Monday, July 15, 2019
Major weather events beginning early in 2019 and continuing through May and June in many parts of the Midwest and Great Plains have impacted agricultural producers. A “bomb cyclone” hit parts of Colorado, Kansas, Nebraska and South Dakota in March, leaving billions of dollars of devastation to agricultural livestock, crops, land, equipment and everything else in its path. Rains have been excessive in many places, mirroring the flooding of 1993 that hit the Midwest. Downstream flooding of the Missouri River has impacted parts of Nebraska, Iowa and Missouri.
Some of the impacted ag producers may feel that the need for tax planning is not necessary for 2019. After all, crops and livestock have been lost and other property has been destroyed. What’s there to plan for? Actually, there may be a lot to plan for. Income may actually end up higher than anticipated.
What tax planning considerations are there for farmers and ranchers impacted by weather events in 2019? It’s the topic of today’s blog post.
"What’s Past is Prologue"
The Shakespeare quote from The Tempest is certainly appropriate in the context of today’s topic. The very first Extension meeting that I held was in Topeka, Kansas, in the fall of 1993 and the topic was “Tax and Legal Issues Associated with the 1993 Flood.” I should dust that one off and update it. Many of the concepts will be the same. I remember telling the assembled crowd that evening that tax planning is still very important in what seems like a bad year. But, what are those issues and concepts?
What was experienced in 1993 that is likely to be the experience in 2019? For starters, many ag producers defer income into the following year. Thus, grain and livestock that were sold in 2018 might have been sold under a deferred payment contract that effectively deferred the income to 2019. I discussed the requirements of deferred payment contracts in a prior post here: https://lawprofessors.typepad.com/agriculturallaw/2017/08/deferred-payment-contracts.html. Many producers are also likely to have less crop input expense in 2019 compared to 2018 and prior years. That could be caused by prepaid input expenses in 2018 that aren’t fully utilized in 2019 due to land not in production in 2019 due to flooding, etc. But, to the extent the inputs that were pre-paid in 2018 aren’t used in 2019, that presents another tax/accounting issue. I have discussed the pre-paid expense rules here: https://lawprofessors.typepad.com/agriculturallaw/2017/10/the-tax-rules-involving-prepaid-farm-expenses.html. In addition, a producer may have lower operating expenses (e.g. fuel expense and equipment repairs) in 2019 because fewer acres may be farmed. Similarly, some producers may have little to no equipment purchases in 2019. But, it’s also possible that there could be greater equipment purchases in 2019 due to the need to replace equipment that was destroyed. There may also be a relatively large crop insurance payout in 2019. Also, don’t forget to add in a Market Facilitation Program (MFP) payment(s). While not weather-related, it is something new for 2018 and 2019.
Many farmers may fit this profile in 2019. For them, tax planning is an absolute necessity. Different tools in the tax practitioner’s toolbox may have to be used, but planning is still necessary.
As noted above, the receipt of crop insurance proceeds could be significant for some producers in 2019. I discussed the crop insurance deferral rules here: https://lawprofessors.typepad.com/agriculturallaw/2016/08/proper-reporting-of-crop-insurance-proceeds.html. In general, the proceeds from insurance coverage on growing crops are includible in gross income in the year actually or constructively received. But, taxpayers on the cash method of accounting may elect to include crop insurance and disaster payments in income in the taxable year following the crop loss if it is the taxpayer's practice to report income from sale of the crop in the later year. I.R.C. §451(d). Included are payments made because of damage to crops or the inability to plant crops. The deferral provision applies to federal payments received for drought, flood or “any other natural disaster.”
Another item that I noted in that post is the “50 percent test.” Based on Rev. Rul. 74-145, 1974-1 C.B. 113, for a farmer on the cash method of accounting to be eligible to make an election, the taxpayer must establish that a substantial part of the crops (more than 50 percent) has been carried over into the following year. If multiple crops are involved, the “substantial portion” test must be met with respect to each crop if each crop is associated with a separate business of the taxpayer. Otherwise, the 50 percent test is computed in the aggregate if the crops are reported as part of a single business. Also, a taxpayer may not elect to defer only a portion of the insurance proceeds to the following year. It’s an all or nothing election.
Also included in my crop insurance post is a suggested methodology on how to determine the deductible portion of crop insurance related to policies that pay-out for events other than just physical crop loss.
Also, as for crop insurance, if payment is made in 2020 for a 2019 claim, deferral has already occurred. The proceeds can’t be deferred until 2021. Similarly, unless the crop insurance proceeds were somehow constructively received in 2019 (I can’t see how that would be possible), proceeds paid in 2020 relating to a 2019 crop are reported in 2020.
With respect to deducting input costs, be wary of deducting those that are financed via promissory note or vendor-financed. I discussed that matter here: https://lawprofessors.typepad.com/agriculturallaw/2017/06/input-costs-when-can-a-deduction-be-claimed.html.
For a casualty loss to be deductible, the loss must be of a sudden, unexpected and unusual nature. My blog post on the casualty loss rules and the comparable involuntary conversion rules is here: https://lawprofessors.typepad.com/agriculturallaw/2017/03/farm-related-casualty-losses-and-involuntary-conversions-helpful-tax-rules-in-times-of-distress.html. Can a casualty loss be claimed on land? That’s an important question given that some land in southeastern Nebraska and southwestern Iowa (and elsewhere) is completely covered in sand as a result of the flooding this spring.
The Tax Court dealt with a case in 2016, that can provide assistance in answering this question. In Coates v. Comr., T.C. Memo. 2016-197, the petitioners, a married couple, owned 700 acres. One tract consisted of 80 acres and comprised their home and two barns. Another tract contained 440 acres of woodland. In May of 2010, a tornado flattened most of the trees on the 440-acre tract and also damaged property on the other tract. The petitioners reported a $127,731 casualty loss for 2010 based primarily on their estimate of the tract’s fair market value before and after the tornado, with insurance reimbursements subtracted out of the calculation. The IRS disallowed the entire loss and tacked-on an accuracy-related penalty. The IRS took issue with the fact that the petitioners provided their own property valuation rather than that of a disinterested certified appraiser. The Tax Court wasn’t troubled by the petitioners’ valuation of their property and the IRS didn’t challenge it in its opening brief filed after trial. The Tax Court upheld the amount of the casualty with respect to the 80-acre tract. However, the Tax Court held that the petitioners did not establish that they had any tax basis in the timber tract, and the IRS had challenged the basis that the petitioners had assigned to it. There was also a discrepancy as to whether the petitioners had purchased the property or whether it was gifted to them. Ultimately, the Tax Court allowed a total casualty loss deduction for 2010 of $39,731, entirely attributable to the 80-acre tract. That amount represented the drop in the property value after the tornado, less insurance reimbursements and the statutory reduction of $100 and 10 percent of gross income. The Tax Court also refused to uphold the accuracy-related penalty that the IRS had imposed.
Of course, tax provisions exist for weather-related sales of livestock. If they were killed in a disaster such as the flooding brought on by the “bomb cyclone” or blizzard or prairie fire, the USDA Livestock Indemnity Program (LIP) provides financial assistance. With that financial assistance comes tax consequences. I covered LIP payments here: https://lawprofessors.typepad.com/agriculturallaw/2017/03/livestock-indemnity-payments-what-they-are-and-tax-reporting-options.html.
Another thought for consideration is the possibility of extending the planning horizon over both 2019 and 2020 together. That brings up the possible need to consider an income averaging election. For more details on the income averaging election and planning points to consider see: https://lawprofessors.typepad.com/agriculturallaw/2017/03/using-schedule-j-as-a-planning-tool-for-clients-with-farm-income.html
Just because 2019 may seem like a low-income year due to weather-related events, does not mean that tax planning is not necessary. More thought might be necessary. 2019 might actually turn out to be a better year than first-thought. In any event, the tax planning for 2019 could be different that it has been in prior years. This all means that year-end tax planning may need to be engaged in sooner rather than later. Now might be a good time to start if the process hasn’t already begun.