Thursday, October 18, 2018

Agricultural Law Online!

Overview

For the Spring 2019 academic semester, Kansas State University will be offering my Agricultural Law and Economics course online. No matter where you are located, you can enroll in the course and participate in it as if you were present with the students in the on-campus classroom.
Details of next spring’s online Ag Law course – that’s the topic of today’s post.

Course Coverage

The course provides a broad overview of many of the issues that a farmer, rancher, rural landowner, ag lender or other agribusiness will encounter on a daily basis. As a result, the course looks at contract issues for the purchase and sale of agricultural goods; the peril of oral contracts; the distinction between a lease and a contract (and why the distinction matters); and the key components of a farm lease, hunting lease, wind energy lease, oil and gas lease, and other types of common agricultural contractual matters. What are the rules surrounding ag goods purchased at auction?

Ag financing situations are also covered – what it takes to provide security to a lender when financing the purchase of personal property to be used in the farming business. In addition, the unique rules surrounding farm bankruptcy is covered, including the unique tax treatment provided to a farmer in Chapter 12 bankruptcy.

Of course, farm income tax is an important part of the course. Tax planning is perhaps the most important aspect of the farming business that every day decisions have an impact on and are influenced by. As readers of this blog know well, farm tax issues are numerous and special rules apply in many instances. The new tax law impacts many areas of farm income tax.

Real property legal issues are also prevalent and are addressed in the course. The key elements of an installment land contract are covered, as well as legal issues associated with farm leases. Various types of interests in real estate are explained – easements; licenses; profits, fee simples, remainders, etc. Like-kind exchange rules are also covered as are the special tax rules (at the state level) that apply to farm real estate. A big issue for some farmers and ranchers concerns abandoned railways, and those issues are covered in the course. What if an existing fence is not on the property line?
Farm estate and business planning is also a significant emphasis of the course. What’s the appropriate estate plan for a farm and ranch family? How should the farming business be structured? Should multiple entities be used? Why does it matter? These questions, and more, are addressed.

Agricultural cooperatives are important for the marketing of agricultural commodities. How a cooperative is structured and works and the special rules that apply are also discussed.

Because much agricultural property is out in the open, that means that personal liability rules come into play with respect to people that come onto the property or use farm property in the scope of their employment. What are the rules that apply in those situations? What about liability rules associated with genetically modified products? Ag chemicals also pose potential liability issues, as do improperly maintained fences? What about defective ag seed or purchased livestock that turns out to not live up to representations? These issues, and more, are covered in the scope of discussing civil liabilities.

Sometimes farmers and ranchers find themselves in violation of criminal laws. What are those common situations? What are the rules that apply? We will get into those issue too.

Water law is a very big issue, especially in the western two-thirds of the United States. We will survey the rules surrounding the allocation of surface water and ground water to agricultural operations.

Ag seems to always be in the midst of many environmental laws – the “Clean Water Rule” is just one of those that has been high-profile in recent years. We will talk about the environmental rules governing air, land, and water quality as they apply to farmers, ranchers and rural landowners.
Finally, we will address the federal (and state) administrative state and its rules that apply to farming operations. Not only will federal farm programs be addressed, but we will also look at other major federal regulations that apply to farmers and ranchers.

Further Information and How to Register

Information about the course is available here:
https://eis.global.ksu.edu/CreditReg/CourseSearch/Course.do?open=true&sectionId=127126

You can also find information about the text for the course at the following link (including the Table of Contents and the Index):
https://washburnlaw.edu/practicalexperience/agriculturallaw/waltr/principlesofagriculturallaw/index.html

If you are an undergraduate student at an institution other than Kansas State, you should be able to enroll in this course and have it count as credit towards your degree at your institution.

If you have questions, you can contact me directly, or submit your questions to the KSU Global Campus staff at the link provided above.

I hope to see you in January!

Checkout the postcard (401 KB PDF) containing more information about the course and instructor.

KStateAgriculturalLawandEconomicsPostcard

October 18, 2018 in Bankruptcy, Business Planning, Civil Liabilities, Contracts, Cooperatives, Criminal Liabilities, Environmental Law, Estate Planning, Income Tax, Insurance, Real Property, Regulatory Law, Secured Transactions, Water Law | Permalink | Comments (0)

Wednesday, October 10, 2018

The TCJA, Charitable Giving and a Donor-Advised Fund

Overview

The changes made by the Tax Cuts and Jobs Act (TCJA) for tax years beginning after 2017 could have a significant impact on charitable giving. Because of changes made by the TCJA, it is now less likely that any particular taxpayer will itemize deductions.  Without itemizing, the tax benefit of making charitable deductions will not be realized.  This has raised concerns by many charities. 

Are there any tax planning strategies that can be utilized to still get the tax benefit from charitable deductions?  There might be.  One of those strategies is the donor-advised fund. 

Using a donor-advised fund for charitable giving post-TCJA – that’s the topic of today’s post.

TCJA Changes

A taxpayer gets the tax benefit of charitable deductions by claiming them on Schedule A and itemizing deductions.  However, the TCJA eliminates (through 2025) the combined personal exemption and standard deduction and replaces them with a higher standard deduction ($12,000 for a single filer; $24,000 for a couple filing as married filing jointly).  The TCJA also either limits (e.g., $10,000 limit on state and local taxes) or eliminates other itemized deductions.  As a result, it is now less likely that a taxpayer will have Schedule A deductions that exceed the $12,000 or $24,000 amount.  Without itemizing, the tax benefit of charitable deductions is lost.  This is likely to be particularly the case for lower and middle-income taxpayers. 

Bundling Gifts

One strategy to restore the tax benefit of charitable giving is to bundle two years (or more) of gifts into a single tax year.  Doing so can cause the total amount of itemized deductions to exceed the standard deduction threshold.  Of course, this strategy results in the donor’s charities receiving a nothing in one year (or multiple years) until the donation year occurs.

Donor-Advised Fund

A better approach than simple bundling (or bunching) of gifts might be to contribute assets to a donor-advised fund.  It’s a concept similar to that of bundling, but by means of a vehicle that provides structure to the bundling concept, with greater tax advantages.  A donor-advised fund is viewed as a rather simple charitable giving tool that is versatile and affordable.  What it involves is the contribution of property to a separate fund that a public charity maintains.  That public charity is called the “sponsoring organization.” The donor retains advisory input with respect to the distribution or investment of the amounts held in the fund. The sponsoring organization, however, owns and controls the property contributed to the fund, and is free to accept or reject the donor’s advice.

While the concept of a donor-advised fund has been around for over 80 years, donor-advised funds really weren’t that visible until the 1980s.  Today, they account for approximately 4-5 percent of charitable giving in the United States.  Estimates are that over $150 billion has been accumulated in donor advised funds over the years.  Because of their flexibility, ease in creating, and the ability of donors to select from pre-approved investments, donor advised funds outnumber other type of charitable giving vehicles, including the combined value included in charitable remainder trusts, charitable remainder annuity trusts, charitable lead trusts, pooled income funds and private foundations. 

Mechanics.  The structure of the transaction involves the taxpayer making an irrevocable contribution of personal assets to a donor-advised fund account.  The contribution is tax deductible.  Thus, the donor gets a tax deduction in the year of the contribution to the fund, and the funds can be distributed to charities over multiple years.  

The donor also selects the fund advisors (and any successors) as well as the charitable beneficiaries (such as a public charity or community foundation).  The amount in the fund account is invested and any fund earnings grow tax-free.  The donor also retains the ability to recommend gifts from the account to qualified charities along with the fund advisors.  The donor cannot, however, have the power to select distributes or decide the timing or amounts of distributions from the fund.  The donor serves in a mere advisory role as to selecting distributees, and the timing and amount of distributions.  If the donor retains control over the assets or the income the transaction could end up in the crosshairs of the IRS, with the fund’s tax-exempt status denied.  See, I.R. News Release 2006-25, Feb. 7, 2006; New Dynamics Foundation v. United States, 70 Fed. Cl. 782 (2006). 

No time limitations apply concerning when the fund assets must be distributed, but the timing of distributions is discretionary with the donor and the fund advisors. 

Benefits

When highly appreciated assets are donated to a donor advised fund, the donor’s overall tax liability can be reduced, capital gain tax eliminated, and a charity can benefit from a relatively larger donation.  For taxpayer’s that are retiring, or have a high-income year, a donor advised fund might be a particularly good tax strategy.  In addition, a donor advised fund can be of greater benefit because the TCJA increases the income-based percentage limit on charitable donations from 50 percent of adjusted gross income (AGI) to 60 percent of AGI for cash charitable contributions to qualified charities made in any tax year beginning after 2017 and before 2026.  The percentage is 30 percent of AGI for gifts of appreciated securities, mutual funds, real estate and other assets.  Any excess contributed amount of cash may be carried forward for five years.  I.R.C. §170(b)(1)(G)(ii). 

Drawbacks

Donor-advised funds are not cost-free.  It is common for a fund to charge an administrative fee in the range of 1 percent annually.  That’s in addition to any fees that might apply to assets (such as mutual funds) that are contributed to the donor advised fund.  Also, the fund might charge a fee for every charitable donation made from the fund.  That’s likely to be the case for foreign charities.

In addition, as noted above, the donor can only recommend the charities to be benefited by gifts from the fund.  For example, in 2011 the Nevada Supreme Court addressed the issue of what rights a donor to a donor advised fund has in recommending gifts from the fund.  In Styles v. Friends of Fiji, No. 51642, 2011 Nev. Unpub. LEXIS 1128 (Nev. Sup. Ct. Feb. 8, 2011), the sponsoring charity of the donor-advised fund used the funds in a manner other than what the donor recommended by completely ignoring the donor’s wishes.  The court found that to be a breach of the duty of good faith and fair dealing by the fund advisors.  But, the court determined that the donor didn’t have a remedy because he had lost control over his contributed assets and funds based on the agreement he had signed at the time of the contribution to the donor-advised fund.  As a result, the directors of the organization that sponsored the donor-advised fund could use the funds in any manner that they wished.  That included paying themselves substantial compensation, paying legal fees to battle the donor in court, and sponsoring celebrity golf tournaments.

Also, an excise tax on the sponsoring organization applies if the sponsoring organization makes certain distributions from the fund that don’t satisfy a defined charitable purpose.  I.R.C. §4966.  Likewise, an excise tax applies on certain distributions from a fund that provide more than an incidental benefit to a donor, a donor-advisor, or related persons.  I.R.C. §4967. 

Conclusion

The TCJA changes the landscape (at least temporarily) for charitable giving for many taxpayers.  To get the maximum tax benefit from charitable gifts, many taxpayers may need to utilize other strategies.  One of those might include the use of the donor-advised fund.  If structured properly, the donor-advised fund can be a good tool.  However, there are potential downsides.  In any event, competent tax counsel should be sought to assist in the proper structuring of the transaction.

October 10, 2018 in Estate Planning, Income Tax | Permalink | Comments (0)

Thursday, October 4, 2018

Eliminating Capital Gain Tax – Qualified Opportunity Zones

Overview

The Tax Cuts and Jobs Act (TCJA) added a new section to the Internal Revenue Code (Code) to provide temporary deferral from gross income of capital gains incurred on the sale or exchange of an investment in a Qualified Opportunity Fund.  I.R.C. §1400Z-2, as added by TCJA §13823.  A Qualified opportunity fund is part of an “Opportunity Zone” - essentially an economically distressed area where long-term investments by a taxpayer in a Qualified Opportunity Fund are incentivized by the deferral of capital gain taxes.  It is not necessary that the investor actually live in the opportunity zone.  It’s only required that the taxpayer invest in a Qualified Opportunity Fund.   

Farmers and ranchers can qualify to take their capital gains and invest them in a Qualified Opportunity Fund (an investment vehicle that is organized as a corporation or a partnership that holds at least 90 percent of its assets in Qualified Opportunity Zone property) that, in turn, invests in a Qualified Opportunity Zone property  So, this new TCJA provision could be of particular interest to farmers and ranchers that have large gains that they are looking to defer capital gain taxes on.

The tax implications of Qualified Opportunity Zone investments – that’s the topic of today’s post.

Technical Details

As noted, I.R.C. §1400Z-2 provides for the temporary deferral of inclusion in gross income for capital gains reinvested in a Qualified Opportunity Fund and the permanent exclusion of capital gains from the sale or exchange of an investment in the Qualified Opportunity Fund. I.R.C. §1400Z-2.  The fund must be located in a Qualified Opportunity Zone, which is a “designated low-income community population census tract.”  The number of designated tracts in any particular State cannot exceed 25 percent of the number of population census tracts in that State that are “low income communities.”  A Qualified Opportunity Zone remains in effect for ten calendar years after the date of the designation.  I.R.C. §1400Z-1.   

A taxpayer that incurs a capital gain but who reinvests it in a Qualified Opportunity Fund that is located in a Qualified Opportunity Zone obtains temporary deferral of that gain (both short-term or long-term).  The maximum amount of the deferred gain equals the amount invested in the Qualified Opportunity Fund by the taxpayer during the 180-day period beginning on the date of sale of the asset to which the deferral pertains.  Excess capital gains are included in the taxpayer’s gross income.  The unrealized gain can then be realized on a tax-deferred basis until at least December 31, 2026.  In addition, the taxpayer receives a 10 percent stepped-up basis on the deferred capital gains (10 percent of the amount of the deferred gain) if the investment in the Qualified Investment Fund are held for at least five years, and 15 percent if it is held for at least seven years.  Once the investment has been held for 10 years, the tax on the gain is eliminated. 

The deferred gain can be elected to be permanently excluded upon the sale or exchange of the investment in a Qualified Opportunity Fund that the taxpayer has held for at least 10 years.  What the election does is cause the taxpayer’s income tax basis in the investment to be the fair market value of the investment as of the date of the sale or exchange.  In addition, any loss on the investment can be recognized.  I.R.C. §1400Z-2.

In Revenue Procedure 2018-16, the IRS announced the designation of Qualified Opportunity Zones in 18 states.  In addition, a safe harbor was provided for applying the 25 percent limitation to the number of population census tracts in a State that can be designated as a Qualified Opportunity Zone.  Rev. Proc. 2018-16, I.R.B. 2018-9.  The IRS noted that a State Governor can nominate a census tract for designation as a Qualified Opportunity Zone by notifying the IRS in writing of the nomination.  The IRS then will certify the nomination and designate the tract as a Qualified Opportunity Zone beyond the end of the “consideration period.”  I.R.C. §1400Z-1(b). 

Earlier this year, the IRS approved submissions for areas in Arizona, California, Colorado, Georgia, Idaho, Kentucky, Michigan, Mississippi, Nebraska, New Jersey, Oklahoma, South Carolina, South Dakota, Vermont and Wisconsin. 

In Notice 2018-48, the IRS listed all of the designated Qualified Opportunity Zones.  Presently, every state has submitted to the Treasury Department its list of proposed Opportunity Zones. Notice 2018-48, I.R.B. 2018-28.

What About I.R.C. §1031?

The TCJA eliminated (on a permanent basis) the tax-deferred exchange provision under I.R.C. §1031 for exchanges of personal property.  Real estate exchanges remain eligible for I.R.C. §1031 treatment.  So, how does this new TCJA provision compare with I.R.C. §1031? 

  • Unlike a real estate trade under I.R.C. §1031, a taxpayer’s investment in a Qualified Opportunity Fund only requires that the capital gains portion from the sale of property be reinvested. An I.R.C. §1031 transaction requires that the entire sale proceeds be reinvested. 
  • In addition, the investment in a Qualified Opportunity Fund does not have to involve like-kind property, and the investment property can be real or personal.
  • The replacement property need not be identified (as it does in an I.R.C. §1031 transaction).
  • The 180-day rule applies in both situations. In other words, the closing on the “replacement property” must occur within 180 days with respect to a Qualified Opportunity Zone as well as with respect to an I.R.C. §1031 exchange.
  • Also, with respect to an investment in a Qualified Opportunity Zone, a partnership interest is allowed. That’s not the case with an I.R.C. §1031 exchange.  The same can be said for stock in a corporation. 
  • The gain is deferred permanently (excluded from income) if the property is held in a Qualified Opportunity Fund for at least 10 years. With an I.R.C. §1031 exchange, the gain is deferred until the replacement property is sold, unless the gain is deferred in another like-kind exchange (or the taxpayer dies). 
  • With an investment in a Qualified Opportunity Zone, the sale of the invested property cannot be to a related party. Related party sales are not barred for like-kind exchange property where gain is deferred under I.R.C. §1031, but a two-year rule applies – the property must be held for at least two years after the exchange if a related party is involved. 

Example

Assume that Bob owns Blackacre that with a current fair market value of $1,000,000.  Bob’s income tax basis in Blackacre is $500,000.  Bob sold Blackacre for $1,000,000 on October 1, 2018, resulting in a realized gain of $500,000.  Bob has until March 1, 2019 (180 days after the sale date) to invest the sale proceeds in a Qualified Opportunity Fund equal to the amount of gain that he elects to defer.  

Now assume that Bob elects to defer the full amount of the realized gain and invests the $500,000 in a Qualified Opportunity Fund in a timely manner.  Further assume that Bob sells his investment in the Fund on March 1, 2024, for $600,000.  Bob could exclude the lesser of the amount of gain previously excluded ($500,000) or $600,000 (the fair market value of the investment on the sale date).  From that $500,000 amount is subtracted Bob’s basis in the Fund investment (initial basis in Fund investment ($0), increased by the amount of the original gain previously recognized ($0)).  Thus, Bob’s basis in the Fund’s investment is zero. 

Note:  Because Bob held the investment for at least five years, his basis is increased by 10 percent of the deferred gain or $50,000 ($500,000 x .10).  Had Bob held the investment for at least seven years, he would have qualified for an additional five percent basis adjustment. 

Bob’s recognized gain in 2024 associated with the prior deferral would be $450,000 ($500,000 less the $50,000).  In 2024, Bob would also recognize a $100,000 gain associated with the sale of his Fund investment.  Thus, Bob’s total recognized gain in 2024 is $550,000.  If Bob were to hold the investment in the Fund for at least 10 years, he could exclude all of the gain associated with the investment.  However, the 10-year holding period has no impact on the taxability of Bob’s original deferred gain.  That gain cannot be deferred beyond 2026. 

Conclusion

The Opportunity Zone provision of the TCJA is particularly tailored to a taxpayer that has an asset (or assets) with inherent large built-in gain.  In other words, the provision may be particularly attractive to a taxpayer with a low income tax basis in the property and the property has appreciated greatly in value.  There is a great deal of farm and ranch land that falls into that category. In addition, many opportunity zones are located in rural areas and farmland and timberland investments tend to be long-term.  It’s these long-term investments that can be a prime candidate for using this new tax provision.

October 4, 2018 in Income Tax | Permalink | Comments (0)

Tuesday, October 2, 2018

Social Security Planning For Farmers

Overview

Many farmers and ranchers are reaching retirement age for Social Security benefit purposes.  That raises numerous questions involving such things as benefits, earnings, what counts as “wages” and the cash renting of farmland.  These are all important questions for farmers and ranchers to have answers to so that appropriate planning can be engaged in and expectations realized.

Social Security benefit planning – that’s the topic of today’s post.

Retirement Age

For 2009-2020, the full retirement age for persons born in 1943-1954 is 66.  Under present rules, in 2027, the full retirement age will be 67. 

During the calendar year in which an individual reaches age 66, an earnings limit applies for the months before the individual reaches full retirement age.  For example, for an individual that turns age 66 during 2018, there is a monthly earnings limit of $3,780 ($45,360 ¸ 12 months) for the months before full retirement age is reached.  Excess earnings for this period result in a $1 reduction in benefits for each $3 of excess earnings received before attaining the age of 66 years.  But, for a person that hasn’t reached full retirement age, benefits are reduced by $1 for every $2 of earnings over the annual limit of $17,040 for 2018.  For those drawing benefits after reaching full retirement age, there is no limit on earnings – benefits are not reduced.

Drawing Benefits

An individual can receive full Social Security benefits if they aren’t drawn until full retirement age is achieved.  Another way to state it is that if an individual delays taking social security benefits until reaching full retirement age, the individual receives additional benefits for each year of postponement until reaching age 70.  The rate of increase is a fraction of one percent per month.  In essence, the impact of drawing Social Security benefits before reaching full retirement age is that such a person must live longer to equalize the amount of benefits received over their lifetime compared to waiting until full retirement age to begin drawing benefits.   

Taxability of Benefits

About 20 million people each year, some that are undoubtedly farmers and ranchers, pay tax on their Social Security benefits.  These people are commonly in the 62-70 age range.  Taxing Social Security benefits seems harsh, inasmuch as the person has already paid income tax and Social Security payroll taxes on the earnings that generated the benefits.   But, not every dollar of benefits is taxed.  What matters is a person’s total income from non-Social Security sources such as wages and salaries, investment income (and capital gains on those investments) and pension income.  To that amount is added one-half of the person’s Social Security income.  The total amount then is measured against a limit.  For example, a person that files as married-filing-jointly (MFJ) will subject 50 percent of their Social Security benefits to tax if the total amount exceeds $32,000 for 2018 (it’s $25,000 for a single filer).  The 50 percent changes to 85 percent once the total amount exceeds $44,000 (MFJ) or $34,000 (single) for 2018.  Those are the maximum percentages in theory.  In reality, however, there is a complex formula that often results in less Social Security benefits being taxed than that maximum percentage.  To boil it down, the formula often results in about 20 percent of Social Security benefits being taxed once the total amount threshold is exceeded. 

Special Considerations

Some farmers receive wages in-kind rather that in cash.  In-kind wages such as crops or livestock, count toward the earnings limitations test.  The earnings limit test includes all earnings, not just those that are subject to Social Security (FICA/Medicare) tax.  But, employer-provided health insurance benefits are not considered to be “earnings” for purposes of the earnings limitation test.  They are not taxed as wages.  I.R.C. §3121; SSA Program Operations Manual System, §§RS 01402.040; 01402,048.

Federal farm program payments that a farmer receives are not deemed to be “earnings” when calculating each calendar year's earnings limitation.  SSA Program Operations Manual System §RS 02505.115.  That is the case except for the initial year of Social Security benefit application.  In that initial year, all FSA program payments are counted along with other earned income and earnings for purposes of the annual earnings limitation test.

For farmers that cash rent farm ground to their employer, the cash rental income that the farmer receives will likely be treated as “earnings” even though the farmer is getting a wage from the employer.  This is particularly the case if the farmer is farming the ground on the employer’s behalf.  The result would be a “doubling-up” of the wage income and the cash rent income for purposes of the age 62-66 earnings test. 

For a farmer that is drawing Social Security benefits, whether retired or not, Conservation Reserve Program Payments received are not subject to Social Security tax.  I.R.C. §1402(a)(1). 

Conclusion

Social Security benefit planning is an item that is often overlooked by farmers and ranchers.  However, it is useful to know how such planning may fit into the overall retirement plan of a farmer or rancher.  It is just one piece of the retirement, succession, estate plan that should be considered in terms of how it fits in with other strategies.  While a farmer or rancher may never actually “retire,” there is a benefit to properly timing the drawing of Social Security benefits.  In addition, as noted above, there are some special situations that a farmer or rancher should be aware of.

The Social Security Administration website (ssa.gov) has some useful online calculators that can aid in estimating retirement benefits.  It may be worth checking out. 

October 2, 2018 in Business Planning, Income Tax | Permalink | Comments (0)

Friday, September 28, 2018

Fall Tax Seminars

Overview

I just finished a series of tax seminars in various states.  The attendees were engaged in the discussions and had great questions.  It’s always good to interact with practitioners and listen to what they are dealing with and what the current audit issues are with respect to farm and ranch clients.  I have four events remaining before I start the fall tour of tax school beginning in late October.

In today’s post, I list the tax seminars upcoming this fall.

Kansas Tax Schools

Here’s the 2018 list of fall tax schools of Kansas State University.  I teach on the second day at each location.  The first day at the Garden City, Colby and Hays are taught by Paul Neiffer and Andy Morehead.  The schools at Wichita and Salina are taught on Day 1 by Andy Morehead and Bill Parrish.  The schools at Topeka, Overland Park and Pittsburg are taught on Day 1 by Bill Parrish and Felecia Dixson.  The Kansas Department of Revenue makes a presentation on Day 1 at each location.

Here’s the list of tax schools in Kansas:

Registration for the KSU tax schools is available here:  https://www.agmanager.info/events/kansas-income-tax-institute.  The Pittsburg school is also available online.  In addition, Prof. Lori McMillan, my colleague at Washburn Law School, will join me in presenting a two-hour tax ethics seminar/webinar on December 14.

North Dakota Tax Schools

I will also be speaking on the second day at two tax schools in North Dakota.  Here’s the list of the North Dakota tax schools:

Registration information for the North Dakota schools is available here:

https://www1.und.edu/academics/extended-learning/conference-services/nd-tax-institute/register-here.cfm

South Dakota

On November 8 and 9, Paul Neiffer and I will be doing a two-day tax school in Sioux Falls, SD for the American Society of Tax Professionals.  I will also provide an ethics session after Day 1. 

Here are the details for the Sioux Falls seminar:

  • 11/8-11/9/2018: American Society of Tax Professionals, Ramada Inn & Suites (Sioux Falls, South Dakota) (8am – 4:30 p.m., contact: 1-877-674-1996).

Iowa

The 2018 Bloethe Tax School in Des Moines, Iowa is set for December 5-7.  I will kick-off that event on December 5 with a 4-hour afternoon seminar on the new tax law.  Here are the registration details for the school:

https://www.iowabar.org/m/event_details.asp?id=1065555

Conclusion

I hope to see you at one of the schools this fall.  There is certainly a great deal to talk about at these events.  The new law is keeping all of us busy.

September 28, 2018 in Income Tax | Permalink | Comments (0)

Tuesday, September 18, 2018

Deducting Residual Soil Fertility

Overview

When farmland is purchased, depreciation can be claimed on depreciable assets associated with the farmland starting with the first tax year in which possession of the land is taken.  The amount claimed is tied to the portion of the total cost of the farmland that can be allocated to any depreciable asset, such as fencing, field drainage tile, grain storage facilities, farm buildings, and irrigation equipment, just to name a few of the more common depreciable items. 

In certain parts of the Midwest, above average soil fertility is also eligible for expense deductions.  The concept is known as “residual soil fertility” and it can be available to farmland buyers that didn’t farm the acquired property within the immediately prior crop year.

Deductions associated with residual soil fertility, that’s the topic of today’s post.

The Deduction

I.R.C. §180 allows a taxpayer engaged in the trade or business of farming to annually elect (by deducting the expense on the return) the cost of fertilizer, lime, potash, or other materials which enrich, neutralize or condition land used in farming.  If these fertilization costs are not expensed, they are required to be capitalized with expense deductions being amortized over a presumed useful life (similar to field drainage tile and/or fencing).  This means that residual soil fertility is a capital asset in the hands of an operating farmer, crop-share landlord or cash rent landlord when farmland is acquired, with the cost amortized over the useful life of the asset.  That useful life is typically three to four years.  The general 15-year amortization rules don’t apply.  Instead, the IRS position is that fertilizer costs should be amortized based on the percentage of use or benefit each year.  That likely means that straight-line amortization probably does not apply.  An agronomist or other soil scientist may be able to provide sufficient information so that the property annual expense allocation can be determined  See, e.g., IRS Pub. 225, Chapter 4.

For farmland inherited from a decedent, the date of the decedent’s death is the measurement date for determining whether residual soil fertility exists.  If it does, the cost can be amortized by the decedent’s estate and/or the beneficiaries of the estate that receive the farmland. 

In 1995, the IRS published a Market Segment Specialization Program (MSSP) addressing residual soil fertility.  IRS MSSP, Guideline on Grain Farmers (Training 3149-133, Jul. 1995).  In the MSSP, the IRS notes that a deduction for residual fertilizer supply will be denied unless the taxpayer can establish (1) beneficial ownership of the residual fertilizer supply; (2) the presence and extent of the residual fertilizer; and (3) that the residual fertilizer supply is actually being exhausted.  In addition, the MSSP instructs IRS examining agents to make sure that the values assigned to depreciable farm assets is reasonable.  See also, Tech. Adv. Memo. 9211007 (Dec. 3, 1991). 

Procedure

So, how can a taxpayer establish the presence and extent of residual fertilizer supply and that it is actually being exhausted?  For starters, if farmland has an actual excess soil fertility base it will normally bring a price premium upon sale.  That’s the same rationale that applies when farmland with good fences, field drainage tile and grain storage facilities is purchased – a price premium applies to factor in the existence of those assets.  As for residual fertilizer supply, the excess amount can be measured by grid sampling.  A buyer can anticipate that grid sampling will cost of approximately $4-$8 per acre.  Agronomists and agricultural soil testing labs follow certain guidelines and procedures that they use to determine average (base) soil fertility for various soil types.  Once grid soil samples are obtained, the fertility levels of those samples are compared to the base fertility guideline levels for particular soil types to establish the amount of “excess” fertility on a tract of acquired farm real estate.

The key is to obtain data for the established base soil fertility for the type of soil on the purchased farmland from comparable tracts and comparable soil types.  By establishing the base soil fertility, the actual sampling on the purchased property will reveal whether excess residual fertilizer is present. That soil sampling should occur on or before the buyer takes possession of the farmland.  For farmland that is inherited, the sampling should occur before the buyer applies any new fertilization. 

Documentation

While the IRS does not require it, perhaps the best way to document the deduction for excess soil fertility is to provide for the allocation of value to the amount of above average soil fertility in the purchase contract for the farmland.  In addition, a written summary of how the computation was made and the time period over which it would deplete due to crop production should be obtained from the agronomist or other expert involved.  This will be beneficial for establishing the proper amortization period for the excess soil fertility, and will provide substantiation of the deduction upon any subsequent IRS (or state) audit.  Depending on the soil type involved, the deduction could range from $50 per acre to over $700 per acre. 

Conclusion

When farmland is acquired, an allocation of value can be made to depreciable items.  In certain parts of the country, a depreciable item might be residual fertilizer supply.  If it can be established with appropriate data, a tax benefit is available.  It’s important, however, to follow the IRS guidelines.  Also, in some states, following the IRS guidance on deducting excess soil fertility may not be good enough.  Yes, Minnesota, I am talking about you.

September 18, 2018 in Income Tax | Permalink | Comments (0)

Monday, September 10, 2018

Tax Consequences on Partition and Sale of Land

Overview

Partition and sale of land is a legal remedy available if co-owners of land cannot agree on whether to buy out one or more of the co-owners or sell the property and split the proceeds.  It is often the result of a poorly planned farm or ranch estate where the last of the parents to die leaves the farm or ranch land equally to all of the kids and not all of them want to farm or they simply can’t get along.  Because they each own an undivided interest in the entire property, they each have the right of partition and sell to parcel out their interest.  But, that rarely is the result because they aren’t able to establish that the tract can be split exactly equally between them in terms of soil type and slope, productivity, timber, road access, water, etc.  So, a court will order the entire property sold and the proceeds of sale split equally. 

The court-ordered sale is most likely an unhappy result, and it can be avoided with appropriate planning in advance.  But, what tax consequences result from a partition and resulting sale?  That’s the focus of today’s post.

Basics

A partition of property involving related parties comes within the exception to the “related party” rule under the like-kind exchange provision. This occurs in situations where the IRS is satisfied that avoidance of federal income tax is not a principal purpose of the transaction. Therefore, transactions involving an exchange of undivided interests in different properties that result in each taxpayer holding either the entire interest in a single property or a larger undivided interest in any of the properties come within the exception to the related party rule. But, as noted, this is only true when avoidance of federal income tax is not a principal purpose of the transaction.

As for the income tax consequences on the sale of property in a partition proceeding to one of two co-owners, such a sale does not trigger gain for the purchasing co-owner as to that co-owner’s interest in the property.

Is a Partition an Exchange?

If the transaction is not an “exchange,” it does not need to be reported to the IRS, and the related party rules are not involved.  If the property that is “exchanged” is dissimilar, then the matter is different.  Gain or loss is realized (and recognized) from the conversion of property into cash, or from the exchange of property for other property differing materially either in kind or extent. Treas. Reg. §1.1001-1(a). In the partition setting, that would mean that items of significance include whether debt is involved, whether the tracts are contiguous, and the extent to which they differ.

IRS ruling.  In 1954, the IRS ruled that the conversion of a joint tenancy in capital stock of a corporation into tenancy in common ownership (to eliminate the survivorship feature) was a non-taxable transaction for federal income tax purposes.  Rev. Rul. 56-437, 1956-2 C.B. 301.  Arguably, however, the ruling addressed a transaction distinguishable from a partition of property insomuch as the taxpayers in the ruling owned an undivided interest in the stock before conversion to tenancy in common and owned the same undivided interest after conversion. 

Partition as a Severance

A partition transaction, by parties of jointly owned property, is not a sale or exchange or other disposition.  It is merely a severance of joint ownership. For example, assume that three brothers each hold an undivided interest as tenants-in-common in three separate tracts of land.  None of the tracts are subject to mortgages.  They agree to partition the ownership interests, with each brother exchanging his undivided interest in the three separate parcels for a 100 percent ownership of one parcel. None of them assume any liabilities of any of the others or receive money or other property as a result of the exchange. Each continues to hold the single parcel for business or investment purposes. As a result, any gain or loss realized on the partition is not recognized and is, therefore, not includible in gross income.  Rev. Rul. 73-476, 1973-2 C.B. 301.  However, in a subsequent letter ruling issued almost 20 years later, the IRS stated that the 1973 Revenue Ruling on this set of facts held that gain or loss is “realized” on a partition. It did not address explicitly the question of whether the gain or loss was “recognized” although the conclusion was that the gain was not reportable as income.  Priv. Ltr. Rul. 200303023 (Oct. 1, 2002).

To change the facts a bit, assume that two unrelated widows each own an undivided one-half interest in two separate tracts of farmland. They transfer their interests such that each of them now becomes the sole owner of a separate parcel.  Widow A’s tract is subject to a mortgage and she receives a promissory note from Widow B of one-half the amount of the outstanding mortgage.  Based on these facts, it appears that Widow A must recognize gain to the extent of the FMV of the note she received in the transaction because the note is considered unlike property.  Rev. Rul. 79-44, 1979-2 C.B. 265.

Based on the rulings, while they are not entirely consistent, gain or loss on a partition is not recognized (although it may be realized) unless a debt security is received, or property is received that differs materially in kind or extent from the partitioned property. The key issue in partition actions then is a factual one. Does the property received in the partition differ “materially in kind or extent” from the partitioned property or is debt involved?

It may also be important whether the partition involves a single contiguous tract of land or multiple contiguous tracts of land. However, in two other private rulings, the taxpayer owned a one-third interest in a single parcel of property with two siblings as tenants-in-common.  Priv. Ltr. Ruls. 200411022 (Dec. 10, 2003) and 200411023 (Dec. 10, 2003).  The parties agreed to partition the property into three separate, equal-valued parcels with each person owning one parcel in fee. The property was not subject to any indebtedness. The IRS ruled that the partition of common interests in a single property into fee interests in separate portions of the property did not cause realization of taxable gain or deductible loss.  Rev. Rul. 56-437, 1956-2 C.B. 507.

So, is there any difference taxwise between a partition with undivided interests that are transformed into the same degree of ownership in a different parcel and an ordinary partition of jointly owned property? Apparently, the IRS doesn’t think so.  In one IRS ruling, the taxpayers proposed to divide real property into two parcels by partition, and the IRS ruled that gain or loss would not be recognized. Ltr. Rul. 9327069, February 12, 1993.  Likewise, in another ruling, a partition of contiguous properties was not considered to be a sale or exchange.  Ltr. Rul. 9633028 (May 20, 1996). The tracts were treated as one parcel.

Conclusion

The partition of the ownership interests of co-owners holding undivided interests in real estate is often an unfortunate aspect of poor planning in farm and ranch estates.  That problem can be solved with appropriate planning.  The tax consequences of a partition don’t appear to present a problem if the partition amounts to simply a rearrangement of ownership interests among the co-owners. 

September 10, 2018 in Income Tax | Permalink | Comments (0)

Monday, August 27, 2018

The Qualified Business Income Deduction and “W-2 Wages"

Overview

The Tax Cuts and Jobs Act (TCJA) created a new deduction for tax years 2018-2025 of up to 20 percent of domestic qualified business income (QBI) from a pass-through entity (e.g., partnership, S corporation or sole proprietorship).  Similarly, the deduction is allowed for specified agricultural or horticultural cooperatives.  In earlier posts, beginning back in December of 2017, I started detailing various aspects of the new QBI deduction (QBID). 

The QBID incorporates a limitation based on wages paid, or on wages plus a capital element.  The limitation is phased-in for taxpayers with taxable income above a threshold amount - $157,500 for single filers; $315,000 for all other filing statuses. 

For those taxpayers above the applicable income threshold, the definition of “wages” is important.  Does it include commodity wages?  What about wages parents pay to their children that are under age 18?  Do those count for purposes of the limitation?

The definition of “wages” for purposes of the QBID.  That’s the focus of today’s post.

The Pertinent Formula

For taxpayers with taxable income exceeding $157,500 (single) or $315,000 (joint), the QBID for a business is (in general) the lesser of 20 percent of the taxpayer’s qualified business income amount (QBIA) from the trade or business, or a “W-2 wages/qualified property limit” (W-2/QP limit). The W-2/QP limit is the greater of 50 percent of the W-2 wages of the trade or business; or the sum of 25% of the W-2 wages of the trade or business, plus 2.5 percent of the unadjusted basis immediately after acquisition of all qualified property of the trade or business.  I.R.C. §199A(b)(2).  So, by the way the formula works, having W-2 wages and/or qualified property can enhance the ultimate QBID that the taxpayer can claim.  That is, for those taxpayers over the applicable threshold.  For these taxpayers, the QBID is further reduced through a “phase-in” range of the formula.   Taxpayers with taxable income beneath the applicable threshold are not subject to the formula.  I.R.C. §§199A(b)(3)(A) and (e)(2)(A). 

“W-2 Wages”

Under the statute, W-2 wages are wages that the taxpayer’s qualified trade or business paid to its employees during the calendar year that ends in the business’s tax year.  I.R.C. §199A(b)(4)(A).  This Code section references I.R.C. §6051(a)(3) and I.R.C. §6051(a)(8) for the definition of W-2 wages.  It is the I.R.C. §6051(a)(3) definition that is pertinent to our discussion, as I.R.C. §6051(a)(8) concerns elective deferrals and other types of deferred compensation. 

In particular, I.R.C. §6051(a)(3) specifies that total wages are defined in I.R.C. §3401(a).  That definition generally excludes wages paid for agricultural labor, unless it is wages (as defined in I.R.C. §3121(a)) paid for agricultural labor (as that term is defined in I.R.C. §3121(g)).  Under the I.R.C. §3121(a) definition of “wages,” agricultural wages paid in-kind are disqualified (I.R.C. §3121(a)(8)(A)), as are cash wages paid to an employee for agricultural labor unless the employee pays at least $150 in cash wages to the employee for the year and the employer’s expenditures for agricultural labor for the year equal or exceed $2,500.   I.R.C. §3121(a)(8)(B)(i)-(ii).  Wages paid to children under age 18 by their parents are not specified as an exception in I.R.C. §3401(a).  However, under IRC §3401(a)(2), commodity (“in-kind”) wages are not included because they are not “wages” under I.R.C. §3121(a)(8)(A). They are specifically excluded from the definition of “wages.” 

The bottom line is that wages paid to children under age 18 by their parents count as wages for QBI purposes, but agricultural wages paid in-kind do not.  In addition, the wages must be paid for amounts that are properly allocable to producing QBI.

Additionally, under I.R.C. §199A(b)(4)(C) the term “W-2 wages” does not include any amount that is not properly included in a return filed with Social Security Administration (SSA) on or before the 60th day after the due date (including extensions) for such return. Thus, wages, whether they are “required” in a technical sense to be reported, must be reported to count as “W-2 wages” for purposes of I.R.C. §199A. Wages paid to children under age 18 in the employ of their parents are subject to withholding, but are often exempt because the amount is less than the standard deduction.  Reporting such wages to SSA on a timely filed return will cause them to count as “W-2 wages” for QBID purposes. 

Conclusion

The QBID is a complex provision, for sole proprietors and other business owners that operate in a business form that is something other than a C corporation.  That’s especially true for taxpayers with income over the applicable threshold.  While ag wages paid in-kind don’t count as “W-2 wages” for purposes of the QBID formula for higher income taxpayers, wages paid to children under age 18 by their parents do count.  That can generate a larger QBID for those taxpayers that are subject to the wages/qualified property limitation.

August 27, 2018 in Income Tax | Permalink | Comments (0)

Thursday, August 23, 2018

Upcoming Seminars

Overview

If you are looking for additional training on the new tax law (Tax Cuts and Jobs Act (TCJA)) and, in addition, how the TCJA applies to your farming or ranching operation, there are several opportunities for you that I am participating in that are open to the public.  In addition, I continue to do in-house CPA/law firm training on the new law.  If your firm has an interest in some in-house training, please contact me.

Today’s post contains a listing of those seminars coming up over the next couple of months. 

South Dakota/Wyoming/Montana

For those of you in the western South Dakota area, eastern Wyoming, northwest Nebraska and Montana, I have the following events coming up.  Tomorrow afternoon (Aug. 24), I will be making an hour-long presentation on how the new tax law applies to agricultural producers in Rapid City, SD.  That event is open to the public.  If you are in the area, stop in for a brief discussion of the new law.  You can learn more about the event here:  https://www.r-calfusa.com/event/annual-convention/.

On September 17-19, I will be conducting tax seminars for the North Dakota Society of CPAs in Grand Forks and Bismarck.  The September 17 and 18 events will be in Grand Forks, and the second day there will be a day devoted to farm and ranch estate and business planning.  For more information on the North Dakota events, you can find it here:  https://www.ndcpas.org/courses.

Later in September I will be presenting a two-day seminar in Great Falls, Montana for the Montana Society of CPAs with my co-speaker, Paul Neiffer.  The first day on September 26 will be devoted to farm income tax issues and day 2 on September 27 will focus on Farm Estate and Business Planning.  For more information, click here:   https://www.mscpa.org/professional_development/course/2518/farm_ranch_income_tax_estate_business_planning.

Illinois, Iowa and Indiana

If you are in eastern Iowa or western Illinois, on September 21, I will be presenting a farm tax seminar in Rock Island, Illinois, with Bob Rhea of the Illinois Farm Business Management Association.  Details about that seminar can be found here:  https://taxschool.illinois.edu/merch/2018farm.html.  We will repeat that seminar on September 24 in Champaign, Illinois.  So, if you are in central, southern or eastern Illinois or western Indiana, this seminar is in your area.  Again, details on the Champaign event can be found here:  https://taxschool.illinois.edu/merch/2018farm.html.

On October 12, I will be making a presentation on estate planning issues that are unique to farmers and ranchers at the 44th Annual Notre Dame Tax and Estate Planning Institute in South Bend, Indiana.  Information about the Institute can be found here:  https://law.nd.edu/for-alumni/alumni-resources/tax-and-estate-planning-institute/.

Fall Tax Schools – South Dakota/Northwest Iowa Event

In the near future, I will do a post on the fall tax schools that I conduct in various states.  One new one this year will be in Sioux Falls, South Dakota on November 8 and 9.  That event is sponsored by the American Society of Tax Professionals and will be held at the Ramada Inn & Suites.  For information on that event call 1-877-674-1996.  The seminar will be a two-day school taught by myself and Paul Neiffer.  We will be teaching from the tax workbook produced by the University of Illinois that many of you may be familiar with.  For those of you in northwest Iowa, northeast Nebraska, eastern SD and southwestern MN, these two days are for you.

Conclusion

The events mentioned above are the major events coming up over the next couple of months.  I haven’t listed the in-house private seminars that I have scheduled in September and October.  I have room for a couple more of those if your firm is interested.  Also, most of my speaking events are listed on my website, www.washburnlaw.edu/waltr

I hope to see you at one or more of the events this fall.

August 23, 2018 in Business Planning, Estate Planning, Income Tax | Permalink | Comments (0)

Monday, August 13, 2018

Qualified Business Income Deduction – Proposed Regulations

Overview

As a result of the Tax Cuts and Jobs Act (TCJA), for tax years beginning after 2017 and before 2026, a non C corporate business owner as well as an owner of an interest in a pass-through entity is entitled to a deduction of 20% of the taxpayer’s share of qualified business income (QBI) associated with the conduct of a trade or business in the United States. I.R.C. 199A. The QBID replaces the DPAD, which applied for tax years beginning after 2004. The TCJA repealed the DPAD for tax years beginning after 2017.

The basic idea behind the provision was to provide a benefit to pass-through businesses and sole proprietorships that can’t take advantage of the lower 21 percent corporate tax rate under the TCJA that took effect for tax years beginning after 2017 (on a permanent basis).  The QBID also applies to agricultural/horticultural cooperatives and their patrons.

Last week, the Treasury issued proposed regulations on the QBID except as applied to agricultural/horticultural cooperatives.  That guidance is to come later this fall.  The proposed regulations did not address how the QBID applies to cooper 

The proposed regulations for the QBID – that the topic of today’s post.

QBID Basics

The QBI deduction (QBID) is subject to various limitations based on whether the entity is engaged manufacturing, producing, growing or extracting qualified property, or engaged in certain specified services (known as a specified service trade or business (SSSB)), or based on the amount of wages paid or “qualified property” (QP) that the business holds.  These limitations apply once the taxpayer’s taxable income exceeds a threshold based on filing status.  Once the applicable threshold is exceeded the business must clear a wages threshold or a wages and qualified property threshold. 

Note:  If the wages or wages/QP threshold isn’t satisfied for such higher-income businesses, the QBID could be diminished or eliminated. 

What is the wage or wage/QP hurdle?  For farmers and ranchers (and other taxpayers) with taxable income over $315,000 (MFJ) or $157,500 (other filing statuses), the QBID is capped at 50 percent of W-2 wages or 25 percent of W-2 wages associated with the business plus 2.5 percent of the “unadjusted basis immediately after acquisition” (UBIA) of all QP.  But those limitations don’t apply if the applicable taxable income threshold is not met.  In addition, the QBID is phased out once taxable income reaches $415,000 (MFJ) or $207,500 (all others). 

Proposed Regulations

On August 8, the Treasury issued proposed regulations on the QBID.  Guidance was needed in many areas.  For example, questions existed with respect to the treatment of rents; aggregation of multiple business activities; the impact on trusts; and the definition of a trade or business, among other issues.  The proposed regulations answered some questions, left some unanswered and raised other questions. 

Rental activities.  One of the big issues for farmers and ranchers operating as sole proprietorships or as a pass-through entity is whether land rental income constitutes QBI.  The proposed regulations do confirm that real estate leasing activities can qualify for the QBID without regard to whether the lessor participates significantly in the activity.  That’s the case if the rental is between “commonly controlled” entities – defined as common ownership of 50 percent or more in each entity (e.g., between related parties).  This part of the proposed regulations is generous to taxpayers, and will be useful for many rental activities.  It’s also aided by the use of I.R.C. §162 for the definition of a “trade or business” as opposed to, for example, the passive loss rules of I.R.C. §469.  

But, the proposed regulations may also mean that the income a landlord receives from leasing land to an unrelated party (or parties) under a cash lease or non-material participation share lease may not qualify for the QBID.  If that latter situation is correct it could mean that the landlord must pay self-employment tax on the lease income associated with a lease to an unrelated party (or parties) to qualify the lease income for the QBID. 

The proposed regulations use an example or a rental of bare land that doesn’t require any cost on the landlord’s part.  This seems to imply that the rental of bare land to an unrelated third party qualifies as a trade or business.  There is another example in the proposed regulations that also seems to support this conclusion.  Apparently, this means that a landlord’s income from passive triple net leases (a lease where the lessee agrees to pay all real estate taxes, building insurance, and maintenance on the property in addition to any normal fees that are expected under the agreement) should qualify for the QBID.  But, existing caselaw is generally not friendly to triple net leases being a business under I.R.C. §162.  That means it may be crucial to be able to aggregate (group) those activities together. 

Unfortunately, the existing caselaw doesn’t discuss the issue of ownership when it is through separate entities and, on this point, the Preamble to the proposed regulations creates confusion.   The Preamble says that it's common for a taxpayer to conduct a trade or business through multiple entities for legal or other non-tax reasons, and also states that if the taxpayer meets the common ownership test that activity will be deemed to be a trade or business in accordance with I.R.C. §162.  But, the Preamble also states that "in most cases, a trade or business cannot be conducted through more than one entity.”  So, if a taxpayer has several rental activities that the taxpayer manages, does that mean that those separate rental activities can’t be aggregated (discussed below) unless each rental activity is a trade or business?  If the Treasury is going to be making the trade or business determination on an entity-by-entity basis, triple net leases might be problematic.  

Perhaps the final regulations will clarify whether rentals, regardless of the lease terms, will be treated as a trade or business (and can be aggregated).

Aggregation of activities.  Farmers and ranchers often utilize more than a single entity for tax as well as estate and business planning reasons.  The common technique is to place land into some form of non C corporate entity (or own it individually) and lease that land to the operating entity. For example, many large farming and ranching operations have been structured to have multiple limited liability companies (LLCs) with each LLC owning different tracts of land.  These operations typically have an S corporation or some other type of business entity that owns the operating assets that are used in the farming operation.  It appears that these entities can be grouped under the aggregation rule. For QBID purposes (specifically, for purposes of the wages and qualified property limitations) the proposed regulations allow an election to be made to aggregate (group) those separate entities.  Thus, the rental income can be combined with the income from the farming/ranching operation for purposes of the QBID computation.   Grouping allows wages and QP to also be aggregated and a single computation used for purposes of the QBID (eligibility and amount).  In addition, taxpayers can allocate W2 wages to the appropriate entity that employs the employee under common law.   

Note:  The wages and QP from any trade or business that produces net negative QBI is not taken into account and is not carried over to a later year.  The taxpayer has to offset the QBI attributable to each trade or business that produced net positive QBI. 

Without aggregation, the taxpayer must compute W-2 wages for each trade or business, even if there is more than one within a single corporation or partnership. That means a taxpayer must find a way to allocate a single payroll across different lines.

To be able to aggregate businesses, they must meet several requirements, but the primary one is that the same person or group of persons must either directly or indirectly own 50 percent or more of each trade or business.  For purposes of the 50 percent test, a family attribution rule applies that includes a spouse, children, grandchildren and parents of the taxpayer.  However, siblings, uncles, and aunts, etc., are not within the family attribution rule. To illustrate the rule, for example, the parents and a child could own a majority interest in three separate businesses and all three of those businesses could be aggregated.   But, the bar on siblings, etc., counting as "family" is a harsh rule for agricultural operations in particular.  Perhaps the final regulations will modify the definition of "family."

Note:  A ”group of persons” can consist of unrelated persons.  It is important that the “group” meet the 50 percent test.  It is immaterial that no person in the group meets the 50 percent test individually.    

Common ownership is not all that is necessary to be able to group separate trade or business activities.  The businesses to be grouped must provide goods or services that are the same or are customarily offered together; there must be significant centralized business elements; and the businesses must operate in coordination with or reliance upon one another.  Meeting this three-part test should not be problematic for most farming/ranching operations, but there is enough "wiggle room" in those definitions for the IRS to create potential issues.  

Once a taxpayer chooses to aggregate multiple businesses, the businesses must be aggregated for all subsequent tax years and must be consistently reported.  The only exception is if there is a change in the facts and circumstances such that the aggregation no longer qualifies under the rules.  So, disaggregation is generally not allowed, unless the facts and circumstances changes such that the aggregation rules no longer apply.  

Losses.  If a taxpayer’s business shows a loss for the tax year, the taxpayer cannot claim a QBID and the loss carries forward to the next tax year where it becomes a separate item of QBI.  If the taxpayer has multiple businesses (such as a multiple entity farming operation, for example), the proposed regulations require a loss from one entity (or multiple entities) to be netted against the income from the other entity (or entities).  If the taxpayer’s income is over the applicable threshold, the netting works in an interesting way.  For example, if a farmer shows positive income on Schedule F and a Schedule C loss, the Schedule C loss will reduce the Schedule F income.  The farmer’s QBID will be 20 percent of the resulting Schedule F income limited by the qualified wages, or qualified wages and the QP limitation.  Of course, the farmer may be able to aggregate the Schedule F and Schedule C businesses and would want to do so if it would result in a greater QBID. 

Note:  A QBI loss must be taken and allocated against the other QBI income even if the loss entity is not aggregated.  However, wages and QP are not aggregated. 

If the taxpayer had a carryover loss from a pre-2018 tax year, that loss is not taken into account when computing income that qualifies for the QBID.  This can be a big issue if a taxpayer had a passive loss in a prior year that is suspended.  That's another taxpayer unfriendly aspect of the proposed regulations.  

Trusts.  For trusts and their beneficiaries, the QBID can apply if the $157,500 threshold is not exceeded irrespective of whether the trust pays qualified wages or has QP.  But, that threshold appears to apply cumulatively to all trust income, including the trust income that is distributed  to trust beneficiaries.  In other words, the proposed regulations limit the effectiveness of utilizing trusts by including trust distributions in the trust’s taxable income for the year for purposes of the $157,500 limitation.  Prop. Treas. Reg. §1.199A-6(d)(3)(iii).  This is another taxpayer unfriendly aspect of the proposed regulations.  

Based on the Treasury's position, it will likely be more beneficial for parents, for example, for estate planning purposes, to create multiple trusts for their children rather than a single trust that names each of them as beneficiaries.  The separate trusts will be separately taxed.  The use of trusts can be of particular use when the parents can't utilize the QBID due to the income limitation (in other words, their income exceeds $415,000).  The trusts can be structured to qualify for the QBID, even though the parents would not be eligible for the QBID because of their high income.  However, the proposed regulations state that, “Trusts formed or funded with a significant purpose of receiving a deduction under I.R.C. §199A will not be respected for purposes of I.R.C. §199A.”  Again, that's a harsh, anti-taxpayer position that the proposed regulations take.

Under I.R.C. §643(f) the IRS can treat two or more trusts as a single trust if they are formed by substantially the same grantor and have substantially the same primary beneficiaries, and are formed for the principle purpose of avoiding income taxes.  Does the statement in the proposed regulations referenced above mean that the Treasury is ignoring the three-part test of the statute?  By itself, that would seem to be the case.  However, near the end of the proposed regulations, there is a statement reciting the three-part test of I.R.C. §643(f).  Prop. Treas. Reg. §1.643(f)-1).  Hopefully, that means that any trust that has a reasonable estate/business planning purpose will be respected for QBID purposes, and that multiple trusts will not be aggregated that satisfy I.R.C. §643(f).  Time will tell what the IRS position on this will be.

Unfortunately, the proposed regulations do not address how the QBID is to apply (or not apply) to charitable remainder trusts.

Miscellaneous

Here are a few other observations from the proposed regulations:

  • Guaranteed payments in a partnership and reasonable compensation in an S corporation are not qualified wages for QBID purposes.
  • Inherited property that the heir immediately places in service gets a fair market value as of date of death basis, but the proposed regulations don’t mention whether this resets the property’s depreciation period for QP purposes (as part of the 2.5 percent computation).  
  • For purposes of the QP computation, the 2.5 percent is multiplied by the depreciated basis of the asset on the day it is transferred to an S corporation, for example, but it’s holding period starts on the day it was first used for the business before it is transferred.  
  • A partnership’s I.R.C. §743(b) adjustment does not count for QP purposes. In other words, the adjustment does not add to UBIA.  Thus, the inheritance of a fully depreciated building does not result in having any QP against which the 2.5 percent computation can be applied.  That's a harsh rule from a taxpayer's standpoint.  
  • R.C. §1231 gains are not QBI. But, any portion of an I.R.C. §1231 gain that is taxed as ordinary income will qualify as QBI.
  • Preferred allocations of partnership income will not qualify as QBI to the extent the allocation is for services.  This forecloses a planning opportunity that could have been achieved by modifying a partnership agreement to provide for such allocations.

Conclusion

The proposed regulations are now subject to a 45-day comment period with a public hearing to occur in mid-October.  The proposed rules do not have the force of law, but they can be relied on as guidance until final regulations are issued.  From a practice standpoint, rely on the statutory language when it is more favorable to a client than the position the Treasury has taken in the proposed regulations.

Numerous questions remain and will need to be clarified in the final regulations.  The Treasury will be hearing from the tax section of the American Bar Association, the American Institute of CPAs, other tax professionals and other interested parties.  Hopefully, some of the taxpayer unfavorable positions taken in the proposed regulations can be softened a bit in the final regulations.  In addition, it would be nice to get some guidance on how the rules will apply to cooperatives and their patrons.  

Also, this post did not exhaust all of the issues addressed in the proposed regulations, just the one that are most likely to apply to farming and ranching businesses.  For example, a separate dimension of the proposed regulations deals with “specialized service businesses.”   That was not addressed.

August 13, 2018 in Business Planning, Estate Planning, Income Tax | Permalink | Comments (0)

Friday, August 3, 2018

Expense Method Depreciation and Trusts

Overview

The Tax Cuts and Jobs Act (TCJA) increased the maximum amount a taxpayer may expense under IRC §179 to $1 million.  The TCJA also increased the phase-out threshold amount to $2.5 million for tax years beginning after 2017.  The $1 million and $2.5 million amounts are indexed for inflation for tax years beginning after 2018.  

Is property held in trust eligible to be expensed under I.R.C. §179?  That’s a big issue for farm and ranch families (and others).  Trusts are a popular part of many estate and business plans, and if property contained in them is not eligible for I.R.C. §179 their use could be costly from an income tax standpoint. 

Trusts and eligibility for I.R.C. §179 - that’s the topic of today’s post.   

Does the Type of Trust Matter?

I.R.C. §179(d)(4) states that an estate or trust is not eligible for I.R.C. §179.  That broad language seems to be all inclusive – all types of trusts and in addition to estates are included.  If that is true, that has serious implications for estate planning for farmers and ranchers (and others).  Revocable living trusts are a popular estate planning tool in many estate planning situations, regardless of whether there is potential for federal estate tax.  If property contained in a revocable trust (e.g., a “grantor” trust) is not eligible for I.R.C. §179, that can be a significant enough income tax difference that would mean that the estate plan should be changed to not utilize a revocable trust. 

Grantor trusts.  A grantor trust is a trust in which the grantor, the creator of the trust, retains one or more powers over the trust.  Because of this retained power, the trust's income is taxable to the grantor.  From a tax standpoint, the grantor is treated as the owner of the trust with the result that all items of income, loss, deduction and credit flowing through to the grantor during the period for which the grantor is treated as the owner of the trust.  I.R.C. §671; Treas. Reg. § 1.671-3(a)(1); Rev. Rul. 57-390, 1957-2 C.B. 326.   Another way of stating the matter is that a grantor trust is a disregarded entity for federal income tax purposes.  C.C.A. 201343021 (Jun. 17, 2013).  Effectively, the grantor simply treats the trust property as their own. 

This is the longstanding position of the IRS.  In Rev. Rul 85-13, 1985-1 C.B. 184, the IRS ruled that a grantor of a trust where the grantor retains dominion and control resulted in the grantor being treated as the trust owner.  In other words, a grantor is treated as the owner of trust assets for federal income tax purposes to the extent the grantor is treated as the owner of any portion of the trust under I.R.C. §§671-677.  In the ruling, the IRS determined that a transfer of trust assets to the grantor in exchange for the grantor's unsecured promissory note did not constitute a sale for federal income tax purposes. The facts of the ruling are essentially the same as those at issue in Rothstein v. United States, 735 F.2d 704 (2d Cir. 1984).  In Rothstein, while the court found the trust at issue to be a grantor trust, the court concluded that the trust was separate from the taxpayer.  But, in the 1985 ruling based on the same facts, the IRS stated that it would not follow Rothstein and reasserted its position that a taxpayer is deemed to own the assets contained in a grantor trust for federal tax purposes. 

Thus, there is substantial authority for the position that property contained in a grantor trust, such as a revocable living trust, is eligible for expense method depreciation under I.R.C. §179.  The grantor is the same thing for tax purposes as the grantor trust.

Irrevocable trusts.  An irrevocable trust can't be modified or terminated without the beneficiary's permission. The grantor, having transferred assets into the trust, effectively removes all rights of ownership to the assets and control over the trust assets. This is the opposite of a revocable trust, which allows the grantor to modify the trust.  That means that an irrevocable trust is a different entity from the taxpayer and the property contained in the trust is not eligible for expense method depreciation under I.R.C. §179 pursuant to I.R.C. §179(d)(4), unless the grantor retains some degree of power over trust income or assets.  For instance, a common situation when an irrevocable trust will be treated by the IRS as a grantor trust is when the grantor retains a five percent or larger reversionary interest in the trust property.  The same result occurs when the grantor retains any significant level of administrative control over the trust such as discretionary authority to distribute trust property to the grantor or the power to borrow money from the trust without paying a market rate of interest.    

Pass-Through Entities and Irrevocable Trusts

The 20 percent deduction for qualified business income under I.R.C. §199A in effect for tax years beginning after 2017 and before 2026 for taxpayers with business income that are not C corporations, may spark increased interest in pass-through entities.  With respect to a pass-through entity, though, questions concerning the use of I.R.C. §179 arise when an irrevocable trust has an ownership interest in the entity.  Under Treas. Reg. § 1.179-1(f)(3), a trust that is a partner or S corporation shareholder is barred from deducting its allocable share of the I.R.C. §179 depreciation that is elected at the entity level.  The pass-through entity’s basis in the I.R.C. §179 property is not reduced to reflect any portion of the I.R.C. §179 expense that is allocable to the trust or estate.  Consequently, the entity claims a regular depreciation deduction under I.R.C. §168 with respect to any depreciable basis that results from the inability of a non-grantor irrevocable trust or the estate to claim its allocable portion of the I.R.C. §179 depreciation.  Id.  The irrevocable trust or estate does not benefit from the entity’s I.R.C. §179 election. 

Conclusion

A revocable living trust, as a grantor trust, can claim I.R.C. §179 depreciation.  Thus, that common estate planning vehicle won’t present an income tax planning disadvantage by taking I.R.C. §179 depreciation off of the table.  However, when an irrevocable trust is involved, the result is different, unless the trust contains language that gives the grantor sufficient control over trust income or assets.  Business property that is contained in an irrevocable trust is generally not eligible for I.R.C. §179 depreciation.  But, trust language may change that general result.  In addition, if a pass-through entity claims I.R.C. §179 depreciation, none of that depreciation flows to the irrevocable trust (or estate).  That means that the entity will need to make special basis adjustments so that the deduction (or a portion thereof) is not wasted.  Likewise, the depreciation should be “separately stated items” on the K-1 whenever an irrevocable trust or an estate owns an interest in the entity.  Likewise, existing partnership agreements may need to be modified so that I.R.C. §179 deductions are allocated to non-trust partners and other expenses to owners of interests that are irrevocable trusts and estates.  

This potential difference in tax treatment between revocable grantor trusts and irrevocable trusts should be considered as part of the overall tax planning and estate/business planning process. 

August 3, 2018 in Business Planning, Income Tax | Permalink | Comments (0)

Wednesday, August 1, 2018

Life Estate/Remainder Arrangements and Income Tax Basis

Overview

Naming one person to receive the income and/or use of property until death and naming another person to receive ultimate ownership of the property is done for various reasons.  One primary reason is to allow one person (or persons) to have the use of property during life and then have someone else own the property after the life estate expires. Life estate/remainder arrangements are also used for estate tax planning purposes.  In that instance, the intent of the person creating the life estate/remainder arrangement is to effectively use the estate tax exemptions of both the husband and wife.

The life estate/remainder arrangement also raises some tax issues.  One of those issues concerns the income tax basis of the property that is the subject of the arrangement. The cost basis of inherited property is almost always the fair market value of the property as of the testator's date of death. However, what is the income tax basis of property when the various rights to the property are not owned by the same people?

Income tax basis issues associated with property subject to a life estate/remainder arrangement.  That’s the subject of today’s post.

Basis Issues

The general rule is that property is valued in a decedent’s gross estate at its fair market value as of the date of the decedent’s death. I.R.C. §1014.  It is that fair market value that determines the basis of the property in the hands of the recipient of the property.  That’s fairly simple to understand when the decedent owns the entire property interest at death.  However, that’s not the case with property that is held under a life estate/remainder arrangement.  In that situation, the remainder holder does not benefit from the property until the life tenant dies.  That complicates the income tax basis computation. 

Uniform basis.  The general idea of uniform basis is that the cost basis of inherited property should equal the value used for estate tax purposes.  The new cost basis after death is usually referred to as the “stepped-up” basis, although the new basis can be lower than the original cost.  As noted above, it’s tied to the property’s fair market value as of the date of death for purposes of inclusion in the decedent’s estate.  The regulations state that the basis of property acquired from a decedent is uniform in the hands of every person having an interest in the property.  Treas. Reg. §1.1014-4. As explained in the regulations, under the laws governing transfers from decedents, all ownership interests relate to the death of the decedent, whether the interests are vested or contingent.  That means that there is a common acquisition date and a common basis for life tenants and remainder holders.

The uniform basis rule is easy to implement after the death of the life tenant, as shown in the following example.

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Example. Boris leaves his entire estate to his son, Rocky, as a remainder holder. However, all income from the estate is payable to his wife, Natasha, until her death. The value of the property is $200,000 at the time of his death.

Natasha collects the income from the inherited property for 20 years. When she dies, the appreciated value of the property is $500,000.

When Natasha dies, Rocky becomes the sole owner of both the property and the future income. However, because Rocky's ownership of the property is based initially on his father's death, Rocky's basis is $200,000 - the value at the time his father died.

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The result of the example makes sense when you consider that the value of the life estate interest is excluded from Natasha’s estate.  Because it was excluded from her estate, there is not basis step-up in Rocky’s hands – the person who receives the right to the income after Natasha dies. 

If the inherited property is subject to depreciation, the holder of the life interest is allowed to claim the depreciation expense attributable to the entire inherited basis of the depreciable property.

Sale of the Life Estate Interest

The basis rules change dramatically for the holder of a life estate interest if the rights to the income are sold without the remainder interest being sold as part of the same transaction. If the life interest is sold separately, the seller's basis for tax purposes is $0.  I.R.C. 1001(e).  The buyer of the life interest can amortize the cost of the purchase over the life expectancy of the seller.

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Example.  Bill leaves a life interest in stock to his neighbor, Dale, and a remainder interest to another neighbor, Bobbi. The value of the stock for estate tax purposes is $5,000 at the time Bill dies. Dale immediately sells his life interest to LuAnn for $100.

Dale's cost basis in his life interest is $0. Dale reports the gain of $100 on Schedule D, Capital Gains and Losses, as a long-term capital gain.  I.R.C. §1223(10).  This transaction has no effect on the uniform basis. The cost basis allocable to Bobbi's remainder interest will continue to increase each year as the life interest's value decreases. Treas Reg. §1-1014.  LuAnn is entitled to subtract a portion of the $100 she paid Dale each year against her dividend income. The subtraction is based upon Dale's life expectancy at the time of the sale.  Treas. Reg. 1.1014-5(c).

Technically, there is no authority directing LuAnn where.to include this subtraction on her return. The conservative approach is to include it in investment expense on Schedule A, Itemized Deductions. An aggressive approach is to treat it in the same way as premiums paid for bonds, which is as a subtraction on Schedule B, Interest and Ordinary Dividends.

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Death of the Remainder Holder

If the holder of the remainder interest dies before the holder of the life interest, the uniform basis is not adjusted and the life tenant's basis is still calculated as explained previously.

However, the value of the remainder interest is included in the estate of the remainder holder. The regulations, therefore, allow the beneficiary of the remainder holder's estate to adjust the basis for a portion of the value that is included in the estate.

This basis adjustment is calculated by subtracting the portion of the uniform basis allocable to the decedent immediately prior to death from the value of the remainder interest included in the estate.

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Example.   Marge died in 2006. In her will, she left Bart, her son, a life estate interest in their family home. She left Lisa, her daughter, the remainder interest. In 2010, Lisa died.  In Lisa's will, Maggie, her sister, is the sole heir. Bart is still alive.

The fair market value of the house in 2006 when Marge died was $100,000. At the time of Lisa's death, her share in the uniform basis was $15,000, based on Bart's life expectancy and the fair market value. The value of the home in 2010 when Lisa died was $200,000. The value of the remainder interest included in Lisa's estate was $30,000.

Maggie's basis adjustment in the inherited house is shown below:

Value of the house included in Lisa's estate

$30,000

Less: Lisa's portion of the uniform basis at her death

(15,000)

Maggie's basis adjustment in the house

$15,000

When the beneficiary to the remainder interest sells the property, the basis is calculated using the beneficiary's current portion of the uniform basis at the time of the sale plus the adjustment.

Conclusion

Most people have a pretty good understanding that the income tax basis of property received from a decedent that was included in that decedent’s estate is the fair market value of the property as of the date of the decedent’s death. But, the basis issue becomes more complex when the property at issue is part of a life estate/remainder arrangement.  It’s a common estate planning technique, so the issue often arises. Hopefully, today’s post helped sort it out.

August 1, 2018 in Income Tax | Permalink | Comments (0)

Monday, July 30, 2018

Outline of Tax Proposals Released

Overview

Last week, House Ways and Means Committee Chairman Kevin Brady released the committee’s working outline for a tax legislative proposal that they are presently working on with hopes of passage later this summer or fall.  It appears to be a framework at this time, with not much substantive Code structure attached to it.  But, the framework is something to go on in anticipating what might be a forthcoming legislative proposal.  In any event, it’s worth noting what has been released so that feedback from tax professionals can be provided to tax staffers as the drafting process proceeds. 

A tax proposal following-up on the Tax Cuts and Jobs Act – that’s the topic of today’s post.

Basic Categories

The framework puts the tax proposals into three separate categories:  1) individual and small business tax cuts; 2) promotion of individual savings; and 3) promotion of business innovation. 

Individual and small business.  The effort seems to be with respect to the first category to make most of the TCJA provisions that apply to individuals and small business permanent.  Under the TCJA, many provisions are set to expire at the end of 2025.  Remember, however, tax provisions are only “permanent” if they don’t contain a statutory sunset date and the Congress doesn’t otherwise change the law. 

Savings.  The second area of focus, promoting individual savings, contains several proposals designed not only to spur individual savings, but also incentivize the use of workplace retirement plans.  One proposal that is outlined would establish a “Universal Savings Account.”  The description of the account is that it would be a “fully flexible savings tool for families.”  At this time, however, there are no details as to how the account would be established or function. 

While the TCJA did expand the potential use and application of funds contained in a “529” education account, the proposal would attempt to expand further the use of such funds by allowing them (on a tax-favored basis) to be used to pay for apprenticeship fees to learn a trade, cover home schooling expenses and be applied to pay-off student debt. 

This prong of the proposal would also allow money to be withdrawn without penalty from existing retirement accounts to pay for childbirth or adoption costs.  In addition, amounts withdrawn for such purposes could be paid back at a later time. 

Innovation.  The third prong of the proposal focuses on spurring small business entrepreneurship and innovation.  To accomplish this objective, the proposal would allow qualified small businesses to write off a greater amount of initial start-up costs than is permitted under present law.  There is no specification as to the additional amount, nor is there any “meat” to the comment in the proposal that new tax provisions would be used to “remove barriers to growth.”

Process

In recent years, tax legislation (or most legislation, for that matter) passes the House and then goes to the Senate to either die or not get acted upon – largely because of the 60-vote requirement to pass tax legislation in the Senate without the reconciliation process.  That same process could also be true for this proposal.  A likely scenario is that the House passes a tax bill, but the Senate fails to take action before the end of the year (or takes action at the last minute in December).  For this reason, it looks as if (at least right now) the House will introduce its tax proposals in three separate bills – one for each of the prongs mentioned above.  It is believed that such a strategy will assist in the process of getting the necessary 60 votes by tailoring each proposal to specific provisions.  But, then there is always the politics of the situation.  The Senate majority leader could call for a vote before the fall congressional election.  Or, on the other hand, the vote could be put off until after the election on anticipation that the Republican majority in the Senate will widen.

Other Issues

While some in the Congress could balk at what is likely to be budget scoring that will say that additional tax cuts will widen the deficit, that may be counterbalanced by those wanting deeper cuts and pointing to the strength of the overall economy.  In addition, I am already hearing talk from some tax staffers that there could be an attempt to tweak the TCJA by repealing the tax on private college endowments, modifying the new qualified business income deduction of I.R.C. §199A and indexing capital gains.  The I.R.C. §199A issue is an interesting one.  There are many unanswered question concerning it and the first set of regulations involving the new deduction have yet to be released.  Also, politicians from high tax states may push for a full reinstatement of the state and local tax deduction. 

Another possibility is that any new tax legislation will contain technical corrections to TCJA provisions.  That is probably a slim possibility, however, until after the midterm election.  That means that technical corrections, if any, won’t be until later in November or December.  Of course, those are needed now (actually they were needed months ago) as are regulations and forms so that tax pros can give advice to clients and take appropriate planning steps. 

As for health care, on July 25, the U.S. House passed two health care reform bills which would do numerous things but, in particular, expand access to tax-preferred health savings accounts (HSAs).   As usual, it remains to be seen whether the Senate will even take up either or both of the bills.

The first of the two bills, H.R. 6311, would allow individuals to bypass the Obamacare restriction on using premium tax credits to buy catastrophic health care plans and would broaden eligibility for contributions to an HSA.  Specifically, the bill would raise the contribution limit to $6,650 for individuals and $13,000 for families.  That’s the combination of the annual limit for out-of-pocket and deductible expenses for 2018.  The bill would also permit HSA funds to pay for qualified medical expenses at the start of coverage of the high deductible health policy (HDHP) if the HSA has been opened within 60 days of the HDHP start date.  The bill would also suspend until 2022 Obamacare’s annual fee on health insurers. 

The other bill concerning health care that was passed on July 25 is H.R. 6199.  This legislation repeals the portions of Obamacare that limit payments for medications from HSAs, medical savings accounts, health FSAs, and health reimbursement arrangements to only prescription drugs or insulin.  As a result, distributions from such accounts can be made without penalty for over-the-counter medications and products.  The bill would also allow persons with health insurance that qualifies as HSA family coverage to contribute to an HSA if their spouse is enrolled in a medical FSA.  It would also allow an HDHP to annually cover up to $250 (self) and $500 (family) of non-preventative services (e.g., chronic care) that may not be covered until after the deductible is reached. 

Conclusion

Tax policy will remain a key topic over the weeks leading up to the midterm election.  Whether any legislation is enacted remains to be seen.  Certainly, technical corrections are needed to deal with certain aspects of the TCJA.  From there, additional legislation is an add-on.  In any event, certainty in tax policy will not likely be part of the future for some time.  All of this makes providing tax advice to clients difficult.

July 30, 2018 in Income Tax | Permalink | Comments (0)

Thursday, July 26, 2018

Tax Issues on Repossession of Farmland

Overview

Financial distress in the farm sector continues to be a real problem.  Low prices in recent years has added to the problem, as have increased debt levels as a result of financed asset purchases during the economic upswing in the ag economy in earlier years.  As an example, the level of working capital in the farm sector has fallen sharply since 2012.  Working capital for the farm sector as a whole (current assets less current liabilities) is at its lowest level in 10 years, presently at 36 percent of its 2012 peak.   In the past year alone, working capital dropped by 18 percent.  It has also declined precipitously as a percentage of gross revenue.  This means that many farmers have a diminished ability to reinvest in their farming operations.  It also means that there is an increased likelihood that a farmer may experience the repossession of farm personal property and real estate.  When that happens, the sellers of the assets that repossess have tax consequences to worry about.

Sometimes a Chapter 12 bankruptcy might be filed – and those filings are up in parts of the Midwest and the Great Plains.  Other times, farmland might be repossessed. 

Tax issues upon repossession of farmland – that’s the topic of today’s post.

Repossession of Farmland

Special exception.  A special exception exists under I.R.C. § 1038 that is very favorable to sellers repossessing land under an installment sale – the seller need not recognize gain or loss upon the repossession in either full or partial satisfaction of the debt.  It doesn’t matter what method of accounting the seller used in reporting gain or loss from the sale or whether at the time of reacquisition the property has increased or decreased in value since the time of the original sale.   However, the rules do not apply if the disposition constitutes a tax-free exchange of the property, and a special problem can be created if related parties are involved.  See I.R.C. §453B(f)(2).  In addition, for the special rules to apply, the debt must be secured by the real property.

When real property is repossessed, whether the repossession is voluntary or involuntary, the amount of gain recognized is the lesser of - (1) the amount of cash and the fair market value of other property received before the reacquisition (but only to the extent such money and other property exceeds the amount of gain reported before the reacquisition); or (2) the amount of gain realized on the original sale (adjusted sales price less adjusted income tax basis) in excess of the gain previously recognized before the reacquisition and the money or other property transferred by the seller in connection with the reacquisition.

Handling interest.  Amounts of interest received, stated or unstated, are excluded from the computation of gain.  Because the provision is applicable only when the seller reacquires the property to satisfy the purchaser's debt, it is generally inapplicable where the seller repurchases the property by paying the buyer an extra sum in addition to cancelling the debt.  However, if the parties are related, the seller (according to the statute) must report interest debt that is canceled as ordinary income.  I.R.C. §453B(f)(2).  But, a question exists as to whether that provision applies in financial distress situations.

The rules generally are applicable, however, if the seller reacquires the property when the purchaser has defaulted or when default is imminent even if the seller pays additional amounts. 

Debt secured by the real property.  The provisions on repossession of real property do not apply except where the indebtedness was secured by the real property.  Therefore, reconveyance of property by the obligor under a private annuity to the annuitant would appear not to come within the rules.

Character of gain.  The character of the gain from reacquisition is determined by the character of the gain from the original sale.  For an original sale reported on the installment method, the character of the reacquisition gain is determined as though there had been a disposition of the installment obligation.  If the sale was reported on the deferred payment method, and there was voluntary repossession of the property, the seller reports the gain as ordinary income.  If the debts satisfied were securities issued by a corporation, government or political subdivision, the gain would be capital gain. 

Basis issues.  Once the seller has reacquired the property, it is important to determine the seller's basis in the reacquired property.  The adjusted income tax basis for the property in the hands of the reacquiring seller is the sum of three amounts - (1) the adjusted income tax basis to the seller of the indebtedness, determined as of the date of reacquisition; (2) the taxable gain resulting from reacquisition; and (3) the money and other property (at fair market value) paid by the seller as reacquisition costs. 

The holding period of the reacquired property, for purposes of subsequent disposition, includes the holding period during which the seller held the property before the original sale plus the period after reacquisition.  However, the holding period does not include the time between the original sale and the date of reacquisition. 

Is the personal residence involved?  The provisions on reacquisition of property generally apply to residences or the residence part of the transaction.  However, the repossession rules do not apply if - (1) an election is in effect for an exclusion on the residence (I.R.C. §121) and; (2) the property is resold within one year after the date of reacquisition. See, e.g., Debough v. Comm’r, 142 T.C. No. 297 (2014), aff’d, 799 F.3d 1210 (8th Cir. 2015). If those conditions are met, the resale is essentially disregarded and the resale is considered to constitute a sale of the property as of the original sale. In general, the resale is treated as having occurred on the date of the original sale.  An adjustment is made to the sales price of the old residence and the basis of the new residence.  If not resold within one year, gain is recognized under the rules for repossession of real property.  An exclusion election is considered to be in effect if an election has been made and not revoked as of the last day for making such an election.  The exclusion can, therefore, be made after reacquisition.  An election can be made at any time within three years after the due date of the return.

No bad debt deduction is permitted for a worthless or a partially worthless debt secured by a reacquired personal residence, and the income tax basis of any debt not discharged by repossession is zero.  Losses are not deductible on sale or repossession of a personal residence.  When gain is not deferred or excluded, the repossession of a personal residence is treated under the general rule as a repossession of real property.  Adjustment is made to the income tax basis of the reacquired residence.

Special situations.  In 1969, the IRS ruled that the special provisions on income tax treatment of reacquisition of property did not apply to reacquisition by the estate of a deceased taxpayer. Rev. Rul. 69-83, 1969-1 C.B. 202.  A decedent's estate was not permitted to succeed to the income treatment that would have been accorded a reacquisition by the decedent.  However, the Installment Sales Revision Act of 1980 changed that result.  The provision is effective for “acquisitions of real property by the taxpayer” after October 19, 1980.  Presumably, that means acquisitions by the estate or beneficiary.  Under the 1980 amendments, the estate or beneficiary of a deceased seller is entitled to the same nonrecognition treatment upon the acquisition of real property in partial or full satisfaction of secured purchase money debt as the deceased seller would have been.  The income tax basis of the property acquired is the same as if the original seller had reacquired the property except that the basis is increased by the amount of the deduction for federal estate tax which would have been allowable had the repossession been taxable. 

The IRS ruled in 1986 that the nonrecognition provision on repossessions of land does not apply to a former shareholder of a corporation who receives an installment obligation from the corporation in a liquidation when that shareholder, upon default by the buyer, subsequently receives the real property used to secure the obligation. Rev. Rul. 86-120, 1986-2 C.B. 145.

Conclusion

Tax planning is important for farmers that are in financial distress and for creditors of those farmers.  As usual, having good tax counsel at the ready is critical.  Tax issues can become complex quickly.

July 26, 2018 in Income Tax, Real Property | Permalink | Comments (0)

Wednesday, July 18, 2018

Agricultural Law and Economics Conference

Overview

Next month, Washburn Law School and Kansas State University (KSU) will team up for its annual symposium on agricultural law and the business of agriculture.  The event will be held in Manhattan at the Kansas Farm Bureau headquarters.  The symposium will be the first day of three days of continuing education on matters involving agricultural law and economics.  The other two days will be the annual Risk and Profit Conference conducted by the KSU Department of Agricultural Economics.  That event will be on the KSU campus in Manhattan.  The three days provide an excellent opportunity for lawyers, CPAs, farmers and ranchers, agribusiness professionals and rural landowners to obtain continuing education on matters regarding agricultural law and economics.  

Symposium

This year’s symposium on August 15 will feature discussion and analysis of the new tax law, the Tax Cuts and Jobs Act, and its impact on individuals and businesses engaged in agriculture; farm and ranch financial distress legal issues and the procedures involved in resolving debtor/creditor disputes, including the use of mediation and Chapter 12 bankruptcy; farm policy issues at the state and federal level (including a discussion of the status of the 2018 Farm Bill); the leasing of water rights; an update on significant legal (and tax) developments in agricultural law (both federal and state); and an hour of ethics that will test participant’s negotiation skills. 

The symposium can also be attended online.  For a complete description of the sessions and how to register for either in-person or online attendance, click here:  https://washburnlaw.edu/practicalexperience/agriculturallaw/waltr/continuingeducation/businessofagriculture/index.html

Risk and Profit Conference

On August 16 and 17, the KSU Department of Agricultural Economics will conduct its annual Risk and Profit campus.  The event will be held at the alumni center on the KSU campus, and will involve a day and a half of discussion of various topics related to the economics of the business of agriculture.  One of the keynote speakers at the conference will be Ambassador Richard T. Crowder, an ag negotiator on a worldwide basis.  The conference includes 22 breakout sessions on a wide range of topics, including two separate breakout sessions that I will be doing with Mark Dikeman of the KSU Farm Management Association on the new tax law.  For a complete run down of the conference, click here:  https://www.agmanager.info/risk-and-profit-conference

Conclusion

The two and one-half days of instruction is an opportunity is a great chance to gain insight into making your ag-related business more profitable from various aspects – legal, tax and economic.  If you are a producer, agribusiness professional, or a professional in a service business (lawyer; tax professional; financial planner; or other related service business) you won’t want to miss these events in Manhattan.  See you there, or online for Day 1.

July 18, 2018 in Bankruptcy, Business Planning, Civil Liabilities, Contracts, Cooperatives, Criminal Liabilities, Environmental Law, Estate Planning, Income Tax, Insurance, Real Property, Regulatory Law, Secured Transactions, Water Law | Permalink | Comments (0)

Monday, July 16, 2018

Management Activities and the Passive Loss Rules

Overview

In recent years, the IRS has shown an increased focus on business activities that it believes are being engaged in without an intent to make a profit.  If that is the case, the “hobby loss” rules apply and limit deductions to the amount of income from the activity.  But, engaging in an activity with a profit intent may not be enough to fully deduct losses from the activity.  That’s particularly the case if the taxpayer hires a paid manager to run the operation.  In that situation, the IRS may claim that the taxpayer is not materially participating in the activity under the passive loss rules.  If the IRS prevails on that argument, loss deductions are severely limited, if not eliminated.

A recent Tax Court case involved both the hobby loss rules and the passive loss rules.  While the ranching activity was deemed not to be a hobby, the court believed that the taxpayer was not materially participating in the activity.

Paid managers and the passive loss rules – that’s the focus of today’s post.

Passive Loss Rules

The passive loss rules, enacted in 1986, reduce the possibility of offsetting passive losses against active income.  I.R.C. §469(a)(1).  The rules apply to activities that involve the conduct of a trade or business (generally, any activity that is a trade or business for purposes of I.R.C. §162) where the taxpayer does not materially participate (under at least one of seven tests) in the activity on a basis which is regular, continuous and substantial. I.R.C. § 469(h)(1). Property held for rental usually is a passive activity, however, regardless of the extent of the owner's involvement in the management or operation of the property.  

If the passive loss rules apply, deductions (losses) from passive trade or business activities, to the extent the deductions exceed income from all passive activities, may not be deducted against other income (non-passive activity gains).  Losses (and credits) that a taxpayer cannot use because of the passive loss limitation rules are suspended and carry over indefinitely to be offset against future passive activity income from any source.  I.R.C. §469(b).  For farmers, the passive loss rules are likely to come into play in situations where the farmer is a passive investor in a separate business venture apart from the farming operation.  In that case, as noted, the losses from the venture cannot be used to offset the income from the farming operation.

Recent Case

Facts.  In Robison v. Comr., T.C. Memo. 2018-88, the petitioners were a married couple who lived in the San Francisco Bay area.  The husband worked in the technology sector, and during the years in issue (2010-2014) the husband’s salary ranged from $1.4 million to $10.5 million.  In 1999, the petitioners bought a 410-acre tract in a remote area of southeastern Utah for $2,000,000. They later acquired additional land, bringing their total land holdings to over 500 acres. The wife sold her physical therapy practice to focus her time on the administrative side of their new ranching activity. 

The property was in shambles and the petitioners spent large sums on infrastructure to refurbish it.  The began a horse activity on the property which they continued until 2010.  The activity never made money, with a large part of the losses (roughly $500,000 each year) attributable to depreciation, repairs due to vandalism, and infrastructure expense such as the building of a woodshop and cement factory as the property’s remote location made repair work and build-out necessary to conduct on-site.  The petitioners did not live on the ranch.  Instead, they traveled to the ranch anywhere from four to ten times annually, staying approximately 10 days each time.  The petitioners drafted all employee contracts, and managed all aspects of the horse activity.

They deducted their losses from the activity annually, and presumably because of the continued claimed losses, they were audited by the IRS in 2004 and 2008.  Each of those audits concluded with an IRS determination that the petitioners were conducting a trade or business with profit intent (e.g., the activity was not a hobby).  The IRS also determined that the petitioners were materially participating for purposes of the passive loss rules.  The petitioners did not maintain contemporaneous records of their time spent on ranch activities.  However, for each of those audits, the petitioners prepared time logs based on their calendars and their historical knowledge of how long it took them to complete various tasks.  The IRS deemed the petitioners’ approach to documenting and substantiating their time spent on various ranch activities as acceptable.  That documentation showed that the petitioners were putting over 2,000 hours (combined) into the ranch activity annually.  In one year alone, they devoted more than 200 hours dealing with the IRS audit. 

In 2010, the petitioners shifted the ranch business activity from horses to cattle.  The husband retired in 2012 and, upon retirement, the couple moved to Park City, Utah, with the husband  devoting full-time to the ranching activity along with his wife.  The cattle operation was strictly grass-fed, with the cattle grazing upper-elevation Bureau of Land Management (BLM) land during the summer months.  The petitioners negotiated the lease contracts with the BLM.  They also hired a full-time ranch manager to manage the cattle.  However, the petitioners managed the overall business of the ranch.  From 2013-2015, the losses from the ranch declined each year. 

The IRS initiated a third audit (all three audits involved different auditors) of the petitioners’ ranching activity, this time examining tax years 2010-2014.   The IRS examined whether the activity constituted a hobby, but raised no questions during the audit concerning the petitioners’ material participation.  The IRS hired an expert who spent three days at the ranch looking at all aspects of the ranching activity and examining each head of cattle.  The expert produced a report simply concluding that the petitioners had too many expenses for the activity to be profitable.   This time the IRS issued a statutory notice of deficiency (SNOD) denying deductions for losses associated with the ranching activity.  The IRS claimed that the ranching activity was a “hobby,” and also raised the alternative argument that the petitioners failed to satisfy the material participation test of the passive loss rules. 

The petitioners disagreed with the IRS’ assessment and filed a petition with the U.S. Tax Court.  The IRS did not disclose to the petitioners whether the petitioners’ alleged lack of material participation was an issue until two days before trial.  At the seven-hour trial, the court expressed no concern about any lack of profit motive on the petitioners’ part.  The IRS’ trial brief focused solely on the hobby loss issue and did not address the material participation issue.  In addition, the IRS did not raise the material participation issue at trial, and it was made clear to the court that the paid ranch manager was hired to manage the cattle, but that the overall business of the ranch was conducted by the petitioners.  At the conclusion of the trial, the court requested that the parties file additional briefs on the material participation issue.      

Tax Court’s opinion – hobby loss rules.   Judge Cohen determined that the ranching activity was not a hobby based on the nine factors set forth in Treas. Reg. §1.183-2.  One of the key factors in the petitioners’ favor was that they had hired a ranch manager and ranch hand to work the ranch and a veterinarian to assist with managing the effects of high altitude on cattle.  This indicated that the activity was being conducted as a business with a profit intent.  They had many consecutive years of losses, didn’t have a written business plan and didn’t maintain records in a manner that aided in making business decisions.  However, the court noted that they had made a significant effort to reduce expenses and make informed decisions to enhance the ranch’s profitability.  Indeed, after ten years of horse activity, the petitioners changed the ranching activity to cattle grazing in an attempt to improve profitability.  While the petitioners’ high income from non-ranching sources weighed against them, overall the court determined that the ranching activity was conducted with the requisite profit intent to not be a hobby.

Note:  While the court’s opinion stated that the horse activity was changed to cattle in 2000, the record before the court indicated that the petitioners didn’t make that switch until 2010. 

Tax Court’s opinion – passive loss rules.  However, Judge Cohen determined that the petitioners had failed to satisfy the material participation test of the passive loss rule.  The losses were, therefore, passive and only deductible in accordance with those rules.  The court determined that only two of the seven tests for material participation were relevant – the 500-hour test (Treas. Reg. § 1.469-5T(a)(1)) and the facts and circumstances test (Treas. Reg. §1.469-5T(a)(7)).  As for the 500-hour test, the court took issue with the manner in which the petitioners documented their time spent on the ranching activity.  The court opined that the logs were merely estimates of time spent on ranch activities and were created in preparation for trial.  The court made no mention of the fact that the IRS, on two prior audits, raised no issue with the manner in which the petitioners tracked their time spent on ranch activities and had not questioned the accuracy of the logs that were prepared based on the petitioners’ calendars during the third audit which led to the SNOD and eventual trial. 

As for the facts and circumstances test, the court determined that the petitioners could not satisfy the test because of the presence of the paid ranch manager.  The court made no distinction between the cattle grazing activity which the ranch manager was responsible for and the overall business operations for which the petitioners were responsible.  Indeed, on the material participation issue, due to the presence of the ranch manager, all of the personal actions and involvement of the petitioners on which the court based its determination of their profit motive were dismissed as “investor” hours.

The regulations do not list the facts and circumstances considered relevant in the application of the test, but the legislative history behind the provision does provide some guidance.  Essentially, the question is whether and how regularly the taxpayer participates in the activity.  Staff of Joint Comm. on Taxation, 99th Cong., 2d Sess., General Explanation of the Tax Reform Act of 1986, at 238 (Comm. Print 1987) [hereinafter 1986 Act Bluebook].  A taxpayer that doesn’t live at the site of the activity can still satisfy the test.  Id.  While management activities can qualify as material participation, they are likely to be viewed skeptically because of the difficulty in verifying them.  See, e.g., HR Rep. No. 841, 99th Cong., 2d Sess. II-148 (Conf. Rep. 1986); S. Rep. No. 313, 99th Cong., 2d Sess. 734 n.20 (1986); 1986 Act Bluebook, supra note 35, at 240.  Merely “formal and nominal participation in management, in the absence of a genuine exercise of independent discretion and judgment is not material participation.”  HR Rep. No. 841, 99th Cong., 2d Sess. II-148 (Conf. Rep. 1986); S. Rep. No. 313, 99th Cong., 2d Sess. 734 n.20 (1986).  Thus, the decisions the taxpayer makes must be important to the business (and they must be continuous and substantial). 

It is true that a taxpayer’s management activities are ignored if any person receives compensation for management services performed for the activity during the taxable year.  Treas. Reg. §1.469-5T(b)(2)(ii)(A).  Clearly, this exclusion applies where the “taxpayer has little or no knowledge or experience” in the business and “merely approves management decisions recommended by a paid advisor.”  See Treas. Reg. §1.469-5T(k), Ex. 8.  However, the regulation applies well beyond those situations.  In addition, a taxpayer's management work is ignored if some other unpaid manager spends more time than the taxpayer on managing the activity.  Treas. Reg. § 1.469-5T(b)(ii)(B).  Thus, there is no attributions of the activities of employees and agents to the taxpayer for purposes of the passive loss rules, but hiring a paid manager does not destroy the taxpayer’s own record of involvement for the material participation purposes except for the facts and circumstances test.  See, e.g., S. Rep. No. 313, 99th Cong., 2d Sess. 735 (1986)( “if the taxpayer’s own activities are sufficient, the fact that employees or contract services are utilized to perform daily functions in running the business does not prevent the taxpayer from qualifying as materially participating”).

Conclusion

Clearly, the petitioners’ type of involvement in the ranching activity was not that of an investor.  However, equally clearly was that the petitioners’ method of recordkeeping was a big issue to the court (even though IRS was not concerned).  The preparation of non-contemporaneous logs and those prepared from calendar entries has been a problem in other cases.  See, e.g., Lee v. Comr., T.C. Memo. 2006-193; Fowler v. Comr., T.C. Memo. 2002-223; Shaw v. Comr., T.C. Memo. 2002-35.  Without those logs being available to substantiate the petitioners’ hours, the petitioners were left with satisfying the material participation requirement under the facts and circumstances test.  That’s where the presence of the paid manager proved fatal.  Thus, the ranching activity was not a hobby, but it was passive. 

Combining the passive loss rules with a hobby loss argument is not a new tactic for the IRS (it was recently utilized with respect to a Kansas ranch), but the Robison decision certainly indicates that it can be expected to be used more frequently.  But, remember, the IRS, at no point in the audit or litigation in Robison pressed the material participation issue – it was simply stated as an alternative issue in the SNOD.  It was Judge Cohen that sought additional briefing on the issue.      

The result in Robison is that the losses will only be deductible to the extent of passive income from the activity.  Otherwise, the losses remain suspended until the petitioners dispose of their entire interest in the activity in a fully taxable transaction to an unrelated party.  I.R.C. §469(g).    That’s exactly what is going to happen.  The petitioners are tired of the constant battle with the IRS and will not appeal the Tax Court’s decision.  The ranch is for sale. 

July 16, 2018 in Business Planning, Income Tax | Permalink | Comments (0)

Thursday, July 12, 2018

When Is An Informal Business Arrangement A Partnership?

Overview

A partnership is an association of two or more persons to carry on as co-owners a business for profit. Uniform Partnership Act, § 6. Similarly, the regulations state that a business arrangement “may create a separate entity for federal tax purposes if the participants carry on a trade, business, financial operation, or venture and divide the profits therefrom.” 26 C.F.R. §301.7701-1(a)(2).  If there is a written partnership agreement, that usually settles the question of whether the arrangement is a partnership.  Unfortunately, relatively few farm or ranch partnerships are based upon a written partnership agreement or, as it is expressed in some cases, a set of articles of partnership. 

Sometimes an interesting tax or other legal issue arises as to whether a particular organization is, in fact, a partnership.  For example, sometimes taxpayers attempt to prove (or disprove) the existence of a partnership in order to split income and expense among several taxpayers in a more favorable manner (see, e.g., Holdner, et al. v. Comr., 483 Fed. Appx. 383 (9th Cir. 2012), aff’g., T.C. Memo. 2010-175) or establish separate ownership of interests for estate tax purposes.  However, such a strategy is not always successful.

When is a partnership formed and why does it matter?  That’s the topic of today post.

The Problems Of An Oral Arrangement

Because a partnership is an agreement between two or more individuals to carry on as co-owners a business for profit, a partnership generally exists when there is a sharing of net income and losses.  See, e.g., In re Estate of Humphreys, No. E2009-00114-COA-R3-CV, 2009 Tenn. App. LEXIS 716 (Tenn. Ct. App. Oct. 28, 2009).  The issue can often arise with oral farm leases.  A crop-share lease shares gross income, but not net income because the tenant still has some unique deductions that are handled differently than the landlord's.  For example, the landlord typically bears all of the expense for building maintenance and repair, but the tenant bears all the expense for machinery and labor.  Thus, there is not a sharing of net income and the typical crop-share lease is, therefore, not a partnership.  Likewise, a livestock share lease is usually not a partnership because both the landlord and the tenant will have unique expenses.  But, if a livestock share lease or a crop-share lease exists for some time and the landlord and tenant start pulling out an increased amount of expenses and deducting them before dividing the remaining income, then the arrangement will move ever closer to partnership status.  When the arrangement arrives at the point where there is a sharing of net income, a partnership exists.  With a general partnership comes unlimited liability.  Because of the fear of unlimited liability, landlords like to have written into crop-share and livestock-share leases a provision specifying that the arrangement is not to be construed as a partnership.

For federal tax purposes, the courts consider numerous factors to determine whether a particular business arrangement is a partnership:  (1) the agreement of the parties and their conduct in executing its terms; (2) the contributions, if any, which each party has made to the venture; (3) the parties’ control over income and capital and the right of each to make withdrawals; (4) whether each party was a principal and coproprietor sharing a mutual proprietary interest in the net profits and having an obligation to share losses, or whether one party was the agent or employee of the other, receiving for his services contingent compensation in the form of a percentage of income; (5) whether business was conducted in the joint names of the parties; (6) whether the parties filed federal partnership returns or otherwise represented to the IRS or to persons with whom they dealt that there were joint venturers; (7) whether separate books of account were maintained for the venture; and (8) whether the parties exercised mutual control over and assumed mutual responsibilities for the enterprise.  See, e.g., Luna v. Comr., 42 T.C. 1067 (1964).  While of the circumstances of a particular arrangement or to be considered, the primary question “is whether the parties intended to, and did in fact, join together for the present conduct of an undertaking or enterprise.”  Id.  If a business arrangement is properly classified as a partnership for tax purposes, a partner is taxed only on the partner’s distributive share of the partnership’s income.  

Recent Case

White v. Comr., T.C. Memo. 2018-102, involved the issue of whether an informal arrangement created a partnership for tax purposes.  The petitioners, a married couple, joined forces with another couple to form a real estate business.  They did not reduce the terms of their business relationship to writing.  In 2011, one of two years under audit, the petitioners contributed over $200,000 to the business.  The other couple didn’t contribute anything.  The petitioners used their personal checking account for business banking during the initial months of the business.  Later, business accounts were opened that inconsistently listed the type of entity the account was for and different officers listed for the business.  The couples had different responsibilities in the business and, the business was operated very informally concerning financial activities.  The petitioners controlled the business funds and also used business accounts to pay their personal expenses.  They also used personal accounts to pay business expenses.  No books or records were maintained to track the payments, and the petitioners also used business funds to pay personal expenses of the other couple.  The petitioners acknowledged at trial that they did not agree to an equal division of business profits.  When the petitioners’ financial situation became dire and they blurred the lines between business and personal accounts even further.  Ultimately the business venture failed and the other couple agreed to buy the petitioners’ business interests.

Both couples reported business income on Schedule C for the tax years at issue.  They didn’t file a partnership return – Form 1065.  The returns were self-prepared and because the petitioners did not maintain books and records to substantiate the correctness of the income reported on the return, the IRS was authorized to reconstruct the petitioners’ income in any manner that clearly reflected income.  The IRS did so using the “specific-item method.”

The petitioners claimed that their business with the other couple was a partnership for tax purposes and, as a result, the petitioners were taxable on only their distributive share of the partnership income.  The court went through the eight factors for the existence of a partnership for tax purposes, and concluded the following:  1) there was no written agreement and no equal division of profits; 2) the petitioners were the only ones that capitalized the business – the other couple made no capital contributions, but did contribute services; 3) the petitioners had sole financial control of the business; 4) the evidence didn’t establish that the other couples’ role in the business was anything other than that of an independent contractor; 5) business bank accounts were all in the petitioners’ names – the other couple was not listed on any of the accounts; 6) a partnership return was never filed, and the petitioners characterized transfers from the other couple to the business as “loan repayments;” 7) no separate books and records were maintained; 8) the business was not conducted in the couples’ joint names, and there was not “mutual control” or “mutual responsibility” concerning the “partnership” business.  Consequently, the court determined that the petitioners had unreported Schedule C gross receipts.  They weren’t able to establish that they should be taxed only on their distributive share of partnership income.

Conclusion

The case is a reminder of what it takes to be treated as a partnership for tax purposes.  In additions to tax, however, is the general partnership feature of unlimited liability, with liability being joint and several among partners.  How you hold yourself out to the public is an important aspect of this.  Do you refer to yourself as a “partner”?  Do you have a partnership bank account?  Does the farm pickup truck say “ABC Farm Partnership” on the side?  If you don’t want to be determined to have partnership status, don’t do those things.  If you want partnership tax treatment, bring your conduct within the eight factors – or execute a written partnership agreement and stick to it.

July 12, 2018 in Business Planning, Income Tax | Permalink | Comments (0)

Tuesday, July 10, 2018

Charitable Giving Post-2017

Overview

The Tax Cuts and Jobs Act made significant changes in the tax law.  That’s an obvious conclusion.  It also changed some of the rules associated with charitable giving, and other rules that have an impact are likely to impact a taxpayer’s decision to donate to charity.  Because of these changes, some charities have expressed concerns about a potential decline in charitable giving overall. 

Is a drop in overall charitable giving likely?  If so, are there planning options that can be utilized to preserve charitable deductions for charitable gifts?

Post-2017 charitable giving.  That’s the topic of today’s post.

Contribution Limitations

For tax years beginning before 2018, taxpayers that itemized deductions (Schedule A) could deduct charitable donations of cash or property to qualifying organizations.  That remains true for tax years beginning after 2017.  However, the TCJA has made a couple of important changes.  Pre-TCJA, most cash contributions were generally limited to 50 percent of the taxpayer’s “contribution base.”  “Contribution base” is defined as the taxpayer’s adjusted gross income (AGI).  For this purpose, AGI is computed without including any net operating loss carryback to the tax year.  I.R.C. §170(b)(1)(H).

The 50 percent limit applies to donations of ordinary income property and cash to charitable organizations described in I.R.C. §170(b)(1)(A).  Those charities include public charities, private foundations other than nonoperating private foundations, and certain governmental units. Donations of capital gain property to these entities are limited to 30 percent of the taxpayer’s contribution base.  Donated capital gain property to these organizations that are for the purpose of allowing the charity to use the property is capped at 20 percent of the donor’s contribution base.  Gifts to non-operating foundations are capped at 30 percent of the donor’s contribution base for gifts of ordinary income property and case.  The cap is 20 percent for capital gain property gifted to a non-operating foundation. 

Under the TCJA, effective for tax years beginning after 2017 and before 2026, the 50 percent limitation is increased to 60 percent.  Thus, an individual taxpayer can deduct cash contributions up to 60% of contribution base for donations to I.R.C. §170(b)(1)(A) organizations. I.R.C. §170(b)(1)(G)(i).  Any amount that is disallowed due to the limitation can be carried forward for five years.  In addition, for taxpayers that have contributions of both cash and capital gain property in the same tax year, the cash contribution will reduce the amount of deduction for the donated capital gain property. 

Example:  Tammy has a contribution base of $75,000 for 2018.  She donates $10,000 of cash to various I.R.C. §170(b)(1)(A) organizations.  The 60 percent limitation would limit her cash contributions for 2018 to $45,000.  Tammy also donated her 1969 John Deere 4020 tractor to an I.R.C. §170(b)(1)(A) organization in 2018.  The tractor was valued at $32,500.  Her limitation on donated capital gain property for 2018 is $22,500 (30 percent of $75,000).   However, the $22,500 is reduced by her $10,000 cash contribution.  Thus, her limit in 2018 for capital gain donations (30 percent property) is $12,500.  Tammy will be able to deduct $12.500 of the tractor’s value in 2018 and carry forward the balance of the donated value ($20,000). 

The increase from 50 percent to 60 percent on the AGI maximum deduction amount is certainly good news for taxpayers with charitable inclinations.  In addition, the TCJA eliminates the “Pease limitation” (I.R.C. §68) through 2025.  That rule phased-out itemized deductions at particular income levels.  These two TCJA changes could, by themselves, trigger a significant increase in charitable giving – particularly by higher income taxpayers.  However, the TCJA made other changes that could have an offsetting effect.

Other TCJA Changes That Could Impact Giving

The TCJA significantly increases the standard deduction – to $12,000 for single filers and $24,000 for married filing jointly taxpayers.  Also, many expenses that were deductible for tax years beginning before 2018 are either non-deductible or are limited.  For example, the deduction for state and local taxes associated with non-business property is limited to $10,000.  The increase in the standard deduction coupled with the elimination/limitation of various deductions will have an impact on giving, particularly by taxpayers that make relatively smaller gifts.  That’s because the TCJA has made it more difficult for Schedule A deductions to exceed the standard deduction.  More taxpayers are likely to simply claim the standard deduction rather than file Schedule A.  Without filing Schedule A to itemize deductions, there is no deduction for charitable gifts.

Normally, a tax deduction cannot be taken for a donation to a qualified charity when there is a quid pro quo.  However, for tax years beginning before 2018, a taxpayer could deduct 80 percent of charitable contributions made to an institution of higher learning for the right to buy tickets or seating at an athletic event.  However, the TCJA changed this rule.  For tax years beginning after 2017, the 80 percent rule is eliminated. 

The TCJA also increased the federal unified credit for estate and gift tax purposes such that, beginning in 2018, federal estate tax doesn’t apply until a decedent’s taxable estate value exceeds $11.18 million.  That’s practically twice the amount that it was for 2017.  It’s likely that this significant increase will dampen charitable bequests.  Presently, about 8 percent of charitable giving derives from bequests. 

Planning Options

Will these changes be enough to cause taxpayers to curb charitable giving?  To the extent a taxpayer donates to charity based on getting a tax break, that could be the case to the extent the TCJA changes reduce the deduction associated with charitable gifts.  Many charities are concerned.  Historically, taxpayers that itemize deductions are more likely to give to charity than are non-itemizers.  Similarly, non-itemizers make up a relatively small percentage of total charitable giving.  One estimate is that, for tax years beginning after 2017, less than five percent of taxpayers will itemize by filing Schedule A.  The Indiana University School of Philanthropy and Independent Sector has estimated that the TCJA changes will reduce overall charitable giving by 1.7 percent to 4.6 percent.  Those percentages convert to an annual reduction in giving between $4.9 billion and $13.1 billion.   

Are there options to plan around the TCJA impacts on charitable giving?  There might be, at least for some taxpayers.  One approach is for a taxpayer to aggregate charitable gifts – make them in one year but not the following year, etc., so that there is a larger amount gifted in any particular year.  This technique is designed to get the level of itemized deductions to an amount that is greater than the standard deduction for the years of the gifts.  

If “gift stacking” won’t work for a taxpayer, other techniques may include gifting to private foundations, using charitable trusts or a donor advised fund.  A donor advised fund allows a donor to make a charitable contribution, get an immediate tax deduction and then recommend grants from the fund to qualified charities.  Of course, these various donation vehicles come with their own limitations on deductions and how they can operate.  Likewise, there is no “one size fits all” when it comes to putting together a charitable giving plan.  Some techniques just simply won’t work unless large gifts are made. 

Conclusion

The TCJA made significant changes to the rules surrounding charitable giving.  For many taxpayers, planning steps need to be taken to alter existing approaches to account for the new rules.  Make sure to get good tax advice for your own situation.  Also, when it comes to charitable giving, make sure to keep good records to substantiate your gifts.  The IRS looks at the substantiation issue very closely. 

July 10, 2018 in Income Tax | Permalink | Comments (1)

Friday, July 6, 2018

The Depletion Deduction For Oil and Gas Operations

Overview

Owner-lessors and operator-lessees of oil and gas interests can claim depletion associated with the production of oil and gas. Although conceptually similar to depreciation, the depletion deduction differs in significant ways from depreciation. The depletion deduction is based on the depletion of the mineral resource, whereas depreciation is based on the exhaustion of an asset that is used in the taxpayer’s trade or business.

The depletion deduction associated with oil and gas interests – that’s the topic of today’s post.

Requirements for the Deduction

To claim a depletion deduction, the taxpayer must have an economic interest in the mineral property, and the legal right to the income from the oil and gas extraction.  Treas Reg. §1.611-1(b).  If these two requirements are met, the deduction is allowed upon the sale of the oil and gas when income is reported.  For the owner-lessor, the deduction can offset royalty payments but not bonus lease payments (because the deduction is allowed only when oil or gas is actually sold and income is reportable).  For the operator-lessee, the depletable cost is the total amount paid to the lessor (the lease bonus) and other costs that are not currently deducted such as exploration and development costs as well as intangible drilling costs.

Conceptually, the taxpayer is entitled to a deduction against the revenue received as the income tax basis in the mineral property is depleted. For the owner-lessor, a cost basis in the minerals must have been established at the time basis in the taxpayer’s property (surface and mineral estate) was established. This may have occurred as part of an estate tax valuation in which the minerals and surface were separately valued or upon allocation of the purchase price at the time of acquisition. For the operator- lessee, the operator’s historical investment cost is the key.

When a lease of minerals is involved, the depletion deduction must be equitably apportioned between the lessor and the lessee.  IRC §611(b). If a life estate is involved (the property is held by one person for life with the remainder to another person), the deduction is allowed to the life tenant but not the remainderman. For property held in a trust, the deduction is apportioned between the income beneficiaries and the trustee in accordance with the terms of the trust. If the trust instrument does not contain such provisions, the deduction is apportioned on the basis of the trust income allocable to each. For a decedent’s estate, the deduction is apportioned between the estate and the heirs on the basis of the estate income allocable to each.

Computation Methods

There are two methods available for computing the depletion deduction: the cost depletion method and the percentage depletion method. A comparison should be made of the two methods and the one that provides the greater deduction should be used.

Cost depletion.  For the owner-lessor, the cost depletion method is a units-of-production approach that is associated with the owner’s basis in the property. Cost depletion, like depreciation, cannot exceed the taxpayer’s basis in the property. The basis includes the value of the land and any associated capital assets (e.g., timber, equipment, buildings, and oil and gas reserves).  See I.R.C. §612.     Basis also includes any other expenses that were incurred in acquiring the land (e.g., attorney fees, surveys, etc.).  Basis is tied to the manner in which a property is acquired.  For example, mineral property can be acquired via purchase (purchase price basis), inheritance (basis equals the property’s FMV at the time of the decedent’s death) or gift (carryover basis from the donor).  Basis is allocated among the various capital assets and is determined after accounting for the following items:

  1. Amounts recovered through depreciation deductions, deferred expenses, and deductions other than depletions;
  1. The residual value of land and improvements at the end of operations; and
  1. The cost or value of land acquired for purposes other than mineral production

Under the cost depletion approach, the taxpayer must know the total recoverable mineral units in the property’s natural deposit and the number of mineral units sold during the tax year. The total recoverable units is the sum of the number of mineral units remaining at the end of the year plus the number of mineral units sold during the tax year.  The landowner must estimate or determine the recoverable units of mineral product using the current industry method and the most accurate and reliable information available.  A safe harbor can be elected to determine the recoverable units. Rev. Proc. 2004-19, 2004-10 IRB 563.  The mechanics of the computation are contained in Treas. Reg. §1.611-2.

The number of mineral units sold during the tax year depends on the accounting method that the taxpayer uses (i.e., cash or accrual). Many taxpayers, particularly landowners, are likely to be on the cash method. Thus, for these taxpayers, the units sold during the year are the units for which payment was received.  Under the cost depletion approach, an estimated cost per unit of the mineral resource is computed annually by dividing the unrecoverable depletable cost at the end of the year by the estimated remaining recoverable units at the beginning of the year. The cost per unit is then multiplied by the number of units sold during the year.

Let’s look at an example:

Billie Jo’s father died in 2014. His will devised a 640-acre tract of land to Billie Jo. The value of the tract as reported on Form 706, United States Estate (and Generation-Skipping Transfer) Tax Return, for estate tax purposes was $6.4 million. Of that amount, $1 million was allocated to the mineral rights in the tract.

In 2018, a well drilled on the property produced 300,000 barrels of oil. Geological and engineering studies determined that the deposit contained 2 million barrels of usable crude oil. In 2018, the 300,000 barrels produced were sold.  Billie Jo’s cost depletion deduction for 2018 is $150,000 and is calculated as follows.

Unrecoverable depletable cost at the end of the year                            ×                 Number of units Estimated remaining recoverable units at the beginning of the year           sold during the year

$1,000,000 /$2,000,000 ×  300,000 = $150,000 

Billie Jo deducts the $150,000 on her 2018 Schedule E. Billie Jo’s adjusted basis in the mineral deposit for 2019 that is eligible for cost depletion is $850,000 ($1 million − $150,000).

Also, consider this example:

Acme Drilling Corporation paid Bubba $300,000 to acquire all of the oil rights associated with Bubba’s land. The $300,000 was Acme’s only depletable cost. Geological and engineering studies estimated that the deposit contains 800,000 barrels of usable crude oil.

In 2018, 200,000 barrels of oil were produced and 180,000 were sold. Acme’s cost depletion deduction for 2015 is $67,500 and is calculated as follows.

Unrecoverable depletable cost at the end of the year                                 x              Number of units

Estimated remaining recoverable units at the beginning of the year                        sold during the year

$300,000 /$800,000 × 180,000 = $67,500 

Percentage depletion. As noted previously, the amount allowed as a depletion deduction is the

greater of cost or percentage depletion computed for each property (as defined in I.R.C. §614(a) for the tax year.  See IRC §§613 and 613A and Treas. Reg. §1.611-1(a).

Landowners without an established cost basis may be able to claim percentage depletion (discussed later). It is common for a landowner to not allocate any part of the property’s basis to the oil and gas reserves. Thus, percentage depletion may be the only depletion method available.

Under the percentage depletion method, the taxpayer (owner-lessor or a producer that is not a retailer or refiner) uses a percentage of gross income from the property, which is limited to the lesser of the following:

  • 15% of the gross income from the oil/gas property (for an operator-lessee, this is defined as gross income from the property less expenses attributable to the property other than depletion and the production deduction, but including an allocation of general )
  • 65% of the taxable income from all I.R.C. §613A(d).   

For percentage depletion purposes, total taxable income is a function of gross income. Gross income from the property includes, among other things, the amount received from the sale of the oil or gas in the immediate vicinity of the well.  Treas. Reg. §1.613-3. Gross income does not include lease bonuses, advance royalties, or other amounts payable without regard to production from the property.  I.R.C. §613A(d)(5).

Any amount not deductible due to the 65% limitation can be carried over to the following year, subject to the same limitation. Any amount carried over is added to the depletion allowance before any limits are applied for the carryover year. I.R.C. §613A and the underlying regulations set forth a detailed multi-step process that is utilized to compute percentage depletion allowed to independent producers and royalty owners.

A production limit also applies. For partnerships, all depletion is computed at the partner level and not by the partnership.  Prop. Treas. Reg. §1.613A-3(e).  The partnership must allocate the adjusted basis of its oil and gas properties to its partners in accordance with each partner’s interest in capital or income.

Consider the following example:

In 2018, Rusty received $50,000 of royalty income from a well on his farm. His taxable income from all sources in 2018 is $432,000. Of that amount, $300,000 is income from crops and livestock. He has $82,000 of income from other sources.

Rusty computes his percentage depletion deduction by multiplying his $50,000 gross income from the oil/gas property by 15%, which is $7,500.   His taxable income from all sources is $432,000, and 65% of that amount is $280,800. Thus, Rusty’s depletion deduction is the lesser of $7,500 or $280,800. Rusty can claim the $7,500 deduction on line 18 (depreciation expense or depletion) of his 2018 Schedule E.

Conclusion

Oil and gas taxation is complex.  But, the Code does provide some beneficial rules to offset the cost of production.  That’s true for other lines of businesses also.  The cost of production associated with business property typically generates a tax write-off.  When it comes to oil and gas, the rules may be more difficult.  If you have these issues, it will pay to hire tax counsel that is well versed in the tax rules associated with oil and gas.

July 6, 2018 in Income Tax | Permalink | Comments (0)

Tuesday, June 26, 2018

State Taxation of Online Sales

Overview

Last week, the U.S. Supreme Court, in South Dakota v. Wayfair, Inc., No. 17-494, 2018 U.S. LEXIS 3835 (U.S. Sup. Ct. Jun. 21, 2018), handed South Dakota a narrow 5-4 win in its quest to collect taxes from online sales.  The Court held that the Constitution’s Commerce Clause did not bar South Dakota from statutorily requiring remote sellers without a physical presence in the state to collect and remit sales tax on goods and services that are sold to buyers for delivery inside the state of South Dakota.  In so doing, the Court overruled 50 years of Court precedent on the issue. 

Other states will certainly take note of the Court’s decision, and some (such as Iowa) were banking on the Court ruling in the manner that it did and passed legislation similar to the South Dakota legislation that will take effect in the future.  But, as I wrote last fall, a victory for South Dakota could do damage to the Commerce Clause and the concept of due process and contemporary commerce. 

An update on state taxation of internet sales, the possible implications of the Court’s recent decision and what the impact could be on small businesses – that’s the focus of today’s post.

Historical Precedent

In 1967, the U.S. Supreme Court determined that the Commerce Clause grants “exclusive authority [to] Congress to regulate trade between the States” in holding that Illinois could not subject a mail order seller located in Missouri to use tax where the seller had no physical presence in Illinois.  National Bellas Hess, Inc. v. Illinois Department of Revenue, 386 U.S. 753 (1967).  In holding the law unconstitutional, the Court reasoned that subjecting the seller’s interstate business to local “variations in rates of tax…and record-keeping requirements” would violate the purpose of the Commerce Clause “to ensure a national economy free from…unjustifiable local entanglements.” 

Twenty-five years later, the Court reaffirmed the limitations of the Commerce Clause on state regulatory authority in Quill Corporation v. North Dakota, 504, U.S. 298 (1992).  In Quill, the Court held that a mail order house with no physical presence in North Dakota was not subject to North Dakota use tax for “property purchased for storage, use, or consumption within the State.”  The Court followed closely its holding in National Bellas Hess, Inc. because doing so “encourage[d] settled expectations and …foster[ed] investment by businesses and individuals.”  As applied to internet sales, Quill (which predated the internet) does not exempt all internet sales from state sales taxes – just sales by sellers who don’t have a physical presence in a particular state.  National retailers have a presence in many states.

More recently, in 2015, the Court examined a Colorado “tattletale” law that required out-of-state sellers with no physical presence in the state “to notify…customers of their use tax liability and to report” sales information back to Colorado.  Direct Marketing Association v. Brohl, 135 S. Ct. 1124 (2013).  The trial court enjoined enforcement of the law on Commerce Clause grounds.  On appeal, the Tenth Circuit held that it couldn’t hear the challenge to the law because the Tax Injunction Act (28 U.S.C. §1341) divested it of jurisdiction and the matter belonged in state court and, ultimately, the U.S. Supreme Court.  The Tenth Circuit remanded the case for dismissal of the Commerce Clause claims and dissolution of the permanent injunction.  The U.S. Supreme Court reversed and remanded the decision of the Tenth Circuit on the jurisdiction issue and, on remand, the Tenth Circuit, invalidated the Colorado law on Commerce Clause grounds.  Direct Marketing Association v. Brohl, 814 F.3d 1129 (10th Cir. 2016). 

In the U.S. Supreme Court’s reversal and remand of the Tenth Circuit’s decision in Direct Marketing Association, Justice Kennedy wrote a concurring opinion that essentially invited the legal system to find an appropriate case that would allow the Court to reexamine the Quill and National Bellas Hess holdings.  Hence, the South Dakota legislation. 

South Dakota Legislation and Litigation

S.B. 106 was introduced in the 2016 legislative session of the South Dakota legislature.  It requires the collection of sales taxes from certain remote sellers – those with “gross revenue” from sales in South Dakota of over $100,000 per calendar year or with 200 or more “separate transactions” in the state within the same timeframe.  Interestingly, S.B. 106 authorized the state to bring a declaratory judgment action in circuit court against any person believed to be subject to the law.  The law also authorized a motion to dismiss or a motion for summary judgment in the court action, and provided that the filing of such an action “operates as an injunction during the pendency of the” suit that would bar South Dakota from enforcing the law. 

S.B. 106 was signed into law on March 22, 2016, and the state Department of Revenue soon thereafter began issuing notices to sellers that it thought were in violation of the law.  Several out-of-state sellers that received notices did not register for sale tax licenses as the law required.  Consequently, the state brought a declaratory judgment action against the sellers in circuit court, and sought a judicial declaration that the S.B. 106 requirements were valid and applied to the sellers.  The state also sought an order enjoining enforcement of S.B. 106 while the action was pending in court, and an injunction that required the sellers to register for licenses to collect and remit sales tax. 

The sellers tried to remove the case to federal court based on federal question jurisdiction, but the federal court rejected that approach and remanded the case to the South Dakota Supreme Court.  South Dakota v. Wayfair, Inc., 229 F. Supp. 3d 1026 (D. S.D. Jan. 17, 2017).  On remand, the South Dakota Supreme Court invalidated S.B. 106 on Commerce Clause based on the U.S. Supreme Court precedent referenced above.  State v. Wayfair, Inc., et al., 901 N.W.2d 754 (S.D. 2017).  The state of South Dakota announced shortly after the South Dakota Supreme Court’s decision that it would file a petition for certiorari with the U.S. Supreme Court by mid-October.  They did, the U.S. Supreme Court granted the petition and heard the case which lead to last week’s opinion. 

U.S. Supreme Court Decision

Article I, Section 8 of the U.S. Constitution says that, “The Congress shall have the power...to regulate commerce…among the several states…”.  That was the key point of the Court’s 1967 Bellas Hess, Inc. decision.  As noted above, in that case the Court stated that the Commerce Clause grants “exclusive authority [to] Congress to regulate trade between the States.”  Apparently, that is not the case anymore, at least according to the majority in Wayfair – Justices Kennedy, Thomas, Ginsburg, Alito and Gorsuch.  Under the new interpretation of the Commerce Clause, states can impose sale tax obligations on businesses that have no physical presence in the state.  But is that completely true?  Can the Court’s opinion be construed as giving the states a “blank check” to tax out-of-state businesses?  Maybe not.

In Complete Auto Transit, Inc. v. Brady, 430 U.S. 274 (1977), the Court ruled that a state tax would be upheld if it applied to an activity having a substantial nexus with the state; was fairly apportioned; did not discriminate against interstate commerce; and, was fairly related to the services that the state provided.  Later, in the Quill case, the Court determined that a physical presence in the taxing jurisdiction was what satisfied the Brady “substantial nexus” requirement. 

In Wayfair, the Court determined that a “substantial nexus” could be present without the party subjected to tax having a physical presence in the taxing jurisdiction.  But, the key point is that the “substantial nexus” test of Brady remains.  Likewise, the other three requirements of Brady remain – fair apportionment; no discrimination against interstate commerce, and; fairly related to services that the state provides.  In other words, taxing a business without a physical presence in the state cannot unduly burden interstate commerce.  The Wayfair majority determined that the South Dakota law satisfied these tests because of the way it was structured – limited application (based on transactions or dollars of sales); not retroactive; the state was a member of the Streamlined Sales and Use Tax Agreement; the sellers at issue were national businesses with a large online presence; and South Dakota provided tax software to ease the administrative burden. 

The dissent in Wayfair, authored by Chief Justice Roberts, noted that there was no need for the Court to overturn Quill.  The Chief Justice noted that, “E-commerce has grown into a significant and vibrant part of our national economy against the backdrop of established rules, including the physical-presence rule. Any alteration to those rules with the potential to disrupt the development of such a critical segment of the economy should be undertaken by Congress.”  That’s precisely the point of the Commerce Clause, and Chief Justice Roberts pointed it out – the Court had no business wading into this issue.  In fact, several members of the Congress filed briefs with the Court in the case to inform the Court that various pieces of legislation were pending that would address the issue. 

Conclusion

The question then is what, if any, type of a state taxing regime imposed on out-of-state sellers would be determined to violate the Commerce Clause post-Wayfair.  Of course, the answer to that question won’t be known until a state attempts more aggressive taxation on out-of-state sellers than did South Dakota, but a few observations can be made.  Presently, 23 states are “full members” of the Streamlined Sales and Use Tax Agreement.  For those states, the Wayfair majority seemed to believe that had the effect of minimizing the impact on interstate commerce.  Also, it would appear that any state legislation would have to have exceptions for small businesses with low volume transactions and sales revenue.  Whether a series LLC (in some states such as Iowa) or subsidiaries of a business could be created, each with sales below the applicable threshold, remains to be seen.

Now, it appears that state legislatures crafting tax statutes need not give much, if any, thought to the reason for the tax or who the parties subject to the tax might be.  The only consideration appears to be the relative burden of the tax.  With Wayfair, states have gained more power – the power to tax people and businesses for whom the state provides no services and who cannot vote the people out of office that created the tax.  That would not appear to square with traditional concepts of due process. 

The whole notion of a state taxing a business that has no physical presence in the state is incompatible with the principles of federalism that bar states from taxing (whether income, property or sales tax, for instance) non-resident individuals or businesses (with a few, minor exceptions).  As noted earlier, a state that imposes such a taxing regime would be able to generate revenue from taxpayers who use none of the services provided by the taxing jurisdiction. 

Post Wayfair, where will the line be drawn?  Wayfair involved state sales tax.  Will states attempt to go after a portion of business income of the out-of-state business via income tax?  That seems plausible.  However, the Interstate Income Act of 1959 (15 U.S.C. §381-384), requires that a business (or individual – the business form does not matter because corporations have long held personhood status under the Constitution (see, Bank of the United States v. Deveaux, 9 U.S. 61 (1809); Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014)) have some sort of connection with a state before its income can be taxed (at least with respect to the solicitation of orders for tangible personal property).  Is that legislation now unconstitutional too? Or, is there a distinction remaining between taxing receipts as opposed to income?

Only time will tell.

June 26, 2018 in Income Tax | Permalink | Comments (0)