Legal and statutory reasons 

We were commissioned by the (planned) absorbing company to determine the enterprise values for the transferred and absorbing legal entities in the preparatory phase of a (cross-border) merger by absorption in the capacity of a consultant. The merger was an inbound merger, i.e. the (planned) absorbing company had its registered office in Germany. Accordingly, the provisions of the German Reorganisation Act were relevant here. 

The core problem of the valuation was the consistent consideration of the risk positions of the shareholders in the acquiring and transferring legal entities. This concerned in particular the consideration of the fact that the two companies were domiciled in different currency areas. Although typical approaches in the literature for taking currency risks into account follow a certain pragmatic approach, they are not always or not entirely appropriate against the background of a desired “value discovery” (search for the actual fair value). Instead, a broad analysis of the risk differences between the two countries/currency areas had to be carried out. As a result, by taking into account risk effects in the numerator and denominator (but without double counting), the effects could be worked out in detail and presented transparently in the report for later review. 

Another problem area concerned the analysis of certain intangible assets and their presentation in the balance sheets of the two companies. A clear economic understanding of these balance sheet items was important for the plausibility check of the corporate planning and the assessment of the fundamental risk positions. The main problem area was the different historical growth strategies of the companies – organic on the one hand vs. M&A-driven on the other. 

As part of the squeeze-out of a listed company (market value of the target’s equity: > 20 billion euros), we critically reviewed the company valuations submitted by the valuation expert and court-appointed auditor for the minority shareholders to be compensated. The entire valuation construct was scrutinised: cash flow planning and reconciliation to the forecast, cost of capital, model structuring, plausibility checks, etc. 

The main challenges in the context of valuations of large corporate groups are regularly a) finding the right degree of complexity reduction, b) maintaining technical rigour despite the existing complexity, c) not losing the economic perspective and d) the ability to carry out the valuation from the perspective of the “big picture” in the sense of an integrative, interacting and balanced approach. The demands on the valuators are therefore regularly very high in such large-scale projects. It is therefore not surprising that the appraisers often “get bogged down” here, at least in part. For this reason, it is also very sensible to critically scrutinise the approach taken by the valuator and auditor. 

In 2022, we were commissioned to value a company (founded in the early 1990s) for tax purposes as at the valuation date of 31 March 1999. The background to this assignment was that in Germany, until the promulgation of the Tax Reduction Act 1999/2000/2002 (StEntlG 1999/2000/2002) on 31 March 1999, capital gains of participations in companies were not subject to taxation if there was no “significant” participation within the meaning of Section 17 (1) sentence 4 EStG (German Income Tax Act). Instead, tax exemption is to apply to capital gains generated up to this date. Accordingly, only any gains in value of such shareholdings generated after 31 March 1999 could be subject to taxation. In 2022, the question now arose whether an increases in company value since foundation of the company had to be taxed (and if yes, how much of it). 

The complexity of the case lay in the analytical backdating to the time around the valuation date. The “reference date principle” of business valuation states that “only the information that could have been obtained with reasonable care on the valuation date is to be taken into account.” (IDW S1, text number 23; IDW S 1: Principles for the Performance of Business Valuations), issued by the Institute of Public Auditors in Germany (IDW)). For practical application, the reporting date principle was substantiated by the Federal Court of Justice in the 1970s by the so-called “root theory” (BGH (Federal Court of Justice of Germany), 17 January 1973 – IV ZR 142/70). According to the root theory, information must be taken into account if it is obtained after the valuation date but relates to an economic circumstance whose root was already established before the valuation date (so-called “value-revealing” information). In contrast, information after the valuation date may not be included if it relates to an economic circumstance that has not yet been established at the valuation date but was only generated later (so-called “value-creating” information). 

Working out the appropriate information situation in 1999 – a very dynamic year on the capital market – required a deep fundamental analytical approach. There were no internal documents that could be used in the modelling of this “valuation-inverted future II” (something that was expected in the past for the future) or even management plans. The result was a complete market, sector and company analysis including the forecast calculations derived from this. The valuation could then be carried out on this basis.

In the context of a divorce, we were commissioned by one party to value the other party’s shareholding in the company. In such cases, the information situation is regularly poor. Even if there is an obligation to provide information, important data and information for the valuation is often not provided or not provided to a sufficient extent. This regularly requires in-house analyses and research, often down to the fundamental roots of the business model. The research findings are then translated into a quantitative forecast and risk assessment in the next step. 

In this specific case, the other party made structural changes to the company and the shareholder relationship in the run-up to the divorce with the aim of (apparently) reducing the value. In addition to some more or less obvious changes, two “classic” measures were also used – one aimed at manipulating the company’s cash flow generation process, the other at changing the cash flow allocation. The two classics are usually difficult for outsiders to recognise. 

We evaluated the company both before and after the structural changes. On this basis, our client was well prepared for the upcoming disputes. 

We were commissioned to determine the value in use of a young, technology-driven research company as part of a goodwill impairment test (IFRS). A critical point when deriving such a value in use is actually IAS 36.44: “Financial plans must relate to the asset in its present condition – future restructurings to which the entity is not committed and expenditure to improve or extend the performance of the asset must not be anticipated.”) is the object of the impairment test in accordance with IAS 36.  

Young companies in particular face a dilemma here: in their “current state”, young companies are usually not in a position to generate any positive cash flows in the future. For them, future “expenses for improving or expanding performance” are absolutely necessary in order to be able to confirm the business model at all. For example, technologies need to be further developed or made more efficient in order to be competitive at all. In some cases, research activities need to be continued and certain studies still need to be carried out. And so on. However, it is also obvious that such a continuing unfinished state is not in the spirit of IAS 36. Therefore, the audit-proof, appropriate delimitation of the asset and the scope of the planning of the relevant cash flows are obviously of fundamental importance here.