Valuation in dispute for litigators. business divorce counsel. matrimonial counsel. estate and trust counsel. general counsel. trustees and executors. appraisers. boards.

Usually the two things that move the number most: the definition of value and the valuation date. Both are set by the proceeding rather than chosen by the appraiser, and in several of these proceedings they are set by an act — a petition filed, a vote taken, a return signed — that happens before anyone is retained. How tightly they are set varies, and that variation is the part worth knowing. At the locked end is New York’s oppression buy-out: a shareholder or the corporation may elect to purchase ‘at any time within ninety days after the filing of such petition or at such later time as the court in its discretion may allow,’ and the court then determines fair value ‘as of the day prior to the date on which such petition was filed, exclusive of any element of value arising from such filing’ (BCL §1118). The Model Act looks identical and is not — §14.34 defaults to the day before the petition was filed but adds ‘or as of such other date as the court deems appropriate under the circumstances’ (as enacted at Iowa Code §490.1434(4) and Va. Code §13.1-749.1(D)). Appraisal splits two ways: MBCA-derived statutes value the shares ‘immediately before the effectiveness of the corporate action to which the shareholder objects’ (Va. Code §13.1-729), while Delaware does not backdate at all, valuing as of the effective date and stripping deal value out by exclusion instead (8 Del. C. §262(h)). What is genuinely unforgiving in Delaware is perfection rather than the date: a separate written demand — a proxy or a vote against the deal is not a demand — delivered before the vote is taken where the transaction goes to a meeting (§262(d)(1)), or following the company’s notice where it does not, as in a written-consent or §251(h) tender-offer structure (§262(d)(2)); no vote in favor and no written consent; continuous ownership through the effective date; and a petition filed within 120 days of it, after which ‘the right to appraisal with respect to all shares shall cease’ (§262(e), (k)). Transfer tax runs the other way and is worth stating honestly: estate value is fixed at death and gift value ‘at the date of the gift’ (IRC §2512(a)), before anyone is retained — but the one date a taxpayer can choose, §2032’s alternate valuation, is elected by the executor on the return, after the appraisal, and only if it decreases both the gross estate and the estate and generation-skipping transfer tax due after credits (§2032(c)); once made it ‘shall be irrevocable’ (§2032(d)). Matrimonial is looser still: New York directs the court to set the date after the action is commenced, and it ‘may be anytime from the date of commencement of the action to the date of trial,’ asset by asset (DRL §236(B)(4)(b)). States differ, so treat that date as litigated rather than given. The practical lead is this. In some of these proceedings the act of filing fixes the number’s starting point and no amount of later modeling moves it; in others the date is itself the first thing to argue. A litigator who files first and hires the appraiser second has already chosen the number’s starting point. Knowing which regime you are in before you file is the part no valuation model supplies. Every statute quoted above was read against an official code source in September 2026; verify before relying on it, because this map moves.

Often it is not, and mistaking one for the other is expensive. Three things sit above the model and each is decided by the forum: the standard of value, the valuation date, and the level of value at which the interest is expressed. Bohac v. Benes Service Co., 310 Neb. 722, 969 N.W.2d 103 (2022), shows what turns on the first of them. The Nebraska Supreme Court ran the question as a multistep analysis — the definition of fair value first, then whether that definition includes or excludes discounts for lack of marketability and control, then the premise of value, then methodology — and held that the legislature’s use of ‘fair value’ rather than ‘fair market value’ suggested disapproval of a fair market value approach and the discounting that would accompany it. It vacated an award of $2,886,790 for a 14.84% interest, valued as of the day before the dissolution petition was filed, because the district court had used the wrong definition and had subjected the shares to discounts. No new financial analysis was required to produce that result. Now the second layer, because conflating the two is the costly misreading. What the standard means is reviewed as law: statutory interpretation is a matter of law on which an appellate court reaches an independent conclusion irrespective of the court below (Bohac), and the Colorado Supreme Court put it as ‘a question of law, not a question of fact to be opined on by appraisers and decided by the trial court’ (Pueblo Bancorporation v. Lindoe, Inc., 63 P.3d 353 (Colo. 2003)). What the number is under that standard is not: the method, the inputs and the conclusion are the trial court’s to find, and an appraisal award is reviewed with significant deference to those findings, for abuse of discretion (Fir Tree Value Master Fund v. Jarden Corp., Del. Supr., 9 July 2020). So a brief attacking the definition argues on de novo ground. The same argument recast as a critique of the other side’s discount rate argues uphill against deference. Which of the two a disagreement really is, is worth establishing before either side commissions more modeling.

No, and the difference is defined in the professional standards rather than invented by opposing counsel. AICPA VS Section 100 recognizes exactly two engagement types. In a valuation engagement the analyst ‘is free to apply the valuation approaches and methods he or she deems appropriate in the circumstances’ and expresses a conclusion of value (¶.21(a)). In a calculation engagement the analyst and the client agree in advance on the approaches, the methods and the extent of procedures, the analyst ‘calculates the value in compliance with the agreement,’ and what is expressed is a calculated value (¶.21(b)). The standard then requires the report to say so: a calculation report must state that ‘a calculation engagement does not include all of the procedures required for a valuation engagement’ and that ‘had a valuation engagement been performed, the results may have been different’ (¶.76(g)). NACVA’s standards carry parallel required wording at §V.C.3.g. Three things follow that are worth knowing before a deposition rather than during one. First, the litigation exemption is narrower than it sounds — VS Section 100 ¶.50 exempts a valuation for a court, arbitral or administrative proceeding from the reporting provisions only, and the AICPA’s own FAQ says plainly that the development provisions still apply. Second, a calculation engagement is not an agreed-upon procedures engagement, and an expert witness engaged by one party may not work under the AUP standard at all (Statement on Standards for Forensic Services No. 1, ¶2). Third, whether a calculation is sufficient for the matter is the court’s question, not the analyst’s: the AICPA’s FAQ concedes that at trial a conclusion of value is a much stronger position than a calculated value, and that the Tax Court in particular generally expects a full valuation engagement. Two caveats we would want stated back to us. These are membership obligations rather than rules of evidence — they bind AICPA members and, in NACVA’s case, its credential holders, and an expert who is neither is not reached by either document. And USPAP takes a third position entirely: under USPAP a calculation is an appraisal, performed by complying with the RULES and Standards 9 and 10 (Appraisal Standards Board Q&A 2020-05, which is guidance from the Board rather than part of USPAP itself). Which standard the witness is under is therefore a prior question, and it is not always the one the report names.

The test is what the number is for, not what the expert is called — the same expert very often works across all three of the sites below. This Institute covers value that a statute, a court or a contract compels, where the number IS the remedy: an appraisal award, an oppression buyout price, a marital share, a taxable base. No wrongful conduct need be proved for the number to matter, and the definition of value is imposed from outside the appraisal. If liability and causation gate the number instead, and it compensates for conduct measured against a world that did not happen, that is a damages question and it belongs to our Economic Damages Institute at economicdamagesinstitute.com — including business enterprise value used as a damages measure, lost business value, diminution in value, disgorgement, reasonable royalty and solvency, and contested public-company merger appraisal, where the arguments are about deal price weight, unaffected trading price and synergy stripping. Delaware’s own statute supplies that last divider: the §262(g) de minimis exception reaches only shares listed on a national securities exchange, so the legislature itself treats listed-share appraisal as a separate regime. And if there is no adjudicator at all — two willing parties negotiating a price, the standard of value chosen by them, the date chosen by the deal, and discounts priced into the bargain rather than argued — that is a transaction, and our Business Acquisitions Institute covers it at businessacquisitioninstitute.com. The test we apply to our own pages, and you can apply it to this one: delete the law from the title. If it still makes sense, it is not ours.

It maps the framework a disputed valuation has to be built inside: which definition of value the governing law imposes and what that definition instructs, what is fixed about the date, the premise and the level of value, how the framework changes across appraisal, oppression and marital dissolution, and how the transfer tax regime reverses several of those instructions on the identical shares. It is a reference and a diagnostic, and it is free. It also explains which standards actually bind a given witness, which is less uniform than most buyers assume: an ASA-designated appraiser is bound by USPAP and the ASA Business Valuation Standards, an AICPA member performing an engagement to estimate value by VS Section 100 and, where that engagement is litigation work, by Statement on Standards for Forensic Services No. 1 as well, a CVA by NACVA’s professional standards — and a witness holding none of those is bound by none of them, which makes “which body could actually discipline this witness?” a first-page question that is rarely asked. What it does not do is as important. It does not value anything. It does not tell a reader which standard applies to their matter, what an interest is worth, whether to file, or what an opposing expert’s number should have been. It does not publish fifty-state charts, because the circulating compilations contradict one another and disagree about large states. And it will not publish a table of discounts courts have allowed, because a court’s discount is a litigation outcome on that record rather than a valuation datum — which is the objection the IRS’s own DLOM Job Aid makes to the benchmark averaging practice, in a document that says on every page that it is not an official IRS position and may not be cited as authority.

The reference material and the Concierge are free and require no account. Where a party wants the framing reviewed independently — which definition governs, whether the date and premise stated in a report match the proceeding, whether an adjustment is even available as a matter of law, and whether a report prepared for one intended use is being read for another — that is a private engagement billed as a fixed fee agreed in writing beforehand, ideally before an appraiser is engaged. Where a matter needs a retained testifying expert, the Institute helps identify the right one through its expert network. It never takes a share of anything recovered, saved or awarded, and there is a professional reason as well as a credibility one: a CPA valuing a business in a litigation engagement is under Statement on Standards for Forensic Services No. 1 as well as VS Section 100 — SSFS No. 1 ¶2 says so expressly — and ¶9 bars an expert witness from providing opinions under a contingent fee. Quite apart from the standard, a fee that moves with the number is the first thing a competent cross-examination goes after.