Monday, November 5, 2018
During the farm debt crisis of the 1980s, Chapter 12 bankruptcy was enacted to provide a means for “family farmers” to receive debt relief in the context of more favorable bankruptcy reorganization rules than would otherwise apply. Now that the farm sector has been going through several down economic years, the use of Chapter 12 has increased again.
Requirements must be satisfied to qualify for Chapter 12 relief. Once that occurs, the farmer- debtor can take advantage of numerous favorable provisions. One of those is the “tools-of-the-trade” exemption. A farm debtor can keep assets exempt from creditors that are needed continue the farming operation.
The tools-of-the-trade exemption in the context of Chapter 12 bankruptcy. That’s the topic of today’s post.
Chapter 12 Eligibility
To be eligible for Chapter 12 bankruptcy, a debtor must be a “family farmer” or a “family fisherman” with “regular annual income.” The term “farming operation” includes farming, tillage of the soil, dairy farming, ranching, production or raising of crops, poultry, or livestock, and production of poultry or livestock products in an unmanufactured state. 11 U.S.C. §101(21). A “family farmer” is defined as an individual or individual and spouse who earned more than 50 percent of their gross income from farming either for the taxable year preceding the year of filing or during the second and third tax years preceding filing, and whose aggregate debts do not exceed $4,153,150 (as of April, 2016). In addition, more than 80 percent of the debt must be debt from a farming operation that the debtor owns or operates.
The U.S. legal system has a long history of allowing debtors to hold specified items of property exempt from creditors (unless the exemption is waived). This, in effect, gives debtors a “head start” in becoming reestablished after suffering economic reverses. Typically, one of the largest and most important exemptions is for the homestead.
Initially even the exempt property is included in the debtor's estate in bankruptcy but the exempt assets are soon returned to the debtor. Only nonexempt property is used to pay the creditors.
In agricultural bankruptcies, one of the more important exemptions listed above is for “tools-of-the-trade.” 11 U.S.C. §522(f) permits the avoidance of non-possessory, non-PMSIs in “implements, professional books, or tools of the trade of the debtor or the trade of a dependent of the debtor” when the security interest impairs an exemption to which the debtor would have been entitled but for the security interest.
Conceivably, many farm assets could qualify as a tool-of-the-trade. For example, some courts have held that livestock held for breeding purposes (In re Heape, 886 F.2d 280 (10th Cir. 1989). large items of farm equipment (In re LaFond, 791 F.2d 623 (8th Cir. 1986), and draft horses (In re Stewart, 110 B.R. 11 (Bankr. D. Idaho 1989) are tools of the debtor's trade. Generally, courts focus on the functional use of an asset in the debtor's business in determining whether the asset is a tool of the debtor's trade.
The debtor must be actively engaged in a farming business to exempt farm assets as tools of the trade. For example, in In re Johnson, 230 B.R. 608 (Bankr. 8th Cir. 1999), the debtor owned a 73-acre rural residence, but had not farmed in past two years and was employed full-time off of the farm. The court held that the farm machinery was not tools of debtor’s trade because the debtor not actively engaged in farming. In any event, to be considered as an exempt tool of the debtor’s trade, the debtor must have a reasonable prospect of continuing in or returning to the farming business. For instance, in In re Henke, 294 B.R. 105 (Bankr. D. N.D. 2003), farm equipment was not exempt as a tool of the trade where the debtor had no reasonable prospect of returning to the farming business.
A recent Kansas Chapter 12 case is a good illustration of how courts analyze the applicability of the tools-of-the-trade exemption. In In re Rudolph, No. 18-40423, 2018 Bankr. LEXIS 3328 (Bankr. D. Kan. Oct. 30, 2018), the debtors (a married couple) significantly reduced the scale of their farming operation before filing Chapter 12. Upon filing Chapter 12, the debtors claimed the Kansas exemption for tools of the trade contained in Kan. Stat. Ann. §60-2304(e). The debtors’ lender (a bank) objected to the exemption on the basis that the debtors had so significantly reduced their farming operations that they were no longer “farmers” as their primary occupation, or that the debtors were only entitled to a percentage of the exemption.
The husband debtor had farmed since 1948 and his wife began working exclusively on the farm in 2007. The bank agreed that if the husband was entitled to the exemption his wife was also. The debtors’ homestead consisted of 17 acres, and the debtors used a portion of it to raise a forage crop for livestock and another portion was used as a hay meadow for livestock grazing. The husband debtor was also the beneficiary of three tracts of land held in trusts established by his parents consisting of almost 500 acres that were a mixture of row crop, hay meadow, pasture and CRP ground. The debtor, via the trust instrument, was responsible for managing those properties.
The bank financed the debtors’ farming operations and when the loans matured in late 2017 the bank sought payment. The debtors’ proposed to pay the loan by retiring from row crop farming and generating funds from the sale of certain farm equipment. At the time of filing, the debtors were no longer row crop farming but were continuing to care for cattle on the trust properties and were managing the CRP acres. Some of the trust properties were rented out, with the debtors maintaining fences and providing nutrients and care for the tenants’ cattle. The debtors also planted fall crops to feed to their own cattle and horses. The debtors inspected the trust lands twice weekly and controlled weeds on the CRP ground and maintained brush control. Their proposed reorganization plan estimated their monthly net farm income as $978.98 and they projected their annual gross farm income to be $21,364 with $20,800 consisting of farm rental income. The debtors testified to the value of the items of personal property that they were claiming as tools of the trade, and the total claimed value did not exceed the statutorily allowed amount.
The court noted that the debtors retained only those farming assets that were necessary to the continuation of their reduced-scale farming operation and turned over other assets to the bank. The debtors also proposed to retain four non-exempt tractors by paying the bank their value in ten semi-annual installments, with interest. The court noted that eligibility for the exemption was to be determined as of the date of filing. As the court pointed out, that’s different than a debtor being eligible for Chapter 12 – which is based on debt and income in the year preceding filing (or the second and third years back). The court also pointed out that the only issues for consideration as to eligibility for the exemption was whether the debtors were engaged in the farming business, and whether the claimed exempt items were regularly and reasonably necessary in carrying on that business.
While the court pointed out that the debtors were no longer engaged in planting and harvesting crops, as of the date the Chapter 12 petition was filed, the court determined that the debtors were engaged in ranching and other farming activities such as cattle grazing, harvesting hay and planting forage crops to feed cattle and horses. The court noted that the debtors also maintained the farmland in the trusts and managed the 3-5 acres of CRP ground. The court specifically determined that while the debtors did not have most of their income come from farming, the tools of the trade exemption does not require that farming be the exclusive or sole means generating income. The court also concluded that the exemption does not require the tools to be used on land the debtor farms for himself (crop/livestock share leases are permissible as is managing CRP ground) or produce something for sale.
The court also rejected the bank’s argument that the debtors couldn’t claim the exemption because they had quit farming as of the time they filed for Chapter 12 as contrary to the evidence. The evidence showed that the debtors had at least temporarily retired from crop farming, but not from ranching and caring for agricultural land as indicated by the retention of some equipment essential to continuing the ranching and ag land maintenance activities. In addition, the debtors’ proposed budget that showed only social security benefits and retirement benefits along with land rent was consistent with the debtors’ testimony that they were reducing their farming activities. The court determined that the debtors were still engaged in the trade or business of farming as of the petition date and were entitled to claim the tools-of-the-trade exemption. However, the court determined that five of the claimed horses were not eligible for the exemption as nonessential to the continuation of the debtors’ farming activities. The court also stated that the bank’s objection to the valuation of the exempt assets would be determined in a separate proceeding unless the parties came to an agreement.
Presently, times are difficult for many agricultural producers. However, Chapter 12 bankruptcy has several very helpful provisions to ease the pain of restructuring the family farming business so that it can continue. The tools-of-the-trade exemption is one of those provisions that can be of assistance.