Wednesday, April 25, 2018

Gifts of Ag Commodities To Children and the New Tax Law

Overview

Cash method farm proprietors have had several situations where gifts of farm commodities to family members are advantageous.  The commodity gifts can be used to shift income to minor children to take advantage of their lower tax rates.  Likewise, they could be used to assist with a child’s college costs or made to a child in return for the child support the donor-parents. 

How should commodity gift transactions be structured?  What are the tax consequences?  What is the impact of the Tax Cuts and Jobs Act (TCJA) on commodity gifts to children. 

Ag commodity gifts to children.  That’s the topic of today’s post.

Tax Consequences to the Donor. 

Avoid income and self-employment tax.  A donor does not recognize income upon a gift of unsold grain inventory.  Rev. Rul. 55-138, 1955-1 C.B. 223; Rev. Rul. 55-531, 1955-2 C.B. 520.   Instead, a gift of unsold raised farm commodities represents a transfer of an asset (i.e., inventory) rather than an assignment of income.  Estate of Farrier v. Comr., 15 T.C. 277 (1950); SoRelle v. Comr., 22 T.C. 459 (1954); Romine v. Comr., 25 T.C. 859 (1956).  That means that the farmer, as the donor, sidesteps the income tax on commodities that are transferred by gift to another taxpayer. Further, self-employment tax is also eliminated on the commodities.  That’s because excludable gross income is not considered in determining self-employment income.  Treas. Reg. 1.1402(a)-2(a).  This is particularly beneficial for donor-parents that have income under the Social Security wage base threshold.

Prior year’s crop.  The gifted commodities should have been raised or produced in a prior tax year.  If this is not the case, the IRS takes the position that a farmer is not 100 percent in the business of raising agricultural commodities for profit and will require that a pro rata share of the expenses of raising the gifted commodity will not be deductible on the farmer’s tax return.  According to the IRS, if a current year’s crop is gifted, the donor’s opening inventory must be reduced for any costs or undeducted expenses relating to the transferred property.  Rev. Rul. 55-138, 1955-1, C.B. 223.  That means that the donor cannot deduct current year costs applicable to the commodity.  See also Rev. Rul. 55-531, 1955-2 C.B. 522.  However, costs deducted on prior returns are allowed.  Thus, a farmer reporting on a calendar year basis under the cash method is allowed full deductibility of expenses if a gift of raised commodity is not made until the tax year after harvest (i.e., the grain which is the subject of the gift was raised in a year prior to the gift, and all associated expenses would have been deducted in the prior year).

Tax consequences to the Donee. 

The donor's tax basis in the commodity carries over to the donee.  I.R.C.  §1015(a).  Thus, in the case of raised commodities given in the year after harvest by a cash method producer, the donee receives the donor’s zero basis.  Conversely, an accrual method farmer will have an income tax basis in raised commodities.  If this tax basis approaches the market value of the commodity, there will be little income shifting accomplished from a gift.

Assuming that the donee has not materially participated in the production of the commodity, the income from the sale of the commodity by the donee is treated as unearned income that is not subject to self-employment tax.  Even though the raised farm commodity was inventory in the hands of the farmer-donor, the asset will typically not have inventory status in the hands of the done.  That means the sale transaction is treated as the sale of a capital asset that is reported on Schedule D. 

The holding period of an asset in the hands of a donee refers back to the holding period of the donor.  I.R.C. §1223(2).   So, if the donee holds the commodity for more than a year after the harvest date, the donee has long-term capital gain or loss.

Gifts of Livestock? 

A donee who receives raised animals and takes responsibility for the care and feeding of these animals after the date of gift may face the risk of materially participating in the raising of the animals, and thus be subject to self-employment tax.  To help avoid that result, physical segregation of the livestock at the time of gift is helpful, and any post-gift maintenance expenses for the animals should be paid by the donees. See, e.g., Smith v. Comr., T.C. Memo. 1967-229; Alexander v. Comr., 194 F.2d 921 (5th Cir. 1952); Jones Livestock Feeding Co., T.C. Memo. 1967-57; Urbanovsky v. Comr., T.C. Memo. 1965-276.

Structuring the Transaction

Cash-method farm proprietors intending to gift raised commodities to a child or other non-charitable donee should structure the transaction in two distinct steps.  First, the donor makes a gift of unsold inventory, using prior year crop or commodity, and documents the transfer of the title/ownership in the commodity as transferred to the donee.  Second, the donee independently and at a later date accomplishes a sale of the commodity, recognizing income because of the zero basis in the commodity. The income is reported typically as a short-term capital gain.  The donee, as the owner of the sold commodity, must retain full ownership and control of the sale proceeds from the commodity.   Make sure that the transaction is not a loan. 

“Kiddie Tax” Complications

Unearned income of a dependent child includes items such as interest, dividends and rents, as well as income recognized from the sale of raised grain received as a gift and not as compensation for services.  The “Kiddie Tax” has a small inflation-indexed exemption.  I.R.C. §1(g).  For dependent children who sell commodities received as a gift and are subject to the” Kiddie Tax,” a standard deduction offsets the first $1,000 of unearned income (2017 amount).  Then the next $1,000 of unearned income is subject to tax at the child’s single tax rate of 10 percent.  That means that the child’s unearned income in excess of $2,100 is taxed at the parents’ top tax rate.

The Kiddie Tax applies to a child who has not attained age 18 before the close of the year.  It also applies to a child who has not attained the age of 19 as of the close of the year or is at least age 19 and under 24 at the close of the year and is a full-time student at an educational organization during at least five months of the year and the child’s earned income didn’t exceed one-half of the child’s own support for the year (excluding scholarships). 

TCJA modification.  As noted above, under pre-TCJA law, the child who receives a commodity gift and then sells the commodity usually pays income taxes based on the parent’s tax rates (there is a smaller amount taxed at lower rates) on unearned income.  Earned income, such as wages, is always taxed at the child’s tax rates.  But, under the TCJA for tax years beginning after 2017, the child’s tax rates on unearned income are the same as the tax rates (and brackets) for estates and trusts.  That means that once the child’s unearned income reaches $12,500, the applicable tax rate is 37 percent on all unearned income above that amount.  This will make it much costlier for farm families to gift grain to their children or grandchildren and receive any tax savings.      

Conclusion

Gifting commodities to a family member can produce significant tax savings for the donor, and also provide assistance to the donee.  That was much more likely to be the result pre-2018.  The TCJA removes much of the tax benefit of commodity gifting to children.  In any event, however, the commodity gifting transactions must be structured properly to achieve the intended tax benefits. 

http://lawprofessors.typepad.com/agriculturallaw/2018/04/gifts-of-ag-commodities-to-children-and-the-new-tax-law.html

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