor, you know that engagements can be unpredictable. Whether helping the owner take advantage of a changing marketplace, or optimizing the business to prepare it for sale, these initiatives typically involve significant planning, coordination, and effort from both advisors and their clients.  Despite the best of intentions, these large-scale projects don’t always proceed smoothly. There are many things that can affect the advisor-client relationship and make it harder for clients to accomplish the tasks associated with the project.  This article is the second in a series highlighting matters that should be considered by advisors and clients before they agree to work together. “What’s past is prologue” – William Shakespeare While every engagement is different, a client’s experience with a complex project (or lack thereof) ought to be grist for the mill before beginning a new advisory relationship.  Without the insights gained from learning about the client’s past, the client and advisor may be starting from square one.  By taking the time to explore the client’s experience, both parties can identify potential obstacles to success and make a more informed judgement as to whether they are well-suited to work together. Consider the story of Jacob, the owner of a medical practice that specialized in providing home infusion treatments.  Twelve years ago, Jacob hired a firm to reduce coding errors, automate insurance filing, and streamline patient billing. The process stalled as Jacob became preoccupied with every detail of the project, right down to the font used on patient statements.  What was to be a nine-month project took almost twice that long to complete.  Now at age 60, Jacob wants to sell the practice and retire.  He hired an exit-planning advisor to orchestrate and manage the process.  The advisor began by recommending an expert to conduct a business valuation.  Things quickly bogged down as Jacob questioned the results and the methodology.  He insisted that another valuation be conducted at the advisor’s expense.  Had the advisor inquired about Jacob’s prior experience and had a better understanding of him, he or she might have explained the valuation process in advance and obtained Jacob’s explicit approval beforehand. A client may have no prior experience working with an advisor on a complex project.  In such cases, the advisor might direct the conversation as follows: “You say you’ve not worked with an advisor on a complex project like this before.  Since we don’t have that background historical information, perhaps you can think about what it has been like working with the professionals who routinely assist you, such as your attorney or accountant.  How does your work style, your communication preference, etc. mesh with theirs?  Are there certain things that lead to productive interactions with those advisors?  With your permission, it would be useful for me to speak to them so that I can get a deeper understanding of your business history and learn more about how they helped you.  Who may I contact?” Some clients have had a truly bad prior experience.  Engagements get terminated before they are finished, advisory relationships end on bad terms, and aggrieved clients may consider legal action.  Not all clients will immediately mention these matters and the prudent advisor should inquire, “Have you been fully satisfied with the process and outcome of previous projects?” If the client wasn’t satisfied, the advisor might pursue the following line of inquiry: “I can’t imagine that was pleasant, but I also hope we can avoid a repeat.  Let’s talk about what was dissatisfying and exchange ideas about how to make sure things go smoothly here.” “How do you feel about the communication between you and that advisor?”    “Were there misunderstandings or misperceptions?”   “What was your degree of alignment regarding how the project would unfold?”  “What prevented the two of you from resolving your dissatisfaction?” “What’s the most important thing we can do differently to ensure a solid working relationship?” As clients respond to these questions, advisors should pay close attention to the client’s observations and insights about the prior advisory relationship.  Are there lessons that can be applied moving forward?  Does the client acknowledge, for example, that communication wasn’t timely or that responsibilities weren’t specified?  If no clear considerations emerge the advisor might suggest an incremental approach rather than contracting for an entire project.  This would give both parties the opportunity to grow comfortable with one another. This is the second in a series titled “Assessing the Advisor-Client Relationship”.  Each week, I will explore a new element affecting the advisor-client relationship in some detail.  These articles will help you understand potential opportunities and obstacles when working on long-term strategic engagements.  The next article will explore the client’s attitude toward change. Please feel free to reach out for more information or assistance proactively assessing the potential advisory relationship.

If you work as a business advisor, you know that engagements can be unpredictable.  Whether helping the owner take advantage of a changing marketplace, or optimizing the business to prepare it for sale, these initiatives typically involve significant planning, coordination, and effort from both advisors and their clients.  Despite the best of intentions, these large-scale projects don’t always proceed smoothly. There are many things that can affect the advisor-client relationship and make it harder for clients to accomplish the tasks associated with the project.  This article is the first in a series that will highlight matters that should be considered by advisors and their clients before they agree to work together. Why take the time to examine the potential working relationship?  Both parties have a shared interest in the project going smoothly.  Clients invest a considerable amount of time, energy, and money, and they expect (or at least hope) that the process will be relatively effortless and pain free.  As an advisor your client’s success is paramount, and satisfied clients can be a good referral source. Yet too often advisors proceed full speed ahead with a prospective client, eager to assist, only to wish they had taken more time to explore issues that affect compatibility.  They come to realize they are a poor fit for their client, they encounter stylistic differences that impede progress, or they discover that the client is uncomfortable with the process.  In some instances, things move forward even though in retrospect it’s clear that the project should have been deferred, either until the client found a better advisor match, refined their goals, or completed some pre-work. The other rationale for taking time up front is that clients may have multiple strengths that ought to be identified and capitalized on.  For example, a client may be particularly innovative and thus quite comfortable with a state-of-the-art solution.  They may embrace change and expect that the advisor will propose initiatives that are truly transformative. Initiating the Discussion Some advisors may feel unsure about how to explore the potential working relationship.  Here is one way to introduce the topic with your client: “We both have a shared interest in this project going smoothly.  I appreciate that it represents an investment of time, energy, and money on your part, and it may require new approaches and changes to your business.  It’s also important to me that we’re successful in meeting your goals.”  “Of course, it makes little sense of us to proceed if we’re not mutually comfortable, and I certainly don’t want you to go down this path if we determine there are significant obstacles to our success.” “Every client comes to us with different characteristics that contribute to our progress together.  If there are things that might affect our working relationship, we should talk about them in advance.  For example, if you’re the sort of person who might benefit from assistance tracking key deadlines it would be helpful for me to know that up front.  By learning more about your work style ahead of time, I’ll be better able to adapt to it and optimize my efforts to assist you.”  At this point the advisor can then raise various topics for discussion.  This can include questions about the client’s prior advisory experiences, attitude toward change, persistence in the face of obstacles, and so forth. This is the first in a series titled “Assessing the Advisor-Client Relationship”.  Each week, I will explore a new element affecting the advisor-client relationship in some detail.  These articles will help you understand potential opportunities and obstacles when working on long-term strategic engagements.  The next article will address the client’s experience with past projects. Please feel free to reach out for more information or assistance proactively assessing the potential advisory relationship.

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Depending on who you are talking to, Private Equity is either the Great Satan or the savior of small and mid-market companies in the United States. The stories depend a lot on the personal experience of the speakers. Once a vehicle for high-risk investment plays in corporate takeovers (see Bryan Burrough’s Barbarians at the Gate,) Private Equity has morphed into tranches where specialists seek opportunities in everything from a Main Street entrepreneurship to multi-billion-dollar entities. What is Private Equity? The term itself is relatively generic. According to Pitchbook, there are currently 17,000 Private Equity Groups (or PEGs) operating in the US. The accepted business model for our purposes is a limited partnership that raises money to invest in closely held companies. The purpose is plain. Well-run private businesses typically produce a better return on investment than publicly traded entities. The current Price to Earnings (or PE – just to be a little more confusing) ratio of the S&P 500 is about 27.5. This is after a long bull market has raised stock prices considerably. The ratio is up 11.5% in the last year. That means the average stock currently returns 3.6% profit on its price. Of course, the profits are not usually distributed to the shareholders in their entirety. Compare that to the 18% to 25% return many PEGs promise their investors. It’s easy to see why they are a favorite of high net worth individuals, hedge funds and family offices. As the Private Equity industry has matured and diversified, they have even drawn investment from the usually more conservative government and union pension funds. Private Equity Types Among those 17,000 PEGs the types range from those who have billions in “dry powder” (investable capital,) to some who claim to know of investors who would probably put money into a good deal if asked. Of course, which type of PEG you are dealing with is important information for an owner considering an offer. private equity moneyThe “typical” PEG as most people know it has a fund for acquisitions. It may be their first, or it may be the latest of many funds they’ve raised. This fund invests in privately held businesses. Traditionally PEGs in the middle market space would only consider companies with a free cash flow of $1,000,000 or greater. That left a plethora of smaller businesses out of the game. For a dozen years I’ve been writing about the pending flood of exiting Boomers faced with a lack of willing and able buyers. I should have known better. Business abhors a vacuum. Searchfunders Faced with an overabundance of sellers and a dearth of capable buyers, Private Equity spawned a new model to take advantage of the market, the Searchfunders. These are typically younger individuals, many of whom graduated from one of the “EBA” (Entrepreneurship By Acquisition) programs now offered by almost two dozen business schools. These programs teach would-be entrepreneurs how to seek out capital, structure deals, and conduct due diligence. Some Searchfunders are “funded”, meaning they have investors putting up a stipend for their expenses. Others are “self-funded.” They find a deal, and then negotiate with investment funds to back them financially. Both PEGs and Searchfunders seek “platform” companies, those that have experienced management or sufficiently strong operational systems to absorb “add-on” or “tuck-in” acquisitions. The costs of a transaction have bumped many seasoned PEGs into $2,000,000 and up as a cash flow requirement. Searchfunders have happily moved into the $500,000 to $2,000,000 market. In the next article we’ll discuss how PEGs can promise returns that are far beyond the profitability of the businesses they buy.

Early last month, the Occupational Safety and Health Administration (OSHA) proposed the Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings rule. The aim is to curb heat related injuries or death which OSHA identifies as “the leading cause of death among all hazardous weather conditions in the United States.” The proposal places new responsibilities on employers: establishing heat thresholds, developing Heat Injury and Illness Prevention Plans, regularly monitoring temperatures, and establishing safety measures when heat thresholds are met. This rule is yet to be finalized however, it is a sign of what’s to come. The standard applies to all employers except for the following: Work activities for which there is no reasonable expectation of exposure at or above the initial heat trigger. Short duration employee exposures at or above the initial heat trigger of 15 minutes or less in any 60-minute period. Organizations whose primary function is the performance of firefighting and other certain emergency services. Work activities performed in indoor work areas or vehicles where air conditioning consistently keeps the ambient temperature below 80°F. Telework (work from home). Sedentary work activities at indoor work areas that only involve some combination of the following: sitting, occasional standing and walking for brief periods of time, and occasional lifting of objects weighing less than 10 pounds. Heat Thresholds There are two heat thresholds which will trigger employer action: An “initial heat trigger” means a heat index of 80°F or a wet bulb globe temperature (defined below) equal to the National Institute for Occupational Safety and Health (NIOSH) Recommended Alert Limit; and A “high heat trigger” means a heat index of 90°F or a wet bulb globe temperature equal to the NIOSH Recommended Exposure Limit. The “heat index” is calculated by measuring the ambient temperature and humidity. Wet bulb globe temperature is a heat metric that considers ambient temperature, humidity, radiant heat from sunlight or artificial heat sources and air movement. Employers may choose either method of measuring the temperature.   Heat Injury and Illness Prevention Plan (HIIPP) Requirements If an employer does not fall under the exceptions, it must develop a HIIPP with the input of non-managerial employees and their representatives for occasions when the heat threshold is surpassed. This plan may vary on the worksite but must be written if the employer has more than 10 employees and use a language employees will understand. The HIIPP must contain: A comprehensive list of the type of work activities covered by the HIIPP Policies and procedures needed to remain compliant with the standard. Identification of which heat metric the employer will use heat index or wet bulb globe temperature. A plan for when the heat threshold is met. Along with creating the HIIPP, employers must designate one or more “heat safety coordinators” responsible for implementing and monitoring the HIIPP. The HIIPP must be reviewed at least annually or whenever a heat related injury or illness results in death, days off work, medical treatment exceeding first aid, or loss of consciousness. Employers must seek input from non-managerial employees and their representatives during any reviews or updates. The definition of “representative” is not defined; if this is broadly defined, this could be a major complexity employers must face. Identifying Heat Hazards Employers must monitor heat conditions at outdoor work areas by: Monitoring temperatures at a sufficient frequency; and Track heat index forecasts or Measure the heat index or wet bulb globe temperature at or as close as possible to the work areas. For indoor work areas, employers must: Identify work areas where there is an expectation that employees will be exposed to heat at or above the initial heat trigger; and Create a monitoring plan covering each identified work area and include this work area in the HIIPP. Employers must evaluate affected work areas and update their monitoring plan whenever there is a change in production processes or a substantial increase to the outdoor temperature. The heat metric employers choose will affect the thresholds. If no heat metric is specified, the heat metric will be the heat index value.  Employers are exempt from monitoring if they assume the temperature is at or above both the initial and high heat trigger, in which case they must follow the controls below. Control Measures When Heat Triggers are Met When the initial heat trigger is met, employers must: Provide cool accessible drinking water of sufficient quantity (1 quart per employee per hour). Provide break areas at outdoor worksites with natural shade, artificial shade, or air conditioning (if in an enclosed space). Provide break areas at indoor worksites with air conditioning or increased air movement, and if necessary de-humidification. For indoor work areas, provide air conditioning or have increased air movement, and if necessary de-humidification. In cases of radiant heat sources, other measures must be taken (e.g., shielding/barriers and isolating heat sources). Provide employees a minimum 15-minute paid rest break in break areas at least every two hours (a paid or unpaid meal break may count as a rest break). Allow and encourage employees to take paid rest breaks to prevent overheating. At ambient temperatures above 102° F, evaluate humidity to determine if fan use is harmful. Provide acclimatization plans for new employees or employees who have been away for more than 2 weeks. Maintain effective two-way communication between management and employees. Implement a system to observe signs and symptoms of heat related problems (e.g., a Buddy system). When the high heat trigger is met, employers are additionally required to: Provide employees with hazard notifications prior to the work shift or upon determining the high heat trigger is met which includes: the importance of drinking water, employees right to take rest breaks, how to seek help in a heat emergency, and the location of break areas and water. Place warning signs at indoor work areas with ambient temperatures exceeding 102° F. Other Requirements Training: all employees and supervisors expected to perform work above the heat thresholds must be trained before starting such work and annually.   What’s Next? The rule is yet to be published in the Federal Register. Once this happens, there will be a 120-day comment period when all members of the public may offer OSHA their opinion about the rule. Whether this rule comes to fruition may also depend on which party wins the White House. Furthermore, if finalized this rule would likely be challenged in the courts, which now have more discretion to overrule agency rules following the US Supreme court case of Loper Bright Enterprises v. Raimondo and Relentless Inc. v. Department of Commerce (overturning the Chevron deference decision). Employers should review their heat illness prevention policies to maintain compliance with regulations. If you have questions, call competent labor and employment counsel. Brody and Associates regularly advises management on complying with the latest local, state and federal employment laws.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560  

Today we are highlighting the FIREPOWER Owner Sweet Spot Sessions! We’re about to embark on a game-changing conversation that will revolutionize the way you approach your business. It’s time to shift gears and start envisioning the future of your company in a new personal role. The Small Business Universe: Common Concerns of Owners Similar concerns echo throughout the small business universe. Maybe you feel like you’re lacking the right leadership, or worse, you don’t have any leadership at all. Perhaps your workforce has hit a plateau, or you’re dealing with the frustrating challenge of high turnover. And let’s not even get started on the never-ending cycle of decision-making, where it feels like you’re carrying the entire load on your own. What is the Work that Only You Can Do? We’re here to share a secret to successfully moving your business into the future. It all starts with a simple question: What is the work that only you can do? It’s time to tap into your natural talents and abilities that have fueled your business success from its inception and then refocus your efforts in a new way. Now, brace yourself for a little revelation that’ll bring a smile to your face. The answer to that question is much less than what you’re currently doing. Yes, you heard it right. You’re probably sporting way too many hats, it’s time to bid farewell to those unnecessary responsibilities and rediscover your true sweet spot. Enter the FIREPOWER Owner Sweet Spot sessions. These sessions are crafted to help you pinpoint those burdensome responsibilities that are holding you back from doing the work your company desperately needs from you. We’re here to lift that heavy weight off your shoulders and set you free to focus on what truly matters in achieving your future goals. Deciphering the best use of your time is the key to solving both short-term challenges and long-term business goals. It allows you to stay fully engaged in the work that only you should do, helps your teams to know your true superpowers, and ultimately unleashes your full potential to lead your company into the future. At FIREPOWER, we truly get the challenge, we live it every day. We understand the struggles you face as an owner.  Juggling numerous roles and tasks can be incredibly overwhelming and downright draining. But here’s some fantastic news – it doesn’t have to be that way. By identifying your unique strengths, you can reclaim your valuable time, restore your energy reserves, and reignite your enthusiasm for your business. So, are you ready to unlock your Owner Sweet Spot? Then it’s time to bid farewell to all the hats you’ve been wearing, delegate those unnecessary responsibilities, and rediscover the true value you bring to your company. Our owner-focused approach led by Maria Forbes, will expertly guide you through the process, empower your team, and take your business to unprecedented heights. Conclusion Remember, sustainable growth flourishes when you harness the potential of your team and become laser-focused on the work that only you can do. The number of hats you wear will shrink, while the quality of your life expands. It’s time to embrace the FIREPOWER within you and achieve the success you’ve always dreamed about. Together, we can make it happen! Fuel your people power, Maria Forbes with FIREPOWER Teams

In previous communications, we’ve discussed the significant changes brought about by the SECURE 2.0 Act. Effective implementation of many provisions within the act relies on guidance from the IRS and DOL. IRS Notice 2024-02 and IRS Notice 2024-55 offered clarification on several crucial aspects of SECURE 2.0. Guidance is helpful as plan sponsors make decisions regarding both required and optional provisions in the act. Here are some key provisions to consider: Automatic Enrollment Requirement  SECURE 2.0 mandates automatic enrollment features for 401(k) plans established after December 29, 2022, effective in 2025. The IRS guidance clarifies that a plan is deemed to be established when the employer adopts a 401(k) plan, regardless of the plan’s effective date. The notice also provides further clarity for plan mergers and spin-offs. Mergers: If a plan established after December 29, 2022, merges into a 401(k) plan that was established prior to that date, the ongoing plan will generally be subject to the automatic enrollment mandate unless the merger is: 1) a result of a business acquisition, and 2) the plans are merged by the last day of the plan year following the year of the transaction. Spinoff plans will be treated as a pre-December 29, 2022 plan as long as that portion of the plan had been established before that date. Higher Salary Deferral Catch-up Limits for Ages 60-63  For 2024, the salary deferral contribution limit is $23,000. If a 401(k) plan permits catch- up contributions, those age 50 and older can also make catch-up contributions up to $7,500. Those limits are expected to increase in 2025 based on cost-of-living adjustments to be announced later this year. Beginning in 2025, plans may also take advantage of a provision in SECURE 2.0 that would permit participants age 60-63 to make higher catch-up contributions. For those plan participants, employers may increase the catch-up limit to the greater of: * $10,000 (which will be indexed for cost-of-living adjustments in later years) or * 150% of the regular age 50 catch up deferral limit. De Minimis Financial Incentives  Employers can now provide “de minimis” financial incentives to encourage employee retirement plan contributions. These incentives must not exceed $250 and are available only to employees who have not previously elected to defer contributions. The incentive can be provided incrementally over time, contingent on the employee’s continued participation. Employees receiving these incentives are subject to regular tax, withholding, and reporting requirements. Terminal Illness Distributions  SECURE 2.0 introduced a new exception to the 10% penalty on early distributions for terminally ill employees. The IRS notice defines a terminally ill individual as someone who has been certified by a physician to have a condition or illness that can be reasonably expected to result in death in the next 84 months. This exception does not create a new type of distribution; rather, employees must still qualify for another permissible distribution from the plan. While this provision will be optional for employers, if a plan opts out, employees may categorize a distribution as a terminal illness distribution on their own tax return. If an employer does elect to recognize terminally ill distributions, the plan must obtain a specific certification from the physician rather than relying on an employee’s self-certification. Hardship Distributions with Self- Certification Most plans that permit hardship withdrawals allow such withdrawals only if the hardship satisfies one of the “safe harbor” reasons. Such reasons include the purchase of a principal residence, amounts needed to prevent eviction or foreclosure on a personal residence, qualifying medical expenses, tuition, funeral and burial expenses, certain expenses to repair the employee’s principal residence, and expenses and losses related to a federally – declared disaster. SECURE 2.0 provides that a plan can adopt employee self-certification rules. That means a plan sponsor may rely on an employee’s written self-certification that the distribution is for one of the plan’s safe harbor hardship reasons and is not more than the amount required to satisfy the financial need and they do not have alternate means that are reasonably available to satisfy the hardship need. The participant is expected to maintain records that support the hardship. Many plan sponsors are adopting self-certification.  Emergency Personal Expenses Distributions SECURE 2.0 permits a 401(k) or other defined contribution plan to offer emergency personal expense distributions. If the option is offered, eligible employees can withdraw up to $1,000, or their vested balance (if less) for “unforeseeable” or “immediate” personal emergency expenses once each calendar year. Self-certification is available. The distribution is not subject to the usual 10% tax on early distributions. Also, emergency expense distributions can be repaid to the account within a three-year window. Another emergency expense distribution can’t be made within the three-year window unless the previous distribution is fully repaid or contributions equaling the distributed amount are deposited.  Domestic Abuse Victim Distributions SECURE 2.0 permits a plan to offer domestic abuse victim distributions. This type of distribution may be made to a participant within a one-year period beginning on the date when a participant becomes a victim of domestic abuse by a spouse or partner. The maximum distribution is the lesser of $10,000 or 50% of the participant’s vested account. The $10,000 limit is subject to future cost of living adjustments. Self-certification is available. The distribution is not treated as an eligible rollover distribution for tax withholding purposes; however, the participant may repay the distribution any time during the next three-year period. The distribution is taxable, but there is an exception from the 10% early withdrawal penalty. (Note that plans which are subject to the spousal consent requirements for distributions may not be able to adopt this provision.) The IRS has also delayed the deadline for SECURE 2.0, SECURE, and CARES amendments until December 31, 2026. This gives them additional time to issue further clarifying guidance. As always, we are committed to keeping you informed as things develop.

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