Thursday, August 11, 2016

IRS Does Double-Back Layout on Self-Employment Tax

Two self-employment tax issues affecting farmers and ranchers have been in the forefront in recent years – the self-employment tax treatment of Conservation Reserve Program (CRP) payments and the self-employment tax implications of purchased livestock that had their purchase price deducted under the de minimis safe harbor of the capitalization and repair regulations.  

On the CRP issue, in 2014 the U.S. Court of Appeals ruled that CRP payments in the hands of a non-farmer are not subject to self-employment tax.  The court, in Morehouse v. Comr., 769 F.3d 616 (8th Cir. 2014), rev’g, 140 T.C. 350 (2013), held the IRS to its historic position staked out in Rev. Rul. 60-32 that government payments attributable to idling farmland are not subject to self-employment tax when received by a person who is not a farmer.  The court refused to give deference to an IRS announcement of proposed rulemaking involving the creation of a new Rev. Rul. that would obsolete the 1960 revenue ruling.  The IRS never wrote the new rule, but continued to assert their new position on audit.  The court essentially told the IRS to follow appropriate procedure and write a new rule reflecting their change of mind.  In addition, the court determined that CRP payments are “rental payments” statutorily excluded from self-employment tax under I.R.C. §1402(a).  Instead of following the court’s invitation to write a new rule, the IRS issued a non-acquiescence with the Eighth Circuit’s opinion.  A.O.D. 2015-02, IRB 2015-41.  IRS said that it would continue audits asserting their judicially-rejected position, even inside the Eighth Circuit (AR, IA, MN, MO, NE, ND and SD). 

Recently, the IRS had the opportunity to show just how strong its opposition to the Morehouse decision is.  A Nebraska non-farmer investor in real estate received a CP2000 Notice from the IRS, indicating CRP income had been omitted from their 2014 return.  The CP2000 Notice assessed the income tax and SE Tax on the alleged omitted income.   The CRP rental income was in fact included on the return, but it was included on Schedule E along with cash rents, where it was not subject to self-employment tax.  The practitioner responded to the IRS Notice by explaining that the CRP rents were properly reported on Schedule E because the taxpayer was not a farmer.  This put the matter squarely before the IRS to reject the taxpayer’s position based on the non-acquiescence.  So what did IRS do?  Did it stand tall and firm on its claim that the Eighth Circuit got it wrong on the self-employment tax issue?  Not at all!  IRS replied to the taxpayer’s response with a letter informing the taxpayer that the IRS inquiry was being closed with no change from the taxpayer’s initial position that reported the CRP rents for the non-farmer on Schedule E.  Maybe IRS just doesn’t feel so strong in its position that the Eighth Circuit got it wrong after all.

From a more practical standpoint, how do you avoid getting the CP2000 matching Notice in situations for non-farm clients with CRP rental income?  Report the CRP rental income on either Schedule F or Form 4835 so that the IRS computer gets a match, and then show an offsetting deduction to move it over to Schedule E. 

On the capitalization and repair issue, taxpayers are permitted to make a de minimis safe harbor election that allows amounts otherwise required to be capitalized to be claimed as an I.R.C. §162 ordinary and necessary business expense.  Treas. Reg. §1.263(a)-1(f).  This de minimis expensing election has a limit of $5,000 for taxpayers with an Applicable Financial Statement (AFS) and $2,500 for those without an AFS.  Farmers will fall in the latter category. In both cases, the limit is applied either per the total on the invoice, or per item as substantiated by the invoice. One big issue for farmers and ranchers is how to report the income from the sale of purchased livestock that are held for productive use, such as breeding or dairy animals for which the de minimis safe harbor election was made allowing the full cost of the livestock to be deducted.  It had been believed that because the repair regulations (Treas. Reg. §1.263(a)-1(f)(3)(iii)) specify when the safe harbor is used, the sale amount is reported fully as ordinary income that is reported on Schedule F where it is subject to self-employment tax for a taxpayer who is sole proprietor farmer or a member of a farm partnership.  In that event, the use of the safe harbor election would produce a worse tax result that would claiming I.R.C. §179 on the livestock. 

An alternative interpretation of the repair regulations is that the self-employment tax treatment of the gain or loss on sale of assets for which the purchase price was deducted under the de minimis safe harbor is governed by Treas. Reg. §1.1402(a)-6(a).  That regulation states that the sale of property is not subject to self-employment tax unless at least one of two conditions are satisfied: (1) the property is stock in trade or other property of a kind which would properly be includible in inventory if on-hand at the close of the tax year; or (2) the property is held primarily for sale to customers in the ordinary course of a trade or business.  Because purchased livestock held for dairy or breeding purposes do not satisfy the first condition, the question comes down to whether condition two is satisfied – are the livestock held primarily for sale to customers in the ordinary course of a trade or business?  The answer to that question is highly fact-dependent.  If the livestock whose purchase costs have been deducted under the de minimis rule are not held primarily for sale to customers in the ordinary course of the taxpayer’s trade or business, the effect of the regulation is to report the gain on sale on Part II of Form 4797. This follows Treas. Reg. §1.1402(a)-6(a) which bars Sec. 1231 treatment (which would result in the sale being reported on Part I of Form 4797).  In that event, the income received on sale would not be subject to self-employment tax.

Now, in an unofficial communication, the IRS appears to believe that the alternative interpretation is the correct approach.  However, the IRS is careful to point out that the alternative approach is based on the assumptions that the livestock were neither inventoriable nor held for sale, and that those assumptions are highly fact dependent on a case-by case basis.  The IRS is considering adding clarifying language to the Farmers’ Tax Guide (IRS Pub. 225) and/or the Schedule F Instructions. 

So, in the spirit of the summer Olympics, the IRS has done a double-back layout on the self-employment tax issue for farmers and ranchers and rural landowners.  Now, that’s some good news! 

Paul Neiffer (the author of the blog) and I will be talking about these developments and other farm income tax issues at upcoming seminars in Iowa on August 30-September 1 sponsored by the Iowa Society of CPAs.  If you can't join us in-person, the seminar on August 31 will be broadcast live over the web.  Hope to see you there.

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