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The Advisor - Winter 2009


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Cohen and Company\'s newsletter: The Advisor

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The Advisor - Winter 2009

  1. 1. ADVi SOR N O. 61 the WINTER 2009 iNSIDE Understanding Preference Payments The Personal Page In many business situations, being he of new value to the debtor page 2 preferred is a good thing. But, on Sept. 15, and so no in bankruptcy language, being a preference payment need nt Madoff Scheme creditor who received a preference be returned. Emphasizes payment is not a good thing. The second Need for Due Under the Bankruptcy nary exception is “ordinary Diligence Code, if a creditor received a course.” Ordinary y page 3 payment within 90 days of a course is when the e customer filing for bankruptcy, payment was made de From The Desk repayment may be demanded in accordance with h Of The CEO page 3 as a “voidable preference.” In the debtor’s and short, the creditor may have to creditor’s businesss Economy Impacts “give the money back.” Once a terms or the Company Sponsored demand is made for repayment, payment was made inde Retirement Plans the creditor has the burden of accordance with the common he page 4 proof but, depending upon the business practice between the circumstances, may be able to debtor and the creditor. require legal action to gain access Get To Know void/avoid returning the money. For example, if the invoice to the debtor’s information. If two Bill Frazier page 5 The most common exception calls for “net 30” and all payments years ago, the debtor was paying is “new value.” New value is in the recent past have been paid its bills to all creditors net 30, but Introducing a contemporaneous exchange by the debtor net 30, then the in the last six months changed to Cohen Professional of money, goods, services, or alleged preference payment might paying its bills net 90, a 90-day Resources other property received by the not need to be returned by the ordinary course exception may be page 5 debtor after the payment was creditor, as it was received the possible. made to a creditor. Only the net same as other recent payments As a result of the Bankruptcy News & Notes (the payment minus subsequent made by the debtor. Abuse Prevention and Consumer page 5 shipment) can be voided by the There is also the ability to Protection Act of 2005, there are debtor. assert that the common business two key restrictions on debtor’s Proper Performance For example, on Aug. 1 a practice between the debtor preferential payment demands to Management company ships $10,000 of goods and the creditor is controlling, help small business creditors. Key to Success to the debtor. On Sept. 1, the irrespective of what was printed on 1. Only preferential payment page 6 debtor pays the $10,000. Then, the invoice. Compare the invoice claims totaling at least $5,000 can Comment on Sept. 15, the creditor ships date and the payment date for be asserted. page 7 another $10,000 of goods to each shipment during the prior 24 2. Claims for more than the debtor. On Sept. 30, the months. If the debtor consistently $5,000 but less than $10,000 can debtor files for bankruptcy, owing paid “net 90,” even though the only be filed in the jurisdiction $10,000. The debtor sends a invoices said “net 30,” you may be where the creditor resides, letter demanding repayment of able to claim that ordinary course not “out of town” where the the Sept. 1 payment, as it was between the parties is net 90. bankruptcy proceeding was filed. made within 90 days prior to the Finally, the creditor can also Of course, it is never as simple bankruptcy filing. You or your claim a common industry practice as these examples. There are attorney responds with the “new or a common debtor practice. The numerous interpretations that can value” defense noting that after latter looks to a trend in how the be made and keeping your receiving the $10,000 Sept. 1 debtor was paying its bills before attorney’s number handy is in payment, you shipped $10,000 filing for bankruptcy. This may your best interest.
  2. 2. PERSONAL The Personal Page ACHIEVEMENTS Advisory Board for the ANGELA INA, ANDREW STURGILL professional credentials. Cohen & Company was Department of Accountancy at and JOSH SWANDER participated Congratulations to the recognized by Accounting Today Xavier University. LISA LOYCHICK in the American Diabetes following individuals on their as the 14th “Best Accounting was appointed trustee for the Association Walk. recent promotions; COURTNEY Firm to Work For” in its Mahoning-Shenango Valley TRAVIS BOWER, JON DOMBRADY, BASKEY, ALY FRITZ, MATT LEWIS and inaugural program. Cohen Estate Planning Council. JIM MEGAN MAST, JEREMY SMITH, MATT RICCOMINI to Senior, MELISSA & Company was one of only STOBE was appointed Treasurer CASSANDRA TORCH, ROBERT VENABLES, BISH, BRETT EICHENBERGER and MIKE two Ohio firms to make the of the Rocky River United AMBER WADE and MARIAN WEST McGIVNEY to Manager and KATSIE distinguished list. The firm Methodist Church. hosted the Accounting Freshman O’NEILL to Cleveland Office also was honored for its “Best ANGELINA MILO, TRACY MONROE Interest Group from Kent State Manager. Practices at Work” by the and KIM PALMER spoke on University for a casual discussion Please join us in welcoming AICPA’s Private Companies “Year End Tax Planning for about opportunities in the some new faces to the firm. Practice Section. Corporations and Individuals” accounting field. TERRI ANDRUS and LAUREN DIX Congratulations to ANGELINA at the Ohio Society of CPAs (Tax); BRITTANY BURNETT, MATT CPE forum. In addition, STAFF HAPPENINGS McCALL and AMBER SINKOVICH MILO on her acceptance into the 2009-10 class of Leadership Angelina presented at the The co-ed SQIF football (A&A); MARY JO HORTON and Akron. University of Akron National team recently ended another JULIA ZOZULYA (Admin); GEOFF Tax Conference on “Income Tax season with a very respectable MOORE (IT); BILL FRAZIER (Cohen COMMUNITY Advantages & Disadvantages of 5-3 record and a trip to the Capital Advisors); SARA In his expanding role with Partnerships & LLCs.” second round of the playoffs. GOLDEN (Cohen Professional Cleveland State University, ROB WHITTALL, with insight Giving it all they had were Resources); and STEPHANIE TONY BAKALE has been asked from KEN SMITH, was featured in BRANDY BURKARD, MARCY CONKLIN, HANAYIK (Sequoia Financial to participate on the CSU the British American Business STACEY DIETZ, ANGIE FERENCHAK, Group). Presidential Search committee Council’s Connect newsletter ALEX HOCKING, JULIE LOWRY, MIKE Our congratulations go out and the CSU Football regarding the U.S. mortgage MAIMONE, LINDSAY MUNARETTO, to newlyweds, JULIE and Mike Exploratory Committee. In crisis. ANDREW STURGILL, JOSH SWANDER, LOWRY (nee Mace). addition, Tony spoke at CSU’s Several members of the DAVE TALENDA and JIM YEZBAK. Finally, a warm welcome to December commencement, Firm participated in the ANDY FINGER and his wife, the newest members of the welcoming the new graduates Accounting for Kids Day Judith, curated a traveling family, Nicholas Paul (ALANE into the alumni association. program. LAINE BOFFEY, BRANDY exhibit regarding “Circles of and David BOFFA), Parker James MIKE BOECKMAN was elected BURKARD, KRISTI CLINE, MARCY Life: Katsina Imagery in Hopi (FRANK and Lisa BUCKLEY), President of the Bay Village CONKLIN, TONY CONSTANTINE, BRETT Basketry” at the Arizona State Leighton Marie (TREVOR and Schools Board of Education. EICHENBERGER, ALY FRITZ, ANGELA Museum. Pam CHUNA), Brendan Matthew ANNIE McCAULEY was elected INA, ALENA KASCHISZKI, JEN KRUEGER, COURTNEY BASKEY, AJ CHASKO, (BRIAN and Amy HAGERMAN), to the board of directors ADAM MAGANA, NATALIE MAHER, JOE STACEY DIETZ, ALY FRITZand Carter Burley (JUSTIN and April for Planned Parenthood MAHLENKAMP, MICHAEL MAIMONE, MATT RICCOMINI passed the RUSH) and Ethan Malachi (ADAM of Northeast Ohio. MAURA TERI MELANI, LINDSAY MUNARETTO, CPA exam. ANDY FINGER, STEVE and LaShana TIMBLIN). CORRIGAN was elected as MAKIA PHILPOTT, DAVE TALENDA, PIATAK and JOHN STARK earned Chair of the Lake Hospital JOSH SWANDER and ROB WHITTALL the Certified in Financial Foundation, and ADAM HILL was went to several area elementary Forensics Certificate (CFF) elected President of the board schools and played games from the American Institute of PHOTOS: of directors for the Boys & with the children to teach Certified Public Accountants. Brandy Burkard, Girls Clubs of Lorain County. them fundamental concepts of Congratulations to all of Dave Talenda, Alane Boffa, MARCY CONKLIN was appointed financial literacy. them for their continued hard Andy Finger, Marian West to the Young Professionals SCOTT BERLIN, BRANDY BURKARD, work and enrichment of their 2 Cohen & Company
  3. 3. Madoff Scheme Emphasizes Need for Due Diligence The arrest of former NASDAQ chairman Bernard Madoff has further shaken the investment from the community. If securities fraud is proved, the $50 billion of losses Desk of the CEO would make it the biggest Ponzi scheme in history. Love it or hate it, we are While Madoff ’s scheme where we are. Being negative or pessimistic will not help. If was typical of a Ponzi in its anything, it could make things structure—paying returns to worse. We need to move investors out of the money forward in this crazy economy. received from subsequent Part of doing so is to embrace investors rather than from a positive perspective both in profit—its strategy was regards to the world around you unique. Rather than offering and, more importantly, to your suspiciously high returns to own organization. I look at Cohen & Company an indiscriminate group of it. Despite investigations by may give investors defrauded and am very proud of the investors with whom he had regulatory authorities, it was by Madoff the most direct significant talent we offer in personal relationships, Madoff not until the general market method for recovering some of today’s marketplace: corporate offered modest, but steady downturn of 2008, which the money they have lost. The finance and restructuring to returns to an exclusive clientele. motivated a larger than usual primary tax issues will be: (1) help clients carefully manage It was not just direct investors number of investors to cash out claiming theft losses for the cash flow, working capital, bank who were hurt. Many investors their positions, that the scheme money invested in the fund; covenants and overall capital in portfolios of hedge funds, structure; human resource collapsed. and (2) recovering taxes paid management to help clients known as funds of funds, were As a result of the Madoff on fictitious income reported handle complex staffing issues; victims as well. scandal, investment advisors by the fund. Taxpayers will personal financial planning to By definition, a hedge fund and nonprofit boards can need to act quickly because help clients integrate personal is a private investment fund be expected to come under certain refund claims must be liquidity needs with business open to sophisticated investors increasing pressure to assure filed within three years. plans; and certainly, deep and is permitted to undertake investors and donors that they Additional information on resources in financial reporting a wider range of activities have a thorough due diligence the topics discussed in this and tax planning. than other investment funds. I suspect that your process. article can be found on our organization is also well Madoff exploited the lack While numerous lawsuits Web sites at positioned to help your of transparency and limited have been filed, the tax laws and customers navigate today’s regulation characteristic of rough waters. Leave pessimism these funds. behind; focus on what’s Perhaps the most troubling “right” in your company, CONTACT i NFO then roll up your sleeves aspects of the alleged fraud are For further discussion regarding specific Madoff or other Ponzi losses, please and get to work. the willingness of investment contact Natalie Takacs at (440) 205-4814 or professionals to place money For assistance regarding fund due diligence procedures, contact with Madoff without proper Cohen Fund Audit Services partner Chris Bellamy at (440) 250-8527 or due diligence and the failure of regulatory authorities to detect 3
  4. 4. TAXES Economy Impacts Company Sponsored Retirement Plans It is no secret that 2008 was UNDERSTAND HOW PLAN than $1,000. The maximum In times of market turmoil, INVESTMENTS ARE PERFORMING one of the worst years in COMPARED TO SIMILAR INVESTMENTS bond amount required with one of the most important history for the stock market Many employers select a regard to any one plan is tools that can be provided to with investors seeing a decline group of investments to make $500,000 per plan official, or employees is information. in assets of anywhere from 20 available to their employees $1 million per plan official in The base level investment to 40%. Company sponsored covering a number of asset the case of a plan that holds concepts of asset allocation, retirement savings plans have classes, but do not monitor the employer securities. Further diversification, and risk not been immune to this ongoing performance of the information can be obtained management have not decline. As plan participants investments. Now, more than at This is changed. The best resource see their retirement assets ever, it is extremely important important because an owner that a plan sponsor can decrease in value each time that a plan sponsor have an often acts as the trustee of a provide is education and they receive a quarterly Investment Policy Statement company’s retirement plan information that will allow statement, they may also see (IPS) and regularly compare and can be individually sued the employees to make the their anticipated retirement actual performance to the by participants for breach of investment decisions best date get later and later. guidelines set forth in the IPS. fiduciary responsibility. suited for each individual. In times of crisis, an Your plan investment advisor And in no situation should UNDERSTAND HARDSHIP employee may turn to should be able to assist you WITHDRAWALS the plan sponsor or company desperate measures, including with preparing an IPS and Unfortunately, today’s representative give investment legal action. As a plan in monitoring performance. economic conditions have left advice to employees. sponsor or administrator It is the responsibility of the some employees strapped for there are a number of plan fiduciaries to understand cash and, as such, there may fiduciary responsibilities that CONTACT i NFO not only the amount of fees be requests for a hardship For additional assistance with you are required to fulfill. incurred, but to whom those withdrawal. It is important your plan, contact Marlene Piatak Understanding and actively fees are being paid and if value to review and document at (216) 774-1182 or monitoring plan activity can is being received for those hardship withdrawal requests. or reduce your risk for employee services. Employees must have an Kevin Tichnell at (330) 255-4341 legal action. or UNDERSTAND THE FIDUCIARY immediate and heavy financial UNDERSTAND THE BOND COVERAGE REQUIREMENTS need, such as medical PLAN’S FEE STRUCTURE ERISA requires all persons, expenses, payments needed Sequoia Financial Group, LLC and Typically, the plan or the to prevent eviction from Cohen & Company are separate including fiduciaries, who companies with similar (but not plan sponsor pays a certain handle funds or other property their principal residence or identical) ownership interest. percentage of the plan’s assets as of an employee benefit plan mortgage foreclosure, payment Fee-Based Financial Planning and a management fee. But is this of college tuition, etc. Only Investment Advice offered through (otherwise referred to as Sequoia Financial Advisors, LLC, an really all of the fees the plan is plan officials) to be bonded, the employee’s elective SEC Registered Investment Advisor. being charged? Are there hidden unless they are covered by an deferrals may be withdrawn, Securities offered through ValMark fees that aren’t being disclosed? not plan earnings. Also, the Securities, Inc., Member FINRA, SIPC exemption. The Department Are there similar investment of Labor has just issued participant may not make an alternatives offered in the guidance, Field Assistance elective deferral or any other marketplace that are available at Bulletin 2008-04, that covers voluntary contribution to a lower cost? As the retirement questions relating to this the 401(k) arrangement or plan industry changes and issue. Each plan official is other retirement plans of the company demographics evolve, required to be bonded for at sponsor during the six months the cost structure of a plan may least 10% of the amount he following the withdrawal. become outdated. or she handles, but no less 4 Cohen & Company
  5. 5. Get To Know Bill Frazier Bill Frazier specializes in Newmarket asset-based financial restructuring advisory Partners, a lending division and distressed M&A services. turnaround firm of Huntington He brings to the firm more serving the lower National Bank. The Worker, Retiree and than 25 years of experience middle market Bill and his Employer Recovery Act of in distressed investment in Cleveland, wife, Grace, reside 2008 eliminates the need to banking and as a lender to Ohio. Bill also in Rocky River, make required minimum distressed borrowers. He has participated in Ohio. In his spare distributions for 2009 for served companies in a broad the start up of time, he enjoys IRAs as well as all defined range of industries including GMAC Business traveling to Brazil contribution plans, including automotive, steel processing, Credit LLC, and spending time 401(k), 403(b) and 457 plans. metal forming, plastics a joint venture of GMAC with family and friends. This provision applies to all forming, distribution, and and BBK Consulting, which individuals age 70½ or older, general manufacturing. provided financing solutions QUICK TAKE regardless of their retirement Prior to joining Cohen to distressed automotive Bill Frazier plan's account balance or (216) 774-1118 whether the plan has Capital Advisors, Ltd. Bill suppliers. Prior to GMAC, incurred any losses. directed the investment Bill managed the Columbus Years with firm: <1 banking practice at and Detroit offices of the Our Columbus office is moving in February to: 495 Metro Place S., Suite 200 Dublin, OH 43017 (614) 707-5400 Introducing Cohen Professional Resources Finding, keeping and managing current economic employees is one of the biggest conditions, utilizing issues companies face. For a flexible workforce The Advisor is published by more than seven years, we have is a strategy many Cohen & Company for our provided clients with a hands- companies use clients and professional associates. on HR consulting/recruitment to help manage Copies will be provided to educators, accountants and solution under the direction costs. Unmatched other professionals on request. of Hugh Fisher. Recently we by most staffing Any action based on information added a related division, Cohen companies, our in this publication should be taken only after a detailed review Professional Resources. comprehensive of the specific situation and Cohen Professional screening method appropriate consultation. Resources focuses on key includes: behavioral financial and accounting assessment, reference checking, this new venture and has more © 2009 Cohen & Company, Ltd. All rights reserved. positions for interim, project, a background check, resume than 20 years of experience in or full-time contingency verification, and technical skill professional placement. To placements, allowing clients verification by a member of learn more about Cohen to get the help they need, our Cohen & Company staff. Professional Resources visit when they need it. In the Sara Golden is the Director of 5
  6. 6. BUSINESS Proper Performance Management Key to Success When faced with a troubled success of the organization. economy, businesses of all sizes When developing these values, often have no choice but to it is critical to define thoroughly make tough decisions. Often, and ensure that staff is clear on the first major move considered their meaning and can practice is a reduction in staff. But in them to the organizations’ the end, while it may bring expected level. For example, temporary relief to the bottom business owners often value line, a staff reduction will not “integrity,” but what does that lead to a prosperous enterprise mean? Ask yourself, “When I long term. see someone with integrity, In good, and particularly in what do I see?” bad times, the attention given to organizational performance ROLES: Simply put, role is the difference between definitions are job descriptions success, mediocrity, or failure. or complete descriptions of The definition of duties and what someone does, the activities, how well they are outcomes, and the time in monitored and the feedback which things are to be provided are the things that completed. When an individual drive performance. A business outside the organization can can maximize performance by understand a role by simply carefully defining values, roles, reading the job description, and goals, then establishing a then it is properly crafted. to be written with enough appreciate understanding the regular feedback mechanism. information to not be full scope of their job, what to GOALS: This is the list of misinterpreted, and clearly state expect, and what the company VALUES:Even the smallest items that require additional or the “what” that needs to be expects. organizations have unique special attention. Goals need to accomplished and the “when” Managing performance is qualities that define or separate be clear, identifiable, achievable, it needs to be completed. arguably the single most them from the competition. and most importantly, relevant Now, put it all together. important step a manager or These values are the attitudes to the success of the organization. Many organizations prefer business owner can do to and behaviors important to the Like a role definition, they need the concept of a “work promote the future success of plan,” which combines the an organization. organizational values, the A staff reduction is a traumatic event for an organization that can lead role definition, and the to various issues and may potentially expose a business to litigation if individual goals into a single the proper steps are not followed. Careful consideration is necessary to document. With a work plan CONTACT i NFO determine if a protected group, such as those defined by age, race, sex, in hand, an organization has For more information regarding or national origin, is adversely affected. To this premise, matters such any of the information in this yet another tool to aid in as severance pay, benefits and outplacement need to be measured article, please contact Hugh Fisher, performance management. At to ensure no stone is left unturned. These and other matters must be Director of HR Consulting, the end of the year, use the reviewed before moving forward, as every situation is different and fact at (216) 774-1121 or dependent. Business owners should consult an employment attorney or plan as part of an employee’s HR consultant before implementing these types of changes. annual review. Employees will 6 Cohen & Company
  7. 7. Comment Service Directory This is one of those rare of and the access to our health down, no one can put self or Accounting, Auditing & Financial Reporting occasions when I had no care system? What are we party ahead of the national Audits, Reviews and Compilations problem deciding what to going to do with the estimated interest. Locally we need to Budgeting & Cash Forecasting write about, just where exactly 2 million foreclosures? How can reexamine issues such as having Business Advisory Services I should start. On one hand, states and local communities 56 municipal bureaucracies in a Financial Projections and Forecasts people are worried and trying to handle the reduction in their county that has less population Management & Internal save money, while postponing revenue from declines in than a dozen cities. Control Reviews or cancelling non-essential sales, payroll and real estate Another reason for my Tax Services purchases. On the other hand, taxes? That still leaves us optimism is the incredible Business, Estate & the government is encouraging with the illegal immigration number of creative new ideas Personal Tax Planning spending and forcing banks to problems, declining educational that are being generated, Employment Benefit Plans & Administration loosen credit so individuals can performances, environmental especially in Northeast Ohio. Executive Compensation Planning borrow and buy more. Wait a issues, our crumbling Unlike prior years, a good International Tax and Consulting second, isn’t that how we got infrastructure and dependence percentage of these are being IRS Representation into this mess in the first place? on Middle Eastern oil. funded and becoming the State & Local Tax Issues Obviously, nobody knows the After reading the previous nucleus of many exciting new Tax Return Preparation answer to all the economic issues statements you are probably companies. Furthermore, even Consulting Services that we have to cope with. Will thinking that I must be in though many of the country’s Business Valuation history repeat itself in the form the “glass half-empty” club. largest companies have become Buy-Sell Agreements of the Great Depression when However, this is not the case. inefficient and/or greedy, our Cost Management unemployment was at 25% and I know that, in America, the closely held businesses are as Executive Search much of our population was time to be pessimistic is when flexible, responsive, customer Financial Management, living in squalor? Although there everything is going great. Stock friendly and efficient as ever. Restructuring & Reorganization are some real similarities, there prices soaring, homes bought Finally, I have some guarded Human Resources Consulting are far more distinctions. In my with nothing that sky rocket optimism for how well our Merger & Acquisition Services Ownership Succession Planning opinion, the biggest difference in value, everyone maxing out new president will perform. By Performance Measurement is in the tools we have to cope multiple credit cards—that now, everyone knows his story, Profit Improvement with the problems. How we use was when we should have been but he also appears to have Strategic Planning those tools is another issue. worried. As a nation we have quiet confidence and the right The American people have not been good at addressing attitude. The most impressive Litigation Services Bankruptcy & Reorganization just chosen a new president. problems when voters are happy. thing he said in his election Business, Asset & Let’s talk about some of the We just won’t rock the boat. night speech was that he knows Matrimonial Valuation issues Barack Obama must However, our record shows that 47% of the people voted Employment, Injury & cope with immediately. that we can be resourceful and against him and he needs Wrongful Death Damages Winding down the war in Iraq disciplined in time of crisis. to serve them as well. His Intellectual Property, Contract & Business Interruption Damages and refocusing on the war in I certainly don’t know what appointments seem to indicate Partnership Disputes Afghanistan somehow seem steps the new administration that he is really trying to bring to be on the backburner. How will take to combat the myriad the country together. Now, if Related Companies & Services are we going to deal with a problems hitting us, but I do we could only do something Cohen Capital Advisors, Ltd. trillion-plus deficit? How are we know what all of us must do about those Browns… Cohen Fund Audit Services, Ltd. Cohen Professional Resources, Ltd. going to stem the almost certain collectively. First and foremost, KGLC increase in unemployment and we have to disregard political Lanese & Associates business failures? How are we expediency. On a national Mercurio & Bridgford going to address both the cost basis, from our leaders on Sequoia Financial Group, LLC 7
  8. 8. PRSRT STD U.S. POSTAGE 1350 Euclid Ave., Ste 800 PAID Cleveland, OH 44115 Cleveland, OH Permit # 2111 Change Service Requested ADVi SOR the NO. 6 1 WINTER 2009 iNSIDE Akron Columbus Youngstown Madoff Scheme 121 S. Main St., Ste 300 495 Metro Place S., Ste 200 201 E. Commerce St., Ste 400 Emphasizes Need Akron, OH 44308 Dublin, OH 43017 Youngstown, OH 44503 for Due Diligence (330) 374-1040 (614) 707-5400 (330) 743-1040 page 3 Canton Mentor Economy Impacts 4684 Douglas Circle NW 8820 Tyler Blvd. Company Sponsored Canton, OH 44718 Mentor, OH 44060 Retirement Plans page 4 (330) 492-1040 (440) 205-1040 Proper Performance Cleveland Westlake Management Key 1350 Euclid Ave., Ste 800 800 Westpoint Pkwy., Ste 1100 to Success Cleveland, OH 44115 Westlake, OH 44145 page 6 (216) 579-1040 (440) 250-8540 AND MORE!