AZ
CPA SEptember 2015
The Arizona Society of Certified Public Accountants
2015 Arizona Legislative Report Calculating Lost Profits for New Businesses The Painful Realities of a Security Breach
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THE DAYS ARE GETTING SHORTER, BUT YOUR CLIENTS’ TO-DO LISTS AREN’T. As summer fades to fall, that means getting back to business for many of your clients. And chances are they look to your firm for more than just tax advice. If that includes complex HR issues like ACA compliance, health plans and overtime exemption regulations — that’s what we do best. We’re here for you, so you can be more for them. See how ADP can provide a more human resource for your small business clients: adp.com/backtobiz
The ADP logo and ADP are registered trademarks of ADP, LLC. ADP – A more human resource is a service mark of ADP, LLC. Copyright © 2015 ADP, LLC.
SEPTEMBER 2015 y AZ CPA
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AZ
CPA
SEPTEMBER 2015
Volume 31 Number 7
Calculating Lost Profits for New Businesses
15
Measuring lost profits presents new challenges that don’t exist for established businesses. by Kip Hamilton, CPA, CFE
The Painful Realities of a Data Breach
18
Even the smallest firms and businesses are responsible for client data and can be liable for data breaches.
Features
by Ben Podraza, CPA/PFS, MTAX, CGMA
My Week in the Brazilian Rainforest
11
Phoenix CPA shares her experience volunteering with EY-Earthwatch Ambassador program.
by Krista McNaughton, CPA
Arizona’s Political Makeover — Love It or Hate It, It’s Here to Stay
12
by DeMenna & Associates
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A U.S. Supreme Court decision recently forced an employer to reimburse a 401(k) plan for excessive investment fees.
20
by Armando Roman, CPA
ASCPA lobbyists share insight into this year’s legislative session in our Annual Legislative Report.
Arizona Society of Certified Public Accountants 4801 E. Washington St., Suite 225-B Phoenix, Arizona 85034-2021 www.ascpa.com
401(k) Landmark U.S. Supreme Court Decision
Columns & Departments 6
Chair’s Message by Robert E. Dubberly, CPA
7
Focus on Members
9
A Dash of SALT by James Busby, Jr., CPA
21
ASCPA Board Highlights
22 Classifieds 23
In the Black ... Adventures in Accounting
AZ
CPA
The Arizona Society of Certified Public Accountants
President & CEO
Cindie Hubiak
Editor
Patricia Gannon
Copy & Advertising Deadline The first of the month one month prior to publication date. Board of Directors Chair Chair-Elect Secretary/Treasurer Directors
Rob Dubberly Greg Nelson Molly Montgomery Mike Allen Brenda Blunt Teresa Finley Gary Fleming Randy Fletchall Mike Holt Bill Judge Jennifer Nordstrom Mark Patton Vanesa Romero Curtiss Smith Nancy Thomas
Immediate Past Chair Anita Baker AICPA Council Members Karen Abraham Armando Roman Chapter Presidents Southern Chapter Northern Chapter Southwest Chapter North-Central Chapter
Cathy Poore Bethany de Alva Jennifer Sullivan Ellen Carpenter
AZ CPA is published by the Arizona Society of Certified Public
Accountants (ASCPA) to provide information, news and trends in the profession of accounting. It is distributed 10 times a year as a regular service to members of the Society. The ASCPA, its members, board of directors and administrative staff assume no responsibility for advertisements herein. The ASCPA and the above people also assume no liability for business decisions made by readers in reference to statements and/or claims in advertisements within this publication. Opinions expressed by correspondents and contributors are not necessarily those of the ASCPA.
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Arizona Society of CPAs 4801 E. Washington St., Suite 225-B Phoenix, AZ 85034-2021
Charles L. “Chick” Arnold
Telephone (602) 252-4144 AZ Toll-Free (888) 237-0700 Fax (602) 252-1511
Frazer Ryan’s Elder Law attorneys offer nationally recognized skill in estate planning, planning for disability and long-term care, and prevention of elder abuse and financial exploitation.
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Marsha Goodman
James E. McDougall
Joshua N. Mozell 3101 N. Central Ave., Suite 1600 Phoenix, Arizona 85012
602-277-2010
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Chair’s Message
by Robert E. Dubberly, CPA
Professional Services Tax Advertisements for back-to-school supplies and clothing are displayed everywhere, clearly sending the message that the end of summer is upon us. In addition, the familiar sight of school buses on the roads and the heavier traffic on our streets and highways are all signs of another summer gone by. In our household, our children will miss the lazy days of summer but look forward to seeing their friends and are excited about the new school year. My wife looks forward to the order that returns to our home once everyone settles into having a consistent schedule. As professionals, I suspect we too are returning to a more typical work schedule, as vacations have unfortunately come and gone, and our office hours return to normal. With the end of summer, it’s now time for us to focus on what lies ahead, not only in our workplace but also in our state. At my son’s middle school, the start of the school year means elections for the new student council. While it’s taken some time, our seventh grader is beginning to understand how his involvement in student government allows him to be well informed in regard to issues that affect him as a student and further allows him to have a voice in the process. As CPAs, we should also feel compelled to follow the issues and legislation that may very well impact our profession.
Currently in Arizona, many of us are following several potential legislative matters that could impact the profession, including the discussion of a possible tax on professional services. In almost every case, there are pros and cons for each piece of legislation, and like the legislators who debate the potential laws, we as constituents must also evaluate matters that may be impactful to CPAs in the state. In the case of the professional services tax, the largest advantage for this proposal is the expansion to the tax base and related tax revenue for the state of Arizona. As for cons, many professionals are concerned that such a tax may cause a loss of business from clients who can seek the same services from professionals in states where such a tax does not exist. While
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these two points are very important to the discussion, there are clearly many more that need to be raised, evaluated and discussed so that we can provide guidance and input to our lawmakers. As reported by the American Bar Association, the trend for the professional services tax in the United States has been growing over the last few years, with a record number of 27 bills proposed in 15 states in 2013 alone. With this growing movement for professional services legislation, we are fortunate in Arizona to have an organization like the ASCPA who not only keeps CPAs informed and continues to report on the events and matters that are most important to our profession but also provides that advocacy with our lawmakers. My past articles have dealt with leadership and the responsibility that we, as CPAs, have to support and protect our brand. It’s because of this responsibility, that I challenge each of you no matter what your views may be, to stay abreast of the issues and proposals impacting our profession and to get involved to ensure that you, too, AZ CPA have a voice at the table.
Focus on Members Signature Analytics hired Katie Thomas, CPA, as an accounting manager. Michael L. Lauzon, CPA, was recently promoted to partner at Heinfeld, Meech & Co., P.C. The following individuals also received promotions: Christopher Heinfeld to audit manager; and Aaron Vix, Matthew Miller, and Peter Trinh to staff associate II. Henry & Horne, LLP and BeachFleischman PC were among 14 firms recognized on the Accounting MOVE Project’s Equity Leadership list for having a high number of women partners and principals. The annual Accounting MOVE Project list is released by the Accounting & Financial Women’s Alliance and the American Women’s Society of CPAs. Henry & Horne, LLP’s marketing department won two Association for Accounting Marketing– Marketing Achievement Awards at the organization’s 2015 annual awards gala. The firm took home the award for Collateral, Publications: Between $10 and $24.9 Million in Revenue for infographics created by the Marketing Department. They also received the award for Content Marketing Campaigns, Technical Published and Feature articles for the firm’s e-newsletter content strategy.
Newsworthy CPAs Christina Roderick, CPA, a principal at REDW, was recognized by AZ Business magazine as one of the “Most Influential Women in Arizona.” Elva Vivas, CPA, of Bashas,’ was featured in an article in The Arizona Republic interviewing individuals about economic recovery from the recession. “Always be thinking about what’s the next, best way to do something. ‘Smarter, not harder,’ is the catchphrase of our generation.” – Lindsay
Some Henry & Horne, LLP team members and their families helped make classrooms and auditoriums at The Children’s Center for Neurodevelopmental Studies a cleaner place for students to learn and grow this summer. Team members cleaned carpets, washed windows and wiped down chairs, desks and tables. The Center is a school that has developed programs for children and teens with autism or other developmental disabilities to learn social, educational and life skills.
The Tucson office of Heinfeld, Meech & Co., P.C. recently participated in a community service day at the Community Food Bank in Tucson.
Stevenson, CPA, quoted in an article on how to recruit and retain millennials in the Journal of Accountancy. Jon Munson, CPA/PFS, lead advisor with Montlake Financial Services, LLC was interviewed by nationally renowned tax expert and author Sidney Kess, CPA, J.D., LL.M. for AICPA TV. The interview focused on the Personal Financial Specialist credential (PFS) and the Personal Financial Planning Section of the AICPA. Excerpts from the
interview can be seen at www.aicpa.org/ news/aicpatv. Rufus Glasper, CPA, was featured in the Phoenix Business Journal in an article on raising funds for Maricopa Coummunity Colleges. Ginny DeSanto, CPA, vice president of the ASU Foundation, was featured in the Phoenix Business Journal.
SEPTEMBER 2015 y AZ CPA
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A Dash of SALT
Property Tax Relief Available to Qualifying Seniors, Widows, Widowers and Disabled Persons This month’s state and local tax (SALT) column highlights property tax relief programs available to qualifying seniors, widows, widowers and disabled persons in Arizona. Arizona allows limited property tax relief to qualifying seniors, widows, widowers, and disabled persons. Limitations apply, and application deadlines vary, as summarized below.
Property Tax Relief Available to Qualifying Widows, Widowers, and Disabled Persons. Qualifying widows, widowers and disabled persons may apply for a limited property tax exemption that could result in property tax savings of as much as roughly $300 per year. The exemption applies first to real estate and then to a mobile home or automobile if not exhausted by the value of the real estate. To apply to a particular tax year, applications should be submitted by March 1, but those who miss that deadline may file a petition requesting the county board of supervisors to redeem the waiver of the exemption. However, no taxes that were due and payable before the petition was submitted may be refunded or abated.
Qualifications that Widows and Widowers Must Satisfy to Qualify for Relief Widows and widowers must apply in person at the county assessor’s office and demonstrate that: • They and their spouse were Arizona residents at the time of their spouse’s death, or that they were a widow or widower residing in Arizona prior to Jan. 1, 1969; • They meet the assessed valuation limitation described below; and
•
They meet strict income requirements. The assessed valuation limitation is indexed to inflation. To qualify for relief in 2015, the total assessed valuation of all real property and mobile homes owned by an applicant in Arizona may not exceed $25,306 (e.g., the total full cash value of all homes and mobile homes in Arizona, which are assessed at 10 percent of their value, may not exceed $253,060). The income requirements also are indexed to inflation. For 2015, the income requirement for widows and widowers is that their total income from all sources, not including social security or veteran’s disability payments, may not exceed $31,035, or $37,231 if disabled children or children under 18 years of age reside in their household.
Qualifications that Disabled Persons Must Satisfy to Qualify for Relief Disabled persons also must apply in person at the county assessor’s office and demonstrate that: • Their disability is total, permanent, and documented by a licensed physician on the appropriate form; • They are an Arizona resident age 17 or over; • They satisfy the assessed valuation limitation described above; and • They satisfy the strict income requirements described above.
Property Tax Relief Available to Qualifying Seniors Qualifying seniors may apply to have the value of their primary residence frozen for property tax purposes at the value in effect during the year when they applied for valuation protection. Because property values can have a profound impact on property tax bills, this program may prove valuable to qualifying seniors over time because property values generally increase over time.
Qualifications for the Senior Valuation Protection Program To qualify for the senior valuation protection program, one must: • Be age 65 or older when applying for the program; • Be listed on the title of their primary residence for at least two years prior to applying for the program; and • Meet strict income requirements. The income requirements are pegged to a percentage of the supplemental security income benefit rate established by section 1611(b)(1) of the social security act. So, for 2015, the average income over the last three years for those applying for the valuation protection program may not exceed $35,184 for properties owned by a single person, or $43,980 for properties owned by multiple persons. Income from all sources, whether taxable or not, is included in these figures. Applications for this program are available from, and must be submitted
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Upcoming ASCPA Conferences
Arizona Federal Tax Institute Nov. 5-6
Construction Industry Conference Oct. 21
• • • • •
•
Lean Accounting ACA Form 3501 How to Communicate Effectively with New Staff Fraud in Construction Claim Risk in Construction Contracts & Alternative Methods of Resolving Disputes Audit of Risk Areas of New TPT
Attend one day or both to get updates and reviews from the experts on the following topics: • Estate Planning • International Tax • ADOR • Economic Update • IT Updates for CPAs • Exempt Organizations • IRS Representation Update • Social Security • Ethical Highlights and Lowlights: 2014-2015 • Current Federal Tax Developments
To register, go to www.ascpa.com and click on conferences.
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to, the county assessor by Sept. 1 of the application year and must be resubmitted every three years. Applicants do not need to apply in person, and county assessors are required to respond to all applications by Dec. 1. Practice Tip! – CPAs may endear themselves to their clients by helping them determine whether they, their parents, or other family members qualify for the property tax relief available to qualifying seniors, widows, widowers and disabled persons AZ CPA in Arizona. James G. Busby, Jr., CPA, is a state and local tax attorney at The Cavanagh Law Firm. Busby previously worked in the SALT departments at Arthur Andersen and Deloitte & Touche. Before entering private practice, Busby was in charge of all transaction privilege (sales) tax audits at the Arizona Department of Revenue. If you have any questions, please contact the author. He can be reached at (602) 322-4146 or JBusby@CavanaghLaw.com.
“The expedition helped me realize that even as a young professional, I have valuable skills that can make an impact in our community.”
My Week in the Brazilian Rainforest EY sends Phoenix CPA to volunteer with EY-Earthwatch Ambassador program by Krista McNaughton, CPA
As an accountant, I never imagined I would be using my skills to help a small bed and breakfast or walking through the rainforests of Brazil, taking measurements of birds as part of an environmental research study in Serra do Itajaí National Park, Brazil. However, EY’s commitment to entrepreneurship and sustainability has allowed more than 160 young professionals over the past seven years to participate in the EY-Earthwatch Ambassadors Program. Representing EY’s Phoenix office, I was one of 30 early career professionals selected from Canada, the U.S., Mexico and South America for this program. EY collaborates with the Earthwatch Institute, a globally recognized environmental non-profit organization, to provide skills-based volunteer services to local businesses and engage in dynamic scientific research on week long expeditions in either Mexico or Brazil. My team and I spent a week outside of Serra do Itajaí National Park, Brazil, utilizing our business skills to help local small businesses in the area. We worked with the Pousada Rio Da Prata, a family run bed and breakfast. The team also stayed at the Pousada for the week, which helped us understand all of the services they had to offer. After meeting with the owners and using our team’s diverse background – which included tax, fraud investigation, transaction services, administrative services, and assurance professionals – we provided the Pousada with different marketing plans for various target audiences. In addition, we also created financial statement templates and a break-even analysis which demonstrated the revenue levels needed for business growth.
In addition to assisting the Pousada, we also studied birds as a measure of ecosystem health in the Atlantic Rainforest. The Ambassadors worked closely with an Earthwatch scientist to capture, measure, and tag birds in the barrier portion of Serra do Itajaí National Park. The result of our research was used to measure the human impact, such as deforestation, on the health of the rainforest. The team was able to quickly learn new skills such as identification of bird species, proper measurement techniques and proper bird handling skills. During this process, I became more connected with the environment, gained an appreciation for the variety of species of birds and gained a better understanding of the overall human impact on ecosystems. Perhaps not surprisingly, I came away from my expedition in Brazil with an expanded global mindset – I’m now more familiar with cultures and business practices different from my own, as well as the environment and our direct impact on it. If I were to choose one word to describe the experience, it would be “connected.” Not only did I experience first-hand EY’s commitment to entrepreneurs and sustainability, but I connected with colleagues across the Americas. I also built invaluable relationships with Earthwatch Institute and the Pousada. The expedition helped me realize that even as a young professional, I have valuable skills that can make an impact in our community. With that inspiration, I plan on increasing my involvement volunteering with local businesses and sustainability initiatives. AZ CPA Krista McNaughton, CPA, is an assurance senior at EY and a member of the Arizona Society of CPAs. She can be reached at krista.McNaughton@ey.com.
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Arizona’s Political Makeover Love It or Hate It, It’s Here to Stay by DeMenna & Associates
Arizona just had a serious political makeover, and whether you like the new look or not, it’s here to stay. The transformation began in November of 2014 when an uncharacteristically low number of Arizona voters elected new statewide leadership, lawmakers, and a variety of other high-ranking positions in state government. The makeover occurred despite this dip in voter participation. Former State Treasurer Doug Ducey defeated Democrat challenger Fred DuVal by a whopping 12 points to replace Jan Brewer as Governor. Former State Senator Michele Reagan defeated former Arizona Attorney General Terry Goddard to replace former Senate President Ken Bennett as Secretary of State. Former Arizona Department of Gaming Director Mark Brnovich bested attorney Felecia Rotellini to replace Tom Horne, the state’s embattled Attorney General. Political newcomer Jeff Dewitt replaced now-Governor Doug Ducey as State Treasurer. Dewitt ran unopposed in the General Election after defeating Hugh Hallman, the former Mayor of Tempe, and
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Randy Pullen, a former Chairman of the Arizona Republican Party in the Primary Election. Finally, former Peoria Unified School Board President Diane Douglas replaced outgoing State Superintendent of Public Instruction John Huppenthal by defeating challenger David Garcia, who boasted a lengthy resume in education. The political complexion of the legislature changed considerably as well. Democrats had their sights set on expanding their margins in 2015, but Republicans easily maintained control of both legislative chambers. In 2013, the GOP held a strong majority with 17 Republicans in the 30-member Senate, and 36 Republicans in the 60-member House. Arizona’s newest legislative makeup mirrors that of the 2013-2014 legislature: however, the current membership is noticeably more conservative. And roughly a third of Arizona’s lawmakers are brand new to the process. In addition to the fresh faces, the legislature elected new House and Senate leadership, including the first House Speaker from Southern Arizona in 28 years. Senator Andy Biggs, a Gilbert Republican, maintained his post as Senate President — the only holdover from the previous Senate legislative leadership team. It’s clear that Arizona has a brand new political regime, and the turn to “The Right” — best reflected in the 12 percentage-point Ducey victory — is unmistakable. For the foreseeable future, Arizona is a decidedly Red State. With this change in leadership, it was safe (and correct) to assume that the new management would have a different way of running the show. For the last 15 years, legislative sessions have averaged roughly 130 days in length. Under Brewer’s administration, sessions averaged 125 days, and when Napolitano was Governor, sessions routinely ran in excess of 150 days. But with Ducey, new lawmakers, and new legislative leadership, the 2015 session wrapped up its work in an astonishing 81
days — the shortest since the Apollo mission first landed on the moon. Again, this was a serious political makeover. Every year, the state budget is the legislature’s top priority. But the budget is typically one of the last items to be tackled, with tedious negotiations often spilling over well into June (leaving lawmakers and staff dreaming of Southern California beaches). This year, however, the new Governor took a much different approach, and worked with lawmakers to garner support for a state budget that was approved in early March. The $9.1 billion general fund spending plan calls for $3.9 billion in ongoing spending for K-12, $1.2 billion for the Arizona Health Care Cost Containment System (Arizona’s Medicaid agency), $1.1 billion for the Department of Corrections, and $603 million for the Department of Health Services. Arizona’s universities received $657 million (a 14% reduction), and $102 million in the state’s Rainy Day Fund was used to close existing budget gaps. The 2016 state budget also includes $74 million in inflationary payments to K-12. The courts ordered the legislature to pay $336 million in 2016, but settlement discussions are ongoing. A few short weeks later, it was clear that the legislature was poised to adjourn for the year, and on Friday, April 3, 2015, at 3:37 a.m. the First Regular Session of Arizona’s 52 nd Legislature adjourned Sine Die. Similar to previous sessions, the push to adjourn was a marathon - this one lasting more than 19 hours. The Senate, after becoming increasingly frustrated with the House’s pace, made the unilateral decision to Sine Die at 1:07 a.m. The Senate’s action sent the House into a scramble as lawmakers rushed to identify, and continue voting on bills that only required House approval in order to reach the Governor’s desk. In the final day of session, the House and Senate managed to send 73 bills to the Governor. Notable measures
The ASCPA’s impact on Arizona policymaking is undeniable. The organization, as it does every year, played a role in every piece of taxrelated legislation that advanced during the 2015 legislative session.
include legislation to deregulate ridesharing companies like Uber and Lyft, and a last-minute fix that will allow Arizonans to obtain REAL ID compliant licenses. Unless stated otherwise, the General Effective Date for this year’s legislation to become operational was July 3, 2015. Interestingly enough, in this condensed window of time, lawmakers managed to process the same number of bills as they have in the past. In every session for the last 15 years, legislators have introduced an average of 1,239 bills, and an average of 326 bills are signed into law. In the 2015 session (which was roughly 38 percent shorter than your average Arizona legislative session), lawmakers managed to introduce 1,163 bills, and 324 of those received Governor Ducey’s signature. As the dust settled from the lightningfast legislative session, Moody’s Investors Service conducted an analysis of the recently passed state budget, and in early May Governor Ducey announced that the national bond credit-rating agency had upgraded Arizona’s credit rating from Aa3 to Aa2 with a stable outlook. The Governor’s office was quick to spread the news, as Moody’s specifically cited the recent passage of Arizona’s “structurally balanced budget.” Aa2 is the third-highest rating Moody’s offers, behind Aaa and Aa1. Of course, Arizona’s annual legislative exercise would not be complete without the introduction of hundreds of proposals aimed at making an array of revisions to Arizona’s tax code.
Every year, the Arizona Society of Certified Public Accountants (ASCPA) and its lobbying team work to ensure that tax-related legislation is both sensible and functional. As an advocate for Arizona CPAs and taxpayers alike, the ASCPA’s reputation continues to grow. The organization has set itself apart as one that supports straightforward and understandable tax policies, and has become a reliable fixture on Arizona’s ever-changing political landscape. The ASCPA continues to foster an outstanding reputation with both policymakers and their staff as a refreshingly unbiased organization with the expertise necessary to guide lawmakers through technical and complicated tax-related proposals. The ASCPA’s impact on Arizona policymaking is undeniable. The organization, as it does every year, played a role in every piece of tax-related legislation that advanced during the 2015 legislative session. The ASCPA and its lobbying team tracked hundreds of bills, and ASCPA volunteers provided real-time feedback to legislators as their proposals advanced through the process. The Society’s legislative efforts, reinforced by their lobbying team, helped ensure the passage of this year’s tax conformity legislation – Senate Bill 1188. This annual legislative exercise conforms Arizona’s income tax statutes to reflect changes adopted by Congress to the Internal Revenue Code for the preceding calendar year. This year’s bill, SB1188 (now Laws 2015, Chapter 227), which included Congress’ retroactive extension of the $500,000
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business expensing limit and 50 percent bonus depreciation allowance, was slapped with a $30.8 million “price tag” by legislative budget staff. The perceived cost associated with the legislation, coupled with the existing budget constraints and growing needs of Arizona’s K-12 education community transformed the bill into a “political football” over the course of the session. The ASCPA and its lobbying team worked with the Governor’s budget director, legislative leadership and various lawmakers to ensure that the legislation overcame these challenges, and received Governor Ducey’s approval. The ability of the ASCPA to deliver this outcome in the current policymaking environment — with so many lawmakers new to the process — speaks directly to the organization’s status and reputation in Arizona government. As we look ahead to future sessions, it will be critical to focus our efforts on engaging and educating new policymakers about the importance of sensible, functional tax policy, and continuing to build on the outstanding reputation and working relationship Arizona’s CPAs enjoy with the State’s elected officials. Finally, it is important to recognize that the successes of each legislative session would not be possible without the ongoing efforts of Cindie Hubiak, the ASCPA staff, and the countless hours of work that CPA volunteers dedicate every session to crafting better public policy. It is through these efforts that the ASCPA – in spite of the massive changes in our state government – continues to be a significant and positive force in shaping Arizona’s tax code and the laws governing CPAs. AZ CPA DeMenna & Associates is a Phoenixbased government relations, public affairs and political consulting firm. With nearly 60 sessions of combined experience among our team, the firm provides lobbying and consulting services intended to make a difference – influencing legislative opinion in virtually every manner possible.To learn more about DeMenna & Associates, please visit www.demenna.com.
Historically, new businesses were precluded from recovering lost profits because the courts considered these claims speculative due to the lack of any prior operating results. Today, courts around the country have recognized it is unfair to allow a defendant to avoid liability for damages it caused simply because the wronged party is a new business. Most jurisdictions allow recovery of damages when the damages can be proved with reasonable certainty. While courts differ in their definition of reasonable certainty, in the context of lost profits calculations, this rule essentially means damages do not need to be calculated with absolute mathematical precision, must avoid speculation, and be supported with facts and evidence that will allow the trier of fact to reasonably estimate the damages. While every damage calculation requires credible financial proof, the bar is raised when the calculation involves a new business. This article examines some of the key issues relating to the calculation of lost profits for new businesses.
net profits are allowable as damages. Net profits are calculated by subtracting variable costs from lost revenue. The theory behind the “before-andafter” approach is that the plaintiff would have attained sales during the damage period similar to what it actually attained prior to the damaging event. Without sufficient historical sales data for comparison, this method cannot be used effectively for new businesses. A second common approach used by experts is the “yardstick” method. This method uses either comparable businesses, other locations from the same organization, industry data or a combination of all three to determine how the impacted business would have performed “but for” the defendant’s actions. Because this approach does not require historical data of the injured party, this is an accepted method for calculating lost profits for new businesses. The critical issue when using this method is comparability. Extra care should be taken in this regard because the expert’s comparison will be fertile ground for cross examination by the opposing party. In the third “sales forecast or projection” approach, the expert compares the plaintiff ’s budgets and forecasts to actual performance over the damage period. Preferably, the forecasts used should be those prepared in the ordinary course of business versus forecasts prepared for the current litigation. If the latter is used, the expert will need to be well prepared to defend their relevance. Statistical modeling or regression analysis to forecast what sales would have been “but for” the defendant’s actions is a variation of this method. This approach can also be used for new businesses, preferably in combination with the yardstick method.
Methodology
Legal Standards
Practitioners utilize a variety of methods to calculate lost profits. Three common methods used by practitioners are the “before-and-after,” “yardstick” and “sales forecast” methods. The most common “before-and-after” approach compares revenues before the harmful event to revenues after the event. The difference represents lost revenues. As with each method of calculating lost profits, only lost
The same legal standards and requirements applicable to lost profits for established businesses also apply to new businesses. Damage calculations need not be exact but they must be
Calculating Lost Profits for New Businesses by Kip Hamilton, CPA, CFE
Someone coined the term “money isn’t everything” but the pursuit of it is the motivation behind most commercial litigation. The majority of businesses are started for the purpose of making money. When a new business experiences damages for breach of contract, business interruption, unfair competition, natural disaster or other cause of actions, measuring lost profits presents challenges that do not exist with established businesses.
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reasonable and based on objective, verifiable facts and data. In addition, they cannot be based on mere speculation and ignore business reality. Experts must link the defendant’s wrongful act to the damages and make adjustments for other factors that may have impacted the damages. There are countless situations under which lost profits arise so the required evidence and proof differs with each case. However, as discussed below, there are certain issues that stand out when calculating lost profits for new businesses.
When making a comparison with a business previously owned by management, the expert should assess whether the business, market conditions, product and other factors are in fact similar. Consider the Pet Rocks product, which was introduced in the mid 1970s. Approximately one and a half million of the Rocks were sold in a short period when the product became a fad. Whether this success could be repeated by management with a similar product is an issue the expert should evaluate closely.
Management
Projections and Business Plans
The expertise and experience of management are of particular interest. If a management team previously owned similar successful businesses, this prior experience can be used to demonstrate the team’s ability to earn profits in the future given adequate capital, market conditions and demand for the product. The case for lost profits becomes even stronger if it can be shown that management earned profits after the wrongful act.
Budgets, projections and business plans prepared prior to litigation can be useful to demonstrate expected profits but should be validated with other supporting analyses like those discussed above. While defendants may argue these internal documents are biased, this does not render them unusable for damage purposes. Experts cannot simply calculate damages based on the plaintiff ’s
projections. First, one needs to consider the purpose of the projection. Any client prepared projection used by an expert should be examined critically and adjusted as necessary. Market Factors
When evaluating the likelihood of success of a new business, experts should consider as many issues as possible that are relevant to the business. Market factors include competition in the specific industry, legal and financial barriers to enter the business, regulatory environment, economic conditions, existing contracts, capacity constraints, customer base, growth opportunities and the size of the market. Information regarding the success of other participants in the same business or at other locations can also be used to support a claim for lost profits. A franchise is a good example where measuring the success of another participant would be effective. However, even with the similarity of franchises, it is important to assess the other market factors that might impact the injured party’s success.
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In one matter, I was retained by a defendant, which had started a large manufacturing operation in the U.S. The plaintiff, a new agency providing temporary employees in the manufacturing sector, had secured a large contract with the defendant. The majority of the employees specified in the contract were welders. The defendant allegedly breached the contract, and the plaintiff submitted a $4.3 million claim for lost profits it would have earned supplying temporary employees. The claim settled in mediation for a fraction of the $4.3 million after it was shown the plaintiff did not have the capacity to provide qualified welders that were in high demand during the term of the contract.
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Operating Capital
A new business must have adequate operating capital, access to financing or both in order to operate and generate profits. Inventory, production costs, accounts receivable, payroll and operating costs all require cash. For both new and established businesses, the expert should verify that the lost profits calculation is actually achievable based on the entity’s resources. With new businesses, this is particularly important due to the lack of historical data. So What to Do?
While estimating lost profits for a new business can be challenging, it is certainly achievable with the proper approach. If an expert avoids speculation, considers a variety of management, market and financial factors, and uses reasonable “business reality” assumptions, an injured party has every chance to recover AZ CPA its loss. Kip Hamilton, CPA, CFE, is a principal with GlassRatner Advisory & Capital and a member of the ASCPA. He has provided forensic accounting services for more than 30 years and has testified on dozens of economic damage related cases. He can be reached at khamilton@ glassratner.com. An Arizona 501(c)(3) Qualifying Foster Care Organization; tax ID # 86-0611935
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The Painful Realities of a Data Breach by Benjamin Podraza, CPA/PFS, MTAX, CGMA
What would be the best time of the year to call all your clients and tell them that their personal information has been compromised as a result of lax security procedures in your office? How do you think your clients would react to your firm being subject to an exhaustive investigation by the Arizona attorney general, the Internal Revenue Service, the IRS criminal investigation unit and the Federal Trade Commission? These scenarios are just the beginning of what you can to look forward to if you compromise your clients’ personally identifiable information. The recent IRS data breach was successful largely because the thieves had substantial information on the victims prior to beginning the attack. As larger organizations continue to tighten security protocols, identity thieves will undoubtedly be looking for low hanging fruit. Even the smallest CPA firms hold sensitive information for hundreds of entities.
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A.R.S. § 44-7501 addresses an Arizona CPA’s responsibilities in the case of a data breach. Although this statute is relatively lenient compared to some states, it defers authority to the Gramm-Leach-Bliley Act (P.L. 106-102; 113 Stat. 1338; 15 United States Code sections 6801 through 6809) where it applies. The statute suggests that an Arizona CPA would be subject to federal oversight in most data breach cases. Each violation of the Gramm-LeachBliley Act carries a potential civil liability of $100,000 for the entity, $10,000 for each of the officers and directors and subjects the CPA to penalties imposed under U.S.C. Title 18. Among other things, Title 18 holds the CPA responsible for actual damages. Violations can also carry a jail term up to five years for the responsible parties. It is unlikely anyone will view a CPA firm as a victim when a breach occurs. A client discloses personally identifiable information to a CPA because they believe that appropriate measures have been implemented to protect their information. This is a reasonable assumption. Section 6801(b) of the Gramm-Leach-Bliley Act requires CPAs to establish appropriate procedures and grants authority to a myriad of federal agencies to enforce compliance. Unless the CPA is placing insurance or securities products they will most likely be subject to the rules promulgated by the Federal Trade Commission. The Commission, at minimum, requires that a firm establish a written security plan. The plan has to designate responsible employees, identify and assess risks, design a safeguards program, select appropriate service providers and evaluate the program and explain adjustments. Any firm without a written security plan is already in violation of federal law. Past enforcement concerns, a firm is liable for costs associated with a data breach. This includes both direct and indirect costs. Cyber liability insurance can provide coverage for network extortion, business interruption, loss or damage to a network and e-theft. The coverage may even extend to third-party
602.631.2300 | 800.231.1363 Among other things, Title 18 holds the CPA responsible for actual damages. Violations can also carry a jail term up to five years for the responsible parties.
service providers in the form of media liability, privacy liability and network security liability. Reputational damage is not, however, an insurable interest. Once clients have lost confidence in a firm’s business practices, all recommendations become suspect. Time spent restoring confidence and lost revenue opportunities represent the most significant drains on a firm’s profitability. Proactive management of the data security program is the most effective way to reduce the damage a breach can inflict on a firm. The program’s effectiveness rests on three pillars: technology, processes and people. Technology selection is probably best addressed by professionals dedicated to that field, but personnel at all levels must participate in operationalizing security protocols. This necessitates the same diligence employed in the execution of all professional responsibilities. A firm manager may never become a security expert, but they must become an expert in vetting the personnel they hire. The IT field is as vast as the accounting profession. There are many different areas of specialization. A database administrator may not have the required expertise to secure a network from attack. A security specialist may not be able to identify the location of the firm’s most sensitive data. Larger firms may be able to support dedicated IT staff, but any employee can become the source of a data breach. A partner or manager who discounts the importance of data security sets a tone that can permeate throughout an organization. Smaller firms and sole practitioners are subject to the same standards as their larger peers. There is no de minimis exclusion available in Gramm-Leach-Bliley.
Unless specialized training is obtained, it is unlikely a CPA will be able to competently assess data breach risks and reduce those risks to an acceptable level. Technology can alleviate some of the load, but only if the practitioner knows what is available and makes intelligent selections. Secure procedures are rarely, if ever, user friendly. Implementing new security protocols will impair productivity. Staff and clients will tend to circumvent overly burdensome procedures. Even after implementing reasonable precautions, a practitioner needs to be prepared for the worst. The firm should have procedures in place to identify and manage a data breach. Gramm-LeachBliley does specify some disclosure requirements in the case of a breach, but the manner in which that is done is left to the firm’s discretion. The practitioner is well-advised to put some forethought into how a client discussion might go in the worse case scenario prior to the actual occurrence. While technological improvements have dramatically increased productivity in the profession, it has also changed the nature of how practitioners structure their internal controls. In order to meet this challenge, a firm manager needs to be willing and able to step outside their comfort zone. Failing to dedicate appropriate attention to these issues AZ CPA could be a career decision. Benjamin Podraza, CPA/PFS, MTAX, CGMA, is a member of the ASCPA and the principal at Podraza CPA, PLLC, a tax and business consulting firm in Scottsdale, Arizona. He can be reached at ben@ podrazacpa.com or (480) 998-3945.
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401(k) Plans: Landmark U.S. Supreme Court Decision by Armando G. Roman, CPA, By now you may have heard of the landmark 401(k) decision handed down by the U.S Supreme Court on May 18, 2015. In that case, employees took the employer to court over excessive investment fees in their 401(k). The Court agreed.
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What you should know: Employers with a 401(k) plan have fiduciary liability. You already knew that. Now the U. S. Supreme Court put teeth into it forcing the employer to put money back into a 401(k) plan to reimburse for excessive investment fees. The implications will ripple through the industry making employers of all sizes more liable for not performing their fiduciary responsibilities on their 401(k) plans. What you should do: A few quick things. Thoroughly review your plan, at least annually. Evaluate investments in the plan. Benchmark the plan for total plan fees. Educate employees about their 401(k). Have periodic 401(k) plan meetings with employees. Document your actions to show you’ve done your AZ CPA fiduciary part. Armando G. Roman, CPA, MBA, PFS, is founder and managing principal of AXIOM Financial Advisory Group, LLC a wealth management firm. He is a past chair of the ASCPA and currently an AICPA council member. He can be reached at a.roman@axiomcorp.com.
Programs sponsored by the Arizona Society of CPAs ...
Highlights of Board of Directors’ July Meeting Among other actions at its July 29, 2015 meeting, the ASCPA Board of Directors reviewed the following:
ARIZONA DIVORCE CONFERENCE
Auditor Report The 2014-2015 financial report was given by the independent firm of Mayer Hoffman McCann P.C. An unqualified audit report was issued.
ADVANCED FINANCIAL TOPICS
Consent Agenda The consent agenda, which included the board minutes and financial statements, was approved.
JW Marriott Desert Ridge Resort & Spa October 22 & 23, 2015 Thursday 9:00 a.m. - 5:30 p.m. Friday 9:00 a.m. - Noon
Conflict of Interest Policy Board members reviewed and signed the conflict of interest policy as part of the annual process. Nominating Committee Report Greg Nelson, chair of the committee, presented the following names as members of the nominating committee: Mike Allen, George Cohen, Jay Senkerik and Tiffany Young. The board approved the names and had a conversation on the areas of expertise the committee should explore when adding the new directors.
12.5 CPE Hours
n Forensic Analysis n Estates & Trusts n Retirement Benefits n Taxation & Stock Options
Visit: www.azdivorceconference.com
Strategic Plan Preparation The board engaged in an interactive exercise which entailed reviewing and updating the assumptions from the last strategic planning session in preparation for the meeting in November 2015. Strategic Plan Update Cindie provided updates on progress against strategic measurements. A Day in the Life Molly Montgomery, Anita Baker and Mike Allen shared the challenges and joys they experience in their life and job. Other Business No other business was conducted. If you have questions or would like additional information, please contact Cindie Hubiak at (602) 324-2888; AZ toll free at (888) 237-0700, ext. 203; or chubiak@ ascpa.com.
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Classifieds Business Opportunities/Practices for Sale
are utilized. Reply w/resume to jerry. hilderbrand@auerwoodley.com.
CPA FIRM SEEKING TO BUY CLIENTS — Established more than 30 years, we are experienced in smooth transitions and maintaining high client retention. We specialize in servicing small to medium businesses. If you are planning on retiring, we can customize a transition for you. If you want to downsize or change careers, we will buy part of, or your entire client base. We service the entire metropolitan Phoenix area and offer complete accounting and tax services. Call Joy today at (480) 9902727 or email joy@awcpas.com.
TAX PROFESSIONAL — Roediger Hoff, PLC — Progressive Tucson CPA firm expanding team of tax professionals. Motivated, credentialed professionals with 3+ years experience in complex tax preparation and accounting are invited to contact us to discuss opportunities. Part-time or full-time. Please contact us at jobs@roedigerhoff.com or (520) 323-3060.
TUCSON CPA TAX PRACTICE AVAILABLE FOR MERGER/BUYOUT OR NEW PARTNER — Two retirement-minded partners of a $1 million, primarily tax practice in Tucson seek a firm that wants to merge or buyout the partners over an agreed upon time frame. The practice is well established over the last 30 years and highly profitable with a strong concentration in business and individual tax preparation and consulting. Firm would also consider a strong candidate to buy into the practice. Firm has a no cost 90-day notice to landlord, if firm merges and cancels lease. Please send inquiries and desired goals to yazzr33@gmail.com or CPA, 6590 North Regal Manor, Tucson, AZ 85750. SCOTTSDALE CPA INTERESTED IN SHARING SPACE — Scottsdale sole practitioner with solid tax practice is interested in sharing office space and services with another CPA or larger firm. Please respond to scottsdalecpa123@gmail.com.
Employment CPA/MANAGER LEVEL — Growing firm seeking qualified CPA for Phoenix practice with 7+ years tax and accounting experience with extensive client contact. Partnership opportunity is available to the right candidate. Lacerte, Quickbooks, Checkpoint, Accounting CS and Practice
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TAX ACCOUNTANT — EAST VALLEY CPA FIRM — Phoenix, AZ — Seeking a well-rounded candidate to complement our strong, mutually supportive staff. Primary duties will include Individual / Corporate / Partnership tax preparation, and client write-up accounting. We are looking for 3+ years of Tax experience. 4+ years in QuickBooks and General Ledger accounting experience. Pro Series Tax Software exposure desired. Proficient with MS Word and Excel. Applicant must be deadline driven and able to work directly with clients and take ownership of their work. Position is immediately available. Long term hire. Compensation is based on experience. Benefits include 401K, holiday. Opportunity for growth and advancement. Send resumes to: mtz1002@gmail.com. TAX ACCOUNT — EPSTEIN SCHNEIDER, PLC — Growing CPA firm in Scottsdale seeks a Tax Accountant with recent CPA firm experience to join our team for preparation of business and individual income tax returns. We offer a paperless work environment, opportunity for growth and advancement, and competitive salary and benefits. Experience with ProSystems fx and QuickBooks a plus. Interested candidates may submit a resume to mark.schneider@epsteinschneider. com. TAX MANAGER — Tiffany White CPA, PLC — East Valley CPA firm seeking a Tax Manager to consult with clients and review individual, partnership, trust
and corporate tax returns. Other duties are involved as client needs dictate. Strong income tax, accounting, analytical and communication skills required. Minimum of 8 years recent income tax experience with a CPA firm desired. A working knowledge of Lacerte, Drake, Quickbooks, and Excel are necessary. CPA license required and Master’s degree helpful. Salary commensurate with experience. Please phone (480) 294-8900. TAX PROFESSIONAL/BOOKKEEPER — Schutte & Hilgendorf, PLLC - Leading Prescott CPA firm looking for experienced, seasonal tax professional and all-year-around bookkeeper (FT or PT available). Must have tax preparation experience. Experience with Lacerte and QuickBooks strongly desired. Email resumes: gidgets@prescottaccountants.com. SENIOR ACCOUNTANT (WEST VALLEY) — A leading R&D and environmental management company is seeking a Senior Accountant. Requirements: CPA qualified and Bachelor’s degree in Accounting; Approx. 15 years of experience and SBT accounting software and MS Office experience. Responsibilities: Perform all accounting functions through G/L; Prepare financial statements and reports; Assist with financial transactions of corporate offices; Ensure regulatory compliance; Other business related functions as assigned. The company o ff e r s c o m p e t i t i v e s a l a r y a n d generous benefits package. Interested candidates should for ward CV (including salary requirements) to SeniorAccountantWestValley@yahoo.com. CERTIFIED PUBLIC ACCOUNTANT — Brown, Bench, Wright & McLeod, PC — Yuma firm serves over 2,600 clients: individuals, partnerships, trusts, corporations, and not-for-profits. We provide bookkeeping, payroll, QuickBooks consulting, business consulting, financial statements, auditing, income tax, gift and estate tax services. Seeking succession potentials who have been in public practice at least 10 years with experience supervising and reviewing staff.
Knowledge of Lacerte and QuickBooks a must. Firm uses Thomson Reuters suite of products (Practice CS, File Cabinet). Paperless office experience desired. The ideal candidates must have the ambition and drive to advance to ownership within 5-10 years. Must live in Yuma or be willing to relocate. Serious inquiries only. cpafirm.officemanager@gmail.com.
Don Farmer Tax Update Oct. 30
Miscellaneous BUSINESS PROPERTY TAXES TOO HIGH? I’ve been successfully appealing property tax assessments for more than 15 years, both real estate and personal (business) property on a contingent fee basis. The annual business property reports are also filed for a flat fee. Reasonable rates. Arizona CPA. Visit my pages on Linked In, Facebook and Twitter. Call John at ASMR Consulting LLC, (480) 204-1289. http://www. asmrconsulting.com.
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In the Black ... Adventures in Accounting Good Things Come in Bundles Why are you Bundles ofsweating? joy ... Umm, sure.
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24 AZ CPA y SEPTEMBER 2015