Thursday, July 15, 2021

Montana Conference and Ag Law Summit (Nebraska)

Overview

The second of the two national conferences on Farm/Ranch Income Tax and Farm/Ranch Estate and Business Planning is coming up on August 2 and 3 in Missoula, Montana.  A month later, on September 3, I will be conducting an “Ag Law Summit” at Mahoney State Park located between Omaha and Lincoln, NE.

Upcoming conferences on agricultural taxation, estate and business planning, and agricultural law – it’s the topic of today’s post.

Montana

The second of my two 2021 summer conferences on agricultural taxation and estate/business planning will be held in beautiful Missoula, Montana.  Day 1 on August 2 is devoted to farm income taxation, with sessions involving an update of farm income tax developments; lingering PPP and ERC issues (as well as an issue that has recently arisen with respect to EIDLs); NOLs (including the most recent IRS Rev. Proc. and its implications); timber farming; oil and gas taxation; handling business interest; QBID/DPAD planning; FSA tax and planning issues; and the prospects for tax legislation and implications.  There will also be a presentation on Day 1 by IRS Criminal Investigation Division on how tax practitioners can protect against cyber criminals and other theft schemes. 

On Day 2, the focus turns to estate and business planning with an update of relevant court and IRS developments; a presentation on the farm economy and what it means for ag clients and their businesses; special use valuation; corporate reorganizations; the use of entities in farm succession planning; property law issues associated with transferring the farm/ranch to the next generation; and an ethics session focusing on end-of life decisions.

If you have ag clients that you do tax or estate/business planning work for, this is a “must attend” conference – either in-person or online.

For more information about the Montana conference and how to register, click here:  https://www.washburnlaw.edu/employers/cle/farmandranchtaxaugust.html

Nebraska

On September 3, I will be holding an “Ag Law Summit” at Mahoney St. Park, near Ashland, NE.  The Park is about mid-way between Omaha and Lincoln, NE on the adjacent to the Platte River and just north of I-80.  The Summit will be at the Lodge at the Park.  On-site attendance is limited to 100.  However, the conference will also be broadcast live over the web for those that would prefer to or need to attend online.

I will be joined at the Summit by Prof. Ed Morse of Creighton Law School who, along with Colten Venteicher of the Bacon, Vinton, et al., firm in Gothenburg, NE, will open up their “Ag Entreprenuer’s Toolkit” to discuss the common business and tax issues associated with LLCs.  Also on the program will be Dan Waters of the Lamson, et al. firm in Omaha.  Dan will address how to successfully transition the farming business to the next generation of owners in the family. 

Katie Zulkoski and Jeffrey Jarecki will provide a survey of state laws impacting agriculture in Nebraska and key federal legislation (such as the “30 x 30” matter being discussed).  The I will address special use valuation – a technique that will increase in popularity if the federal estate tax exemption declines from its present level.  I will also provide an update on tax legislation (income and transfer taxes) and what it could mean for clients. 

The luncheon speaker for the day is Janet Bailey.  Janet has been deeply involved in Kansas agriculture for many years and will discuss how to create and maintain a vibrant rural practice. 

If you have a rural practice, I encourage you to attend.  It will be worth your time. 

For more information about the conference, click here:   https://www.washburnlaw.edu/employers/cle/aglawsummit.html

Conclusion

The Montana and Nebraska conferences are great opportunities to glean some valuable information for your practices.  As noted, both conferences will also be broadcast live over the web if you can’t attend in person.   

July 15, 2021 in Bankruptcy, Business Planning, Environmental Law, Estate Planning, Income Tax, Real Property, Regulatory Law, Water Law | Permalink | Comments (0)

Wednesday, June 9, 2021

Ag Law and Tax Potpourri

Overview

Periodically, I cover recent “happenings” in ag law and tax.  It’s been a while since a selected a few developments for summary on this blog.  So, today is the day.  A snippet of taxes, environmental law and property law

Recent developments in the courts of relevance to agricultural producers, rural landowners and taxpayers in general – it’s the topic of today’s post.

“Roberts Tax” is a “Tax” Entitled to Priority in Bankruptcy 

 In re Szczyporski, No. 2:20-cv-03133, 2021 U.S. Dist. LEXIS 61628 (E.D. Pa. Mar. 31, 2021).

As you likely recall, in 2012, Chief Justice Roberts of the U.S. Supreme Court badly twisted the law to salvage Obamacare by concluding that Obamacare’s requirement that certain persons buy government-mandated health insurance was constitutional because the mandate was a “tax” withing the taxing power of the Congress – even though Obamacare calls it a “penalty.” National Federation of Independent Businesses v. Sebelius, 567 U.S. 519 (2012).  The cost of that “shared responsibility payment” was offset by a credit under I.R.C. §36B.   I.R.C. §36B of the grants “premium tax credits” to subsidize certain purchases of health insurance made on “Exchanges.” The tax credit consists of “premium assistance amounts” for “coverage months.”  I.R.C. §36B(b)(1). An individual has a coverage month only when he is covered by an insurance plan “that was enrolled in through an Exchange established by the State.  I.R.C. §36B(c)(2)(A). The law ties the size of the premium assistance amount to the premiums for health plans which cover the individual “and which were enrolled in through an Exchange established by the State. I.R.C. §36B(b)(2)(A). The credit amount further depends on the cost of certain other insurance plans “offered through the same Exchange.  I.R.C. §36B(b)(3)(B)(i)

The tax Code provision that Obamacare created clearly states that the credit is available to a taxpayer only if the taxpayer has enrolled in an insurance plan through “an Exchange established by the State.”  I.R.C. §36B(b)(2)(A).  When several persons living in a state that didn’t have a state exchange claimed they were exempt from the mandate to buy health insurance because of its cost absent the credit, Chief Justice Roberts again applied his contorted legal logic to conclude that “an Exchange established by the State” meant “an Exchange established by the State or Federal Government.”  King v. Burwell, 576 U.S. 473 (2015). In other words, he completely rewrote the law a second time to salvage it. 

Note.  Justice Scalia had enough of the nonsense of Chief Justice Roberts when he wrote in his dissent in King, “The Court holds that when the Patient Protection and Affordable Care Act says “Exchange established by the State” it means “Exchange established by the State or the Federal Government.” That is of course quite absurd, and the Court’s 21 pages of explanation make it no less so.”  He also stated, “Words no longer have meaning if an Exchange that is not established by a State is “established by the State” and “The Court’s next bit of interpretive jiggery-pokery involves other parts of the Act that purportedly presuppose the availability of tax credits on both federal and state Exchanges.” 

This all brings us to the current case.  In Szczyporski, the debtor was required to file an income tax return in 2018, but hadn’t obtained the government-mandate health insurance resulting in the IRS assessing the “Roberts Tax” for 2018. In 2019, the debtor filed Chapter 13 bankruptcy and the IRS filed a proof of claim for taxes in the amount of $18,027.08 which included the Roberts Tax of $927. The IRS listed the Roberts Tax as an excise tax and the balance of the tax claim as income taxes. The debtors objected on the basis that the Roberts Tax is a penalty that is not qualify for priority treatment under 11 U.S.C. §507(a)(8). The debtor’s Chapter 13 plan was confirmed in 2020, and the IRS filed a brief objecting to the debtor’s tax treatment of the Roberts Tax.

The bankruptcy court ruled that the Roberts Tax was a “tax” under the bankruptcy Code entitled to priority treatment. In re Szczyporski, 617 B.R. 529, 2020 Bankr. LEXIS 1725 (Bankr. E.D. Pa., Jun. 23, 2020).  On appeal, the federal district court affirmed, citing National Federation of Independent Businesses v. Sebelius, 567 U.S. 519 (2012). While that decision involved facts outside of the bankruptcy context, the Supreme Court concluded that the Roberts Tax was a “tax” because it was enacted according to the taxing power of the Congress. Thus, it was either an excise or income tax, both of which are entitled to priority in bankruptcy. Here, the district concluded it was an income tax.

Settlement Proceeds Are Taxable Income

Blum v. Comr., T.C. Memo. 2021-18 

A damage award that a taxpayer receives that is not attributable to physical injury or physical sickness is includible in gross income.  In many lawsuits, there is almost always some lost profit involved and recovery for lost profit is ordinary income.  See, e.g., Simko v. Comr., T.C. Memo. 1997-9.  For recoveries in connection with a business, if the taxpayer can prove that the damages received were for injury to capital, no income results except to the extent the damages exceed the income tax basis of the capital asset involved.  The recovery is, in general, a taxable event except to the extent the amount recovered represents a return of basis.  Recoveries representing a reimbursement for lost profit are taxable as ordinary income.

In Blum, the petitioner was involved in a personal injury lawsuit and received a payment of $125,000 to settle a malpractice suit against her attorneys.  She did not report the amount on her tax return for 2015 and the IRS determined a tax deficiency of $27,418, plus an accuracy-related penalty.  The IRS later conceded the penalty, but maintained that the amount received was not on account of personal physical injuries or personal sickness under I.R.C. §104(a)(2).  The Tax Court agreed with the IRS because the petitioner’s claims against the law firm did not involve any allegation that the firm’s conduct had caused her any physical injuries or sickness, but merely involved allegations that the firm had acted negligently in representing her against a hospital. 

EPA Properly Approved Missouri Water Quality Standards

Missouri Coalition for the Environment Foundation v. Wheeler, No. 2:19-CV-04215-NKL, 2021 U.S. Dist. LEXIS 102806 (W.D. Mo. Jun. 1, 2021)

In 2009, the state of Missouri proposed water quality standards for nutrient standards for nutrient pollutants in Missouri lakes.  The Environmental Protection Agency (EPA) originally rejected the proposed standards, but ultimately accepted a revised version of the standards in 2018.  The plaintiffs, a coalition of environmental groups, sued claiming that the water quality standards should be set aside on the basis that the EPA’s determination was arbitrary and capricious.  The court upheld the state standards, finding them to have been grounded upon a rational basis that they would adequately protect the designated uses of protected waterbodies.

Plaintiffs’ Use of Road on Defendant’s Property Deemed a Prescriptive Easement

Ramsey v. Keesee, 2021 Ky. App. Unpub. LEXIS 231 (Ky. Ct. App. Apr. 16, 2021)

The plaintiffs each owned property adjacent to the defendant’s eastern boundary line. A road ran along the boundary on the defendant’s property, which was the only local road that connected to a state highway. One of the plaintiffs began maintaining the road without the defendant’s consent. In response, the defendant closed the gate on the road with a lock on it to prevent the plaintiffs from using it. The plaintiffs sued and sought to remove the gate from the road. The trial court determined the plaintiffs had acquired a prescriptive easement over the road by actual, hostile, open and notorious, exclusive and continuous possession of the road for the statutory period of 15 years. As a result, the trial court held that the plaintiffs had the right to use the road for agricultural purposes and to maintain the road in a reasonable manner.

On appeal, the defendant argued that one of the plaintiff’s use of the road two or three times per week did not constitute open and notorious possession because it was insufficient to put the defendant on notice. The appellate court noted that under state common law, it is the legal owner’s actual or imputable knowledge of another’s possession of lands that affects the ownership. As a result, the appellate court held that the plaintiff’s use of the road put the defendant on constructive notice. The defendant then argued that one of the plaintiff’s use of the road was permissive as she had maintained the gates on the road. The plaintiff argued that he always believed the road at issue was an old county road and that he never sought permission to use the road. The appellate court determined that the gates on the road were never intended to prevent the plaintiffs from using the road, but were primarily for farm purposes. The defendant also claimed that the trial court erred in determining the use and location of the prescriptive easement as two of the plaintiffs had not maintained the road. The appellate court noted that maintenance of the road was not a necessary element to establish an easement by prescription. Lastly, the defendant argued that the plaintiffs’ nonuse of the north part of the road resulted in an abandonment of the prescriptive easement. The appellate court noted that mere non-use of an easement does prove that an easement has been abandoned, and held that the plaintiffs occasional use of the road rebutted the defendant’s abandonment claim.

Conclusion

The developments never cease.  There will be more as time goes on.

June 9, 2021 in Bankruptcy, Environmental Law, Real Property | Permalink | Comments (0)

Monday, May 24, 2021

Valuing Ag Real Estate With Environmental Concerns

Overview

For federal estate tax purposes, valuation is typically the primary issue.  Quite often, there are more dollars at stake with respect to the valuation issue than with respect to all other issues combined.  As such, the facts of a particular case concerning valuation may be more important than applicable law and IRS rulings. 

What if ag land has an environmental issue associated with it?  Such things as the presence of hazardous materials and wetlands can have a significant impact on land value.  But, what is the degree of the impact on value, and how is it measured?

Valuing ag land with environmental concerns – it’s the topic of today’s post.

Practical Aspects

When valuing agricultural land, it is important to preserve all contemporaneous data applicable to the decedent’s estate.  This includes creating a checklist of assets requiring action by others as to evaluation.  The checklist should include appraisals, environmental land-use restrictions recorded in the real estate records; environmental audits; and assessment figures for property tax purposes. 

If a decedent’s estate contains contaminated real estate, or real estate subject to use restrictions, the estate executor will need to justify a reduction in value for estate tax purposes.  That will require sufficient proof of the existence of contamination and any associated land use restrictions as of the date of the decedent’s death and the effect on the land’s value. 

Note:   Property valuation is also important during the landowner’s life for purposes of gift taxes, property taxes, or to establish a selling price.  The issue is complicated by the fact that the effect of contamination on value, like other elements influencing valuation is frequently more subjective than it is tangible and quantifiable. 

Specific Problems

Two of the big ways that environmental constraints can impact the value of agricultural land involve hazardous materials and wetlands. 

Hazardous chemicals/waste.  Farms and ranches use various chemicals in the process of raising crops and livestock and operating machinery and equipment.  It was not uncommon in the past for a farm or ranch to have a dump site on the premises.  Various hazardous substances could be present at those sites.  When hazardous chemicals are present, they will increase the cost of owning the property in terms of monitoring and cleanup costs as well as potential legal liability. 

In recent years, the IRS has been all over the board on whether cleanup costs are currently deductible or must be capitalized.  In short, the answer depends on whether the taxpayer created the mess that is being cleaned up or is cleaning up someone else’s mess.  In a 2004 ruling, a corporation in the business of manufacturing products that it placed in inventory was required by state and federal law to clean up the soil and water contaminated by hazardous waste that the corporation had disposed of at the site.  The IRS ruled that the soil and groundwater mediation costs had to be capitalized into the costs of the products that the corporation produced.  Rev. Rul. 2004-18, 2004-1 C.B. 509.  In 2005, the IRS extended the ruling by concluding that environmental remediation costs are more in the nature of repairs than capital improvements and are allocable to the inventory produced in the tax year during which the costs are incurred. Rev. Rul. 2005-42, 2005-2 C.B. 67.

Note:  Because costs incurred to clean up environmentally contaminated property may involve a pre-existing material condition or defect, the tangible property regulations could come into play.  In such event, remediation costs may be treated as a betterment because they ameliorated a material condition or defect in existence before the taxpayer bought the property, which would require the costs to be capitalized.  Capitalization could have a particularly harsh effect on individual landowners, who may be less capable of sustaining a large outlay for cleanup costs without an offsetting deduction.  Also, if the property is held merely as an investment and not as part of the landowner’s trade or business, the landowner will be subject to the passive loss rules.  Thus, even if the remediation costs are deductible, costs in excess of income from the property may offset only other passive income that the landowner may have.  See I.R.C. §469. 

The presence of hazardous chemicals/waste will also make the property less desirable in the marketplace.  

Wetlands.  Wetland laws and regulations restrict land use and may cause the land to be unmarketable and, perhaps, worthless because of the loss of value to the particular property owner.  If the restriction eliminates all of the economic value of the property without a federal permit, some court’s have held that a governmental taking has occurred.  For example, in 2014, the United States Court of Federal Claims held that the denial of a CWA §404 permit constituted a taking.  Lost Tree Village Corporation v. United States, 115 Fed. Cl. 219 (2014), aff’d., 787 F.3d 1111 (Fed. Cir. 2015).  Under the facts of the case, the landowner bought the tract at issue as part of a transaction in which the landowner purchased an entire peninsula on which the tract was located. The landowner developed the other land into a gated community and did not treat the tract as part of the same economic unit, but later decided to develop the tract. In order to develop the tract, the landowner needed to acquire a Clean Water Act Section 404 permit. The permit was denied, and the landowner sued for a constitutional taking. Initially, the U.S. Court of Federal Claims determined that a constitutional taking had occurred and that the relevant parcel against which to measure the impact of the permit denial was the tract plus a nearby lot and scattered wetlands located nearby that the landowner owned. On appeal, the U.S. Court of Appeals for the Federal Circuit held that the tract was the relevant parcel. On remand, the Court of Federal Claims, held that the loss of value caused by the permit denial was 99.4 percent of the tract's value, or $4,217,888 based on the difference in the tract's value before and after the permit denial. The court rejected the government's argument that the "before valuation" must account for the permit denial. The court said that the government cannot lower the tract's value by arguing the possibility of the permit denial.

The presence of a wetland on tract can also trigger a reduction in the land’s assessed value for property tax purposes.  In a significant case from New Jersey, the New Jersey Superior Court upheld a state tax court decision that reduced a property tax assessment from nearly $20 million to $976,500.  Bergen County Associates v. Borough of East Rutherford, 265 N.J. Super. 1, 625 A.2d 524 (1993), certification den., 134 N.J. 482, 634 A.2d 528 (1993).  The court found persuasive testimony that indicated that the application process for permits to dredge and fill wetlands had become “much stricter” in the late 1980s, and were “virtually impossible to obtain.”  It is important to note that the taxpayer was not denied a permit to fill the property.  Instead, the taxpayer went directly to court to argue for a substantial assessed valuation reduction based on the land use restrictions. 

On the property tax valuation issue, as long as the property has a value in use (e.g., it is producing income), a lack of marketability will not support a claim for lack of value.  However, the IRS Examination Technique Handbook for Estate Tax Examiners instructs IRS estate and gift tax examiners to consult assessment records as good sources of information for estate and gift tax values. 

Valuation Principles

IRS test.  The IRS test for valuation is the “willing-buyer/willing-seller” test. Treas. Reg. §§20.2031-1(b); 25.2512-1.  For estate (and gift) tax purposes, property must be valued at its fair market value as of the valuation date in accordance with the IRS test.  The test necessarily focuses on the marketability of any particular property.  But, there is value in use that is separate from marketability.  Value in use focuses on value to the particular owner of the property. 

Consider the following example:

Kenny Dewitt owns a farm that produces an income stream (net of expenses) of $350,000 per year in harvested crops.  Assume that the farm normally would has a capitalization rate of four percent (typical for cropland), producing a “clean” value of $875,000.  Due to contamination from leaking underground storage tanks and nitrate contamination of groundwater, the property is neither marketable nor mortgageable, leaving the equity yield (which is generally higher than the cost of debt financing) the primary component of the capitalization rate.  In addition, a higher return on equity will be demanded to reflect the additional risk of holding contaminated property and its lack of marketability.  As a result, the capitalization rate could easily become eight percent, which decreases the value of the property by 50 percent to $437,500.  After this value is calculated, the costs of cleaning up the property still will have to be taken into account. 

Note:   It’s probably overly simplistic to determine the “clean value” of a property and then subtract the cost of cleanup.  Additional factors such as contingent liabilities to the public and stigmatization may affect value to at least the same extent as the actual remediation costs. 

Stigma.  A physical cleanup of a tract does not eliminate the loss of value resulting from stigmatization. Even when property has been cleaned up to the satisfaction of the state and federal government, potential buyers tend to remain reluctant, making the property less desirable in the marketplace.  Additionally, if interested buyers can be found, lenders may be reluctant to finance the acquisition of contaminated or potentially contaminated property.  That could make financing the property more costly.  That, in turn, can impact market value.  Thus, it’s safe to say that external environmental factors can influence market value.

Conclusion

Buying agricultural land often is fairly straightforward.  However, when environmental factors are present determining fair market value takes on a completely different twist.

May 24, 2021 in Environmental Law, Real Property | Permalink | Comments (0)

Tuesday, May 18, 2021

Deed Reformation – Correcting Mistakes After the Fact

Overview

Sometimes errors are made in real estate deeds involving conveyances of farm and ranch land.  The mistake might be a minor one that goes uncorrected, or it could be significant one that means potentially thousands of dollars in lost acres or access rights or something similar.  Is there a way to fix the error after it has occurred?  Maybe.

The doctrine of reformation – it’s the topic of today’s post.

In General

One of the core principles of contract law is that of equity.  Sometimes the common law cannot adequately provide a remedy to a particular situation.  That could mean that the law would be of no import to a well-deserving plaintiff.  In the Earl of Oxford’s case in 1615, King James is quoted as saying, “Where common law and equity conflict, equity should prevail.” 21 ER 485 (1615).  In essence, what the King was saying is that when an agreement has been entered into, but the contract, deed, or other instrument in its written form does not express what the parties actually intended, a court has equitable jurisdiction to reform the written instrument so as to conform to the parties’ intent.  The court doesn’t rewrite the parties’ deal, it simply corrects the language to square it with the parties’ intent where there is no other adequate remedy at law.  Of course, the evidence must sufficiently disclose the parties’ intent, and that the instrument, as written, doesn’t carry out that intent.  And, there are some situations where reformation is not available.  One of those includes governmental errors on the theory that there is no mutuality with individual members of the public.

For a court to reform a document, courts generally require that the document is the only document illustrating the parties’ intent and that there was a mutual mistake (including a mistake of law) at the time the document was executed.  If there was a unilateral mistake with respect to a contract, it’s possible that the court could order the contract to be rescinded.  Rescission doesn’t occur often, but it can apply if the unilateral mistake is coupled with fraud, misrepresentation or some sort of inequitable conduct on the defendant’s part.  See, e.g., Boyle, et al. v. McGlynn, et al., 845 N.Y.S.2d 312 (2006). 

Recent Case

In a recent court decision from Iowa, Midstates Bank, N.A. v. LBR Enterprises, LLC, No. 20-0336, 2021 Iowa App. LEXIS 391 (Iowa Ct. App. May 12, 2021), the court reformed a clerical error in a deed to reflect the legal description in the purchase agreement.  The defendants owned two tracts of land, consisting of a 202-acre farm and a 32-acre homestead. The defendants had previously leased the farmland for rental income before deciding to sell the farmland to a cattle-feeding business run by their son and three other partners. After negotiating a purchase price, the defendants retained a life estate so that they could live in their house on the property for the remainder of their lives. The cattle-feeding business obtained a loan from the plaintiff bank to pay off the defendants’ mortgage on the property.

After the bank approved the loan, it hired a title company to prepare a warranty deed. Due to an error caused by the title company, the warranty deed did not match the life estate description in the purchase agreement. Rather than granting the defendants a life estate in the house on the property, the deed granted the defendants a life estate in the entire 234 acres. When the cattle-feeding business defaulted on payments two years later, the title company blocked a proposed sale, noting the deed named the defendants as life estate holders of the entire property. The plaintiff petitioned for reformation and claimed that the deed did not reflect the true intent of the parties because of the clerical error. The defendants argued that the plaintiff lacked standing to seek reformation of the deed.

The trial court reformed the deed to reflect that the defendants’ life estate was only in the house in which they currently resided. On appeal, the defendants maintained their argument that the bank lacked standing to seek reformation of the deed. The plaintiff argued that because it had a mortgage on the real estate, it had standing to bring the reformation action. The appellate court noted that the plaintiff would be required to allege some specific injury and injury in fact. The appellate court held that because the plaintiff paid off the existing mortgage and attached its security interest to the real estate, it had first priority upon default. Further, the appellate court held that the plaintiff’s security interest under the mortgage instrument was diminished, therefore injury in fact had been established.

The defendants also claimed that the plaintiff failed to prove that a clerical error created a mistake in the deed. The appellate court disagreed, noting that reformation is an equitable remedy when it can be proven that the instrument does not reflect the parties’ true agreement.  On this point, the court concluded that the bank offered clear and convincing proof that the deed contained an error through a disinterested witness - the clerk at the title company. The facts also showed, the appellate court noted, that the defendants did not act as though they had a life estate in all 234 acres after the purchase agreement.  Related to that fact, the appellate court determined that the purchase agreement did not merge into the deed because the parties did not agree to modify the life estate from the house in which the defendants resided to the entire property.

Consequently, the appellate court that the error in the deed could be reformed to reflect the life estate as described in the purchase agreement – it only applied to the house on the property and not the entire farm.

Conclusion

There are many court decisions where reformation of written instruments has been allowed as a remedy on the ground of mutual mistake.  Reformation may occur to include land that was erroneously omitted or delete land that had been incorrectly included.  It can also be allowed when the signature of a witness is required, or a seal is required that has been left out inadvertently.  It’s an old legal doctrine that is still good law today. 

May 18, 2021 in Contracts, Real Property | Permalink | Comments (0)

Saturday, May 1, 2021

The Agricultural Law and Tax Report

Overview
 
Starting Monday May 3, I am hosting a daily 2-minute program, The Agricultural Law and Tax Report on farm radio stations nationwide and on SiriusXM 147.  The purpose of each report is to educate farmers and ranchers and rural landowners on the unique legal and tax issues that they are often faced with.  Each program explains what the law is on a particular topic, and how actual court cases and IRS rulings have been decided based on that law, and what the application is to a farming or ranching operation.
 
Topical Coverage
 
Some of the topics that I will address include:
 
Contract Issues - (auction sales; farm leases; hunting leases; grain and livestock sale contracts; types of clauses to protect the farmer-seller; remedies if there is a breach).
 
Ag Financing Issues - (collateral issues; rules governing lenders and farm borrowers; foreclosure issues and Farmers’ Home (FSA); redemption rights for farmland; agricultural liens).
 
Agricultural Bankruptcy - (Chapter 12 farm bankruptcy issues).
 
Farm Income Tax - (handling USDA/CCC loans; government payments; crop insurance proceeds; pre-paying expenses; deferred payment contracts; commodity trading income; easement payments; crop and livestock share rental income).
 
Real Property Issues - (fences and boundaries; buying and selling farmland; recoveries from settlements and court judgments (such as the Roundup litigation, etc.)).
 
Farm Estate Planning - (types of title ownership; disruption of family farm if there is no will or trust; planning approaches to facilitate keeping the farm in the family; federal estate tax planning; gifting of farm assets; treating off-farm and on-farm heirs fairly).
 
Liability Issues - (food product liability issues (labeling and disparagement laws); liability for trespassers and others on the property; trespassing dog laws; nuisance law; employer's responsibility for farm employees; animal diseases; fence laws).
 
Criminal Law Issues - (what can the government search without a warrant; cruelty to animal laws; government programs and criminal liability; environmental liability for farmers and ranchers).
 
Water Law Issues - (types of water law systems; use of surface water for crops and livestock; use of subsurface water; boundary disputes).
 
The initial sponsor is First State Bank headquartered in Lincoln, NE.  If you are interested in also becoming a sponsor, please let me know.
 
Many thanks to John Mellencamp and Sony Music Publishing Co. for the "bumper" music that accompanies each show. And...special thanks to Donn Teske.
 
Check with your local farm radio station to see if they are carrying The Agricultural Law and Tax Report. If not, please call your local station and request it, and let me know
 
My hope is that you find the show profitable for your farming business, rural practice, and your local rural community.

May 1, 2021 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)

Friday, April 30, 2021

Court Developments of Interest

Overview

Periodically on this blog, I summarize recent cases of interest to those involved in agriculture and tax practitioners in general.  Today is one of those days. 

Recent court developments of interest – it’s the topic of today’s post.

Defendant’s Removal of Trees Within Conservation Easement Not a Nuisance

Cergnul v. Bradfield, 2021 Ind. App. Unpub. LEXIS 295 (Ind. Ct. App. Apr. 9, 2021)

The developers of a subdivision agreed to record a conservation easement twenty feet wide along two boundaries of the subdivision after complaints by local farmers. The conservation easement’s purpose was to preserve the visual aesthetic for residents who enjoyed the rural setting. Although the restrictive covenants that were recorded did not reference the conservation easement, the developer recorded a final plat that explicitly referred to the conservation easement. The defendant purchased a lot in the subdivision and proceeded to remove some trees and brush from within the conservation easement. The defendant had reviewed the restrictive covenants, which had not been updated after the final plat was recorded. The defendant also had met with a representative of the subdivision’s homeowner’s association, who advised the defendant that he could clear the trees and brush so long as he did not change the grade of the land. The plaintiff was an adjoining neighbor outside the subdivision who sought damages for the loss of quiet enjoyment of his property.

The trial court found that the plaintiff lacked standing to challenge the activity within the conservation easement. Further, the trial court noted that the plaintiff failed to demonstrate that he had been denied a property right. On appeal, the plaintiff argued that although he lacked standing to enforce the conservation easement, he was entitled to damages to address a nuisance. The plaintiff noted that the developers had set aside a conservation easement pursuant to state law and that the defendant’s conduct amounted to nuisance per se. The appellate court noted that the conservation easement enabling statute did not provide the plaintiff with a private right of enforcement. Alternatively, the plaintiff argued that the defendant’s conduct created a nuisance per accidens as the right to the quiet enjoyment of his property had been destroyed. The appellate court noted that whether the defendant’s conduct qualified as a nuisance per accidens depended on whether his conduct would cause actual physical discomfort to a person of ordinary sensibilities. The appellate court found that the plaintiff failed to show any such evidence, and as a result, affirmed the trial court’s decision and denied the nuisance damages sought by the plaintiff. 

No Attorney-Client Privilege For Communications Between Trustee and Attorney

In re Estate of McAleer, No. 6 WAP 2019, 2021 Pa. LEXIS 1524 (Pa. Sup. Ct. Apr. 7, 2021)

The decedent created a revocable trust and named his son as the sole trustee. The trust named the son and his two step-brothers as beneficiaries. In 2014, the trustee filed a first and partial accounting of the trust. A step-brother objected and the trustee hired two separate law firms to respond to the step-brother’s objections. After an evidentiary hearing, the probate court dismissed the objections. During the court process, additional filings indicated that about $124,000 of trust funds had been expended from the trust for attorney’s fees and costs through 2015. The step-brothers then filed a petition to determine the reasonableness of the fees. In early 2016, the trustee filed a second and final accounting to which the step-brothers also objected. The trustee claimed that he had no obligation to provide the step-brothers with copies of billing invoices because they were protected by attorney-client privilege. The probate court disagreed and ordered the trustee to forward the unredacted invoices to the step-brothers withing 30 days. The trustee disclosed the invoices, but filed an interlocutory appeal on the issue of the attorney invoices.

The state Supreme Court upheld the probate court’s ruling, noting that the assertion of privilege requires sufficient facts be established to show that the privilege has been properly invoked. According to the state Supreme Court, the trustee had not established those facts. The state Supreme Court also held that the privilege didn’t apply because the interests the privilege protected conflicted with “weightier obligations” – the fiduciary duty of the trustee to provide information to the beneficiaries outweighed the privilege. This was especially the case because the attorney fees were paid from the trust.

Will Authorized Court To Review Sale/Transfer of Farmland

In re Estate of Burge, No. 19-1881, 2021 Iowa App. LEXIS 214 (Iowa Ct. App. Mar. 17, 2021)

The decedent left her estate to her three children and six grandchildren. Two of her children sought to probate the will as executors. One of the executors died shortly after, and his wife participated in the proceedings as the executor and sole beneficiary of his estate. The will distributed a lump sum to the now deceased son if he “is surviving on the death of the survivor” of the decedent. The will distributed half of the remainder to the three children in equal shares and the other half to the six grandchildren in equal shares. The decedent’s will also granted four grandchildren an option to purchase all of her farmland. If they chose to exercise this option, the will directed them to pay a penalty if they sold the farmland within 15 years. The will also had a provision that offered one of the decedent’s children, the remaining executor, to receive his share of the estate in farmland, provided that he could agree upon a division with the grandchildren. Both the grandchildren and the executor exercised their option to purchase the farmland.

The first proposed contract filed by the executor to purchase the farmland was rejected by the trial court because some of the beneficiaries did not participate in negotiations or agree to the terms. The executor filed a second proposed contract to transfer the decedent’s farmland to himself and the four grandchildren. The trial court approved this contract but included direction that if the executor continued with the exercise of his option, he would not be entitled to his residuary share of the estate. Two of the four grandchildren and the executor appealed, and argued that the trial court should not have removed them as residue beneficiaries. The executor also argued that the trial court should have excluded his deceased brother’s wife as a beneficiary.

The appellate court held that since the deceased son survived the decedent, the deceased son’s wife was entitled to his share of the estate as the sole beneficiary. The two grandchildren argued that the executor had the sole right to sell the real estate without court oversight, because the will provided an unrestricted power of sale. The appellate court disagreed and noted that the decedent’s will contained numerous provisions on the sale in her will, namely that the court could resolve any dispute as to the reasonableness of the terms and conditions of the sale. The two grandchildren also argued that the first proposed contract was binding and that the trial court was bound to accept it without modification. The appellate court noted that the first proposed contract did not provide for the executor’s share of the farmland, and the farmland sale/transfer was subject to the terms and conditions in the will and court review for reasonableness.

FBAR Penalties Not Subject to “Full Payment” Rule

Mendu v. United States, No. 17-cv-738-T, 2021 U.S. Claims LEXIS 537 (Fed. Cl. Apr. 7 2021)

The plaintiff was assessed approximately $750,000 of “willful” Foreign Bank and Financial Account (FBAR) penalties. Such penalties can reach up to 50 percent of the highest account balance of the foreign account. He paid $1,000 of the penalty amount and then sued in the U.S. Court of Federal Claims under the Tucker Act to recover the $1,000 as an illegal exaction. The IRS counterclaimed, seeking the entire judgment of $750,000 plus interest. The plaintiff moved to dismiss his complaint on the basis that the court lacked jurisdiction over the illegal exaction claim on the basis of Flora v. United States, 362 U.S. 145 (1960). Such dismissal would nullify the court’s jurisdiction over the counterclaim of the IRS. Under Flora, in accordance with 28 U.S.C. §1346(a)(1), a taxpayer seeking to file a federal tax claim in federal court (other than the U.S. Tax Court) must pay the full amount of the tax before filing suit. However, the plaintiff claimed that 28 U.S.C. §1346(a)(1) only applied to “internal revenue taxes” and claims related to “internal revenue laws.” The petitioner noted that Bedrosian v. United States, 912 F.3d 144 (3d Cir. 2018) hinted that FBAR penalties may fall within the reach of 28 U.S.C. §1346(a).

The court, in ruling for the plaintiff, flatly rejected the Bedrosian decision in holding that FBAR penalties are not subject to the Flora rule because they are not internal revenue laws or internal revenue taxes. The court noted that FBAR penalties are contained in Title 31 of the U.S. Code rather than Title 26 (the Internal Revenue Code), and that this placement was intentional. Title 31, the court noted, has as its purpose, the regulation of private behavior rather than the purpose of being a charge imposed for the purpose of raising general revenue. In addition, the court concluded that FBAR penalties are unlike civil penalties in that they contain no statutory cross-reference that equate “penalties” with “taxes.” The court also reasoned that the if the full payment rule didn’t apply to FBAR penalties there wouldn’t be any concern that the collection of FBAR penalties would be seriously impaired because they are enforced via a civil action to recover a civil penalty. That meant that there were no administrative collection procedures for FBAR penalties with which a partial payment illegal exaction claim would interfere. Thus, the court concluded that the Congress did not intend to subject FBAR penalty suits to the full payment rule. 

Conclusion

There’s always action in the courts and with the IRS.  That’s especially true this tax season which continues…

April 30, 2021 in Estate Planning, Income Tax, Real Property | Permalink | Comments (0)

Monday, April 19, 2021

Ag Law and Taxation - 2016 Bibliography

Overview

Today's post is a bibliography of my ag law and tax blog articles of 2016.  Earlier this year I have provided bibliographies for you of my blog articles for 2020, 2019, 2018 and 2017.  This now completes the bibliographies since I began the blog in July of 2016.  At the end of 2021, I will post a lengthy blog article of all of the articles published through that timeframe. 

The 2016 bibliography of articles – it’s the subject matter of today’s post.

BUSINESS PLANNING

Treasury Attacks Estate and Entity Planning Techniques With Proposed Valuation Regulations

https://lawprofessors.typepad.com/agriculturallaw/2016/08/treasury-attacks-estate-and-entity-planning-techniques-with-proposed-valuation-regulations.html

Using an LLC to Reduce S.E Tax and the NIIT

https://lawprofessors.typepad.com/agriculturallaw/2016/09/using-an-llc-to-reduce-se-tax-and-the-niit.html

IRS Audit Issue – S Corporation Reasonable Compensation

https://lawprofessors.typepad.com/agriculturallaw/2016/10/irs-audit-issue-s-corporation-reasonable-compensation.html

Rents Are Passive, But They Can Be Recharacterized - And Grouped (Sometimes)

https://lawprofessors.typepad.com/agriculturallaw/2016/11/rents-are-passive-but-they-can-be-recharacterized-and-grouped-sometimes.html

Tribute To Orville Bloethe

https://lawprofessors.typepad.com/agriculturallaw/2016/12/tribute-to-orville-bloethe.html

CIVIL LIABILITIES

Registration of a Pesticide Doesn't Mean It Might Not Be Misbranded

https://lawprofessors.typepad.com/agriculturallaw/2016/07/registration-of-a-pesticide-doesnt-mean-it-might-not-be-misbranded-.html

Death of Livestock In Blizzard Was a Covered Loss by “Drowning”

https://lawprofessors.typepad.com/agriculturallaw/2016/08/death-of-livestock-in-blizzard-was-a-covered-loss-by-drowning.html

FIFRA Pre-Emption of Pesticide Damage Claims

https://lawprofessors.typepad.com/agriculturallaw/2016/08/fifra-pre-emption-of-pesticide-damage-claims.html

Agritourism Acts, Zoning Issues and Landowner Liability

https://lawprofessors.typepad.com/agriculturallaw/2016/09/agritourism-acts-zoning-issues-and-landowner-liability.html

The “Agriculture” Exemption From The Requirement To Pay Overtime Wages

https://lawprofessors.typepad.com/agriculturallaw/2016/09/the-agriculture-exemption-from-the-requirement-to-pay-overtime-wages.html

The Scope and Effect of Equine Liability Acts

https://lawprofessors.typepad.com/agriculturallaw/2016/09/the-scope-and-effect-of-equine-liability-acts.html

What’s a Rural Landowner’s Responsibility Concerning Crops, Trees and Vegetation Near an Intersection?

https://lawprofessors.typepad.com/agriculturallaw/2016/12/whats-a-rural-landowners-responsibility-concerning-crops-trees-and-vegetation-near-an-intersection.html

CONTRACTS

Some Thoughts on Production Contracts

https://lawprofessors.typepad.com/agriculturallaw/2016/10/some-thoughts-on-production-contracts.html

CRIMINAL LIABILITIES

Prison Sentences Upheld For Egg Company Executives Even Though Government Conceded They Had No Knowledge of Salmonella Contamination.

https://lawprofessors.typepad.com/agriculturallaw/2016/07/prison-sentences-upheld-for-egg-company-executives-even-though-government-conceded-they-had-no-knowledge-of-salmonella-contam.html

ENVIRONMENTAL LAW

Registration of a Pesticide Doesn't Mean It Might Not Be Misbranded

https://lawprofessors.typepad.com/agriculturallaw/2016/07/registration-of-a-pesticide-doesnt-mean-it-might-not-be-misbranded-.html

FIFRA Pre-Emption of Pesticide Damage Claims

https://lawprofessors.typepad.com/agriculturallaw/2016/08/fifra-pre-emption-of-pesticide-damage-claims.html

Air Emissions, CWA and CERCLA

https://lawprofessors.typepad.com/agriculturallaw/2016/08/air-emissions-cwa-and-cercla.html

Are Seeds Coated With Insecticides Exempt From FIFRA Regulation?

https://lawprofessors.typepad.com/agriculturallaw/2016/12/are-seeds-coated-with-insecticides-exempt-from-fifra-regulation.html

ESTATE PLANNING

The Situs of a Trust Can Make a Tax Difference

https://lawprofessors.typepad.com/agriculturallaw/2016/07/the-situs-of-a-trust-can-make-a-tax-difference.html

Treasury Attacks Estate and Entity Planning Techniques With Proposed Valuation Regulations

https://lawprofessors.typepad.com/agriculturallaw/2016/08/treasury-attacks-estate-and-entity-planning-techniques-with-proposed-valuation-regulations.html

Common Estate Planning Mistakes of Farmers

https://lawprofessors.typepad.com/agriculturallaw/2016/09/common-estate-planning-mistakes-of-farmers.html

Staying on the Farm With the Help of In-Home Care

https://lawprofessors.typepad.com/agriculturallaw/2016/10/staying-on-the-farm-with-the-help-of-in-home-care.html

Including Property in the Gross Estate to Get a Basis Step-Up

https://lawprofessors.typepad.com/agriculturallaw/2016/10/including-property-in-the-gross-estate-to-get-a-basis-step-up.html

Farm Valuation Issues

https://lawprofessors.typepad.com/agriculturallaw/2016/10/farm-valuation-issues.html

The Future of the Federal Estate Tax and Implications for Estate Planning

https://lawprofessors.typepad.com/agriculturallaw/2016/11/the-future-of-the-federal-estate-tax-and-implications-for-estate-planning.html

Tribute To Orville Bloethe

https://lawprofessors.typepad.com/agriculturallaw/2016/12/tribute-to-orville-bloethe.html

INCOME TAX

House Ways and Means Committee Has A Blueprint For Tax Proposals - Implications For Agriculture

https://lawprofessors.typepad.com/agriculturallaw/2016/07/house-ways-and-means-committee-has-a-blueprint-for-tax-proposals-implications-for-agriculture.html

In Attempt To Deny Oil and Gas-Related Deductions, IRS Reads Language Into the Code That Isn’t There – Tax Court Not Biting

https://lawprofessors.typepad.com/agriculturallaw/2016/07/in-attempt-to-deny-oil-and-gas-related-deductions-irs-reads-language-into-the-code-that-isnt-there-tax-court-not-biti.html

IRS Does Double-Back Layout on Self-Employment Tax

https://lawprofessors.typepad.com/agriculturallaw/2016/08/irs-does-double-back-layout-on-self-employment-tax.html

S.E. Tax on Passive Investment Income; Election Out of Subchapter K Doesn’t Change Entity’s Nature; and IRS Can Change Its Mind

https://lawprofessors.typepad.com/agriculturallaw/2016/08/se-tax-on-passive-investment-income-election-out-of-subchapter-k-doesnt-change-entitys-nature-and-irs-can-change-it.html

Handling Depreciation on Asset Trades

https://lawprofessors.typepad.com/agriculturallaw/2016/08/handling-depreciation-on-asset-trades.html

Claiming “Bonus” Depreciation on Plants

https://lawprofessors.typepad.com/agriculturallaw/2016/08/claiming-bonus-depreciation-on-plants.html

Proper Reporting of Crop Insurance Proceeds

https://lawprofessors.typepad.com/agriculturallaw/2016/08/proper-reporting-of-crop-insurance-proceeds.html

Permanent Conservation Easement Donation Opportunities and Perils

https://lawprofessors.typepad.com/agriculturallaw/2016/09/permanent-conservation-easement-donation-opportunities-and-perils.html

Sales By Farmers/Rural Landowners Generate Common Questions

https://lawprofessors.typepad.com/agriculturallaw/2016/09/sales-by-farmersrural-landowners-generate-common-questions-.html

Expense Method Depreciation - Great Tax Planning Opportunities On Amended Returns

https://lawprofessors.typepad.com/agriculturallaw/2016/09/expense-method-depreciation-great-tax-planning-opportunities-on-amended-returns.html

The DPAD and Agriculture

https://lawprofessors.typepad.com/agriculturallaw/2016/10/the-dpad-and-agriculture.html

Donating Food Inventory to a Qualified Charity - New Opportunity for Farmers

https://lawprofessors.typepad.com/agriculturallaw/2016/10/donating-food-inventory-to-a-qualified-charity-new-opportunity-for-farmers.html

Farm Valuation Issues

https://lawprofessors.typepad.com/agriculturallaw/2016/10/farm-valuation-issues.html

Treatment of Farming Casualty and Theft Losses

https://lawprofessors.typepad.com/agriculturallaw/2016/10/treatment-of-farming-casualty-and-theft-losses.html

More on Handling Farm Losses

https://lawprofessors.typepad.com/agriculturallaw/2016/11/more-on-handling-farm-losses.html

Selected Tax Issues For Rural Landowners Associated With Easement Payments

https://lawprofessors.typepad.com/agriculturallaw/2016/11/selected-tax-issues-for-rural-landowners-associated-with-easement-payments.html

Are You A Farmer? It Depends!

https://lawprofessors.typepad.com/agriculturallaw/2016/11/are-you-a-farmer-it-depends.html

Rents Are Passive, But They Can Be Recharacterized - And Grouped (Sometimes)

https://lawprofessors.typepad.com/agriculturallaw/2016/11/rents-are-passive-but-they-can-be-recharacterized-and-grouped-sometimes.html

It’s Fall and Time to “Hoop it Up”!

https://lawprofessors.typepad.com/agriculturallaw/2016/11/its-fall-and-time-to-hoop-it-up.html

Utilizing the Home Sale Exclusion When Selling the Farm

https://lawprofessors.typepad.com/agriculturallaw/2016/12/utilizing-the-home-sale-exclusion-when-selling-the-farm.html

Farmland Acquisition – Allocation of Value to Depreciable Items

https://lawprofessors.typepad.com/agriculturallaw/2016/12/farmland-acquisition-allocation-of-value-to-depreciable-items.html

Tribute To Orville Bloethe

https://lawprofessors.typepad.com/agriculturallaw/2016/12/tribute-to-orville-bloethe.html

IRS Continues (Unsuccessfully) Attack on Cash Accounting By Farmers

https://lawprofessors.typepad.com/agriculturallaw/2016/12/irs-continues-unsuccessfully-attack-on-cash-accounting-by-farmers.html

The Uniform Capitalization Rules and Agriculture

https://lawprofessors.typepad.com/agriculturallaw/2016/12/the-uniform-capitalization-rules-and-agriculture.html

The Non-Corporate Lessor Rule – A Potential Trap In Expense Method Depreciation

https://lawprofessors.typepad.com/agriculturallaw/2016/12/the-non-corporate-lessor-rule-a-potential-trap-in-expense-method-depreciation.html

REAL PROPERTY

Texas Mineral Estates, Groundwater Rights, Surface Usage and the “Accommodation Doctrine”

https://lawprofessors.typepad.com/agriculturallaw/2016/08/texas-mineral-estates-groundwater-rights-surface-usage-and-the-accommodation-doctrine.html

So You Want To Buy Farmland? Things to Consider

https://lawprofessors.typepad.com/agriculturallaw/2016/09/so-you-want-to-buy-farmland-things-to-consider.html

What’s the Character of the Gain From the Sale of Farm or Ranch Land?

https://lawprofessors.typepad.com/agriculturallaw/2016/09/whats-the-character-of-the-gain-from-the-sale-of-farm-or-ranch-land.html

Utilizing the Home Sale Exclusion When Selling the Farm

https://lawprofessors.typepad.com/agriculturallaw/2016/12/utilizing-the-home-sale-exclusion-when-selling-the-farm.html

REGULATORY LAW

New Food Safety Rules Soon to Apply to Farmers and Others In the Food Production Chain

https://lawprofessors.typepad.com/agriculturallaw/2016/10/new-food-safety-rules-soon-to-apply-to-farmers-and-others-in-the-food-production-chain.html

New Regulations on Marketing of Livestock and Poultry

https://lawprofessors.typepad.com/agriculturallaw/2016/11/new-regulations-on-marketing-of-livestock-and-poultry.html

The Future of Ag Policy Under Trump

https://lawprofessors.typepad.com/agriculturallaw/2016/11/the-future-of-ag-policy-under-trump.html

Verifying Employment – New Form I-9; The Requirements and Potential Problem Areas

https://lawprofessors.typepad.com/agriculturallaw/2016/11/verifying-employment-new-form-i-9-the-requirements-and-potential-problem-areas.html

SECURED TRANSACTIONS

Feedlot Has Superior Rights to Cattle Sale Proceeds

https://lawprofessors.typepad.com/agriculturallaw/2016/08/feedlot-has-superior-rights-to-cattle-sale-proceeds.html

WATER LAW

Watercourses and Boundary Lines

https://lawprofessors.typepad.com/agriculturallaw/2016/11/watercourses-and-boundary-lines.html

April 19, 2021 in Business Planning, Civil Liabilities, Contracts, Criminal Liabilities, Environmental Law, Estate Planning, Income Tax, Real Property, Regulatory Law, Secured Transactions, Water Law | Permalink | Comments (0)

Saturday, April 17, 2021

Is That Old Fence Really the Boundary?

Overview

For rural properties, fences are generally considered by the landowners to be the boundaries.  But by law, the actual boundary is an imaginary line that is located according to the property description in the deeds to the properties.  It’s this discrepancy between the existing fence and the legal boundary that can create issues between adjacent landowners.  How is this issue resolved?  What factors are relevant in determining where the actual boundary is located. 

I am revisiting a topic I have written about in the past because the questions continue to come up.  There may also be new readers to the blog that haven’t read my prior posts dealing with this topic.  So going over things again can’t hurt.

Old fences and boundaries – it’s the topic of today’s post.

Basic Principles

An existing fence is typically considered to be evidence of where the imaginary line between two properties is located.  It matters little whether the fence is permanent or not.  But, it is also possible (and in many instances, likely) that an old fence has been used as part of the description of the land as the property has changed hands.  It’s not unusual for a farm property to be sold according to the existing fence lines. 

Metes and bounds.   In the eastern one-third of the United States, land descriptions are likely to be “metes and bounds” descriptions.  With this type of description, a tract of land is described by a series of directions that trace the perimeter of the land.  Such tracing might include following an old fence. 

General location.  In some rural areas, I have seen deeds refer to the boundary of a farm by general location, such as “The old Snarkfeltcher place on Highway 47, three miles east of the Dinwiddie junction.”  With a description such as that, the boundary of the farm is the physical boundary where the land abuts an adjoining tract of land.  It might very well be marked by an existing fence, which the parties intend to use as the boundary.   

Note:   In either the situation where a metes and bounds description or a general location description is used, the fence may actually be considered to be the permanent boundary marker.  If the fence later deteriorates, it may be necessary to relocate (recreate) the fence to precisely determined the boundary. 

Survey.  Presently, it is common for a tract of land to be described in a way that requires the mapping out of survey lines.  This is common when the land is such that a survey is easy to conduct.  For some rural properties, however, the topography of the land may be such that there really isn’t a good way to do a survey at an economical price.  In this situation, an existing fence may not be built on the boundary line, but it is treated as the boundary by the adjoining landowners.  Indeed, it is often the case that prior adjoining owners agreed to build the fence to one side of the actual boundary line as a matter of convenience – to get around thick brush or trees or water or some other obstacle.  When this has happened, the fence was not intended to be the boundary line – at least not originally.  But, with the passage of time the fence may come to be thought of as marking the boundary regardless of whether it actually does. 

Existing Fence Line As Actual Boundary

Those fences that are not on the true boundary (perhaps as revealed by a subsequent survey), are what give rise to disputes.  If I were to track the questions that I get by category, I would say that, after tax and estate/business planning questions, issues with fences (and leases) trigger the most questions.  So, based on the above discussion, a key question is whether an old fence line can be substituted for the actual boundary when it is not on the surveyed line.  If it can, how does that happen?

Passage of Time

The mere passage of time will not cause the fence to be substituted for the property description boundary.  So, the fact that the fence has been there for decades doesn’t matter much by itself.  However, patterns of usage of the land on each side of the fence may cause the fence to become fixed as the boundary and have the legal effect of changing the boundary set out in the deed.  This is an important point surveyors and realtors often fail to properly understand.   

Adverse possession.  A party can acquire title to property that isn’t lawfully theirs by making an open and notorious use of the property for a specific period of time.  The timeframe varies from state-to-state as do the specific elements of an adverse possession claim, but in most states the timeframe is somewhere between five and 20 years.  But, for adverse possession to apply, the party trying to claim title via adverse possession must know that the property they are claiming as theirs doesn’t lawfully belong to them.  If it is not known where the actual property boundary is, courts look at the intent of the party trying to claim title by adverse possession.  If the property was occupied merely by mistake with no intent to claim the disputed area such that the claimant intended only to hold up to the true line (wherever it is), adverse possession is not present.  Alternatively, if the occupant takes possession of the property believing the land to be his or her own up to the mistaken line and openly claims title to it (often evidenced by conduct), the possession will be considered adverse. 

Note:   Many adverse possession claims fail because both parties have thought that the fence actually represented the boundary and thus do not intend to claim any additional property than what they are legally entitled to claim. 

Treating An Old Fence at the Boundary

Adjacent landowners may agree that an existing old fence actually constitutes the boundary in several ways.

Written agreement.  Although not common, the parties may settle uncertainty about the boundary on the basis of a written agreement.  In that instance, corrective deeds will be issued, and the property descriptions of the adjoining tracts will be changed to reflect the fence line.  Multiple deeds may be necessary to transfer the disputed area.  It’s important to hire an attorney that practices in real estate matters to get the deeds drafted and filed properly. 

Memo of understanding.  Another way in which the adjacent owners may settle the boundary dispute is to enter into a memorandum of understanding that designates the old fence line as the boundary.  That memo can be recorded in the land records where it will bind not only the present owners of the adjacent tracts, but their successors.  For the memorandum to be enforceable, the boundary must be uncertain or in dispute.  The memo is technically called a “parol agreement.”  It is not subject to state law governing conveyances.  Even so, it’s a good practice for the memo to accurately describe the affected land and that the parties sign it.  The parties should then observe the property line as described in the memo. 

Practical location.  Also, known as “boundary by acquiescence,” the doctrine of practical location may also be used to establish an old fence as the boundary.  This situation arises when one party occupies to the fence line for the statutory timeframe (the same timeframe as that for adverse possession), knowing that the fence is not the true boundary but not knowing where the true boundary is located.  If the parties know that the fence is not the true boundary, but they do know where the true boundary is located, neither a memorandum (parol agreement) nor boundary by acquiescence applies. 

Equitable exchange.  It may be possible in some states for a court to grant an “equitable exchange.”  With an equitable exchange, one party is ordered to “trade” property on one side of the line for property on the other.  However, this remedy is extraordinary, and a court will only grant such an exchange if the parties can show that the true location of the boundary will present an unusual hardship or some other circumstance.   

Recent Case

The farmland boundary cases are voluminous.  That’s unfortunate because it almost always means that neighbors are not getting along and are in a heated dispute about a boundary.  Resolving such a dispute in court can be costly.

An example of a boundary dispute that involved several of the concepts discussed in today’s article is the Iowa case of Liddiard v. Mikesh, 947 N.W.2d 231 (Iowa Ct. App. 2020).  In the case, the plaintiff failed to establish an existing fence as the boundary line either by adverse possession or under the boundary by acquiescence theory.  The facts revealed that the plaintiff and his family had owned their property for 75 years. The property description in the original deed noted that plaintiff’s property included forty acres, containing five acres “more or less” bounded by the brink of a bluff. The “more or less” language was not included when the plaintiff’s family purchased the land. The defendant hired a surveyor to complete a survey when he purchased property next to the plaintiff’s property. The survey was recorded and included a five-acre square cut-out in the northeast corner of the plaintiff’s property. In a dispute over logging timber, the defendant prevailed in small claims court, where the small claims court found that the defendant owned the five-acres. The small claims court noted it had no jurisdiction to establish property lines. Six years later, the plaintiff sought to quiet title for approximately eight acres, including the five-acre square. The plaintiff argued that the true boundary line was the fence line, and that he was the owner of the disputed property under theories of adverse possession and boundary by acquiescence.

The trial court held that the plaintiff failed to establish either possession by adverse possession or boundary by acquiescence. On appeal, the plaintiff argued that the trial court erred in ruling that he did not establish possession under either claim. The appellate court held that the plaintiff did not prove adverse possession by establishing hostile, actual, open, exclusive and continuous possession, under a claim of right for at least ten years. The appellate court noted that both parties had used the land, therefore the plaintiff’s use was not exclusive. While the plaintiff maintained the fence, the appellate court noted that a claim of right must be established by substantial maintenance and improvement to establish adverse possession. Additionally, the appellate court noted that the plaintiff did not openly claim ownership until the logging dispute six years prior. The appellate court also held that there was no boundary by acquiescence because both parties did not acknowledge and treat the fence line as the boundary. The appellate court noted that the defendant was able to show that the fence was a courtesy fence constructed to keep livestock contained. 

Conclusion

Fences and boundary matters can create headaches for rural landowners.  It’s best to know the rules so that you can get a dispute resolved quickly and efficiently, or not get into a dispute in the first place. 

April 17, 2021 in Real Property | Permalink | Comments (0)

Friday, April 2, 2021

Ag Law and Taxation - 2017 Bibliography

Overview

Today's post is a bibliography of my ag law and tax blog articles of 2017.  This will make it easier to find the articles you are looking for in your research.  In late January I posted the 2020 bibliography of articles.  In late February I posted the bibliography of the 2019 articles.  Last month, I posted the 2018 bibliography of articles.  Today’s posting is the bibliography of my 2017 articles.  Later this month I will post the 2016 bibliography. 

The library of content continues to grow with relevant information for you practice or your farming/ranching business.

The 2017 bibliography of articles – it’s the subject matter of today’s post.

BANKRUPTCY

The Most Important Agricultural Law and Tax Developments of 2016

https://lawprofessors.typepad.com/agriculturallaw/2017/01/the-most-important-agricultural-law-and-tax-developments-of-2016.html  

Top Ten Agricultural Law and Tax Developments of 2016 (Ten Through Six)

https://lawprofessors.typepad.com/agriculturallaw/2017/01/top-ten-agricultural-law-and-tax-developments-of-2016-ten-through-six.html

Top Ten Agricultural Law Developments of 2016 (Five Through One)

https://lawprofessors.typepad.com/agriculturallaw/2017/01/top-ten-agricultural-law-developments-of-2016-five-through-one.html

Farm Financial Stress – Debt Restructuring

https://lawprofessors.typepad.com/agriculturallaw/2017/01/farm-financial-stress-debt-restructuring.html

Qualified Farm Indebtedness – A Special Rule for Income Exclusion of Forgiven Debt

https://lawprofessors.typepad.com/agriculturallaw/2017/03/qualified-farm-indebtedness-a-special-rule-for-income-exclusion-of-forgiven-debt.html

What Are a Farmer’s Rights When a Grain Elevator Fails?

https://lawprofessors.typepad.com/agriculturallaw/2017/07/what-are-a-farmers-rights-when-a-grain-elevator-fails.html

Agricultural Law in a Nutshell

https://lawprofessors.typepad.com/agriculturallaw/2017/07/agricultural-law-in-a-nutshell.html

The Business of Agriculture – Upcoming CLE Symposium

https://lawprofessors.typepad.com/agriculturallaw/2017/08/the-business-of-agriculture-upcoming-cle-symposium.html

Tough Financial Times in Agriculture and Lending Clauses – Peril for the Unwary

https://lawprofessors.typepad.com/agriculturallaw/2017/10/tough-financial-times-in-agriculture-and-lending-clauses-peril-for-the-unwary.html

What Interest Rate Applies to a Secured Creditor’s Claim in a Reorganization Bankruptcy?

https://lawprofessors.typepad.com/agriculturallaw/2017/11/what-interest-rate-applies-to-a-secured-creditors-claim-in-a-reorganization-bankruptcy.html

PACA Trust Does Not Prevent Chapter 11 DIP’s Use of Cash Collateral

https://lawprofessors.typepad.com/agriculturallaw/2017/11/paca-trust-does-not-prevent-chapter-11-dips-use-of-cash-collateral.html

Are Taxes Dischargeable in Bankruptcy?

https://lawprofessors.typepad.com/agriculturallaw/2017/12/are-taxes-dischargeable-in-bankruptcy.html

Christmas Shopping Season Curtailed? – Bankruptcy Venue Shopping, That Is!

https://lawprofessors.typepad.com/agriculturallaw/2017/12/christmas-shopping-season-curtailed-bankruptcy-venue-shopping-that-is.html

BUSINESS PLANNING

The Most Important Agricultural Law and Tax Developments of 2016

https://lawprofessors.typepad.com/agriculturallaw/2017/01/the-most-important-agricultural-law-and-tax-developments-of-2016.html

Top Ten Agricultural Law and Tax Developments of 2016 (Ten Through Six)

https://lawprofessors.typepad.com/agriculturallaw/2017/01/top-ten-agricultural-law-and-tax-developments-of-2016-ten-through-six.html

Top Ten Agricultural Law Developments of 2016 (Five Through One)

https://lawprofessors.typepad.com/agriculturallaw/2017/01/top-ten-agricultural-law-developments-of-2016-five-through-one.html

C Corporation Penalty Taxes – Time to Dust-Off and Review?

https://lawprofessors.typepad.com/agriculturallaw/2017/01/c-corporation-penalty-taxes-time-to-dust-off-and-review.html

Divisive Reorganizations of Farming and Ranching Corporations

https://lawprofessors.typepad.com/agriculturallaw/2017/01/divisive-reorganizations-of-farming-and-ranching-corporations.html

The Scope and Effect of the “Small Partnership Exception”

https://lawprofessors.typepad.com/agriculturallaw/2017/02/the-scope-and-effect-of-the-small-partnership-exception.html

Using the Right Kind of an Entity to Reduce Self-Employment Tax

https://lawprofessors.typepad.com/agriculturallaw/2017/04/using-the-right-kind-of-an-entity-to-reduce-self-employment-tax.html

Employer-Provided Meals and Lodging

https://lawprofessors.typepad.com/agriculturallaw/2017/05/employer-provided-meals-and-lodging.html

Self-Employment Tax on Farming Activity of Trusts

https://lawprofessors.typepad.com/agriculturallaw/2017/05/self-employment-tax-on-farming-activity-of-trusts.html

Minority Shareholder Oppression Case Raises Several Tax Questions

https://lawprofessors.typepad.com/agriculturallaw/2017/05/minority-shareholder-oppression-case-raises-several-tax-questions.html

Farm Program Payment Limitations and Entity Planning – Part One

https://lawprofessors.typepad.com/agriculturallaw/2017/06/farm-program-payment-limitations-and-entity-planning-part-one.html

Farm Program Payment Limitations and Entity Planning – Part Two

https://lawprofessors.typepad.com/agriculturallaw/2017/06/farm-program-payment-limitations-and-entity-planning-part-two.html

Summer Ag Tax/Estate and Business Planning Conference

https://lawprofessors.typepad.com/agriculturallaw/2017/06/summer-ag-taxestate-and-business-planning-conference.html

An Installment Sale as Part of an Estate Plan

https://lawprofessors.typepad.com/agriculturallaw/2017/07/an-installment-sale-as-part-of-an-estate-plan.html

The Use of a Buy-Sell Agreement for Transitioning a Business

https://lawprofessors.typepad.com/agriculturallaw/2017/08/the-use-of-a-buy-sell-agreement-for-transitioning-a-business.html

The Business of Agriculture – Upcoming CLE Symposium

https://lawprofessors.typepad.com/agriculturallaw/2017/08/the-business-of-agriculture-upcoming-cle-symposium.html

Forming a Farming/Ranching Corporation Tax-Free

https://lawprofessors.typepad.com/agriculturallaw/2017/08/forming-a-farmingranching-corporation-tax-free.html

Farmers Renting Equipment – Does it Trigger A Self-Employment Tax Liability?

https://lawprofessors.typepad.com/agriculturallaw/2017/08/farmers-renting-equipment-does-it-trigger-a-self-employment-tax-liability.html

New Partnership Audit Rules

https://lawprofessors.typepad.com/agriculturallaw/2017/09/new-partnership-audit-rules.html

Self-Employment Tax on Farm Rental Income – Is the Mizell Veneer Cracking?

https://lawprofessors.typepad.com/agriculturallaw/2017/09/self-employment-tax-on-farm-rental-income-is-the-mizell-veneer-cracking.html

IRS To Finalize Regulations on Tax Status of LLC and LLP Members?

https://lawprofessors.typepad.com/agriculturallaw/2017/10/irs-to-finalize-regulations-on-tax-status-of-llc-and-llp-members.html

H.R. 1 – Farmers, Self-Employment Tax and Business Arrangement Structures

https://lawprofessors.typepad.com/agriculturallaw/2017/11/hr-1-farmers-self-employment-tax-and-business-arrangement-structures.html

Summer 2018 – Farm Tax and Farm Business Education

https://lawprofessors.typepad.com/agriculturallaw/2017/11/summer-2018-farm-tax-and-farm-business-education.html

Partnerships and Tax Law – Details Matter

https://lawprofessors.typepad.com/agriculturallaw/2017/11/partnership-and-tax-law-details-matter.html   

CIVIL LIABILITIES

The Most Important Agricultural Law and Tax Developments of 2016

https://lawprofessors.typepad.com/agriculturallaw/2017/01/the-most-important-agricultural-law-and-tax-developments-of-2016.html

Top Ten Agricultural Law and Tax Developments of 2016 (Ten Through Six)

https://lawprofessors.typepad.com/agriculturallaw/2017/01/top-ten-agricultural-law-and-tax-developments-of-2016-ten-through-six.html

Top Ten Agricultural Law and Developments of 2016 (Five Through One)

https://lawprofessors.typepad.com/agriculturallaw/2017/01/top-ten-agricultural-law-developments-of-2016-five-through-one.html

Recreational Use Statutes – What is Covered?

https://lawprofessors.typepad.com/agriculturallaw/2017/02/recreational-use-statutes-what-is-covered.html

Is Aesthetic Damage Enough to Make Out a Nuisance Claim?

https://lawprofessors.typepad.com/agriculturallaw/2017/04/is-aesthetic-damage-enough-to-make-out-a-nuisance-claim.html

Liability Associated with a Range of Fires and Controlled Burns

https://lawprofessors.typepad.com/agriculturallaw/2017/04/liability-associated-with-a-range-fires-and-controlled-burns.html

What’s My Liability for Spread of Animal Disease

https://lawprofessors.typepad.com/agriculturallaw/2017/06/whats-my-liability-for-spread-of-animal-disease.html

Dicamba Spray-Drift Issues

https://lawprofessors.typepad.com/agriculturallaw/2017/07/dicamba-spray-drift-issues.html

Agricultural Law in a Nutshell

https://lawprofessors.typepad.com/agriculturallaw/2017/07/agricultural-law-in-a-nutshell.html

The Business of Agriculture – Upcoming CLE Symposium

https://lawprofessors.typepad.com/agriculturallaw/2017/08/the-business-of-agriculture-upcoming-cle-symposium.html

Right-to-Farm Laws

            https://lawprofessors.typepad.com/agriculturallaw/2017/09/right-to-farm-laws.html

CONTRACTS

The Most Important Agricultural Law and Tax Developments of 2016

https://lawprofessors.typepad.com/agriculturallaw/2017/01/the-most-important-agricultural-law-and-tax-developments-of-2016.html

Top Ten Agricultural Law and Tax Developments of 2016 (Ten Through Six)

https://lawprofessors.typepad.com/agriculturallaw/2017/01/top-ten-agricultural-law-and-tax-developments-of-2016-ten-through-six.html

Top Ten Agricultural Law Developments of 2016 (Five Through One)

https://lawprofessors.typepad.com/agriculturallaw/2017/01/top-ten-agricultural-law-developments-of-2016-five-through-one.html

Another Issue With Producing Livestock on Contract – Insurance

https://lawprofessors.typepad.com/agriculturallaw/2017/01/another-issue-with-producing-livestock-on-contract-insurance.html

The Ability of Tenants-in-Common To Bind Co-Tenants to a Farm Lease – and Related Issues

https://lawprofessors.typepad.com/agriculturallaw/2017/02/the-ability-of-tenants-in-common-to-bind-co-tenants-to-a-farm-lease-and-related-issues.html

Ag Goods Sold at Auction – When is a Contract Formed?

https://lawprofessors.typepad.com/agriculturallaw/2017/05/ag-goods-sold-at-auction-when-is-a-contract-formed.html

Agricultural Law in a Nutshell

https://lawprofessors.typepad.com/agriculturallaw/2017/07/agricultural-law-in-a-nutshell.html

The Business of Agriculture – Upcoming CLE Symposium

https://lawprofessors.typepad.com/agriculturallaw/2017/08/the-business-of-agriculture-upcoming-cle-symposium.html

Ag Contracts and Express Warranties

https://lawprofessors.typepad.com/agriculturallaw/2017/09/ag-contracts-and-express-warranties.html

What Remedies Does a Buyer Have When a Seller of Ag Goods Breaches the Contract?           

https://lawprofessors.typepad.com/agriculturallaw/2017/10/what-remedies-does-a-buyer-have-when-a-seller-of-ag-goods-breaches-the-contract.html  

COOPERATIVES

The Most Important Agricultural Law and Tax Developments of 2016

https://lawprofessors.typepad.com/agriculturallaw/2017/01/the-most-important-agricultural-law-and-tax-developments-of-2016.html

Top Ten Agricultural Law Developments of 2016 (Five Through One)

https://lawprofessors.typepad.com/agriculturallaw/2017/01/top-ten-agricultural-law-and-tax-developments-of-2016-ten-through-six.html

What Is a Cooperative Director’s Liability to Member-Shareholders and Others?

https://lawprofessors.typepad.com/agriculturallaw/2017/07/what-is-a-cooperative-directors-liability-to-member-shareholders-and-others.html

CRIMINAL LIABILITIES

The Necessity Defense to Criminal Liability

https://lawprofessors.typepad.com/agriculturallaw/2017/05/the-necessity-defense-to-criminal-liability.html

The Business of Agriculture – Upcoming CLE Symposium

https://lawprofessors.typepad.com/agriculturallaw/2017/08/the-business-of-agriculture-upcoming-cle-symposium.html

What Problems Does The Migratory Bird Treaty Act Pose For Farmers, Ranchers and Rural Landowners?

https://lawprofessors.typepad.com/agriculturallaw/2017/08/what-problems-does-the-migratory-bird-treaty-act-pose-for-farmers-ranchers-and-rural-landowners.html

ENVIRONMENTAL LAW

Drainage Activities on Farmland and the USDA

https://lawprofessors.typepad.com/agriculturallaw/2017/03/drainage-activities-on-farmland-and-the-usda.html

The Application of the Endangered Species Act to Activities on Private Land

https://lawprofessors.typepad.com/agriculturallaw/2017/04/the-application-of-the-endangered-species-act-to-activities-on-private-land.html

Eminent Domain – The Government’s Power to “Take” Private Property

https://lawprofessors.typepad.com/agriculturallaw/2017/06/eminent-domain-the-governments-power-to-take-private-property.html

Spray Drift As Hazardous Waste?

https://lawprofessors.typepad.com/agriculturallaw/2017/07/spray-drift-as-hazardous-waste.html

What Problems Does The Migratory Bird Treaty Act Pose For Farmers, Ranchers and Rural Landowners?

https://lawprofessors.typepad.com/agriculturallaw/2017/08/what-problems-does-the-migratory-bird-treaty-act-pose-for-farmers-ranchers-and-rural-landowners.html

The Prior Converted Cropland Exception From Clean Water Act Jurisdiction

https://lawprofessors.typepad.com/agriculturallaw/2017/09/the-prior-converted-cropland-exception-from-clean-water-act-jurisdiction.html

Air Emission Reporting Requirement For Livestock Operations

https://lawprofessors.typepad.com/agriculturallaw/2017/11/air-emission-reporting-requirement-for-livestock-operations.html

ESTATE PLANNING

Rights of Refusal and the Rule Against Perpetuities

https://lawprofessors.typepad.com/agriculturallaw/2017/01/rights-of-refusal-and-the-rule-against-perpetuities.html

Some Thoughts On Long-Term Care Insurance

https://lawprofessors.typepad.com/agriculturallaw/2017/02/some-thoughts-on-long-term-care-insurance.html

Overview of Gifting Rules and Strategies                                                                 

https://lawprofessors.typepad.com/agriculturallaw/2017/04/overview-of-gifting-rules-and-strategies.html

Disinheriting a Spouse – Can It Be Done?

https://lawprofessors.typepad.com/agriculturallaw/2017/04/disinheriting-a-spouse-can-it-be-done.html

Specific Property Devised in Will (or Trust) That Doesn’t Exist At Death – What Happens?

https://lawprofessors.typepad.com/agriculturallaw/2017/05/specific-property-devised-in-will-that-doesnt-exist-at-death-what-happens.html

Discounting IRAs for Income Tax Liability?

https://lawprofessors.typepad.com/agriculturallaw/2017/05/discounting-iras-for-income-tax-liability.html

Special Use Valuation and Cash Leasing

https://lawprofessors.typepad.com/agriculturallaw/2017/05/special-use-valuation-and-cash-leasing.html

Self-Employment Tax On Farming Activity Of Trusts

https://lawprofessors.typepad.com/agriculturallaw/2017/05/self-employment-tax-on-farming-activity-of-trusts.html

Would an Interest Charge Domestic International Sales Corporation Benefit a Farming Business?

https://lawprofessors.typepad.com/agriculturallaw/2017/07/would-an-interest-charge-domestic-international-sales-corporation-benefit-a-farming-business.html

An Installment Sale as Part of An Estate Plan

https://lawprofessors.typepad.com/agriculturallaw/2017/07/an-installment-sale-as-part-of-an-estate-plan.html

Using An IDGT For Wealth Transfer and Business Succession

https://lawprofessors.typepad.com/agriculturallaw/2017/07/using-an-idgt-for-wealth-transfer-and-business-succession.html

Federal Tax Claims in Decedent’s Estates – What’s the Liability and Priority?

https://lawprofessors.typepad.com/agriculturallaw/2017/08/federal-tax-claims-in-decedents-estates-whats-the-liability-and-priority.html

Estate Tax Portability – The Authority of the IRS To Audit

https://lawprofessors.typepad.com/agriculturallaw/2017/10/estate-tax-portability-the-authority-of-the-irs-to-audit.html

Digital Assets and Estate Planning       

https://lawprofessors.typepad.com/agriculturallaw/2017/10/digital-assets-and-estate-planning.html

INCOME TAX

The Burden of Proof in Tax Cases – What are the Rules?

https://lawprofessors.typepad.com/agriculturallaw/2017/02/the-burden-of-proof-in-tax-cases-what-are-the-rules.html

The Home Office Deduction

https://lawprofessors.typepad.com/agriculturallaw/2017/02/the-home-office-deduction.html

IRS To Continue Attacking Cash Method For Farmers Via the “Farming Syndicate Rule”

https://lawprofessors.typepad.com/agriculturallaw/2017/02/irs-to-continue-attacking-cash-method-for-farmers-via-the-farming-syndicate-rule.html

Using Schedule J As A Planning Tool For Clients With Farm Income

https://lawprofessors.typepad.com/agriculturallaw/2017/03/using-schedule-j-as-a-planning-tool-for-clients-with-farm-income.html

Deductibility of Soil and Water Conservation Expenses

https://lawprofessors.typepad.com/agriculturallaw/2017/03/deductibility-of-soil-and-water-conservation-expenses.html

Should Purchased Livestock Be Depreciated or Inventoried?

https://lawprofessors.typepad.com/agriculturallaw/2017/03/should-purchased-livestock-be-depreciated-or-inventoried.html

The Changing Structure of Agricultural Production and…the IRS

https://lawprofessors.typepad.com/agriculturallaw/2017/03/the-changing-structure-of-agricultural-production-andthe-irs.html

Farm-Related Casualty Losses and Involuntary Conversions – Helpful Tax Rules in Times of Distress

https://lawprofessors.typepad.com/agriculturallaw/2017/03/farm-related-casualty-losses-and-involuntary-conversions-helpful-tax-rules-in-times-of-distress.html

Charitable Contributions Via Trust

https://lawprofessors.typepad.com/agriculturallaw/2017/03/charitable-contributions-via-trust.html

Ag Tax Policy The Focus in D.C.

https://lawprofessors.typepad.com/agriculturallaw/2017/04/ag-tax-policy-the-focus-in-dc-.html

For Depreciation Purposes, What Does Placed in Service Mean?

https://lawprofessors.typepad.com/agriculturallaw/2017/04/for-depreciation-purposes-what-does-placed-in-service-mean.html

Tax Treatment of Commodity Futures and Options

https://lawprofessors.typepad.com/agriculturallaw/2017/04/tax-treatment-of-commodity-futures-and-options.html

Discounting IRAs for Income Tax Liability?

https://lawprofessors.typepad.com/agriculturallaw/2017/05/discounting-iras-for-income-tax-liability.html

Like-Kind Exchanges, Reverse Exchanges, and the Safe Harbor

https://lawprofessors.typepad.com/agriculturallaw/2017/05/like-kind-exchanges-reverse-exchanges-and-the-safe-harbor.html

Insights Into Handling IRS Disputes

https://lawprofessors.typepad.com/agriculturallaw/2017/05/insights-into-handling-irs-disputes.html

Employer-Provided Meals and Lodging

https://lawprofessors.typepad.com/agriculturallaw/2017/05/employer-provided-meals-and-lodging.html

Self-Employment Tax On Farming Activity Of Trusts

https://lawprofessors.typepad.com/agriculturallaw/2017/05/self-employment-tax-on-farming-activity-of-trusts.html

Minority Shareholder Oppression Case Raises Several Tax Questions

https://lawprofessors.typepad.com/agriculturallaw/2017/05/minority-shareholder-oppression-case-raises-several-tax-questions.html

Input Costs – When Can a Deduction Be Claimed?

https://lawprofessors.typepad.com/agriculturallaw/2017/06/input-costs-when-can-a-deduction-be-claimed.html

Like-Kind Exchange Issues

https://lawprofessors.typepad.com/agriculturallaw/2017/06/like-kind-exchange-issues.html

Tax Issues With Bad Debt Deductions

https://lawprofessors.typepad.com/agriculturallaw/2017/06/tax-issues-with-bad-debt-deductions.html

Like-Kind Exchanges – The Related Party Rule and a Planning Opportunity

https://lawprofessors.typepad.com/agriculturallaw/2017/06/like-kind-exchanges-the-related-party-rule-and-a-planning-opportunity.html

Tax Treatment of Cooperative Value-Added Payments

https://lawprofessors.typepad.com/agriculturallaw/2017/06/tax-treatment-of-cooperative-value-added-payments.html

Would an Interest Charge Domestic International Sales Corporation Benefit a Farming Business?

https://lawprofessors.typepad.com/agriculturallaw/2017/07/would-an-interest-charge-domestic-international-sales-corporation-benefit-a-farming-business.html

Timber Tax Issues – Part One

https://lawprofessors.typepad.com/agriculturallaw/2017/07/timber-tax-issues-part-one.html

Timber Tax Issues – Part Two

https://lawprofessors.typepad.com/agriculturallaw/2017/07/timber-tax-issues-part-two.html

An Installment Sale as Part of An Estate Plan

https://lawprofessors.typepad.com/agriculturallaw/2017/07/an-installment-sale-as-part-of-an-estate-plan.html

Using An IDGT For Wealth Transfer and Business Succession

https://lawprofessors.typepad.com/agriculturallaw/2017/07/using-an-idgt-for-wealth-transfer-and-business-succession.html

Prospects for Tax Legislation

https://lawprofessors.typepad.com/agriculturallaw/2017/08/prospects-for-tax-legislation.html

Deferred Payment Contracts

https://lawprofessors.typepad.com/agriculturallaw/2017/08/deferred-payment-contracts.html

When Is A Farmer Not A “Qualified Farmer” For Conservation Easement Donation Purposes?

https://lawprofessors.typepad.com/agriculturallaw/2017/08/when-is-a-farmer-not-a-qualified-farmer-for-conservation-easement-donation-purposes.html

Substantiating Charitable Contributions

https://lawprofessors.typepad.com/agriculturallaw/2017/08/substantiating-charitable-contributions.html

Forming a Farming/Ranching Corporation Tax-Free

https://lawprofessors.typepad.com/agriculturallaw/2017/08/forming-a-farmingranching-corporation-tax-free.html

Farmers Renting Equipment – Does It Trigger A Self-Employment Tax Liability?

https://lawprofessors.typepad.com/agriculturallaw/2017/08/farmers-renting-equipment-does-it-trigger-a-self-employment-tax-liability.html

Commodity Credit Corporation Loans and Elections

https://lawprofessors.typepad.com/agriculturallaw/2017/09/commodity-credit-corporation-loans-and-elections.html

New Partnership Audit Rules

https://lawprofessors.typepad.com/agriculturallaw/2017/09/new-partnership-audit-rules.html

Alternatives to Like-Kind Exchanges of Farmland

https://lawprofessors.typepad.com/agriculturallaw/2017/09/alternatives-to-like-kind-exchanges-of-farmland.html

South Dakota Attempts To Change Internet Sales Taxation – What Might Be The Impact On Small Businesses?

https://lawprofessors.typepad.com/agriculturallaw/2017/09/south-dakota-attempts-to-change-internet-sales-taxation-what-might-be-the-impact-on-small-businesses.html

Fall Tax Schools

https://lawprofessors.typepad.com/agriculturallaw/2017/09/fall-tax-schools.html

Self-Employment Tax on Farm Rental Income – Is the Mizell Veneer Cracking?

https://lawprofessors.typepad.com/agriculturallaw/2017/09/self-employment-tax-on-farm-rental-income-is-the-mizell-veneer-cracking.html

Tax Treatment of Settlements and Court Judgments

https://lawprofessors.typepad.com/agriculturallaw/2017/10/tax-treatment-of-settlements-and-court-judgments.html

The “Perpetuity” Requirement For Donated Easements

https://lawprofessors.typepad.com/agriculturallaw/2017/10/the-perpetuity-requirement-for-donated-easements.html

The Tax Rules Involving Prepaid Farm Expenses

https://lawprofessors.typepad.com/agriculturallaw/2017/10/the-tax-rules-involving-prepaid-farm-expenses.html

It’s Just About Tax School Time

https://lawprofessors.typepad.com/agriculturallaw/2017/10/its-just-about-tax-school-time.html

IRS To Finalize Regulations On Tax Status of LLC and LLP Members?

https://lawprofessors.typepad.com/agriculturallaw/2017/10/irs-to-finalize-regulations-on-tax-status-of-llc-and-llp-members.html

The Deductibility (Or Non-Deductibility) of Interest

https://lawprofessors.typepad.com/agriculturallaw/2017/10/the-deductibility-or-non-deductibility-of-interest.html

H.R. 1 - Farmers, Self-Employment Tax and Business Arrangement Structures

https://lawprofessors.typepad.com/agriculturallaw/2017/11/hr-1-farmers-self-employment-tax-and-business-arrangement-structures.html

The Broad Reach of the Wash-Sale Rule

https://lawprofessors.typepad.com/agriculturallaw/2017/11/the-broad-reach-of-the-wash-sale-rule.html

Comparison of the House and Senate Tax Bills – Implications for Agriculture

https://lawprofessors.typepad.com/agriculturallaw/2017/11/comparison-of-the-house-and-senate-tax-bills-implications-for-agriculture.html

Partnerships and Tax Law – Details Matter

https://lawprofessors.typepad.com/agriculturallaw/2017/11/partnership-and-tax-law-details-matter.html

Senate Clears Tax Bill - On To Conference

https://lawprofessors.typepad.com/agriculturallaw/2017/12/senate-clears-tax-bill-on-to-conference-committee.html

Are Taxes Dischargeable in Bankruptcy?

https://lawprofessors.typepad.com/agriculturallaw/2017/12/are-taxes-dischargeable-in-bankruptcy.html

Bitcoin Fever and the Tax Man

https://lawprofessors.typepad.com/agriculturallaw/2017/12/bitcoin-fever-and-the-tax-man.html

House and Senate to Vote on Conference Tax Bill This Week

https://lawprofessors.typepad.com/agriculturallaw/2017/12/house-and-senate-to-vote-on-conference-tax-bill-this-week.html

Another Tax Bill Introduced, Year-End Planning, and Jan. 10 Seminar/Webinar

https://lawprofessors.typepad.com/agriculturallaw/2017/12/another-tax-bill-introduced-year-end-planning-and-jan-10-seminarwebinar.html

PUBLICATIONS

Agricultural Law in a Nutshell

https://lawprofessors.typepad.com/agriculturallaw/2017/07/agricultural-law-in-a-nutshell.html

REAL PROPERTY

Another Issue When the Definition of “Agriculture” Matters – Property Tax

https://lawprofessors.typepad.com/agriculturallaw/2017/01/another-issue-when-the-definition-of-agriculture-matters-property-tax.html

The Ability of Tenants-in-Common To Bind Co-Tenants to a Farm Lease – and Related Issues

https://lawprofessors.typepad.com/agriculturallaw/2017/02/the-ability-of-tenants-in-common-to-bind-co-tenants-to-a-farm-lease-and-related-issues.html

Like-Kind Exchanges, Reverse Exchanges, and the Safe Harbor

https://lawprofessors.typepad.com/agriculturallaw/2017/05/like-kind-exchanges-reverse-exchanges-and-the-safe-harbor.html

Like-Kind Exchange Issues

https://lawprofessors.typepad.com/agriculturallaw/2017/06/like-kind-exchange-issues.html

Easements on Agricultural Land – Classification and Legal Issues

https://lawprofessors.typepad.com/agriculturallaw/2017/08/easements-on-agricultural-land-classification-and-legal-issues.html

Should I Enter Into An Oil and Gas Lease?

https://lawprofessors.typepad.com/agriculturallaw/2017/12/should-i-enter-into-an-oil-and-gas-lease.html

REGULATORY LAW

Checkoffs, The Courts and Free Speech

https://lawprofessors.typepad.com/agriculturallaw/2017/01/checkoffs-the-courts-and-free-speech.html

Joint Employment Situations In Agriculture – What’s the FLSA Test?

https://lawprofessors.typepad.com/agriculturallaw/2017/02/joint-employment-situations-in-agriculture-whats-the-flsa-test.html

Farmers, Ranchers and Government Administrative Agencies

https://lawprofessors.typepad.com/agriculturallaw/2017/03/farmers-ranchers-and-government-administrative-agencies.html

IRS To Target “Hobby” Farmers

https://lawprofessors.typepad.com/agriculturallaw/2017/03/irs-to-target-hobby-farmers.html

Drainage Activities on Farmland and the USDA

https://lawprofessors.typepad.com/agriculturallaw/2017/03/drainage-activities-on-farmland-and-the-usda.html

What is a “Separate Person” For Payment Limitation Purposes?

https://lawprofessors.typepad.com/agriculturallaw/2017/03/what-is-a-separate-person-for-payment-limitation-purposes.html

Livestock Indemnity Payments – What They Are and Tax Reporting Options

https://lawprofessors.typepad.com/agriculturallaw/2017/03/livestock-indemnity-payments-what-they-are-and-tax-reporting-options.html

Can One State Regulate Agricultural Production Activities in Other States?

https://lawprofessors.typepad.com/agriculturallaw/2017/06/can-one-state-regulate-agricultural-production-activities-in-other-states.html

Farm Program Payment Limitations and Entity Planning – Part One

https://lawprofessors.typepad.com/agriculturallaw/2017/06/farm-program-payment-limitations-and-entity-planning-part-one.html

Farm Program Payment Limitations and Entity Planning – Part Two

https://lawprofessors.typepad.com/agriculturallaw/2017/06/farm-program-payment-limitations-and-entity-planning-part-two.html

Eminent Domain – The Government’s Power to “Take” Private Property

https://lawprofessors.typepad.com/agriculturallaw/2017/06/eminent-domain-the-governments-power-to-take-private-property.html

Department of Labor Overtime Rules Struck Down – What’s the Impact on Ag?

https://lawprofessors.typepad.com/agriculturallaw/2017/09/department-of-labor-overtime-rules-struck-down-whats-the-impact-on-ag.html

The Prior Converted Cropland Exception From Clean Water Act Jurisdiction

https://lawprofessors.typepad.com/agriculturallaw/2017/09/the-prior-converted-cropland-exception-from-clean-water-act-jurisdiction.html

Air Emission Reporting Requirement For Livestock Operations

https://lawprofessors.typepad.com/agriculturallaw/2017/11/air-emission-reporting-requirement-for-livestock-operations.html

Federal Labor Law and Agriculture

https://lawprofessors.typepad.com/agriculturallaw/2017/11/federal-labor-law-and-agriculture.html

 Electronic Logs For Truckers and Implications for Agriculture

https://lawprofessors.typepad.com/agriculturallaw/2017/12/electronic-logs-for-truckers-and-implications-for-agriculture.html

SECURED TRANSACTIONS

Ag Supply Dealer Liens – Important Tool in Tough Financial Times

https://lawprofessors.typepad.com/agriculturallaw/2017/01/ag-supply-dealer-liens-important-tool-in-tough-financial-times.html

“Commercial Reasonableness” of Collateral Sales

https://lawprofessors.typepad.com/agriculturallaw/2017/07/commercial-reasonableness-of-collateral-sales.html

What Are A Farmer’s Rights When a Grain Elevator Fails?

https://lawprofessors.typepad.com/agriculturallaw/2017/07/what-are-a-farmers-rights-when-a-grain-elevator-fails.html

Selling Collateralized Ag Products – The “Farm Products” Rule

https://lawprofessors.typepad.com/agriculturallaw/2017/09/selling-collateralized-ag-products-the-farm-products-rule.html

SEMINARS AND CONFERENCES

Fall Tax Schools

https://lawprofessors.typepad.com/agriculturallaw/2017/09/fall-tax-schools.html

Another Tax Bill Introduced, Year-End Planning, and Jan. 10 Seminar/Webinar

https://lawprofessors.typepad.com/agriculturallaw/2017/12/another-tax-bill-introduced-year-end-planning-and-jan-10-seminarwebinar.html

Summer 2018 - Farm Tax and Farm Business Education

https://lawprofessors.typepad.com/agriculturallaw/2017/11/summer-2018-farm-tax-and-farm-business-education.html

The Business of Agriculture – Upcoming CLE Symposium

https://lawprofessors.typepad.com/agriculturallaw/2017/08/the-business-of-agriculture-upcoming-cle-symposium.html

Summer Ag Tax/Estate and Business Planning Conference

https://lawprofessors.typepad.com/agriculturallaw/2017/06/summer-ag-taxestate-and-business-planning-conference.html

WATER LAW

Prior Appropriation – First in Time, First in Right

https://lawprofessors.typepad.com/agriculturallaw/2017/02/prior-appropriation-first-in-time-first-in-right.html

Kansas Water Law - Reactions to and Potential Consequences of the Garetson decision

https://lawprofessors.typepad.com/agriculturallaw/2017/02/kansas-water-law-reactions-to-and-potential-consequences-of-the-garetson-decision.html

Public Access To Private Land Via Water

https://lawprofessors.typepad.com/agriculturallaw/2017/04/public-access-to-private-land-via-water.html

Big Development for Water in the West - Federal Implied Reserved Water Rights Doctrine Applies to Groundwater

https://lawprofessors.typepad.com/agriculturallaw/2017/12/big-development-for-water-in-the-west-federal-implied-reserved-water-rights-doctrine-applies-to-grou.html

April 2, 2021 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, March 24, 2021

Court and IRS Happenings in Ag Law and Tax

Overview

It’s been a while since I have written a summary of what’s been happening in the courts concerning developments relevant to agricultural producers, ag businesses and rural landowners.  It’s always helpful to stay informed of the ag legal issues that the courts are addressing. 

Current court developments in the courts involving ag law and tax – it’s the topic of today’s post.

Nuisance Case Against Hog CAFO Continues 

Barden v. Murphy-Brown, LLC, No. 7:20-CV-85-BR, 2021 U.S. Dist. LEXIS 47809 (E.D. N.C. Mar. 15, 2021)  

The plaintiff sued the defendant for trespass, negligence, civil conspiracy and unjust enrichment arising from odor, dust, feces, urine and flies from a neighboring hog facility that housed 20,000-head of the defendant’s hogs.  The plaintiff sought compensatory and punitive damages.  The defendant sought to dismiss the complaint for failure to join to the lawsuit the farmer that operated the hog facility via a contact with the defendant as an indispensable party.  The court disagreed as the farmer’s conduct was likely irrelevant to the outcome of the litigation and any impact that an adverse judgment against the defendant might have on the farmer’s interests at the farm was speculative.

The defendant also sought dismissal on the basis that the plaintiff’s complaint failed to state a claim for relief that was other than speculative.  The defendant cited the state (NC) right-to-farm (RTF) law as barring all of the plaintiff’s claims.  However, the court disagreed noting that conditions that constitute a nuisance can also constitute a trespass (and other causes of action).  Thus, the plaintiff’s complaint was not restricted to allegations of a nuisance cause of action which the RTF law would bar.  The court noted that the NC RTF law was different from other state RTF laws that covered non-nuisance tort claims related to farming operations along with nuisance claims.  The NC RTF law only covered nuisance-related claims and had no application to non-nuisance claims. 

As to whether the plaintiff adequately alleged the non-nuisance claims, the court concluded that the plaintiff sufficiently alleged, at a minimum, a claim for unintentional trespass by not consenting to dust, urine and fecal matter from entering its property.  On the plaintiff’s negligence claim, the court determined that it was reasonably foreseeable that if the defendant did not act reasonably in managing the facility that dust and animal waste would be present on the plaintiff’s property.  As such, the defendant owed the plaintiff a duty and there was a causal link with any potential breach of that duty.  Thus, the plaintiff properly stated a claim for negligence.  The plaintiff also alleged that the defendant conspired with its corporate parent to mislead the public about the science of hog manure removal and various constitutional violations.  The court rejected this claim because any conspiracy was between the defendant and its corporate parent and not with any independent party.  The plaintiff also claimed that the defendant unjustly enriched itself by using the plaintiff’s property for a de facto easement without paying for it.  The court rejected the claim because the plaintiff had conferred no benefit on the plaintiff which gave rise to any legal or equitable obligation on the defendant’s part to account for the benefit received.  However, the court refused to strike the plaintiff’s allegations relating to the defendant’s Chinese ownership, influence and exploitation as well as the defendant’s financial resources.  The court determined that such allegations had a bearing on the defendant’s motivation, extent of harm and ability to implement alternative technology. 

1914 Fence Agreement Fixes Boundary 

Eggemeyer v. Hughes, No. 08-19-0002-CV, 2021 Tex. App. LEXIS 691 (Tex. Ct. App. Jan. 28, 2021)  

 The parties owned adjacent tracts of land north and south of each other separated by section lines.  The defendant claimed that the section lines delineated the boundary and that a barbed wire fence constructed from a survey was built in its location due to practicalities.  The plaintiff claimed that the fence, which existed 150 yards to the north of the section lines, was the boundary.  The disputed acreage between the section lines and the fence was 90 acres. 

In 1914, prior owners of the tracts had executed a fence agreement that was filed in the county register of deeds office.  In the agreement they fixed the boundary in accordance with a metes and bounds description that referred to natural landmarks.  The plaintiff’s deed referred to the 1914 agreement.  In 2013, the plaintiffs sought to place a water well close to the boundary and negotiations with the defendant revealed that the parties had different views of the actual boundary.  The defendants sought a declaratory judgment seeking to enforce the 1914 agreement and the plaintiffs filed an adverse possession claim.  The trial court upheld the 1914 fence agreement and dismissed the plaintiff’s claims. 

On further review the appellate court affirmed.  While the non-permanent markers referred to in the 1914 fence agreement could not be found, the appellate court determined that there was sufficient evidence to support the defendant’s claim of ownership of the disputed acres via the 1914 fence agreement.  The appellate court also remanded the case on the issue of attorney fees. 

Boundary by Acquiescence Established by Landowners’ Conduct

Waggoner v. Alford, No. CV-19-931, 2021 Ark. App. 120 (Ark. Ct. App. Mar. 10, 2021)

The defendants purchased land adjacent to the plaintiff’s property on which they built a house. The defendants had a survey completed which indicated that their house was twenty-seven feet from the property line. This initial survey treated the plaintiff’s wire fence as the boundary. The plaintiff commissioned a survey nine years later that revealed that the fence was not the true boundary, and the defendants’ house encroached thirty-three feet onto the plaintiff’s property. A subsequent survey by the defendants made the same finding. The plaintiff sued to eject the defendants from the disputed .828-acre tract. The defendants claimed that the plaintiff’s fence constituted a boundary by acquiescence. The plaintiff argued that the fence was never intended to act as a boundary line, but rather as a means for keeping his horses on his property for a period of two to three years.

The trial court determined that the defendants had proved title to the disputed .828-acre tract. On appeal, the plaintiff argued that a boundary by acquiescence had not been established. Specifically, the plaintiff argued that the parties had not mutually consented to the fence as the property line. The appellate court noted that an express agreement between the parties is not necessary, and silent acquiescence can be established when a boundary line can be inferred from the conduct of the parties over a period of time. The appellate court noted that the defendants had maintained the disputed property for eight years before the plaintiff objected. As a result, the appellate court held that the evidence supported the finding of a boundary by acquiescence.

Trump-Era WOTUS Rule Applies in All States

Colorado v. United States Environmental Protection Agency, No. 20-1238, 2021 U.S. App. LEXIS 6070 (10th Cir. Mar. 2, 2021)

The “Navigable Waters Protection Rule” (NWPR) issued in April 2020, defines the Clean Water Act (“CWA”) term “waters of the United States” (“WOTUS”). The definition is a key aspect of administering the CWA.  Only waters that constitute a WOTUS are subject to the CWA requirements and regulations.  However, the Congress left the definition of a WOTUS up to the Environmental Protection Agency (EPA) to write rules defining the term. The NWPR is the most recent attempt at a regulatory definition.  

In 2020, the Colorado federal district court entered a preliminary injunction that barred the NWPR from taking effect in Colorado as applied to the discharge permit requirement of Section 404 of the CWA.  On appeal, the appellate court reversed.  The appellate court noted that Colorado had failed to show irreparable harm without the issuance of the preliminary injunction.  The result of the appellate court’s decision is that the NWPR is presently in effect in every state in the U.S. 

CWA Contains “Knowing” Requirement, But WOTUS is Not Vague 

United States v. Lucero, No. 10074, 2021 U.S. App. LEXIS 6307 and 6327 (9th Cir. Mar. 4, 2021)

The defendant, in 2014, operated a business that charged construction companies for the dumping of soil and debris on dry lands near San Francisco bay.  The Environmental Protection Agency (EPA) later claimed that the dry land was a “wetland” subject to the dredge and fill permit requirements of Section 404 of the Clean Water Act (CWA).  As a result, the defendant was charged with (and later convicted of) violating the CWA without any evidence in the record that the defendant knew or had reason to know that the dry land was a wetland subject to the CWA. 

On further review, the appellate court noted that the CWA prohibits the “knowing” discharge of a pollutant into covered waters without a permit.  At trial, the jury instructions did not state that the defendant had to make a “knowing” violation of the CWA to be found guilty of a discharge violation.  Accordingly, the appellate court reversed on this point.  However, the appellate court ruled against the defendant on his claim that the regulation defining “waters of the United States” was unconstitutionally vague, and that the 2020 Navigable Waters Protection Rule should apply retroactively to his case. 

Conservation Easement Deduction Allowed for Donated Façade Easement 

C.C.M. AM 2021-001 (Mar. 8, 2021)

The taxpayer donated an easement on a building in a registered historic district on which the taxpayer had installed an accessibility ramp to comply with the Americans With Disabilities Act (ADA).  The IRS determined that the installation of the ramp would not disqualify the taxpayer’s deduction.  The IRS viewer the ramp as “upkeep” essential to the preservation of the structure.  Such upkeep, if required to comply with the ADA, does not jeopardize the donor’s eligibility for a charitable deduction under I.R.C. §170(h)(4)(B) with respect to a building in a registered historic district. 

No Exception From Early Withdrawal Penalty for Payment of Living Expenses 

Catania v. Comr., T.C. Memo. 2021-33

The petitioner retired at age 55 and transferred his 401(k) funds to a traditional IRA.  Two years later, the petitioner withdrew $37,000 from the IRA to pay for maintenance on his home and other living expenses.  The IRS applied a 10 percent penalty to the amount withdrawn because the petitioner had not reached age 59.5 at the time of the withdrawal.  The Tax Court agreed with the IRS, determining that the Code contains no exception to early retirement account withdrawals for payment of living expenses and/or home maintenance. 

Conclusion

These are just some of the recent developments in the ag law and tax world.  There’s never a dull moment.

March 24, 2021 in Environmental Law, Income Tax, Real Property | Permalink | Comments (0)

Sunday, March 21, 2021

Ag Law and Taxation - 2018 Bibliography

Overview

Today's post is a bibliography of my ag law and tax blog articles of 2018.  Many of you have requested that I provide something like this to make it easier to find the articles, and last month I posted the bibliography of the 2020 and 2019 articles.  Soon I will post the bibliography of the 2017 articles and then 2016.  After those are posted.  I will post one long bibliography containing all of the articles up to that point in time.  Then, to close out 2021, I will post the articles of 2021. 

The library of content is piling up.

Cataloging the 2018 ag law and tax blog articles - it's the topic of today's post.

BANKRUPTCY

Top Ten Agricultural Law and Tax Developments of 2017 (Ten through Six)

https://lawprofessors.typepad.com/agriculturallaw/2018/01/top-ten-agricultural-law-and-tax-developments-of-2017-ten-through-six.html

Chapter 12 Bankruptcy – Feasibility of the Reorganization Plan

https://lawprofessors.typepad.com/agriculturallaw/2018/03/chapter-12-bankruptcy-feasibility-of-the-reorganization-plan.html

Farm Bankruptcy and the Preferential Payment Rule

https://lawprofessors.typepad.com/agriculturallaw/2018/05/farm-bankruptcy-and-the-preferential-payment-rule.html

Can a Bankrupt Farm Debtor Make Plan Payments Directly to Creditors?

https://lawprofessors.typepad.com/agriculturallaw/2018/08/can-a-bankrupt-farm-debtor-make-plan-payments-directly-to-creditors.html

Agricultural Law Online!

            https://lawprofessors.typepad.com/agriculturallaw/2018/10/agricultural-law-online.html

Chapter 12 Bankruptcy and the Tools-of-the-Trade Exemption

https://lawprofessors.typepad.com/agriculturallaw/2018/11/chapter-12-bankruptcy-and-the-tools-of-the-trade-exemption.html

Developments in Ag Law and Tax

https://lawprofessors.typepad.com/agriculturallaw/2018/11/developments-in-ag-law-and-tax.html

The “Almost Top Ten” Ag Law and Tax Developments of 2018

https://lawprofessors.typepad.com/agriculturallaw/2018/12/the-almost-top-ten-ag-law-and-tax-developments-of-2018.html

BUSINESS PLANNING

The “Almost Top Ten” Agricultural Law and Tax Developments of 2017

https://lawprofessors.typepad.com/agriculturallaw/2018/01/the-almost-top-ten-agricultural-law-and-tax-developments-of-2017.html

The Spousal Qualified Joint Venture

https://lawprofessors.typepad.com/agriculturallaw/2018/02/the-spousal-qualified-joint-venture.html

The Spousal Qualified Joint Venture – Implications for Self-Employment Tax and Federal Farm Program Payment Limitations

https://lawprofessors.typepad.com/agriculturallaw/2018/02/the-spousal-qualified-joint-venture-implications-for-self-employment-tax-and-federal-farm-program-payment-limitations.html

Form a C Corporation – The New Vogue in Business Structure?

https://lawprofessors.typepad.com/agriculturallaw/2018/02/form-a-c-corporation-the-new-vogue-in-business-structure.html

Tax Issues When Forming a C Corporation

https://lawprofessors.typepad.com/agriculturallaw/2018/02/tax-issues-when-forming-a-c-corporation.html

End of Tax Preparation Season Means Tax Seminar Season is About to Begin

https://lawprofessors.typepad.com/agriculturallaw/2018/04/end-of-tax-preparation-season-means-tax-seminar-season-is-about-to-begin.html

Converting a C Corporation to an S Corporation – The Problem of Passive Income

https://lawprofessors.typepad.com/agriculturallaw/2018/05/converting-a-c-corporation-to-an-s-corporation-the-problem-of-passive-income.html

Valuation Discounting

              https://lawprofessors.typepad.com/agriculturallaw/2018/05/valuation-discounting.html

Valuation Discounting – Part Two

https://lawprofessors.typepad.com/agriculturallaw/2018/05/valuation-discounting-part-two.html

The Impact of the TCJA on Estates and Trusts

https://lawprofessors.typepad.com/agriculturallaw/2018/05/the-impact-of-the-tcja-on-estates-and-trusts.html

Buy-Sell Agreements for Family Businesses

https://lawprofessors.typepad.com/agriculturallaw/2018/06/buy-sell-agreements-for-family-businesses.html

When is an Informal Business Arrangement a Partnership?

https://lawprofessors.typepad.com/agriculturallaw/2018/07/when-is-an-informal-business-arrangement-a-partnership.html

Management Activities and the Passive Loss Rules

https://lawprofessors.typepad.com/agriculturallaw/2018/07/management-activities-and-the-passive-loss-rules.html

Expense Method Depreciation and Trusts

https://lawprofessors.typepad.com/agriculturallaw/2018/08/expense-method-depreciation-and-trusts.html

Qualified Business Income Deduction – Proposed Regulations

  https://lawprofessors.typepad.com/agriculturallaw/2018/08/qualified-business-income-deduction-proposed-regulations.html

Intentionally Defective Grantor Trust – What is it and How Does it Work?

https://lawprofessors.typepad.com/agriculturallaw/2018/08/intentionally-defective-grantor-trust-what-is-it-and-how-does-it-work.html

When Can a Corporate Shareholder be Held Liable for Corporate Debts and Liabilities?

https://lawprofessors.typepad.com/agriculturallaw/2018/09/when-can-a-corporate-shareholder-be-held-liable-for-corporate-debts-and-liabilities.html

Farm Wealth Transfer and Business Succession – The GRAT

https://lawprofessors.typepad.com/agriculturallaw/2018/09/farm-wealth-transfer-and-business-succession-the-grat.html

Social Security Planning for Farmers

https://lawprofessors.typepad.com/agriculturallaw/2018/10/social-security-planning-for-farmers.html

Corporations Post-TCJA and Anti-Corporate Farming Laws

https://lawprofessors.typepad.com/agriculturallaw/2018/10/corporations-post-tcja-and-anti-corporate-farming-laws.html

Agricultural Law Online!

            https://lawprofessors.typepad.com/agriculturallaw/2018/10/agricultural-law-online.html

What Happens When a Partner Dies?

https://lawprofessors.typepad.com/agriculturallaw/2018/10/what-happens-when-a-partner-dies.html

What are the Tax Consequences on Sale or Exchange of a Partnership Interest?

https://lawprofessors.typepad.com/agriculturallaw/2018/12/what-are-the-tax-consequences-on-sale-or-exchange-of-a-partnership-interest.html

The “Almost Top Ten” Ag Law and Tax Developments of 2018

https://lawprofessors.typepad.com/agriculturallaw/2018/12/the-almost-top-ten-ag-law-and-tax-developments-of-2018.html

CIVIL LIABILITIES

The “Almost Top Ten” Agricultural Law and Tax Developments of 2017

https://lawprofessors.typepad.com/agriculturallaw/2018/01/the-almost-top-ten-agricultural-law-and-tax-developments-of-2017.html

Landlord Liability for Injuries Occurring on Leased Premises

https://lawprofessors.typepad.com/agriculturallaw/2018/03/landlord-liability-for-injuries-occurring-on-leased-premises.html

When Does a Rule of Strict Liability Apply on the Farm?

https://lawprofessors.typepad.com/agriculturallaw/2018/03/when-does-a-rule-of-strict-liability-apply-on-the-farm.html

When Can I Shoot My Neighbor’s Dog?

https://lawprofessors.typepad.com/agriculturallaw/2018/05/when-can-i-shoot-my-neighbors-dog.html

Reasonable Foreseeability

https://lawprofessors.typepad.com/agriculturallaw/2018/05/reasonable-foreseeability.html

What is “Agriculture” for Purposes of Agritourism?

https://lawprofessors.typepad.com/agriculturallaw/2018/05/what-is-agriculture-for-purposes-of-agritourism.html

Negligence – Can You Prove Liability?

https://lawprofessors.typepad.com/agriculturallaw/2018/06/negligence-can-you-prove-liability.html

Wind Farm Nuisance Matter Resolved – Buy the Homeowners Out!

https://lawprofessors.typepad.com/agriculturallaw/2018/06/wind-farm-nuisance-matter-resolved-buy-the-homeowners-out.html

Torts Down on the Farm

            https://lawprofessors.typepad.com/agriculturallaw/2018/08/torts-down-on-the-farm.html

Roadkill – It’s What’s for Dinner

https://lawprofessors.typepad.com/agriculturallaw/2018/09/roadkill-its-whats-for-dinner.html

What Difference Does it Make if I Post My Property “No Trespassing”?

https://lawprofessors.typepad.com/agriculturallaw/2018/09/what-difference-does-it-make-if-i-post-my-property-no-trespassing.html

Liability for Injuries Associated with Horses

https://lawprofessors.typepad.com/agriculturallaw/2018/10/liability-for-injuries-associated-with-horses.html

Agricultural Law Online!

            https://lawprofessors.typepad.com/agriculturallaw/2018/10/agricultural-law-online.html

Developments in Ag Law and Tax

https://lawprofessors.typepad.com/agriculturallaw/2018/11/developments-in-ag-law-and-tax.html

The “Almost Top Ten” Ag Law and Tax Developments of 2018

https://lawprofessors.typepad.com/agriculturallaw/2018/12/the-almost-top-ten-ag-law-and-tax-developments-of-2018.html

CONTRACTS

Is a Farmer a Merchant?  Why it Might Matter

https://lawprofessors.typepad.com/agriculturallaw/2018/02/is-a-farmer-a-merchant-why-it-might-matter.html

Some Thoughts on the Importance of Leasing Farmland

https://lawprofessors.typepad.com/agriculturallaw/2018/02/some-thoughts-on-the-importance-of-leasing-farmland.html

Contract Rescission – When Can You Back Out of a Deal?

https://lawprofessors.typepad.com/agriculturallaw/2018/06/contract-rescission-when-can-you-back-out-of-a-deal.html

Agricultural Law Online!

            https://lawprofessors.typepad.com/agriculturallaw/2018/10/agricultural-law-online.html

Disclaiming Implied Warranties

https://lawprofessors.typepad.com/agriculturallaw/2018/11/disclaiming-implied-warranties.html

The “Almost Top Ten” Ag Law and Tax Developments of 2018

https://lawprofessors.typepad.com/agriculturallaw/2018/12/the-almost-top-ten-ag-law-and-tax-developments-of-2018.html

COOPERATIVES

The Qualified Business Income (QBI) Deduction – What a Mess!

https://lawprofessors.typepad.com/agriculturallaw/2018/01/the-qualified-business-income-qbi-deduction-what-a-mess.html

Agricultural Law Online!

            https://lawprofessors.typepad.com/agriculturallaw/2018/10/agricultural-law-online.html

The “Almost Top Ten” Ag Law and Tax Developments of 2018

https://lawprofessors.typepad.com/agriculturallaw/2018/12/the-almost-top-ten-ag-law-and-tax-developments-of-2018.html

CRIMINAL LIABILITIES

Curtilage – How Much Ag Property is Protected from a Warrantless Search?

https://lawprofessors.typepad.com/agriculturallaw/2018/01/curtilage-how-much-ag-property-is-protected-from-a-warrantless-search.html

Establishing the Elements of a Cruelty to Animals Charge

https://lawprofessors.typepad.com/agriculturallaw/2018/07/establishing-the-elements-of-a-cruelty-to-animals-charge.html

What Difference Does it Make if I Post My Property “No Trespassing”?

https://lawprofessors.typepad.com/agriculturallaw/2018/09/what-difference-does-it-make-if-i-post-my-property-no-trespassing.html

Agricultural Law Online!

            https://lawprofessors.typepad.com/agriculturallaw/2018/10/agricultural-law-online.html

The “Almost Top Ten” Ag Law and Tax Developments of 2018

https://lawprofessors.typepad.com/agriculturallaw/2018/12/the-almost-top-ten-ag-law-and-tax-developments-of-2018.html

ENVIRONMENTAL LAW

The “Almost Top Ten” Agricultural Law and Tax Developments of 2017

https://lawprofessors.typepad.com/agriculturallaw/2018/01/the-almost-top-ten-agricultural-law-and-tax-developments-of-2017.html

Top Ten Agricultural Law and Tax Developments of 2017 (Five through One)

https://lawprofessors.typepad.com/agriculturallaw/2018/01/top-ten-agricultural-law-and-tax-developments-of-2017-five-through-one.html

Is a CWA Permit Needed for Pollution Discharges via Groundwater?

https://lawprofessors.typepad.com/agriculturallaw/2018/03/is-a-cwa-permit-needed-for-pollution-discharges-via-groundwater.html

Non-Tax Ag Provisions and the Omnibus Bill

https://lawprofessors.typepad.com/agriculturallaw/2018/04/non-tax-ag-provisions-in-the-omnibus-bill.html

Wetlands and Farm Programs – Does NRCS Understand the Rules?

https://lawprofessors.typepad.com/agriculturallaw/2018/06/wetlands-and-farm-programs-does-nrcs-understand-the-rules.html

Regulation of Wetlands and “Ipse Dixit” Determinations

https://lawprofessors.typepad.com/agriculturallaw/2018/07/regulation-of-wetlands-and-ipse-dixit-determinations.html

WOTUS Developments

            https://lawprofessors.typepad.com/agriculturallaw/2018/08/wotus-developments.html

Does the Migratory Bird Treaty Act Apply to Farmers?

https://lawprofessors.typepad.com/agriculturallaw/2018/08/does-the-migratory-bird-treaty-act-apply-to-farmers.html

Agricultural Law Online!

            https://lawprofessors.typepad.com/agriculturallaw/2018/10/agricultural-law-online.html

Is Groundwater a “Point Source” Pollutant?

https://lawprofessors.typepad.com/agriculturallaw/2018/10/is-groundwater-a-point-source-pollutant.html

“Waters of the United States” Means “Frozen Soil”?

https://lawprofessors.typepad.com/agriculturallaw/2018/11/waters-of-the-united-states-means-frozen-soil.html

Developments in Ag Law and Tax

https://lawprofessors.typepad.com/agriculturallaw/2018/11/developments-in-ag-law-and-tax.html

Can an Endangered Species be Protected in Areas Where it Can’t Survive?

https://lawprofessors.typepad.com/agriculturallaw/2018/12/can-an-endangered-species-be-protected-in-areas-where-it-cant-survive.html

The “Almost Top Ten” Ag Law and Tax Developments of 2018

https://lawprofessors.typepad.com/agriculturallaw/2018/12/the-almost-top-ten-ag-law-and-tax-developments-of-2018.html

ESTATE PLANNING

The “Almost Top Ten” Agricultural Law and Tax Developments of 2017

https://lawprofessors.typepad.com/agriculturallaw/2018/01/the-almost-top-ten-agricultural-law-and-tax-developments-of-2017.html

The Tax Cuts and Job Acts – How Does it Impact Estate Planning?

https://lawprofessors.typepad.com/agriculturallaw/2018/01/the-tax-cuts-and-jobs-act-how-does-it-impact-estate-planning.html

What’s the Charitable Deduction for Donations From a Trust?

https://lawprofessors.typepad.com/agriculturallaw/2018/01/whats-the-charitable-deduction-for-donations-from-a-trust.html

The Spousal Qualified Joint Venture

https://lawprofessors.typepad.com/agriculturallaw/2018/02/the-spousal-qualified-joint-venture.html

Why Clarity in Will/Trust Language Matters

https://lawprofessors.typepad.com/agriculturallaw/2018/02/why-clarity-in-willtrust-language-matters.html

Some Thoughts on the Importance of Leasing Farmland

https://lawprofessors.typepad.com/agriculturallaw/2018/02/some-thoughts-on-the-importance-of-leasing-farmland.html

End of Tax Preparation Season Means Tax Seminar Season is About to Begin

https://lawprofessors.typepad.com/agriculturallaw/2018/04/end-of-tax-preparation-season-means-tax-seminar-season-is-about-to-begin.html

Modifying an Irrevocable Trust – Decanting

https://lawprofessors.typepad.com/agriculturallaw/2018/04/modifying-an-irrevocable-trust-decanting.html

Valuation Discounting – Part Two

https://lawprofessors.typepad.com/agriculturallaw/2018/05/valuation-discounting-part-two.html

The Impact of the TCJA on Estates and Trusts

https://lawprofessors.typepad.com/agriculturallaw/2018/05/the-impact-of-the-tcja-on-estates-and-trusts.html

Impact of Post-Death Events on Valuation

https://lawprofessors.typepad.com/agriculturallaw/2018/06/impact-of-post-death-events-on-valuation.html

Beneficiary Designations, Changed Circumstances and the Contracts Clause

https://lawprofessors.typepad.com/agriculturallaw/2018/07/beneficiary-designations-changed-circumstances-and-the-contracts-clause.html

Qualified Business Income Deduction – Proposed Regulations

https://lawprofessors.typepad.com/agriculturallaw/2018/08/qualified-business-income-deduction-proposed-regulations.html

Spousal Joint Tendencies and Income Tax Basis

https://lawprofessors.typepad.com/agriculturallaw/2018/09/spousal-joint-tenancies-and-income-tax-basis.html

Farm and Ranch Estate Planning in 2018 and Forward

https://lawprofessors.typepad.com/agriculturallaw/2018/10/farm-and-ranch-estate-planning-in-2018-and-forward.html

The TCJA, Charitable Giving and a Donor-Advised Fund

https://lawprofessors.typepad.com/agriculturallaw/2018/10/the-tcja-charitable-giving-and-a-donor-advised-fund.html

Agricultural Law Online!

            https://lawprofessors.typepad.com/agriculturallaw/2018/10/agricultural-law-online.html

Unpaid Tax at Death – How Long Does IRS Have to Collect?

https://lawprofessors.typepad.com/agriculturallaw/2018/11/unpaid-tax-at-death-how-long-does-irs-have-to-collect.html

The “Almost Top Ten” Ag Law and Tax Developments of 2018

https://lawprofessors.typepad.com/agriculturallaw/2018/12/the-almost-top-ten-ag-law-and-tax-developments-of-2018.html

INCOME TAX

The “Almost Top Ten” Agricultural Law and Tax Developments of 2017

https://lawprofessors.typepad.com/agriculturallaw/2018/01/the-almost-top-ten-agricultural-law-and-tax-developments-of-2017.html

Top Ten Agricultural Law and Tax Developments of 2017 (Five through One)

https://lawprofessors.typepad.com/agriculturallaw/2018/01/top-ten-agricultural-law-and-tax-developments-of-2017-five-through-one.html

The Qualified Business Income (QBI) Deduction – What a Mess!

https://lawprofessors.typepad.com/agriculturallaw/2018/01/the-qualified-business-income-qbi-deduction-what-a-mess.html

The Tax Cuts and Jobs Act – How Does it Impact Estate Planning?

https://lawprofessors.typepad.com/agriculturallaw/2018/01/the-tax-cuts-and-jobs-act-how-does-it-impact-estate-planning.html

What’s the Charitable Deduction for Donations from a Trust?

https://lawprofessors.typepad.com/agriculturallaw/2018/01/whats-the-charitable-deduction-for-donations-from-a-trust.html

Can Farmers Currently Deduct Research Expenditures?

https://lawprofessors.typepad.com/agriculturallaw/2018/01/can-farmers-currently-deduct-research-expenditures.html

Innovation on the Farm – Will the Research and Development Credit Apply?

https://lawprofessors.typepad.com/agriculturallaw/2018/01/innovation-on-the-farm-will-the-research-and-development-credit-apply.html

What Happens When the IRS Deems an Ag Activity to Be a Hobby?

https://lawprofessors.typepad.com/agriculturallaw/2018/01/what-happens-when-the-irs-deems-an-ag-activity-to-be-a-hobby.html

The Spousal Qualified Joint Venture – Implications for Self-Employment Tax and Federal Farm Program Payment Limitations

https://lawprofessors.typepad.com/agriculturallaw/2018/02/the-spousal-qualified-joint-venture-implications-for-self-employment-tax-and-federal-farm-program-payment-limitations.html

Livestock Sold or Destroyed Because of Disease

https://lawprofessors.typepad.com/agriculturallaw/2018/02/livestock-sold-or-destroyed-because-of-disease.html

Form a C Corporation – The New Vogue in Business Structure?

https://lawprofessors.typepad.com/agriculturallaw/2018/02/form-a-c-corporation-the-new-vogue-in-business-structure.html

Deductible Repairs Versus Capitalization

https://lawprofessors.typepad.com/agriculturallaw/2018/03/deductible-repairs-versus-capitalization.html

The Tax Treatment of Farming Net Operating Losses

https://lawprofessors.typepad.com/agriculturallaw/2018/03/the-tax-treatment-of-farming-net-operating-losses.html

Congress Modifies the Qualified Business Income Deduction

https://lawprofessors.typepad.com/agriculturallaw/2018/03/congress-modifies-the-qualified-business-income-deduction.html

IRS Collections – The Basics

https://lawprofessors.typepad.com/agriculturallaw/2018/03/irs-collections-the-basics-.html

Tax Issues Associated with Oil and Gas Production

https://lawprofessors.typepad.com/agriculturallaw/2018/03/tax-issues-associated-with-oil-and-gas-production.html

Refundable Fuel Credits – Following the Rules Matters

https://lawprofessors.typepad.com/agriculturallaw/2018/04/refundable-fuel-credits-following-the-rules-matters.html

Distinguishing Between a Capital Lease and an Operating Lease

https://lawprofessors.typepad.com/agriculturallaw/2018/04/distinguishing-between-a-capital-lease-and-an-operating-lease.html

End of Tax Preparation Season Means Tax Seminar Season is About to Begin

https://lawprofessors.typepad.com/agriculturallaw/2018/04/end-of-tax-preparation-season-means-tax-seminar-season-is-about-to-begin.html

Passive Activities and Grouping

https://lawprofessors.typepad.com/agriculturallaw/2018/04/passive-activities-and-grouping.html

Divorce and the New Tax Law – IRS Grants Some Relief

https://lawprofessors.typepad.com/agriculturallaw/2018/04/divorce-and-the-new-tax-law-irs-grants-some-relief.html

Gifts of Ag Commodities to Children and the New Tax Law

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

Post-Death Sale of Crops and Livestock

https://lawprofessors.typepad.com/agriculturallaw/2018/04/post-death-sale-of-crops-and-livestock.html

Is There a Downside Risk to E-Filing Your Taxes?

https://lawprofessors.typepad.com/agriculturallaw/2018/05/is-there-a-downside-risk-to-e-filing-your-taxes.html

Purchase and Sale Allocations to CRP Contracts

https://lawprofessors.typepad.com/agriculturallaw/2018/05/purchase-and-sale-allocations-to-crp-contracts.html

Converting a C Corporation to an S Corporation – The Problem of Passive Income

https://lawprofessors.typepad.com/agriculturallaw/2018/05/converting-a-c-corporation-to-an-s-corporation-the-problem-of-passive-income.html

The Impact of the TCJA on Estates and Trusts

https://lawprofessors.typepad.com/agriculturallaw/2018/05/the-impact-of-the-tcja-on-estates-and-trusts.html

The TCJA and I.R.C. 529 Plans

https://lawprofessors.typepad.com/agriculturallaw/2018/05/the-tcja-and-irc-529-plans.html

Farmers, Self-Employment Tax, and Personal Property Leases

https://lawprofessors.typepad.com/agriculturallaw/2018/06/farmers-self-employment-tax-and-personal-property-leases.html

State Taxation of Online Sales

https://lawprofessors.typepad.com/agriculturallaw/2018/06/state-taxation-of-online-sales.html

The Depletion Deduction for Oil and Gas Operations

https://lawprofessors.typepad.com/agriculturallaw/2018/07/the-depletion-deduction-for-oil-and-gas-operations.html

Charitable Giving Post-2017

https://lawprofessors.typepad.com/agriculturallaw/2018/07/charitable-giving-post-2017.html

When is an Informal Business Arrangement a Partnership?

https://lawprofessors.typepad.com/agriculturallaw/2018/07/when-is-an-informal-business-arrangement-a-partnership.html

Management Activities and the Passive Loss Rules

https://lawprofessors.typepad.com/agriculturallaw/2018/07/management-activities-and-the-passive-loss-rules.html

Tax Issues on Repossession of Farmland

https://lawprofessors.typepad.com/agriculturallaw/2018/07/tax-issues-on-repossession-of-farmland.html

Outline of Tax Proposals Released

https://lawprofessors.typepad.com/agriculturallaw/2018/07/outline-of-tax-proposals-released.html

Life Estate/Remainder Arrangements and Income Tax Basis

https://lawprofessors.typepad.com/agriculturallaw/2018/08/life-estateremainder-arrangements-and-income-tax-basis-.html

Expense Method Depreciation and Trusts

https://lawprofessors.typepad.com/agriculturallaw/2018/08/expense-method-depreciation-and-trusts.html

Qualified Business Income Deduction – Proposed Regulations

https://lawprofessors.typepad.com/agriculturallaw/2018/08/qualified-business-income-deduction-proposed-regulations.html

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

https://lawprofessors.typepad.com/agriculturallaw/2018/08/the-qualified-business-income-deduction-and-w-2-wages.html

Tax Consequences on Partition and Sale of Land

https://lawprofessors.typepad.com/agriculturallaw/2018/09/tax-consequences-on-partition-and-sale-of-land.html

Deducting Residual Soil Fertility

https://lawprofessors.typepad.com/agriculturallaw/2018/09/deducting-residual-soil-fertility.html

Social Security Planning for Farmers

https://lawprofessors.typepad.com/agriculturallaw/2018/10/social-security-planning-for-farmers.html

Eliminating Capital Gain Tax – Qualified Opportunity Zones

https://lawprofessors.typepad.com/agriculturallaw/2018/10/eliminating-capital-gain-tax-qualified-opportunity-zones.html

The TCJA, Charitable Giving and a Donor-Advised Fund

https://lawprofessors.typepad.com/agriculturallaw/2018/10/the-tcja-charitable-giving-and-a-donor-advised-fund.html

Agricultural Law Online!

            https://lawprofessors.typepad.com/agriculturallaw/2018/10/agricultural-law-online.html

What is Depreciable Farm Real Property?

https://lawprofessors.typepad.com/agriculturallaw/2018/10/what-is-depreciable-farm-real-property.html

What is “Like-Kind” Real Estate?

https://lawprofessors.typepad.com/agriculturallaw/2018/10/what-is-like-kind-real-estate.html

Developments in Ag Law and Tax

https://lawprofessors.typepad.com/agriculturallaw/2018/11/developments-in-ag-law-and-tax.html

Trusts and Like-Kind Exchanges

https://lawprofessors.typepad.com/agriculturallaw/2018/11/trusts-and-like-kind-exchanges.html

Unpaid Tax at Death – How Long Does IRS Have to Collect?

https://lawprofessors.typepad.com/agriculturallaw/2018/11/unpaid-tax-at-death-how-long-does-irs-have-to-collect.html

Non-Depreciable Items on the Farm or Ranch

https://lawprofessors.typepad.com/agriculturallaw/2018/11/non-depreciable-items-on-the-farm-or-ranch.html

What are the Tax Consequences on Sale or Exchange of a Partnership Interest?

https://lawprofessors.typepad.com/agriculturallaw/2018/12/what-are-the-tax-consequences-on-sale-or-exchange-of-a-partnership-interest.html

Expense Method Depreciation and Structures on the Farm

https://lawprofessors.typepad.com/agriculturallaw/2018/12/expense-method-depreciation-and-structures-on-the-farm.html

Deduction Costs Associated with Items Purchased for Resale

https://lawprofessors.typepad.com/agriculturallaw/2018/12/sale-of-items-purchased-for-resale.html

Claiming Business Deductions? – Maintain Good Records, and… Hire a Tax Preparer

            https://lawprofessors.typepad.com/agriculturallaw/income-tax/page/7/

Depletion – What is it and When is it Available?

https://lawprofessors.typepad.com/agriculturallaw/2018/12/depletion-what-is-it-and-when-is-it-available.html

The “Almost Top Ten” Ag Law and Tax Developments of 2018

https://lawprofessors.typepad.com/agriculturallaw/2018/12/the-almost-top-ten-ag-law-and-tax-developments-of-2018.html

INSURANCE

Beneficiary Designations, Changed Circumstances and the Contracts Clause

https://lawprofessors.typepad.com/agriculturallaw/2018/07/beneficiary-designations-changed-circumstances-and-the-contracts-clause.html

Recent Developments Involving Crop Insurance

https://lawprofessors.typepad.com/agriculturallaw/2018/08/recent-developments-involving-crop-insurance.html

Agricultural Law Online!

            https://lawprofessors.typepad.com/agriculturallaw/2018/10/agricultural-law-online.html

Farm Liability Policies – Are All Activities on the Farm Covered?

https://lawprofessors.typepad.com/agriculturallaw/2018/11/farm-liability-policies-are-all-activities-on-the-farm-covered.html

The “Almost Top Ten” Ag Law and Tax Developments of 2018

https://lawprofessors.typepad.com/agriculturallaw/2018/12/the-almost-top-ten-ag-law-and-tax-developments-of-2018.html

REAL PROPERTY

In-Kind Partition and Adverse Possession – Two Important Concepts in Agriculture

https://lawprofessors.typepad.com/agriculturallaw/2018/01/in-kind-partition-and-adverse-possession-two-important-concepts-in-agriculture.html

Some Thoughts on the Importance of Leasing Farmland

https://lawprofessors.typepad.com/agriculturallaw/2018/02/some-thoughts-on-the-importance-of-leasing-farmland.html

Prescriptive Easements and Adverse Possession – Obtaining Title to Land Without Paying for It

https://lawprofessors.typepad.com/agriculturallaw/2018/03/prescriptive-easements-and-adverse-possession-obtaining-title-to-land-without-paying-for-it.html

Purchase and Sale Allocations to CRP Contracts

https://lawprofessors.typepad.com/agriculturallaw/2018/05/purchase-and-sale-allocations-to-crp-contracts.html

Tax Issues on Repossession of Farmland

https://lawprofessors.typepad.com/agriculturallaw/2018/07/tax-issues-on-repossession-of-farmland.html

The Accommodation Doctrine – Working Out Uses Between Surfaces and Subsurface Owners

https://lawprofessors.typepad.com/agriculturallaw/2018/09/the-accommodation-doctrine-working-out-uses-between-surface-and-subsurface-owners.html

Agricultural Law Online!

            https://lawprofessors.typepad.com/agriculturallaw/2018/10/agricultural-law-online.html

What is “Like-Kind” Real Estate?

https://lawprofessors.typepad.com/agriculturallaw/2018/10/what-is-like-kind-real-estate.html

Negative Easements – Is There a Right to Unobstructed Light, Air, or View?

https://lawprofessors.typepad.com/agriculturallaw/2018/11/negative-easements-is-their-a-right-to-unobstructed-light-air-or-view.html

 The “Almost Top Ten” Ag Law and Tax Developments of 2018

https://lawprofessors.typepad.com/agriculturallaw/2018/12/the-almost-top-ten-ag-law-and-tax-developments-of-2018.html

REGULATORY LAW

The “Almost Top Ten” Agricultural Law and Tax Developments of 2017

https://lawprofessors.typepad.com/agriculturallaw/2018/01/the-almost-top-ten-agricultural-law-and-tax-developments-of-2017.html

Top Ten Agricultural Law and Tax Developments of 2017 (Ten through Six)

https://lawprofessors.typepad.com/agriculturallaw/2018/01/top-ten-agricultural-law-and-tax-developments-of-2017-ten-through-six.html

Is There a Constitutional Way to Protect Animal Ag Facilities?

https://lawprofessors.typepad.com/agriculturallaw/2018/01/is-there-a-constitutional-way-to-protect-animal-ag-facilities.html

Trade Issues and Tariffs – Are Agriculture’s Concerns Legitimate?

https://lawprofessors.typepad.com/agriculturallaw/2018/03/trade-issues-and-tariffs-are-agricultures-concerns-legitimate.html

Federal Crop Insurance – Some Recent Case Developments

https://lawprofessors.typepad.com/agriculturallaw/2018/04/federal-crop-insurance-some-recent-case-developments.html

Non-Tax Ag Provisions in the Omnibus Bill

https://lawprofessors.typepad.com/agriculturallaw/2018/04/non-tax-ag-provisions-in-the-omnibus-bill.html

Are Mandatory Assessments for Generic Advertising of Ag Commodities Constitutional?

https://lawprofessors.typepad.com/agriculturallaw/2018/06/are-mandatory-assessments-for-generic-advertising-of-ag-commodities-constitutional.html

Wind Farm Nuisance Matter Resolved – Buy the Homeowners Out!

https://lawprofessors.typepad.com/agriculturallaw/2018/06/wind-farm-nuisance-matter-resolved-buy-the-homeowners-out.html

Regulation of Wetlands and “Ipse Dixit” Determinations

https://lawprofessors.typepad.com/agriculturallaw/2018/07/regulation-of-wetlands-and-ipse-dixit-determinations.html

Ag Employment – Verifying the Legal Status of Employees

https://lawprofessors.typepad.com/agriculturallaw/2018/08/ag-employment-verifying-the-legal-status-of-employees.html

Roadkill – It’s What’s for Dinner

https://lawprofessors.typepad.com/agriculturallaw/2018/09/roadkill-its-whats-for-dinner.html

Agricultural Law Online!

            https://lawprofessors.typepad.com/agriculturallaw/2018/10/agricultural-law-online.html

“Waters of the United States” Means “Frozen Soil”?

https://lawprofessors.typepad.com/agriculturallaw/2018/11/waters-of-the-united-states-means-frozen-soil.html

How Long Can a Train Block a Crossing?

https://lawprofessors.typepad.com/agriculturallaw/2018/11/how-long-can-a-train-block-a-crossing.html

The “Almost Top Ten” Ag Law and Tax Developments of 2018

https://lawprofessors.typepad.com/agriculturallaw/2018/12/the-almost-top-ten-ag-law-and-tax-developments-of-2018.html  

SECURED TRANSACTIONS

Ag Finance – Getting the Debtor’s Name Correct on the Financing Statements

https://lawprofessors.typepad.com/agriculturallaw/2018/02/ag-finance-getting-the-debtors-name-correct-on-the-financing-statement.html

What Are “Proceeds” of Crops and Livestock?

https://lawprofessors.typepad.com/agriculturallaw/2018/09/what-are-proceeds-of-crops-and-livestock.html

Agricultural Law Online!

            https://lawprofessors.typepad.com/agriculturallaw/2018/10/agricultural-law-online.html

The “Almost Top Ten” Ag Law and Tax Developments of 2018

https://lawprofessors.typepad.com/agriculturallaw/2018/12/the-almost-top-ten-ag-law-and-tax-developments-of-2018.html

SEMINARS AND CONFERENCES

Agricultural Law and Economics Conference

https://lawprofessors.typepad.com/agriculturallaw/2018/07/agricultural-law-and-economics-conference.html

Summer Farm Income Tax/Estate and Business Planning Conference

https://lawprofessors.typepad.com/agriculturallaw/2018/02/summer-farm-income-taxestate-and-business-planning-conference.html

Upcoming Seminars

            https://lawprofessors.typepad.com/agriculturallaw/2018/08/upcoming-seminars.html

Fall Tax Seminars

            https://lawprofessors.typepad.com/agriculturallaw/2018/09/fall-tax-seminars.html

Year-End Ag Tax Seminar/Webinar

https://lawprofessors.typepad.com/agriculturallaw/2018/12/year-end-ag-tax-seminarwebinar.html

WATER LAW

Top Ten Agricultural Law and Tax Developments of 2017 (Ten through Six)

https://lawprofessors.typepad.com/agriculturallaw/2018/01/top-ten-agricultural-law-and-tax-developments-of-2017-ten-through-six.html

Top Ten Agricultural Law and Tax Developments of 2017 (Five through One)

https://lawprofessors.typepad.com/agriculturallaw/2018/01/top-ten-agricultural-law-and-tax-developments-of-2017-five-through-one.html

The Accommodation Doctrine – Working on Uses Between Surface and Subsurface Owners

https://lawprofessors.typepad.com/agriculturallaw/2018/09/the-accommodation-doctrine-working-out-uses-between-surface-and-subsurface-owners.html

Agricultural Law Online!

            https://lawprofessors.typepad.com/agriculturallaw/2018/10/agricultural-law-online.html

Drainage Issues – Rules for Handling Excess Surface Water

https://lawprofessors.typepad.com/agriculturallaw/2018/12/drainage-issues-rules-for-handling-excess-surface-water.html

The “Almost Top Ten” Ag Law and Tax Developments of 2018

https://lawprofessors.typepad.com/agriculturallaw/2018/12/the-almost-top-ten-ag-law-and-tax-developments-of-2018.html  

March 21, 2021 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)

Sunday, February 28, 2021

Ag Law and Taxation - 2019 Bibliography

Overview

Today's post is a bibliography of my ag law and tax blog articles of 2019.  Many of you have requested that I provide something like this to make it easier to find the articles, and last month I posted the bibliography of the 2020 articles.  Soon I will post the bibliography of the 2018 articles and then 2017 and 2016. 

The library of content is piling up.

Cataloging the 2019 ag law and tax blog articles - it's the topic of today's post.

BANKRUPTCY

Non-Dischargeable Debts in Bankruptcy

https://lawprofessors.typepad.com/agriculturallaw/2019/02/non-dischargeable-debts-in-bankruptcy.html

Developments in Agricultural Law and Taxation

https://lawprofessors.typepad.com/agriculturallaw/2019/03/developments-in-agricultural-law-and-taxation.html

More Recent Developments in Agricultural Law

https://lawprofessors.typepad.com/agriculturallaw/2019/03/more-recent-developments-in-agricultural-law.html

More Ag Law and Tax Developments

https://lawprofessors.typepad.com/agriculturallaw/2019/05/more-ag-law-and-tax-developments.html

Farmers, Bankruptcy and the “Absolute Priority” Rule

https://lawprofessors.typepad.com/agriculturallaw/2019/07/farmers-bankruptcy-and-the-absolute-priority-rule.html

Ag in the Courtroom

            https://lawprofessors.typepad.com/agriculturallaw/2019/07/ag-in-the-courtroom.html

Key Farm Bankruptcy Modification on the Horizon?

https://lawprofessors.typepad.com/agriculturallaw/2019/07/key-farm-bankruptcy-modification-on-the-horizon.html

Ag Legal Issues in the Courts

https://lawprofessors.typepad.com/agriculturallaw/2019/08/ag-legal-issues-in-the-courts.html

Are Taxes Dischargeable in Bankruptcy?

https://lawprofessors.typepad.com/agriculturallaw/2019/09/are-taxes-dischargeable-in-bankruptcy.html

The “Almost Top Ten” Ag Law and Ag Tax Developments of 2019

https://lawprofessors.typepad.com/agriculturallaw/2019/12/the-almost-top-ten-ag-law-and-ag-tax-developments-of-2019.html 

BUSINESS PLANNING

Can a State Tax a Trust with No Contact with the State?

https://lawprofessors.typepad.com/agriculturallaw/2019/02/can-a-state-tax-a-trust-with-no-contact-with-the-state.html

Real Estate Professionals and Aggregation – The Passive Loss Rules

https://lawprofessors.typepad.com/agriculturallaw/2019/03/real-estate-professionals-and-aggregation-the-passive-loss-rules.html  

More Recent Developments in Agricultural Law

https://lawprofessors.typepad.com/agriculturallaw/2019/03/more-recent-developments-in-agricultural-law.html

Self-Rentals and the Passive Loss Rules

https://lawprofessors.typepad.com/agriculturallaw/2019/04/self-rentals-and-the-passive-loss-rules.html    

What’s the Best Entity Structure for the Farm or Ranch Business?

https://lawprofessors.typepad.com/agriculturallaw/2019/05/whats-the-best-entity-structure-for-the-farm-or-ranch-business.html

Where Does Life Insurance Fit in an Estate Plan for a Farmer or Rancher?

https://lawprofessors.typepad.com/agriculturallaw/2019/05/where-does-life-insurance-fit-in-an-estate-plan-for-a-farmer-or-rancher.html

Recent Developments in Farm and Ranch Business Planning

https://lawprofessors.typepad.com/agriculturallaw/2019/06/recent-developments-in-farm-and-ranch-business-planning.html

ESOPs and Ag Businesses – Part One

https://lawprofessors.typepad.com/agriculturallaw/2019/07/esops-and-ag-businesses-part-one.html

ESOPs and Ag Businesses – Part Two

https://lawprofessors.typepad.com/agriculturallaw/2019/07/esops-and-ag-businesses-part-two.html

Is a Discount for The BIG Tax Available?

https://lawprofessors.typepad.com/agriculturallaw/2019/08/is-a-discount-for-the-big-tax-available.html

Tax Consequences of Forgiving Installment Payment Debt

https://lawprofessors.typepad.com/agriculturallaw/2019/09/tax-consequences-of-forgiving-installment-payment-debt.html

Ag Law and Tax in the Courts

https://lawprofessors.typepad.com/agriculturallaw/2019/09/ag-law-and-tax-in-the-courts.html

Shareholder Loans and S Corporation Stock Basis

https://lawprofessors.typepad.com/agriculturallaw/2019/09/shareholder-loans-and-s-corporation-stock-basis.html

The Family Limited Partnership – Part One

https://lawprofessors.typepad.com/agriculturallaw/2019/09/the-family-limited-partnership-part-one.html

The Family Limited Partnership – Part Two

https://lawprofessors.typepad.com/agriculturallaw/2019/09/the-family-limited-partnership-part-two.html

Does the Sale of Farmland Trigger Net Investment Income Tax?

https://lawprofessors.typepad.com/agriculturallaw/2019/10/does-the-sale-of-farmland-trigger-net-investment-income-tax.html

Some Thoughts on Ag Estate/Business/Succession Planning

https://lawprofessors.typepad.com/agriculturallaw/2019/11/some-thoughts-on-ag-estatebusinesssuccession-planning.html

S Corporation Considerations

https://lawprofessors.typepad.com/agriculturallaw/2019/11/s-corporation-considerations.html

CIVIL LIABILITIES

When is an Employer Liable for the Conduct of Workers?

https://lawprofessors.typepad.com/agriculturallaw/2019/01/when-is-an-employer-liable-for-the-conduct-of-workers.html

Selected Recent Cases Involving Agricultural Law

https://lawprofessors.typepad.com/agriculturallaw/2019/01/selected-recent-cases-involving-agricultural-law.html

Ag Nuisances – Basic Principles

https://lawprofessors.typepad.com/agriculturallaw/2019/02/ag-nuisances-basic-principles.html

Do the Roundup Jury Verdicts Have Meaning For My Farming Operation?

https://lawprofessors.typepad.com/agriculturallaw/2019/04/do-the-roundup-jury-verdicts-have-meaning-for-my-farming-operation.html

What Does a “Reasonable Farmer” Know?

https://lawprofessors.typepad.com/agriculturallaw/2019/04/what-does-a-reasonable-farmer-know.html

Product Liability Down on the Farm - Modifications

https://lawprofessors.typepad.com/agriculturallaw/2019/05/product-liability-down-on-the-farm-modifications.html

Coming-To-The-Nuisance By Staying Put – Or, When 200 Equals 8,000

https://lawprofessors.typepad.com/agriculturallaw/2019/05/coming-to-the-nuisance-by-staying-put-or-when-200-equals-8000.html

More Ag Law and Tax Developments

https://lawprofessors.typepad.com/agriculturallaw/2019/05/more-ag-law-and-tax-developments.html

Public Trust vs. Private Rights – Where’s the Line?

https://lawprofessors.typepad.com/agriculturallaw/2019/06/public-trust-vs-private-rights-wheres-the-line.html

Ag Law in the Courts

            https://lawprofessors.typepad.com/agriculturallaw/2019/11/ag-law-in-the-courts.html

Fence Law Basics

            https://lawprofessors.typepad.com/agriculturallaw/2019/11/fence-law-basics.html

CONTRACTS

Negotiating Cell/Wireless Tower Agreements

https://lawprofessors.typepad.com/agriculturallaw/2019/01/negotiating-cellwireless-tower-agreements.html

Developments in Agricultural Law and Taxation

https://lawprofessors.typepad.com/agriculturallaw/2019/03/developments-in-agricultural-law-and-taxation.html

Ag Contracts – What if Goods Don’t Conform to the Contract?

https://lawprofessors.typepad.com/agriculturallaw/2019/09/ag-contracts-what-if-goods-dont-conform-to-the-contract.html

ENVIRONMENTAL LAW

Top 10 Developments in Ag Law and Tax for 2018 – Numbers 10 and 9

https://lawprofessors.typepad.com/agriculturallaw/2019/01/top-10-developments-in-ag-law-and-tax-for-2018-numbers-10-and-9.html

Top 10 Developments in Ag Law and Tax for 2018 – Numbers 8 and 7

https://lawprofessors.typepad.com/agriculturallaw/2019/01/top-10-developments-in-ag-law-and-tax-for-2018-numbers-8-and-7.html

Top Ten Agricultural Law and Tax Developments of 2018 – Numbers 6, 5, and 4

https://lawprofessors.typepad.com/agriculturallaw/2019/01/top-ten-agricultural-law-and-tax-developments-of-2018-numbers-6-5-and-4.html

Top Ten Agricultural Law and Tax Developments of 2018 – Numbers 3, 2, and 1

https://lawprofessors.typepad.com/agriculturallaw/2019/01/top-ten-agricultural-law-and-tax-developments-of-2018-numbers-3-2-and-1.html

Big EPA Developments – WOTUS and Advisory Committees

https://lawprofessors.typepad.com/agriculturallaw/2019/02/big-epa-developments-wotus-and-advisory-committees.html

Does Soil Erosion Pose a Constitutional Issue?

https://lawprofessors.typepad.com/agriculturallaw/2019/04/does-soil-erosion-pose-a-constitutional-issue.html

Public Trust vs. Private Rights – Where’s the Line?

https://lawprofessors.typepad.com/agriculturallaw/2019/06/public-trust-vs-private-rights-wheres-the-line.html

More Ag Law and Tax Developments

https://lawprofessors.typepad.com/agriculturallaw/2019/05/more-ag-law-and-tax-developments.html

Eminent Domain and Agriculture

https://lawprofessors.typepad.com/agriculturallaw/2019/06/eminent-domain-and-agriculture.html

Court Decisions Illustrates USDA’s Swampbuster “Incompetence”

https://lawprofessors.typepad.com/agriculturallaw/2019/08/court-decision-illustrates-usdas-swampbuster-incompetence.html

Regulatory Changes to the Endangered Species Act

https://lawprofessors.typepad.com/agriculturallaw/2019/09/regulatory-changes-to-the-endangered-species-act.html

Irrigation Return Flows and the Clean Water Act

https://lawprofessors.typepad.com/agriculturallaw/2019/09/irrigation-return-flows-and-the-clean-water-act.html

Ag Law in the Courts

            https://lawprofessors.typepad.com/agriculturallaw/2019/10/ag-law-in-the-courts.html

Regulatory Takings – Pursuing a Remedy

https://lawprofessors.typepad.com/agriculturallaw/2019/10/regulatory-takings-pursuing-a-remedy.html

Does a Pollutant Discharge From Groundwater into a WOTUS Require a Federal Permit?

https://lawprofessors.typepad.com/agriculturallaw/2019/11/does-a-pollutant-discharge-from-groundwater-into-a-wotus-require-a-federal-permit.html

Groundwater Discharges of Pollutants and the Supreme Court

https://lawprofessors.typepad.com/agriculturallaw/2019/11/groundwater-discharges-of-pollutants-and-the-supreme-court.html

The “Almost Top Ten” Ag Law and Ag Tax Developments of 2019

https://lawprofessors.typepad.com/agriculturallaw/2019/12/the-almost-top-ten-ag-law-and-ag-tax-developments-of-2019.html

ESTATE PLANNING

Tax Filing Season Update and Summer Seminar!

https://lawprofessors.typepad.com/agriculturallaw/2019/01/tax-filing-season-update-and-summer-seminar.html

Time to Review Estate Planning Documents?

https://lawprofessors.typepad.com/agriculturallaw/2019/02/time-to-review-of-estate-planning-documents.html

Can a State Tax a Trust with No Contact with the State?

https://lawprofessors.typepad.com/agriculturallaw/2019/02/can-a-state-tax-a-trust-with-no-contact-with-the-state.html

Estate Planning in Second Marriage Situations

https://lawprofessors.typepad.com/agriculturallaw/2019/02/estate-planning-in-second-marriage-situations.html

Valuing Non-Cash Charitable Gifts

https://lawprofessors.typepad.com/agriculturallaw/2019/03/valuing-non-cash-charitable-gifts.html

Real Estate Professionals and Aggregation – The Passive Loss Rules

https://lawprofessors.typepad.com/agriculturallaw/2019/03/real-estate-professionals-and-aggregation-the-passive-loss-rules.html

Can the IRS Collect Unpaid Estate Tax From the Beneficiaries?

https://lawprofessors.typepad.com/agriculturallaw/2019/03/can-the-irs-collect-unpaid-estate-tax-from-the-beneficiaries.html

Sale of the Personal Residence After Death

https://lawprofessors.typepad.com/agriculturallaw/2019/03/sale-of-the-personal-residence-after-death.html

More Recent Developments in Agricultural Law

https://lawprofessors.typepad.com/agriculturallaw/2019/03/more-recent-developments-in-agricultural-law.html

Thrills with Wills – When is a Will “Unduly Influenced”?

https://lawprofessors.typepad.com/agriculturallaw/2019/04/thrills-with-wills-when-is-a-will-unduly-influenced.html

Heirs Liable for Unpaid Federal Estate Tax 28 Years After Death

https://lawprofessors.typepad.com/agriculturallaw/2019/05/heirs-liable-for-unpaid-federal-estate-tax-28-years-after-death.html

What’s the Best Entity Structure for the Farm or Ranch Business?

https://lawprofessors.typepad.com/agriculturallaw/2019/05/whats-the-best-entity-structure-for-the-farm-or-ranch-business.html

Where Does Life Insurance Fit in an Estate Plan for a Farmer or Rancher?

https://lawprofessors.typepad.com/agriculturallaw/2019/05/where-does-life-insurance-fit-in-an-estate-plan-for-a-farmer-or-rancher.html

Recent Developments in Farm and Ranch Business Planning

https://lawprofessors.typepad.com/agriculturallaw/2019/06/recent-developments-in-farm-and-ranch-business-planning.html

Wayfair Does Not Mean That a State Can Always Tax a Trust Beneficiary

https://lawprofessors.typepad.com/agriculturallaw/2019/06/wayfair-does-not-mean-that-a-state-can-always-tax-a-trust-beneficiary.html

ESOPs and Ag Businesses – Part One

https://lawprofessors.typepad.com/agriculturallaw/2019/07/esops-and-ag-businesses-part-one.html

Issues in Estate Planning – Agents, Promises, and Trustees

https://lawprofessors.typepad.com/agriculturallaw/2019/10/issues-in-estate-planning-agents-promises-and-trustees.html

The Importance of Income Tax Basis “Step-Up” at Death

https://lawprofessors.typepad.com/agriculturallaw/2019/10/the-importance-of-income-tax-basis-step-up-at-death.html

Ag Law in the Courts

            https://lawprofessors.typepad.com/agriculturallaw/2019/11/ag-law-in-the-courts.html

Co-Tenancy or Joint Tenancy – Does it Really Matter?

https://lawprofessors.typepad.com/agriculturallaw/2019/11/co-tenancy-or-joint-tenancy-does-it-really-matter.html

Year-End Legislation Contains Tax Extenders, Repealers, and Modifications to Retirement Provisions

https://lawprofessors.typepad.com/agriculturallaw/2019/12/year-end-legislation-contains-tax-extenders-repealers-and-modification-to-retirement-provisions.html

INCOME TAX

Top 10 Developments in Ag Law and Tax for 2018 – Numbers 10 and 9

https://lawprofessors.typepad.com/agriculturallaw/2019/01/top-10-developments-in-ag-law-and-tax-for-2018-numbers-10-and-9.html

Top Ten Agricultural Law and Tax Developments of 2018 – Numbers 6, 5, and 4

https://lawprofessors.typepad.com/agriculturallaw/2019/01/top-ten-agricultural-law-and-tax-developments-of-2018-numbers-6-5-and-4.html

Top Ten Agricultural Law and Tax Developments of 2018 – Numbers 3, 2, and 1

https://lawprofessors.typepad.com/agriculturallaw/2019/01/top-ten-agricultural-law-and-tax-developments-of-2018-numbers-3-2-and-1.html

Tax Filing Season Update and Summer Seminar!

https://lawprofessors.typepad.com/agriculturallaw/2019/01/tax-filing-season-update-and-summer-seminar.html

QBID Final Regulations on Aggregation and Rents – The Meaning for Farm and Ranch Businesses

https://lawprofessors.typepad.com/agriculturallaw/2019/01/qbid-final-regulations-on-aggregation-and-rents-the-meaning-for-farm-and-ranch-businesses.html

The QBID Final Regulations – The “Rest of the Story”

https://lawprofessors.typepad.com/agriculturallaw/2019/01/the-qbid-final-regulations-the-rest-of-the-story.html

Can a State Tax a Trust with No Contact with the State?

https://lawprofessors.typepad.com/agriculturallaw/2019/02/can-a-state-tax-a-trust-with-no-contact-with-the-state.html

Tax Matters – Where Are We Now?

https://lawprofessors.typepad.com/agriculturallaw/2019/02/tax-matters-where-are-we-now.html

New Developments on Exclusion of Employer-Provided Meals

https://lawprofessors.typepad.com/agriculturallaw/2019/02/new-development-on-exclusion-of-employer-provided-meals.html

Valuing Non-Cash Charitable Gifts

https://lawprofessors.typepad.com/agriculturallaw/2019/03/valuing-non-cash-charitable-gifts.html

Passive Losses and Material Participation

https://lawprofessors.typepad.com/agriculturallaw/2019/03/passive-losses-and-material-participation.html

Passive Losses and Real Estate Professionals

https://lawprofessors.typepad.com/agriculturallaw/2019/03/passive-losses-and-real-estate-professionals.html

Developments in Agricultural Law and Taxation

https://lawprofessors.typepad.com/agriculturallaw/2019/03/developments-in-agricultural-law-and-taxation.html

Real Estate Professionals and Aggregation – The Passive Loss Rules

https://lawprofessors.typepad.com/agriculturallaw/2019/03/real-estate-professionals-and-aggregation-the-passive-loss-rules.html

Sale of the Personal Residence After Death

https://lawprofessors.typepad.com/agriculturallaw/2019/03/sale-of-the-personal-residence-after-death.html

Cost Segregation Study – Do You Need One for Your Farm?

https://lawprofessors.typepad.com/agriculturallaw/2019/03/cost-segregation-study-do-you-need-one-for-your-farm.html

Cost Segregation – Risk and Benefits

https://lawprofessors.typepad.com/agriculturallaw/2019/04/cost-segregation-risks-and-benefits.html

Permanent Conservation Easement Donation Transactions Find Their Way to the IRS “Dirty Dozen” List

https://lawprofessors.typepad.com/agriculturallaw/2019/04/permanent-conservation-easement-donation-transactions-find-their-way-to-the-irs-dirty-dozen-list.html

Self-Rentals and the Passive Loss Rules

https://lawprofessors.typepad.com/agriculturallaw/2019/04/self-rentals-and-the-passive-loss-rules.html

More on Self-Rentals

            https://lawprofessors.typepad.com/agriculturallaw/2019/04/more-on-self-rentals.html

Of Black-Holes, Tax Refunds, and Statutory Construction

https://lawprofessors.typepad.com/agriculturallaw/2019/04/of-black-holes-tax-refunds-and-statutory-construction.html

What Happened in Tax During Tax Season?

https://lawprofessors.typepad.com/agriculturallaw/2019/04/what-happened-in-tax-during-tax-season.html

Cost Segregation and the Recapture Issue

https://lawprofessors.typepad.com/agriculturallaw/2019/06/cost-segregation-and-the-recapture-issue.html

S.E. Tax and Contract Production Income

https://lawprofessors.typepad.com/agriculturallaw/2019/06/se-tax-and-contract-production-income.html

Recent Developments in Farm and Ranch Business Planning

https://lawprofessors.typepad.com/agriculturallaw/2019/06/recent-developments-in-farm-and-ranch-business-planning.html

Ag Cooperatives and the QBID – Initial Guidance

https://lawprofessors.typepad.com/agriculturallaw/2019/06/ag-cooperatives-and-the-qbid-initial-guidance.html

Wayfair Does Not Mean That a State Can Always Tax a Trust Beneficiary

https://lawprofessors.typepad.com/agriculturallaw/2019/06/wayfair-does-not-mean-that-a-state-can-always-tax-a-trust-beneficiary.html

Start Me Up! – Tax Treatment of Start-Up Expenses

https://lawprofessors.typepad.com/agriculturallaw/2019/07/start-me-up-tax-treatment-of-start-up-expenses.html

More on Real Estate Exchanges

https://lawprofessors.typepad.com/agriculturallaw/2019/07/more-on-real-estate-exchanges.html

2019 Tax Planning for Midwest/Great Plains Farmers and Ranchers

https://lawprofessors.typepad.com/agriculturallaw/2019/07/2019-tax-planning-for-midwestgreat-plains-farmers-and-ranchers.html

Tax Treatment of Settlements and Court Judgments

https://lawprofessors.typepad.com/agriculturallaw/2019/07/tax-treatment-of-settlements-and-court-judgments.html

ESOPs and Ag Businesses – Part One

https://lawprofessors.typepad.com/agriculturallaw/2019/07/esops-and-ag-businesses-part-one.html 

Tax “Math” on Jury Verdicts

https://lawprofessors.typepad.com/agriculturallaw/2019/07/tax-math-on-jury-verdicts.html

Kansas Revenue Department Takes Aggressive Position Against Remote Sellers

https://lawprofessors.typepad.com/agriculturallaw/2019/08/kansas-revenue-department-take-aggressive-position-against-remote-sellers.html

Tax-Deferred Exchanges and Conservation Easements

https://lawprofessors.typepad.com/agriculturallaw/2019/08/tax-deferred-exchanges-and-conservation-easements.html

Proper Handling of Breeding Fees

https://lawprofessors.typepad.com/agriculturallaw/2019/08/proper-handling-of-breeding-fees.html

Proper Tax Reporting of Commodity Wages

https://lawprofessors.typepad.com/agriculturallaw/2019/08/proper-tax-reporting-of-commodity-wages.html

Tax Consequences of Forgiving Installment Payment Debt

https://lawprofessors.typepad.com/agriculturallaw/2019/09/tax-consequences-of-forgiving-installment-payment-debt.html

Are Taxes Dischargeable in Bankruptcy?

https://lawprofessors.typepad.com/agriculturallaw/2019/09/are-taxes-dischargeable-in-bankruptcy.html

Ag Law and Tax in the Courts

https://lawprofessors.typepad.com/agriculturallaw/2019/09/ag-law-and-tax-in-the-courts.html

Refund Claim Relief Due to Financial Disability

https://lawprofessors.typepad.com/agriculturallaw/2019/09/refund-claim-relief-due-to-financial-disability.html

Shareholder Loans and S Corporation Stock Basis

https://lawprofessors.typepad.com/agriculturallaw/2019/09/shareholder-loans-and-s-corporation-stock-basis.html

The Family Limited Partnership – Part Two

https://lawprofessors.typepad.com/agriculturallaw/2019/09/the-family-limited-partnership-part-two.html

Hobby Losses Post-2017 and Pre-2026 – The Importance of Establishing a Profit Motive

https://lawprofessors.typepad.com/agriculturallaw/2019/10/hobby-losses-post-2017-and-pre-2026-the-importance-of-establishing-a-profit-motive.html

The Importance of Income Tax Basis “Step-Up” at Death

https://lawprofessors.typepad.com/agriculturallaw/2019/10/the-importance-of-income-tax-basis-step-up-at-death.html

Bad Debt Deduction

            https://lawprofessors.typepad.com/agriculturallaw/2019/10/bad-debt-deduction.html

More on Cost Depletion – Bonus Payments

https://lawprofessors.typepad.com/agriculturallaw/2019/10/more-on-cost-depletion-bonus-payments.html

Recapture – A Dirty Word in the Tax Code Lingo

https://lawprofessors.typepad.com/agriculturallaw/2019/10/recapture-a-dirty-word-in-tax-code-lingo.html

Does the Sale of Farmland Trigger Net Investment Income Tax?

https://lawprofessors.typepad.com/agriculturallaw/2019/10/does-the-sale-of-farmland-trigger-net-investment-income-tax.html

Are Director Fees Subject to Self-Employment Tax?

https://lawprofessors.typepad.com/agriculturallaw/2019/10/are-director-fees-subject-to-self-employment-tax.html

Are Windbreaks Depreciable?

https://lawprofessors.typepad.com/agriculturallaw/2019/11/are-windbreaks-depreciable.html

Tax Issues Associated with Restructuring Credit Lines

https://lawprofessors.typepad.com/agriculturallaw/2019/12/tax-issues-associated-with-restructuring-credit-lines.html

Is a Tenancy-in-Common Interest Eligible for Like-Kind Exchange Treatment?

https://lawprofessors.typepad.com/agriculturallaw/2019/12/is-a-tenancy-in-common-interest-eligible-for-like-kind-exchange-treatment.html

Year-End Legislation Contains Tax Extenders, Repealers, and Modifications to Retirement Provisions

https://lawprofessors.typepad.com/agriculturallaw/2019/12/year-end-legislation-contains-tax-extenders-repealers-and-modification-to-retirement-provisions.html

The “Almost Top Ten” Ag Law and Ag Tax Developments of 2019

https://lawprofessors.typepad.com/agriculturallaw/2019/12/the-almost-top-ten-ag-law-and-ag-tax-developments-of-2019.html

INSURANCE

Prevented Planting Payments – Potential Legal Issues?

https://lawprofessors.typepad.com/agriculturallaw/2019/06/prevented-planting-payments-potential-legal-issues.html

Ag Law in the Courts

            https://lawprofessors.typepad.com/agriculturallaw/2019/11/ag-law-in-the-courts.html

REAL PROPERTY

 Negotiating Cell/Wireless Tower Agreements

https://lawprofessors.typepad.com/agriculturallaw/2019/01/negotiating-cellwireless-tower-agreements.html

Selected Recent Cases Involving Agricultural Law

https://lawprofessors.typepad.com/agriculturallaw/2019/01/selected-recent-cases-involving-agricultural-law.html

The Accommodation Doctrine – More Court Action

https://lawprofessors.typepad.com/agriculturallaw/2019/01/the-accommodation-doctrine-more-court-action.html

Defects in Real Estate Deeds – Will Time Cure All?

https://lawprofessors.typepad.com/agriculturallaw/2019/02/defects-in-real-estate-deeds-will-time-cure-all.html

Is there a Common-Law Right to Hunt (and Fish) Your Own Land?

https://lawprofessors.typepad.com/agriculturallaw/2019/02/is-there-a-common-law-right-to-hunt-and-fish-your-own-land.html

Legal Issues Associated with Abandoned Railways

https://lawprofessors.typepad.com/agriculturallaw/2019/05/legal-issues-associated-with-abandoned-railways.html

Public Trust vs. Private Rights – Where’s the Line?

https://lawprofessors.typepad.com/agriculturallaw/2019/06/public-trust-vs-private-rights-wheres-the-line.html

Ag in the Courtroom

            https://lawprofessors.typepad.com/agriculturallaw/2019/07/ag-in-the-courtroom.html

More on Real Estate Exchanges

https://lawprofessors.typepad.com/agriculturallaw/2019/07/more-on-real-estate-exchanges.html

How Does the Rule Against Perpetuities Apply in the Oil and Gas Context?

https://lawprofessors.typepad.com/agriculturallaw/2019/08/how-does-the-rule-against-perpetuities-apply-in-the-oil-and-gas-context.html

Ag Law in the Courts

            https://lawprofessors.typepad.com/agriculturallaw/2019/10/ag-law-in-the-courts.html

Cost Depletion of Minerals

https://lawprofessors.typepad.com/agriculturallaw/2019/10/cost-depletion-of-minerals.html

Co-Tenancy or Joint Tenancy – Does it Really Matter?

https://lawprofessors.typepad.com/agriculturallaw/2019/11/co-tenancy-or-joint-tenancy-does-it-really-matter.html

“Slip Slidin’ Away” – The Right of Lateral and Subjacent Support

https://lawprofessors.typepad.com/agriculturallaw/2019/12/slip-slidin-away-the-right-of-lateral-and-subjacent-support.html

Is a Tenancy-in-Common Interest Eligible for Like-Kind Exchange Treatment?

https://lawprofessors.typepad.com/agriculturallaw/2019/12/is-a-tenancy-in-common-interest-eligible-for-like-kind-exchange-treatment.html

REGULATORY LAW

Top 10 Developments in Ag Law and Tax for 2018 – Numbers 10 and 9

https://lawprofessors.typepad.com/agriculturallaw/2019/01/top-10-developments-in-ag-law-and-tax-for-2018-numbers-10-and-9.html

Top Ten Agricultural Law and Tax Developments of 2018 – Numbers 6, 5, and 4

https://lawprofessors.typepad.com/agriculturallaw/2019/01/top-ten-agricultural-law-and-tax-developments-of-2018-numbers-6-5-and-4.html

Top Ten Agricultural Law and Tax Developments of 2018 – Numbers 3, 2, and 1

https://lawprofessors.typepad.com/agriculturallaw/2019/01/top-ten-agricultural-law-and-tax-developments-of-2018-numbers-3-2-and-1.html

Is There a Common-Law Right to Hunt (and Fish) Your Own Land?

https://lawprofessors.typepad.com/agriculturallaw/2019/02/is-there-a-common-law-right-to-hunt-and-fish-your-own-land.html

Packers and Stockyards Act – Basic Provisions

https://lawprofessors.typepad.com/agriculturallaw/2019/03/packers-and-stockyards-act-basic-provisions.html

Packers and Stockyards Act Provisions for Unpaid Cash Sellers of Livestock

https://lawprofessors.typepad.com/agriculturallaw/2019/03/packers-and-stockyards-act-provisions-for-unpaid-cash-sellers-of-livestock.html

More Recent Developments in Agricultural Law

https://lawprofessors.typepad.com/agriculturallaw/2019/03/more-recent-developments-in-agricultural-law.html

Ag Antitrust – Is There a Crack in the Wall of the “Mighty-Mighty” (Illinois) Brick House?

https://lawprofessors.typepad.com/agriculturallaw/2019/05/ag-antitrust-is-there-a-crack-in-the-wall-of-the-mighty-mighty-illinois-brick-house.html

Can Foreign Persons/Entities Own U.S. Agricultural Land?

https://lawprofessors.typepad.com/agriculturallaw/2019/05/can-foreign-personsentities-own-us-agricultural-land.html

Prevented Planting Payments – Potential Legal Issues?

https://lawprofessors.typepad.com/agriculturallaw/2019/06/prevented-planting-payments-potential-legal-issues.html

Eminent Domain and Agriculture

https://lawprofessors.typepad.com/agriculturallaw/2019/06/eminent-domain-and-agriculture.html

Classification of Seasonal Ag Workers – Why It Matters

https://lawprofessors.typepad.com/agriculturallaw/2019/06/classification-of-seasonal-ag-workers-why-it-matters.html

Administrative Agency Deference – Little Help for Ag From the Supreme Court

https://lawprofessors.typepad.com/agriculturallaw/2019/06/administrative-agency-deference-little-help-for-ag-from-the-supreme-court.html

Regulation of Food Products

https://lawprofessors.typepad.com/agriculturallaw/2019/07/regulation-of-food-products.html

Ag Legal Issues in the Courts

https://lawprofessors.typepad.com/agriculturallaw/2019/08/ag-legal-issues-in-the-courts.html

Kansas Revenue Department Takes Aggressive Position Against Remote Sellers

https://lawprofessors.typepad.com/agriculturallaw/2019/08/kansas-revenue-department-take-aggressive-position-against-remote-sellers.html

Court Decision Illustrates USDA’s Swampbuster “Incompetence”

https://lawprofessors.typepad.com/agriculturallaw/2019/08/court-decision-illustrates-usdas-swampbuster-incompetence.html

Ag Law and Tax in the Courts

https://lawprofessors.typepad.com/agriculturallaw/2019/09/ag-law-and-tax-in-the-courts.html

Regulatory Takings – Pursuing a Remedy

https://lawprofessors.typepad.com/agriculturallaw/2019/10/regulatory-takings-pursuing-a-remedy.html

The “Almost Top Ten” Ag Law and Ag Tax Developments of 2019

https://lawprofessors.typepad.com/agriculturallaw/2019/12/the-almost-top-ten-ag-law-and-ag-tax-developments-of-2019.html

SECURED TRANSACTIONS

Market Facilitation Program Pledged as Collateral – What are the Rights of a Lender?

https://lawprofessors.typepad.com/agriculturallaw/2019/05/market-facilitation-program-payments-pledged-as-collateral-what-are-the-rights-of-a-lender.html

SEMINARS AND CONFERENCES

Summer 2019 Farm and Ranch Tax and Estate/Business Planning Seminar

https://lawprofessors.typepad.com/agriculturallaw/2019/04/summer-2019-farm-and-ranch-tax-and-estatebusiness-planning-seminar.html

2019 National Ag Tax/Estate and Business Planning Conference in Steamboat Springs!

https://lawprofessors.typepad.com/agriculturallaw/2019/05/2019-national-ag-taxestate-and-business-planning-conference-in-steamboat-springs.html

Summer Tax and Estate Planning Seminar!

https://lawprofessors.typepad.com/agriculturallaw/2019/07/summer-tax-and-estate-planning-seminar.html

2020 National Summer Ag Income Tax/Estate and Business Planning Seminar

https://lawprofessors.typepad.com/agriculturallaw/2019/12/2020-national-summer-ag-income-taxestate-and-business-planning-seminar.html

Fall Seminars

            https://lawprofessors.typepad.com/agriculturallaw/2019/08/fall-seminars.html

WATER LAW

The Accommodation Doctrine – More Court Action

https://lawprofessors.typepad.com/agriculturallaw/2019/01/the-accommodation-doctrine-more-court-action.html

Ag Legal Issues in the Courts

https://lawprofessors.typepad.com/agriculturallaw/2019/08/ag-legal-issues-in-the-courts.html

Ag Law in the Courts

            https://lawprofessors.typepad.com/agriculturallaw/2019/10/ag-law-in-the-courts.html

Regulating Existing Water Rights – How Far Can State Government Go?

https://lawprofessors.typepad.com/agriculturallaw/2019/10/regulating-existing-water-rights-how-far-can-state-government-go.html

The Politics of Prior Appropriation – Is a Senior Right Really Senior?

https://lawprofessors.typepad.com/agriculturallaw/2019/12/the-politics-of-prior-appropriation-is-a-senior-right-really-senior.html

Changing Water Right Usage

https://lawprofessors.typepad.com/agriculturallaw/2019/12/changing-water-right-usage.html

February 28, 2021 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)

Thursday, February 25, 2021

Ag Zoning Potpourri

Overview

Zoning is largely a local issue.  That means that it is usually a matter of counties and towns to set zoning regulations and local ordinances.  Agricultural often receives favorable treatment – either as being exempt from county-level zoning or receiving a break on property tax, or both.

So, a key question is whether a particular activity constitutes “agriculture” such that the preferential treatment applies.  Likewise, there are many ways that owners of agricultural land can become involved in zoning disputes with respect to activities on that land.

Recent court cases on zoning matters involving agricultural land – it’s the topic of today’s post

Agritourism and Agriculture

Numerous states have enacted agritourism legislation designed to limit landowner liability to those persons engaging in an “agritourism activity.” Generally, the state laws related to agritourism use financial incentives via tax credits or cost-sharing to promote the creation of agritourism activities.  In addition, such state laws also are designed to protect the landowner (commonly defined as a “person who is engaged in the business of farming or ranching and provides one or more agritourism activities, whether or not for compensation”) from liability for injuries to participants or spectators associated with the inherent risks of a covered activity.  Under the Maine statute, for example, inherent risks associated with being on an active farm include hazards from the natural surface and subsurface conditions of land, vegetation, and waters; the behavior of wild and domestic animals; ordinary dangers of structures and equipment used in farming and ranching; and potential injuries caused by the participant’s or others’ failure to follow instructions given or in failing to exercise reasonable caution while engaging in activities.

But, is an agritourism activity “agriculture” for zoning purposes?  To answer the zoning question requires an examination of agritourism state agritourism statutes.  Many state statutes contain language designed to protect the ag real property tax classification.  But, agritourism statutes tend to be written very broadly and can apply to such things as corn mazes, hayrides and even hunting and fishing activities.  For example, in Columbia Township Board of Zoning v. Otis, 663 N.E.2d 377, 104 Ohio App. 3d 756 (Ohio 1995), the court held that haunted hayrides on farm property did not constitute the use of land for agricultural purposes because the addition of a Halloween theme with shrieks and flashing lights was completely inconsistent with traditional agricultural activity.

Also, in Shore v. Maple Lane Farms, LLC, 411 S.W.3d 405 (Tenn. Sup. Ct. 2013)the Tennessee Supreme Court reversed a determination by the court of appeals that music concerts on a farm were within the definition of farm activities within the scope of the agritourism statute and were exempt from a county zoning provision.  The Tennessee Supreme Court said the activity was not “agriculture” as defined by the statute.  Likewise, in Forster v. Town of Henniker, 167 N.H. 745 (2015). the court held that the use of a Christmas tree farm for weddings did not meet the definition of agritourism and, as a result, was not “agriculture” for zoning purposes. 

In another Ohio case decided last year, the court held that weddings and receptions taking place on agriculturally zoned land did not constitute agritourism.  In Lusardi v. Caesarscreek Township Board of Zoning Appeals, No. 2020-CA-8, 2020 Ohio App. LEXIS 3288 (Ohio Ct. App. Sept. 11, 2020), the plaintiffs owned 13.55 acres of farm property that was zoned as agricultural property. The only agricultural activity that the plaintiffs participated in was growing hay. The plaintiffs filed an application to conduct agritourism activities on their property with the defendant, the township board of zoning appeals. The plaintiffs’ application sought to conduct hayrides, corn mazes, and celebratory events, such as agriculturally themed weddings and receptions.

The zoning board granted the plaintiffs application, except for the proposed celebratory events. The zoning board determined that the plaintiffs’ proposed celebratory events did not meet the statutory definition of agritourism. As a result, the plaintiffs filed an administrative appeal at the trial court level. The trial court held that the zoning board’s decision was not arbitrary or capricious, and that the zoning board properly determined that the plaintiffs’ application for celebratory events did not bear a reasonable relationship to agriculture.

At the appellate court, the plaintiffs argued that the trial court failed to construe the statutory definition of agritourism and failed to analyze whether their proposed celebratory events satisfied the definition. The appellate court noted that the trial court was merely required to determine whether the zoning board’s administrative order was arbitrary or capricious. The appellate court also noted that the statute at issue defined agritourism as “an agriculturally-related educational, entertainment, historical, cultural, or recreational activity” conducted on a farm. The appellate court determined that the zoning board had properly concluded that plaintiffs’ proposal was for an event venue with an incidental agricultural theme, rather than an agricultural activity. The appellate court held that just because an activity is done on agriculturally zoned property does not make the activity agritourism. The appellate court declined to categorically decide whether celebratory events constituted agritourism, and only affirmed the zoning board’s decision that the plaintiffs’ proposed celebratory events were not agritourism.

Confined Livestock Operations

Another situation that can create issues with local zoning officials involves confined livestock operations.  Is a large-scale confinement operation “agriculture” or is it more like a commercial business operation?  The issue sometimes arises in counties that exempt agriculture from county zoning and the county attempts to zone the alleged commercial activity.  This issue came up in a recent case.

In Chambers v. Delaware-Muncie Metro. Board. of Zoning Appeals, 150 N.E.3d 603 (Ind. Ct. App. 2020), the petitioners owned property located in an area that was zoned as “agricultural.”  The petitioners sought and eventually obtained a permit from the county building commissioner to build several hog barns configured as a concentrated animal feeding operation (CAFO) on their property. Neighbors of the petitioners asked the zoning board to review the building commissioner’s decision to issue the permit. The zoning board voided the permit and determined that the farming zone did not recognize industrial agricultural uses, such as the petitioners’ proposed CAFO. The petitioners sought a review of the zoning board’s decision.  The trial court noted that the zoning ordinance specifically permitted animal husbandry, as well as raising and selling hogs and the erection of barns and similar farming building.

The trial court determined that the zoning ordinance clearly indicated that hog raising operations were a permitted use. The trial court noted that the county could have excluded CAFOs or put other restrictions in place to maintain more traditional farming operations. Additionally, the trial court noted that several CAFOs were located and permitted in other agricultural zones in the county. Thus, the trial court held that the zoning board’s decision was reversed and the building commissioner’s decision to issue the permit to the petitioners was reinstated.

On appeal, the neighbors of the petitioners argued that the zoning ordinance was ambiguous because it did not mention CAFOs. The appellate court agreed with the trial court and noted that the zoning ordinance set no limit on the scale of permitted uses in the agricultural zone. The appellate court determined that the plain language of the zoning ordinance was not ambiguous, and the petitioners were permitted to raise any number of hogs, subject to state and federal limitations.

Actual Use of the Property

Sometimes change in use of the property from one type of agriculture activity to another type of agricultural activity can become entangled in a zoning dispute.  That was the issue decided by the Tennessee Court of Appeals earlier this month.

In Jefferson Cty. v. Wilmoth Family Properties, LLC, No. E201902283COAR3CV, 2021 Tenn. App. LEXIS  37 (Tenn. Ct. App. Feb. 1, 2021), the defendants purchased a parcel in 2004.  At the time of purchase, the defendants believed that the property was zoned “agriculture” because its prior use had been as a dairy farm and slaughterhouse.  The defendants. The defendants began using the property for hay and chicken production, as well as hosting third party events and overnight stays.  The defendants later discovered that the property was zoned rural residential. In 2016, the county sent notice to defendants to stop using the property as an event venue, claiming that commercial events were prohibited by the rural residential zoning.  The defendants did not comply and the county sued.  The defendants claimed that their property satisfied the statutory definition of a “farming operation” that was protected by the state (TN) Right-To-Farm (RTF) law. 

The trial court agreed with the defendants that the tracts was being used as a farming operation and that the events were a secondary use.  On appeal, the appellate court affirmed.  The appellate court noted that the defendants had sold hay, cattle and poultry products from the property. 

Conclusion

Zoning issues arise often involving rural land use.  What might seem to be an agricultural activity may not be, and non-agricultural events on rural land might be questioned by zoning officials.  Also, being aware of the present (and perhaps planned) zoning status of land before acquiring it is a good idea. 

February 25, 2021 in Real Property | Permalink | Comments (0)

Monday, February 15, 2021

Prescribed Burning Legal Issues

Overview

The calendar indicates that the time for conducting open burns of agricultural land is approaching.  In the Great Plains (and also some areas of eastern Washington and Oregon), prescribed burning of pasture grass is a critical component of rangeland management.  It is an effective and affordable means of reversing and controlling the negative impacts of woody plant growth and its expansion that damages native grasslands.  It can also play a role in limiting wildfire risk.  But some landowners are reluctant to engage in prescribed (controlled) burns out of a concern for liability and casualty risks associated with escaped fire and smoke.  While some states in the Great Plains have “burn bans,” agricultural-related burns are typically not prohibited during such bans. 

The legal rules, regulations and liability risks associated with prescribed burning of agricultural lands – it’s the topic of today’s post.

Regulations – The Kansas Approach

The states that comprise the Great Plains have regulations governing the conduct of prescribed burns. The regulations among the states have commonalities, but there are distinctions from state-to-state.  In addition, in some states, open burning bans can be imposed in the interest of public safety but exempt agricultural-related burns.  For purposes of this article, I will look at the Kansas regulations. 

Kansas administrative regulations set forth the rules for conducting prescribed burns.  K.A.R. §28-19-645 et seq. In general, open burning is prohibited unless an exception applies.  K.A.R. §645. One of those exceptions is for open burning of agricultural lands that is done in accordance with the regulations.  K.A.R. §28-19-647(a)(3). Under that exception, open burning of vegetation such as grass, woody species, crop residue, and other dry plant growth for the purpose of crop, range, pasture, wildlife or watershed management is exempt from the general prohibition on open burning.  K.A.R. §28-19-648(a).  However, a prescribed burn of agricultural land must be conducted within certain guidelines.  For instance, before a burn is started the local fire control authority with jurisdiction in the area must be notified unless local government has specified that notification is not required.  K.A.R. §28-19-648(a)(1).  Also, the burn cannot create a traffic hazard.  If wind conditions might result in smoke blowing toward a public roadway, notice must be given to the highway patrol, county sheriff or local traffic officials before the burn is started. K.A.R. §28-19-648(a)(2).  Likewise, a burn cannot create a visibility safety hazard for airplanes that utilize a nearby airport. K.A.R. §28-19-648(a)(3).  If such a problem could potentially result, notice must be given to the airport officials before the burn begins.  Id.  In all situations, the burn must be supervised until the fire is extinguished. K.A.R. §28-19-648(a)(4).  Also, the Kansas burn regulations allow local jurisdictions to adopt more restrictive ordinance or resolutions governing prescribed burns of agricultural land.  K.A.R. §28-19-648(b). 

Kansas regulations also specify that the open burning of vegetation and wood waste, structures, or any other materials on any premises during the month of April is prohibited in the counties of  Butler, Chase, Chautauqua, Cowley, Elk, Geary, Greenwood, Johnson, Lyon, Marion, Morris, Pottawatomie, Riley, Sedgwick, Wabaunsee, and Wyandotte counties.  K.A.R. §28-19-645a(a). This is the Flint Hills region of Kansas – some of the most abundant pasture ground in the United States.  However, certain activities are allowed in these counties during April.  For instance, the prescribed burning of agricultural land for the purposes of range or pasture management is allowed, as is the burning of Conservation Reserve Program (CRP) land that is conducted in accordance with the requirements for a prescribed burn of agricultural land.  K.A.R. §28-19-645a(b)(1).  Open burning during April is also allowed in these counties if it is carried out on a residential premise containing five or less dwelling units and incidental to the normal habitation of the dwelling units, unless prohibited by any local authority with jurisdiction over the premises.  K.A.R. §28-19-645a(b)(2).    Also, open burning is allowed for cooking or ceremonial purposes, on public or private lands regularly used for recreational purposes. Id. 

Non-agricultural open burning activities must meet certain other requirements including a showing that the open burning is necessary, in the public interest and not otherwise prohibit by any local government or fire authority.  K.A.R. §28-19-647(b).   These types of open burning activities must also be conducted pursuant to an approved written request to the Kansas Department of Health and Environment that details how the burn will be conducted, the parameters of the activity, and the location of public roadways within 1,000 feet as well as occupied dwelling within that same distance. K.A.R. §§28-19-647(d)(2)(E-F).  The open burning of heavy oils, tires and tarpaper and other heavy smoke-producing material is not permitted.  K.A.R. §28-19-647(e)(2).  A burn is not to be started at night (two hours before sunset until one hour after sunrise) and material is not to be added to a fire after two hours before sunset.  A burn is not to be conducted during foggy conditions or when wind speed is less than five miles-per-hour or greater than 15 miles-per-hour. K.A.R. §§28-19-647(e)(3-5).   

Legal Liability Principles

As noted above, Kansas regulations require that an agricultural prescribed burn is to be supervised until the fire is extinguished. But sometimes a fire will get out of control even after it is believed to be extinguished and burn an adjacent property resulting in property damage.  How does the law sort out liability in such a situation? 

Negligence.  In general, as applied to agricultural burning activities, the law applies one of three possible principles.  One principle is that of negligence and the other is that of strict liability.  The negligence system is a fault system.  For a person to be deemed legally negligent, certain conditions must exist. These conditions can be thought of as links in a chain. Each condition must be present before a finding of negligence can be obtained.  The first condition is that of a legal duty giving rise to a standard of care.  How is duty measured?  To be liable for a negligent tort, the defendant's conduct must have fallen below that of a “reasonable and prudent person” under the circumstances.  A reasonable and prudent person is what a jury has in mind when they measure an individual's conduct in retrospect - after the fact, when the case is in court. The conduct of a particular tortfeasor (the one causing the tort) who is not held out as a professional is compared with the mythical standard of conduct of the reasonable and prudent person in terms of judgment, knowledge, perception, experience, skill, physical, mental and emotional characteristics as well as age and sanity. For those held out as having the knowledge, skill, experience or education of a professional, the standard of care reflects those factors. For example, the standard applicable to a professional veterinarian in diagnosing or treating animals is what a reasonable and prudent veterinarian would have done under the circumstances, not what a reasonable and prudent person would do.

If a legal duty exists, it is necessary to determine whether the defendant's conduct fell short of the conduct of a “reasonable and prudent person (or professional) under the circumstances.”  This is called a breach, and is the second element of a negligent tort case.

Once a legal duty and breach of that duty are shown to exist, a causal connection (the third element) must be established between the defendant's act and (the fourth element) the plaintiff's injuries (whether to person or property). In other words, the resulting harm to the plaintiff must have been a reasonably foreseeable result of the defendant's conduct at the time the conduct occurred. Reasonable foreseeability is the essence of causality (also known as proximate cause). For example, assume that a Kansas rancher has followed all of the rules to prepare for and conduct a prescribed pasture burn. After conducting the burn, the rancher banks the fire up and leaves it in what he thinks is a fairly safe condition before heading to the house for lunch.  Over lunch, the wind picks up and spreads the fire to an adjoining tract of real estate.  If the burning of the neighbor's property was not reasonably foreseeable, an action for negligence will likely not be successful.  However, if the wind was at a high velocity before lunch and all adjoining property was extremely dry, it probably was foreseeable that the fire would escape and burn a neighboring landowner's tract.

Note:  For a plaintiff to prevail in a negligence-type tort case, the plaintiff bears the burden of proof to all of the elements by a preponderance of the evidence (just over 50 percent). 

Intentional interference with real property.  Another legal principle that can apply in to open burning activities, is intentional interference with real property.  This principle is closely related to trespass.  Trespass is the unlawful or unauthorized entry upon another person's land that interferes with that person's exclusive possession or ownership of the land.   At its most basic level, an intentional trespass is the intrusion on to another person's land without the owner's consent.  However, many other types of physical invasions that cause injury to an owner's possessory rights abound in agriculture.  These types of trespass include dynamite blasting, flooding with water or residue from oil and gas drilling operations, erection of an encroaching fence, unauthorized grazing of cattle, raising of crops and cutting timber on another's land without authorization, and prescribed agricultural burning activities, among other things. 

In general, the privilege of an owner or possessor of land to utilize the land and exploit its potential natural resources is only a qualified privilege.  The owner or possessor must exercise reasonable care in conducting operations on the land so as to avoid injury to the possessory rights of neighboring landowners.  The owner or possessor must exercise reasonable care in conducting operations on the land so as to avoid injury to the possessory rights of neighboring landowners.  For example, if a prescribed burn of a pasture results in heavy smoke passing onto an adjoining property accompanied with a long-term residual smoke odor, the party conducting the burn could be held legally responsible for damages under the theory of intentional interference with real property even if the burn was conducted in accordance with applicable state regulations.  See, e.g., Ream v. Keen, 112 Ore. App. 197, 828 P.2d 1038 (1992), aff’d, 314 Ore. 370, 838 P.2d 1073 (Ore. 1992).

Strict liability.  Some activities are deemed to be so dangerous that a showing of negligence is not required to obtain a recovery.  Under a strict liability approach, the defendant is liable for injuries caused by the defendant's actions, even if the defendant was not negligent in any way or did not intend to injure the plaintiff. In general, those situations reserved for resolution under a strict liability approach involve those activities that are highly dangerous.  When these activities are engaged in, the defendant must be prepared to pay for all resulting consequences, regardless of the legal fault.

Kansas liability rule for prescribed burning.  A strict liability rule could apply to a prescribed burn of agricultural land if the activity were to be construed as an inherently (e.g., extremely) dangerous activity.    In Kansas, however, farmers and ranchers have a right to set controlled fires on their property for agricultural purposes and will not be liable for damages resulting if the fire is set and managed with ordinary care and prudence, depending on the conditions present.  See, e.g., Koger v. Ferrin, 23 Kan. App. 2d 47, 926 P.2d 680 (Kan. Ct. App. 1996).  In Kansas, at least at the present time, the courts have determined that there is no compelling argument for imposing strict liability on a property owner for damages resulting from a prescribed burn of agricultural land.  Id. 

Note:  The liability rule applied in Texas and Oklahoma is also negligence and not strict liability.  In these states, carefully following applicable prescribed burning regulations goes along way to defeating a lawsuit claiming that damages from a prescribed burn were the result of negligence. 

Certainly, for prescribed burns of agricultural land in Kansas, the regulations applicable to non-agricultural burns establish a good roadmap for establishing that a burn was conducted in a non-negligent manner.  Following those requirements could prove valuable in protecting against a damage liability claim if the fire gets out of control and damages adjacent property.

Conclusion

Prescribed burning of agricultural land in Kansas and elsewhere in the Great Plains is an excellent range management tool.  Practiced properly the ecological and economic benefits to the landowner can be substantial.  But a burn must be conducted within the framework of existing regulations with an eye toward the legal rule governing any potential liability. 

February 15, 2021 in Civil Liabilities, Real Property, Regulatory Law | Permalink | Comments (0)

Wednesday, January 20, 2021

Ag Law and Taxation 2020 Bibliography

Overview

Today's post is a bibliography of my ag law and tax blog articles of 2020.  Many of you have requested that I provide something like this to make it easier to find the articles.  If possible, I will do the same for articles from prior years.  The library of content is piling up - I have written more than 500 detailed articles for the blog over the last four and one-half years.

Cataloging the 2020 ag law and tax blog articles - it's the topic of today's post.

BANKRUPTCY

Ag Law and Tax in the Courts – Bankruptcy Debt Discharge; Aerial Application of Chemicals; Start-Up Expenses and Lying as Protected Speech

https://lawprofessors.typepad.com/agriculturallaw/2020/01/ag-law-and-tax-in-the-courts-bankruptcy-debt-discharge-aerial-application-of-chemicals-start-up-expe.html

Unique, But Important Tax Issues – “Claim of Right;” Passive Loss Grouping; and Bankruptcy Taxation

https://lawprofessors.typepad.com/agriculturallaw/2020/01/unique-but-important-tax-issues-claim-of-right-passive-loss-grouping-and-bankruptcy-taxation.html

Disaster/Emergency Legislation – Summary of Provisions Related to Loan Relief; Small Business and Bankruptcy

https://lawprofessors.typepad.com/agriculturallaw/2020/04/disasteremergency-legislation-summary-of-provisions-related-to-loan-relief-small-business-and-bankruptcy.html

Retirement-Related Provisions of the CARES Act

https://lawprofessors.typepad.com/agriculturallaw/2020/04/retirement-related-provisions-of-the-cares-act.html

Farm Bankruptcy – “Stripping, “Claw-Black,” and the Tax Collecting Authorities

https://lawprofessors.typepad.com/agriculturallaw/2020/05/farm-bankruptcy-stripping-claw-back-and-the-tax-collecting-authorities.html

SBA Says Farmers in Chapter 12 Ineligible for PPP Loans

https://lawprofessors.typepad.com/agriculturallaw/2020/06/sba-says-farmers-in-chapter-12-ineligible-for-ppp-loans.html

The “Cramdown” Interest Rate in Chapter 12 Bankruptcy

https://lawprofessors.typepad.com/agriculturallaw/2020/07/the-cramdown-interest-rate-in-chapter-12-bankruptcy.html

Bankruptcy and the Preferential Payment Rule

https://lawprofessors.typepad.com/agriculturallaw/2020/12/bankruptcy-and-the-preferential-payment-rule.html

BUSINESS PLANNING

Partnership Tax Ponderings – Flow-Through and Basis

https://lawprofessors.typepad.com/agriculturallaw/2020/02/partnership-tax-ponderings-flow-through-and-basis.html

Farm and Ranch Estate and Business Planning in 2020 (Through 2025)

https://lawprofessors.typepad.com/agriculturallaw/2020/03/farm-and-ranch-estate-and-business-planning-in-2020-through-2025.html

Transitioning the Farm or Ranch – Stock Redemption

https://lawprofessors.typepad.com/agriculturallaw/2020/07/transitioning-the-farm-or-ranch-stock-redemption.html

Estate and Business Planning for the Farm and Ranch Family – Use of the LLC (Part 1)

https://lawprofessors.typepad.com/agriculturallaw/2020/07/estate-and-business-planning-for-the-farm-and-ranch-family-use-of-the-llc-part-1.html

Estate and Business Planning for the Farm and Ranch Family – Use of the LLC (Part 2)

https://lawprofessors.typepad.com/agriculturallaw/2020/07/estate-and-business-planning-for-the-farm-and-ranch-family-use-of-the-llc-part-two.html

The Use of the LLC for the Farm or Ranch Business – Practical Application

https://lawprofessors.typepad.com/agriculturallaw/2020/08/the-use-of-the-llc-for-the-farm-or-ranch-business-practical-application.html

CIVIL LIABILITIES

Top Ten Agricultural Law and Tax Developments from 2019 (Numbers 10 and 9)

https://lawprofessors.typepad.com/agriculturallaw/2020/01/top-ten-agricultural-law-and-tax-developments-from-2019-numbers-10-and-9.html

Ag Law in the Courts – Feedlots; Dicamba Drift; and Inadvertent Disinheritance

https://lawprofessors.typepad.com/agriculturallaw/2020/01/ag-law-in-the-courts-feedlots-dicamba-drift-and-inadvertent-disinheritance.html

Ag Law and Tax in the Courts – Bankruptcy Debt Discharge; Aerial Application of Chemicals; Start-Up Expenses and Lying as Protected Speech

https://lawprofessors.typepad.com/agriculturallaw/2020/01/ag-law-and-tax-in-the-courts-bankruptcy-debt-discharge-aerial-application-of-chemicals-start-up-expe.html

Dicamba, Peaches and a Defective Ferrari; What’s the Connection?

https://lawprofessors.typepad.com/agriculturallaw/2020/05/dicamba-peaches-and-a-defective-ferrari-whats-the-connection.html

Liability for Injuries Associated with Horses (and Other Farm Animals)

https://lawprofessors.typepad.com/agriculturallaw/2020/06/liability-for-injuries-associated-with-horses-and-other-farm-animals.html

Issues with Noxious (and Other) Weeds and Seeds

https://lawprofessors.typepad.com/agriculturallaw/2020/09/issues-with-noxious-and-other-weeds-and-seeds.html

Of Nuisance, Overtime and Firearms – Potpourri of Ag Law Developments

https://lawprofessors.typepad.com/agriculturallaw/2020/11/of-nuisance-overtime-and-firearms-potpourri-of-ag-law-developments.html

CONTRACTS

The Statute of Frauds and Sales of Goods

https://lawprofessors.typepad.com/agriculturallaw/2020/01/the-statute-of-frauds-and-sales-of-goods.html

Disrupted Economic Activity and Force Majeure – Avoiding Contractual Obligations in Time of Pandemic

https://lawprofessors.typepad.com/agriculturallaw/2020/04/disrupted-economic-activity-and-force-majeure-avoiding-contractual-obligations-in-time-of-pandemic.html

Is it a Farm Lease or Not? – And Why it Might Matter

https://lawprofessors.typepad.com/agriculturallaw/2020/11/is-it-a-farm-lease-or-not-and-why-it-might-matter.html

COOPERATIVES

Top Ten Agricultural Law and Tax Developments of 2019 (Numbers 2 and 1)

https://lawprofessors.typepad.com/agriculturallaw/2020/01/top-ten-agricultural-law-and-tax-developments-of-2019-numbers-2-and-1.html

Concentrated Ag Markets – Possible Producer Response?

https://lawprofessors.typepad.com/agriculturallaw/2020/05/concentrated-ag-markets-possible-producer-response.html

CRIMINAL LIABILITIES

Is an Abandoned Farmhouse a “Dwelling”?

https://lawprofessors.typepad.com/agriculturallaw/2020/02/is-an-abandoned-farmhouse-a-dwelling.html

ENVIRONMENTAL LAW

Top Ten Agricultural Law and Tax Developments of 2019 (Numbers 8 and 7)

https://lawprofessors.typepad.com/agriculturallaw/2020/01/top-ten-agricultural-law-and-tax-developments-of-2019-numbers-8-and-7.html

Top Ten Agricultural Law and Tax Developments of 2019 (Numbers 6 and 5)

https://lawprofessors.typepad.com/agriculturallaw/2020/01/top-ten-agricultural-law-and-tax-developments-of-2019-numbers-six-and-five.html

Top Ten Agricultural Law and Tax Developments of 2019 (Numbers 4 and 3)

https://lawprofessors.typepad.com/agriculturallaw/2020/01/top-ten-agricultural-law-and-tax-developments-of-2019-numbers-4-and-3.html

Clean Water Act – Compliance Orders and “Normal Farming Activities”

https://lawprofessors.typepad.com/agriculturallaw/2020/03/clean-water-act-compliance-orders-and-normal-farming-activities.html

Groundwater Discharges of “Pollutants” and “Functional Equivalency”

https://lawprofessors.typepad.com/agriculturallaw/2020/04/groundwater-discharges-of-pollutants-and-functional-equivalency.html

NRCS Highly Erodible Land and Wetlands Conservation Final Rule – Clearer Guidance for Farmers or Erosion of Property Rights? – Part One

https://lawprofessors.typepad.com/agriculturallaw/2020/09/nrcs-highly-erodible-land-and-wetlands-conservation-final-rule-clearer-guidance-for-farmers-or-erosi.html

NRCS Highly Erodible Land and Wetlands Conservation Final Rule – Clearer Guidance for Farmers or Erosion of Property Rights? – Part Two

https://lawprofessors.typepad.com/agriculturallaw/2020/09/nrcs-highly-erodible-land-and-wetlands-conservation-final-rule-clearer-guidance-for-farmers-or-loss-of-property-rights.html

NRCS Highly Erodible Land and Wetlands Conservation Final Rule – Clearer Guidance for Farmers or Erosion of Property Rights? – Part Three

https://lawprofessors.typepad.com/agriculturallaw/2020/09/nrcs-highly-erodible-land-and-wetlands-conservation-final-rule-clearer-guidance-for-farmers-or-loss-of-property-rights-1.html

The Prior Converted Cropland Exception – More Troubles Ahead?

https://lawprofessors.typepad.com/agriculturallaw/2020/09/the-prior-converted-cropland-exception-more-troubles-ahead.html

TMDL Requirements – The EPA’s Federalization of Agriculture

            https://lawprofessors.typepad.com/agriculturallaw/2020/10/tmdl-requirements-.html

Eminent Domain and “Seriously Misleading” Financing Statements

https://lawprofessors.typepad.com/agriculturallaw/2020/10/eminent-domain-and-seriously-misleading-financing-statements.html

 

ESTATE PLANNING

Ag Law in the Courts – Feedlots; Dicamba Drift; and Inadvertent Disinheritance

https://lawprofessors.typepad.com/agriculturallaw/2020/01/ag-law-in-the-courts-feedlots-dicamba-drift-and-inadvertent-disinheritance.html

Recent Developments Involving Estates and Trusts

https://lawprofessors.typepad.com/agriculturallaw/2020/02/recent-developments-involving-decedents-estates-and-trusts.html

What is a “Trade or Business” For Purposes of Installment Payment of Federal Estate Tax?

https://lawprofessors.typepad.com/agriculturallaw/2020/03/what-is-a-trade-or-business-for-purposes-of-installment-payment-of-federal-estate-tax.html

Alternate Valuation – Useful Estate Tax Valuation Provision

https://lawprofessors.typepad.com/agriculturallaw/2020/03/alternate-valuation-useful-estate-tax-valuation-provision.html

Farm and Ranch Estate and Business Planning in 2020 (Through 2025)

https://lawprofessors.typepad.com/agriculturallaw/2020/03/farm-and-ranch-estate-and-business-planning-in-2020-through-2025.html

Retirement-Related Provisions of the CARES Act

https://lawprofessors.typepad.com/agriculturallaw/2020/04/retirement-related-provisions-of-the-cares-act.html

Are Advances to Children Loans or Gifts?

https://lawprofessors.typepad.com/agriculturallaw/2020/06/are-advances-to-children-loans-or-gifts.html

Tax Issues Associated with Options in Wills and Trusts

https://lawprofessors.typepad.com/agriculturallaw/2020/06/tax-issues-associated-with-options-in-wills-and-trusts.html

Valuing Farm Chattels and Marketing Rights of Farmers

https://lawprofessors.typepad.com/agriculturallaw/2020/06/valuing-farm-chattels-and-marketing-rights-of-farmers.html

Is it a Gift or Not a Gift? That is the Question

https://lawprofessors.typepad.com/agriculturallaw/2020/06/is-it-a-gift-or-not-a-gift-that-is-the-question.html

Does a Discretionary Trust Remove Fiduciary Duties a Trustee Owes Beneficiaries?

https://lawprofessors.typepad.com/agriculturallaw/2020/10/does-a-discretionary-trust-remove-fiduciary-duties-a-trustee-owes-beneficiaries.html

Can I Write my Own Will? Should I?

https://lawprofessors.typepad.com/agriculturallaw/2020/10/can-i-write-my-own-will-should-i.html

Income Taxation of Trusts – New Regulations

https://lawprofessors.typepad.com/agriculturallaw/2020/10/income-taxation-of-trusts.html

Merging a Revocable Trust at Death with an Estate – Tax Consequences

https://lawprofessors.typepad.com/agriculturallaw/2020/11/merging-a-revocable-trust-at-death-with-an-estate-tax-consequences.html

When is Transferred Property Pulled Back into the Estate at Death?  Be on Your Bongard!

https://lawprofessors.typepad.com/agriculturallaw/2020/11/when-is-transferred-property-pulled-back-into-the-estate-at-death-be-on-your-bongard.html

‘Tis the Season for Giving, But When is a Transfer a Gift?

https://lawprofessors.typepad.com/agriculturallaw/2020/12/tis-the-season-for-giving-but-when-is-a-transfer-a-gift.html

 

INCOME TAX

Top Ten Agricultural Law and Tax Developments of 2019 (Numbers 2 and 1)

https://lawprofessors.typepad.com/agriculturallaw/2020/01/top-ten-agricultural-law-and-tax-developments-of-2019-numbers-2-and-1.html

Does the Penalty Relief for a “Small Partnership” Still Apply?

https://lawprofessors.typepad.com/agriculturallaw/2020/01/does-the-penalty-relief-for-a-small-partnership-still-apply.html

Substantiation – The Key to Tax Deductions

https://lawprofessors.typepad.com/agriculturallaw/2020/01/substantiation-the-key-to-tax-deductions.html

Ag Law and Tax in the Courts – Bankruptcy Debt Discharge; Aerial Application of Chemicals; Start-Up Expenses and Lying as Protected Speech

https://lawprofessors.typepad.com/agriculturallaw/2020/01/ag-law-and-tax-in-the-courts-bankruptcy-debt-discharge-aerial-application-of-chemicals-start-up-expe.html

Unique, But Important Tax Issues – “Claim of Right;” Passive Loss Grouping; and Bankruptcy Taxation

https://lawprofessors.typepad.com/agriculturallaw/2020/01/unique-but-important-tax-issues-claim-of-right-passive-loss-grouping-and-bankruptcy-taxation.html

Conservation Easements and the Perpetuity Requirement

https://lawprofessors.typepad.com/agriculturallaw/2020/02/conservation-easements-and-the-perpetuity-requirement.html

Tax Treatment Upon Death of Livestock

https://lawprofessors.typepad.com/agriculturallaw/2020/02/tax-treatment-upon-death-of-livestock.html

What is a “Trade or Business” For Purposes of I.R.C. §199A?

https://lawprofessors.typepad.com/agriculturallaw/2020/02/what-is-a-trade-or-business-for-purposes-of-irc-199a.html

Tax Treatment of Meals and Entertainment

https://lawprofessors.typepad.com/agriculturallaw/2020/03/tax-treatment-of-meals-and-entertainment.html

Farm NOLs Post-2017

            https://lawprofessors.typepad.com/agriculturallaw/2020/03/farm-nols-post-2017.html

Disaster/Emergency Legislation – Summary of Provisions Related to Loan Relief; Small Business and Bankruptcy

https://lawprofessors.typepad.com/agriculturallaw/2020/04/disasteremergency-legislation-summary-of-provisions-related-to-loan-relief-small-business-and-bankruptcy.html

Retirement-Related Provisions of the CARES Act

https://lawprofessors.typepad.com/agriculturallaw/2020/04/retirement-related-provisions-of-the-cares-act.html

Income Tax-Related Provisions of Emergency Relief Legislation

https://lawprofessors.typepad.com/agriculturallaw/2020/04/income-tax-related-provisions-of-emergency-relief-legislation.html

The Paycheck Protection Program – Still in Need of Clarity

https://lawprofessors.typepad.com/agriculturallaw/2020/05/the-paycheck-protection-program-still-in-need-of-clarity.html

Solar “Farms” and The Associated Tax Credit

https://lawprofessors.typepad.com/agriculturallaw/2020/05/solar-farms-and-the-associated-tax-credit.html

Obtaining Deferral for Non-Deferred Aspects of an I.R.C. §1031 Exchange

https://lawprofessors.typepad.com/agriculturallaw/2020/05/obtaining-deferral-for-non-deferred-aspects-of-an-irc-1031-exchange-.html

Conservation Easements – The Perpetuity Requirement and Extinguishment

https://lawprofessors.typepad.com/agriculturallaw/2020/05/conservation-easements-the-perpetuity-requirement-and-extinguishment.html

PPP and PATC Developments

https://lawprofessors.typepad.com/agriculturallaw/2020/06/ppp-and-patc-developments.html

How Many Audit “Bites” of the Same Apple Does IRS Get?

https://lawprofessors.typepad.com/agriculturallaw/2020/07/how-many-audit-bites-of-the-same-apple-does-irs-get.html

More Developments Concerning Conservation Easements

https://lawprofessors.typepad.com/agriculturallaw/2020/07/more-developments-concerning-conservation-easements.html

Imputation – When Can an Agent’s Activity Count?

https://lawprofessors.typepad.com/agriculturallaw/2020/07/imputation-when-can-an-agents-activity-count.html

Exotic Game Activities and the Tax Code

https://lawprofessors.typepad.com/agriculturallaw/2020/08/exotic-game-activities-and-the-tax-code.html

Demolishing Farm Buildings and Structures – Any Tax Benefit?

         https://lawprofessors.typepad.com/agriculturallaw/2020/08/demolishing-farm-buildings-and-structures-any-tax-benefit.html

Tax Incentives for Exported Ag Products

https://lawprofessors.typepad.com/agriculturallaw/2020/08/tax-incentives-for-exported-ag-products.html

Deducting Business Interest

https://lawprofessors.typepad.com/agriculturallaw/2020/09/deducting-business-interest.html

Recent Tax Court Opinions Make Key Point on S Corporations and Meals/Entertainment Deductions

https://lawprofessors.typepad.com/agriculturallaw/2020/09/recent-tax-court-opinions-make-key-points-on-s-corporations-and-mealsentertainment-deductions.html

Income Taxation of Trusts – New Regulations

https://lawprofessors.typepad.com/agriculturallaw/2020/10/income-taxation-of-trusts.html

Accrual Accounting – When Can a Deduction Be Claimed?

https://lawprofessors.typepad.com/agriculturallaw/2020/11/accrual-accounting-when-can-a-deduction-be-claimed.html

Farmland Lease Income – Proper Tax Reporting

https://lawprofessors.typepad.com/agriculturallaw/2020/11/farmland-lease-income-proper-tax-reporting.html

Merging a Revocable Trust at Death with an Estate – Tax Consequences

https://lawprofessors.typepad.com/agriculturallaw/2020/11/merging-a-revocable-trust-at-death-with-an-estate-tax-consequences.html

The Use of Deferred Payment Contracts – Specifics Matter

https://lawprofessors.typepad.com/agriculturallaw/2020/11/the-use-of-deferred-payment-contracts-specific-matters.html

Is Real Estate Held in Trust Eligible for I.R.C. §1031 Exchange Treatment?

https://lawprofessors.typepad.com/agriculturallaw/2020/11/is-real-estate-held-in-trust-eligible-for-irc-1031-exchange-treatment.html

 

INSURANCE

Recent Court Developments of Interest

https://lawprofessors.typepad.com/agriculturallaw/2020/07/recent-court-developments-of-interest.html

PUBLICATIONS

Principles of Agricultural Law

https://lawprofessors.typepad.com/agriculturallaw/2020/01/principles-of-agricultural-law.html

 

REAL PROPERTY

Signing and Delivery

https://lawprofessors.typepad.com/agriculturallaw/2020/02/deed-effectiveness-signing-and-delivery.html

Abandoned Railways and Issues for Adjacent Landowners

https://lawprofessors.typepad.com/agriculturallaw/2020/04/abandoned-railways-and-issues-for-adjacent-landowners.html

Obtaining Deferral for Non-Deferred Aspects of an I.R.C. §1031 Exchange

https://lawprofessors.typepad.com/agriculturallaw/2020/05/obtaining-deferral-for-non-deferred-aspects-of-an-irc-1031-exchange-.html

Are Dinosaur Fossils Minerals?

https://lawprofessors.typepad.com/agriculturallaw/2020/06/are-dinosaur-fossils-minerals.html

Real Estate Concepts Involved in Recent Cases

https://lawprofessors.typepad.com/agriculturallaw/2020/10/real-estate-concepts-involved-in-recent-cases.html

Is it a Farm Lease or Not? – And Why it Might Matter

https://lawprofessors.typepad.com/agriculturallaw/2020/11/is-it-a-farm-lease-or-not-and-why-it-might-matter.html

 

REGULATORY LAW

Top Ten Agricultural Law and Tax Developments from 2019 (Numbers 10 and 9)

https://lawprofessors.typepad.com/agriculturallaw/2020/01/top-ten-agricultural-law-and-tax-developments-from-2019-numbers-10-and-9.html

Top Ten Agricultural Law and Tax Developments from 2019 (Number 8 and 7)

https://lawprofessors.typepad.com/agriculturallaw/2020/01/top-ten-agricultural-law-and-tax-developments-of-2019-numbers-8-and-7.html

Ag Law and Tax in the Courts – Bankruptcy Debt Discharge; Aerial Application of Chemicals; Start-Up Expenses and Lying as Protected Speech

https://lawprofessors.typepad.com/agriculturallaw/2020/01/ag-law-and-tax-in-the-courts-bankruptcy-debt-discharge-aerial-application-of-chemicals-start-up-expe.html

Hemp Production – Regulation and Economics

https://lawprofessors.typepad.com/agriculturallaw/2020/04/hemp-production-regulation-and-economics.html

DOJ to Investigate Meatpackers – What’s it All About?

https://lawprofessors.typepad.com/agriculturallaw/2020/05/doj-to-investigate-meatpackers-whats-it-all-about.html

Dicamba Registrations Cancelled – Or Are They?

https://lawprofessors.typepad.com/agriculturallaw/2020/06/dicamba-registrations-cancelled-or-are-they.html

What Does a County Commissioner (Supervisor) Need to Know?

https://lawprofessors.typepad.com/agriculturallaw/2020/06/what-does-a-county-commissioner-supervisor-need-to-know.html

The Supreme Court’s DACA Opinion and the Impact on Agriculture

https://lawprofessors.typepad.com/agriculturallaw/2020/07/the-supreme-courts-daca-opinion-and-the-impact-on-agriculture.html

Right-to-Farm Law Headed to the SCOTUS?

https://lawprofessors.typepad.com/agriculturallaw/2020/08/right-to-farm-law-headed-to-the-scotus.html

The Public Trust Doctrine – A Camel’s Nose Under Agriculture’s Tent?

https://lawprofessors.typepad.com/agriculturallaw/2020/10/the-public-trust-doctrine-a-camels-nose-under-agricultures-tent.html

Roadkill – It’s What’s for Dinner (Reprise)

https://lawprofessors.typepad.com/agriculturallaw/2020/10/roadkill-its-whats-for-dinner-reprise.html

Beef May be for Dinner, but Where’s It From?

https://lawprofessors.typepad.com/agriculturallaw/2020/11/beef-may-be-for-dinner-but-wheres-it-from.html

Of Nuisance, Overtime and Firearms – Potpourri of Ag Law Developments

https://lawprofessors.typepad.com/agriculturallaw/2020/11/of-nuisance-overtime-and-firearms-potpourri-of-ag-law-developments.html

What Farm Records and Information Are Protected from a FOIA Request?

https://lawprofessors.typepad.com/agriculturallaw/2020/12/what-farm-records-and-information-are-protected-from-a-foia-request.html

Can One State Dictate Agricultural Practices in Other States?

https://lawprofessors.typepad.com/agriculturallaw/2020/12/can-one-state-dictate-agricultural-practices-in-other-states.html

SECURED TRANSACTIONS

Family Farming Arrangements and Liens; And, What’s a Name Worth?

https://lawprofessors.typepad.com/agriculturallaw/2020/02/family-farming-arrangements-and-liens-and-whats-a-name-worth.html

Conflicting Interests in Stored Grain

https://lawprofessors.typepad.com/agriculturallaw/2020/03/conflicting-interests-in-stored-grain.html

Eminent Domain and “Seriously Misleading” Financing Statement

https://lawprofessors.typepad.com/agriculturallaw/2020/10/eminent-domain-and-seriously-misleading-financing-statements.html

 

SEMINARS AND CONFERENCES

Summer 2020 Farm Income Tax/Estate and Business Planning Conference

https://lawprofessors.typepad.com/agriculturallaw/2020/02/summer-2020-farm-income-taxestate-and-business-planning-conference.html

Registration Open for Summer Ag Income Tax/Estate and Business Planning Seminar

https://lawprofessors.typepad.com/agriculturallaw/2020/03/registration-open-for-summer-ag-income-taxestate-and-business-planning-seminar.html

 

Summer 2020 – National Farm Income Tax/Estate and Business Planning Conference

https://lawprofessors.typepad.com/agriculturallaw/2020/04/summer-2020-national-farm-income-taxestate-and-business-planning-conference.html

Year-End CPE/CLE – Six More to Go

https://lawprofessors.typepad.com/agriculturallaw/2020/12/year-end-cpecle-six-more-to-go.html

2021 Summer National Farm and Ranch Income Tax/Estate and Business Planning Conference

https://lawprofessors.typepad.com/agriculturallaw/2020/12/2021-summer-national-farm-income-taxestate-business-planning-conference.html

WATER LAW

Principles of Agricultural Law

https://lawprofessors.typepad.com/agriculturallaw/2020/01/principles-of-agricultural-law.html

MISCELLANEOUS

More “Happenings” in Ag Law and Tax

https://lawprofessors.typepad.com/agriculturallaw/2020/02/more-happenings-in-ag-law-and-tax.html

Recent Cases of Interest

            https://lawprofessors.typepad.com/agriculturallaw/2020/03/recent-cases-of-interest.html

More Selected Caselaw Developments of Relevance to Ag Producers

https://lawprofessors.typepad.com/agriculturallaw/2020/03/more-selected-caselaw-developments-of-relevance-to-ag-producers.html

Court Developments of Interest

https://lawprofessors.typepad.com/agriculturallaw/2020/04/court-developments-of-interest.html

Ag Law and Tax Developments

https://lawprofessors.typepad.com/agriculturallaw/2020/05/ag-law-and-tax-developments.html

Recent Court Developments of Interest

https://lawprofessors.typepad.com/agriculturallaw/2020/07/recent-court-developments-of-interest.html

Court Developments in Agricultural Law and Taxation

https://lawprofessors.typepad.com/agriculturallaw/2020/08/court-developments-in-agricultural-law-and-taxation.html

Ag Law and Tax in the Courtroom

https://lawprofessors.typepad.com/agriculturallaw/2020/09/ag-law-and-tax-in-the-courtroom.html

Recent Tax Cases of Interest

https://lawprofessors.typepad.com/agriculturallaw/2020/09/recent-tax-cases-of-interest.html

Ag and Tax in the Courts

 https://lawprofessors.typepad.com/agriculturallaw/2020/11/ag-and-tax-in-the-courts.html

Of Nuisance, Overtime and Firearms – Potpourri of Ag Law Developments

https://lawprofessors.typepad.com/agriculturallaw/2020/11/of-nuisance-overtime-and-firearms-potpourri-of-ag-law-developments.html

Bankruptcy Happenings

            https://lawprofessors.typepad.com/agriculturallaw/2020/12/bankruptcy-happenings.html

January 20, 2021 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)

Sunday, January 17, 2021

Agricultural Law Online!

Overview

For the Spring 2021 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 this spring semester’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 and how to register is available here:  https://www.enrole.com/ksu/jsp/session.jsp?sessionId=442107&courseId=AGLAW&categoryId=ROOT

You can also find information about the text for the course at the following link:  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.  Consult with your academic advisor to see how Ag Law and Economics will transfer and align with your degree completion goals.

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 class beginning on January 26!

January 17, 2021 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)

Friday, January 8, 2021

Continuing Education Events and Summer Conferences

Overview

There are a couple of online continuing education events that I will be conducting soon, and the dates are set for two summer national conferences in 2021. 

Upcoming continuing education events – it’s the topic of today’s post.

Top Developments in Agricultural Law and Tax

On Monday, January 11, beginning at 11:00 a.m. (cst), I will be hosting a two-hour CLE/CPE webinar on the top developments in agricultural law and agricultural taxation of 2020.  I will not only discuss the developments, but project how the developments will impact producers and others in the agricultural sector and what steps need to be taken as a result of the developments in the law and tax realm.  This is an event that is not only for practitioners, but producers also.  It’s an opportunity to hear the developments and provide input and discussion.  A special lower rate is provided for those not claiming continuing education credit.

You may learn more about the January 11 event and register here:  https://washburnlaw.edu/employers/cle/taxseasonupdate.html

Tax Update Webinar – CAA of 2021

On January 21, I will be hosting a two-hour webinar on the Consolidated Appropriations Act, 2021.  This event will begin at 10:00 a.m. (cst) and run until noon.  The new law makes significant changes to the existing PPP and other SBA loan programs, CFAP, and contains many other provisions that apply to businesses and individuals.  Also, included in the new law are provisions that extend numerous provisions that were set to expire at the end of 2020.  The PPP discussion is of critical importance to many taxpayers at the present moment, especially the impact of PPP loans not being included in income and simultaneously being deductible if used to pay for qualified business expenses.  Associated income tax basis issues loom large and vary by entity type.

You may learn more about the January 21 event and register here:  https://agmanager.info/events/kansas-income-tax-institute

Summer National Conferences

Mark your calendars now for the law school’s two summer 2021 events that I conduct on farm income tax and farm estate and business planning.  Yes, there are two locations for 2021 – one east and one west.  Each event will be simulcast live over the web if you aren’t able to attend in-person.  The eastern conference is first and is set for June 7-8 at Shawnee Lodge and Conference Center near West Portsmouth, Ohio.  The location is about two hours east of Cincinnati, 90 minutes south of Columbus, Ohio, and just over two hours from Lexington, KY.  I am presently in the process of putting the agenda together.  A room block will be established for those interested in staying at the Lodge.  For more information about Shawnee Lodge and Conference Center, you made click here:  https://www.shawneeparklodge.com/

The second summer event will be held on August 2-3 in Missoula, Montana at the Hilton Garden Inn.  Missoula is beautifully situated on three rivers and in the midst of five mountain ranges.  It is also within three driving hours of Glacier National Park, and many other scenic and historic places.  The agenda will soon be available, and a room block will also be established at the hotel.  You may learn more about the location here:  https://www.hilton.com/en/hotels/msogigi-hilton-garden-inn-missoula/

Conclusion

Take advantage of the upcoming webinars and mark you calendars for the summer national events.  I look for to seeing you at one or more of the events.

January 8, 2021 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)

Tuesday, January 5, 2021

The “Almost Top Ten” Ag Law and Ag Tax Developments of 2020 – Part Three

Overview

Today’s post continues my trek through the “Almost Top 10” ag law and tax developments of 2020.  2020 was another big year for many illustrations of the law intersecting with agriculture.  In today’s final installation of the “Almost Top 10” I look at an Indiana case involving the state’s right-to-farm law; a Montana case involving the issue of whether dinosaur fossils are minerals and, thus, belong to the mineral estate owner; and force majeure clauses in contracts and their application to events that make contract performance impossible.

The final installment of the “Almost Top Ten” of 2020 – it’s the topic of today’s post.

Right-To-Farm Laws

Himsel v. Himsel, 122 N.E. 3d 395 (Ind. Ct. App. 2019); reh’g. den., No. 18A-PL-645, 2019 Ind App. LEXIS 314 (Ind. Ct. App. Jul. 12, 2019); rev. den., 143 N.E.3d 950 (Ind. 2020).

Every state has enacted a right-to-farm (RTF) law that is designed to protect existing agricultural operations by giving farmers and ranchers who meet the legal requirements a defense in nuisance suits. It may not be only traditional row crop or livestock operations that are protected.  But, the RTF laws vary widely from state-to-state.  One such law, the Indiana version (Ind. Code §32-30-6-9), was at issue in 2019 and 2020.

The Himsel Litigation

The Indiana Court of Appeals determined that the Indiana RTF law applied to protect the defendant because the change in the nature of the defendant’s hog operation from row crop farming to a large-scale confined animal feeding operation (CAFO) involving 8,000 hogs was “not a significant change” that would make the RTF law inapplicable.  In other words, 8,000 hogs in a confinement building raised by a contracting party that likely doesn’t make management decisions concerning the hogs, doesn’t report some the associated contract income as farm income on Schedule F, and cannot pledge the hogs as loan collateral due to a lack of an ownership interest in the hogs, was somehow not significantly different from a farmer raising 200 hogs and 200 head of cattle with associated crop ground who manages the diversified operation.  Just the sheer number of hogs alone stands out in stark contrast.  Indeed, the hog operation required a change in the existing zoning of the tract.

The plaintiffs in Himsel, members of the same family as the defendants, were found to have essentially come to the nuisance because one of them chose to retire from farming and remain on the land that he had lived on for nearly 80 years, and the other didn’t move from the rural home he built in 1971.  An 8,000-head hog confinement operation and the presence of 3.9 million gallons of untreated hog manure was deemed to be comparable to farming in this area in 1941.

The court also determined that a “taking” had not occurred because the plaintiff had not sold his home and moved away from the place where he grew up and lived all of his life, and the RTF law did not take the entire value of the plaintiffs’ property away.  The appellate court, however, did not address the implications of whether its opinion essentially granted the CAFO an easement to produce odors across the plaintiffs’ property.

The appellate court declined to rehear the case and the Indiana Supreme Court declined to review the appellate court’s decision by a single vote.  On July 17, 2020, a petition for certiorari was filed with the U.S. Supreme Court.  On October 5, 2020, the U.S. Supreme Court declined to hear the case. 

Following Indiana’s lead, several states have modified their state RTF laws to more closely align with the Indiana provision.

Dinosaur Fossils Are Not Minerals

Murray v. BEJ Minerals, LLC, 400 Mont. 135 (2020)

 A common granting clause in a mineral deed specifies that the grantor either conveys or reserves “the oil, gas and other minerals.”  That language can raise an issue concerning what “other minerals” means.  Does it include such things as gravel, clay granite, sandstone, limestone, coal, carbon dioxide, hot water and steam?  The courts have struggled with this issue and have reached differing conclusions.  Does the phrase mean anything that is in the soil that the surface estate owner doesn’t use for agricultural purposes?  Does is matter how the substance is extracted?  Does it matter if the material is located in the subsoil rather than the topsoil?  Is it material if the substance can be extracted without significant damage to the surface estate? 

The issue of whether dinosaur fossils are “minerals” for the purposes of a mineral reservation clause in a mineral deed was an issue in a recent Montana case.  In Murray, court dealt with the issue in a case with millions of dollars on the line.  Under the facts of the case, the plaintiffs (a married couple), leased farm and ranch land beginning in 1983.  Over a period of years, the owner of the land transferred portions of his interest in the property to his two sons and sold the balance to the plaintiffs.  From 1991 to 2005, the plaintiffs and the sons operated the property as a partnership.  In 2005, the sons severed the surface estate from the mineral estate and sold their remaining interests in the surface estate to the plaintiffs.  A mineral deed was to be executed at closing that apportioned one-third of the mineral rights to each son and one-third to the plaintiffs.  After the transactions were completed, the plaintiffs owned all of the surface estate of the 27,000-acre property and one-third of the mineral (subsurface) estate.  At the time, none of the parties suspected there were valuable dinosaur fossils on the property, and none of them gave any thought to whether dinosaur fossils were part of the mineral estate as defined in the mineral deed.  Likewise, none of the parties expressed any intent about who might own dinosaur fossils that might be found on the property. 

Specifically, the mineral deed stated that the parties would own, as tenants in common, “all right, title and interest in and to all of the oil, gas, hydrocarbons, and minerals in, on and under, and that may be produced from the [Ranch].”  The purchase agreement required the parties “to inform all of the other parties of any material event which may [affect] the mineral interests and [to] share all communications and contracts with all other Parties.” 

In 2006, the plaintiffs gave permission to a trio of fossil hunters to search (and later dig) for fossils on the property.  The hunters ultimately uncovered dinosaur fossils of great value including a nearly intact Tyrannosaurus rex skeleton and two separate dinosaurs that died locked in battle.  The fossils turned out to be extremely rare and quite valuable, with the “Dueling Dinosaurs” valued at between $7 million and $9 million.  In 2014, the plaintiffs sold the Tyrannosaurus rex skeleton to a Dutch museum for several million dollars.  A Triceratops foot was sold for $20,000 and a Triceratops skull was offered for sale for over $200,000.  The proceeds of sale were placed in an escrow account pending the outcome of a lawsuit that the sons filed.  The sons (the defendants in the present action) sued claiming that the fossils were “minerals” and that they were entitled to a portion of any sale proceeds.  The plaintiffs brought a declaratory judgment action in state court claiming that the fossils were theirs as owners of the surface estate.  The defendants removed the action to federal court and asserted a counterclaim on the basis that the fossils should be included in the mineral estate.  The trial court granted summary judgment for the plaintiffs on the basis that, under Montana law, fossils are not included in the ordinary and natural meaning of “mineral” and are thus not part of the mineral estate.

On appeal, the appellate court reversed.  The appellate court determined that the term “fossil” fit within the dictionary definition of “mineral.” Specifically, the appellate court noted that Black’s Law Dictionary defined “mineral” in terms of the “use” of a substance, but that defining “mineral” in that fashion did not exclude fossils.  The appellate court also noted that an earlier version of Black’s Law Dictionary defined “mineral” as including “all fossil bodies or matters dug out of mines or quarries, whence anything may be dug, such as beds of stone which may be quarried.”  Thus, the appellate court disagreed with the trial court that the deed did not encompass dinosaur fossils.  Turning to state court interpretations of the term “mineral”, the appellate court noted that the Montana Supreme Court had held certain substances other than oil and gas can be minerals if they are rare and exceptional.  Thus, the appellate court determined that to be a mineral under Montana law, the substance would have to meet the scientific definition of a “mineral” and be rare and exceptional.  The appellate court held that those standards had been met.  The plaintiffs sought a rehearing by the full Ninth Circuit and their request was granted.  The appellate court then determined that the issue was one of first impression under Montana law and certified the question of whether dinosaur fossils constitute “minerals” for the purpose of a mineral reservation under Montana law to the Montana Supreme Court.  

The Montana Supreme Court answered the certified question in the negative – dinosaur fossils are not “minerals” for the purpose of the mineral reservation at issue because they were not included in the expression, “oil, gas and hydrocarbons,” and could not be implied in the deed’s general grant of all other minerals.  “Fossils” and “minerals” were mutually exclusive terms as the parties used those terms in the mineral deed.  In making its determination, the Montana Supreme Court reasoned that whether a substance or material is a “mineral” is based on whether it is rare and valuable for its mineral properties, whether the conveying instrument expressed an intent to use the scientific definition of the term, and the relation of the substance or material to the land’s surface and the method and effect of its removal. The Court also noted that deeds are like contracts and should be interpreted in accordance with their plain and ordinary meaning to give effect to the parties’ mutual intent at the time of execution. 

The Court noted that the term “minerals” is defined in various areas of Montana statutory law (including tax provisions) and none include “fossils,” and that the only statutory provision mentioning fossils and minerals in the same statute referred to them separately.  The Court also noted that the U.S. Department of Interior (for purposes of federal law) had made an administrative decision in 1915 that dinosaur fossils are not “minerals.”  As such, the terms were mutually exclusive as used in the mineral deed between the parties, and the plaintiffs maintained ownership of any interests that the two sons had not specifically reserved in the mineral deed.  The deed simply did not contemplate including “fossils” under the mineral reservation clause.  Instead, the Court concluded that “minerals” under Montana law are a resource that is mined as a raw material for further processing, refinement and eventual economic exploitation.  Fossils are not mined, they are excavated, and they are not rare and valuable due to their mineral properties.  Therefore, unless specifically mentioned in the mineral deed, language identifying “minerals” would not “ordinarily and naturally” include fossils.

Based on the Montana Supreme Court’s answer to the certified question, the U.S. Court of Appeals for the Ninth Circuit affirmed the federal district court’s order granting summary judgment to the plaintiffs and declaring them the sole owners of the dinosaur fossils.  

Force Majeure Clauses in Contracts

Governmental reaction to the China-originated virus in 2020 created legal and economic issues for many persons and businesses.  One of those legal issues involves existing contracts.  The issuance of various Executive Orders by state governors as a result of the anticipated impact of the virus shut down significant economic activity in those states and triggered problems up and down the food supply chain.  That raised numerous questions.  What happens when a supply chain is disrupted?  What recourse exists for a farmer that entered into a contract to sell corn to an ethanol plant, and now the ethanol price has collapsed and the plant refuses to pay?  What if a hog buyer won’t buy hogs because the processing plant is shut-down?  What if a milk buyer backs out of a milk contract because the milk market has disintegrated?  Grain can be stored and milk can be dumped, but what do you do with a 300-lb. fat hog?

A common provision in some agricultural contracts (particularly hog production contracts) is known as a “force majeure” provision. Under such a provision, a contracting party is not liable for damages due to the delay or failure to perform under the contract because of an event that is beyond the party’s control.  Performance is excused until it becomes possible for the party to perform under the contract.

Force Majeure means “superior force” or “unavoidable accident.”  It applies when there are circumstances beyond a party’s control that excuses the party from performing, such as an extraordinary event like war, riot, crime, pandemic, etc. Most often, a “force majeure” event involves an “act of God” (i.e. flooding, earthquakes, or volcanoes) or the failure of third parties (such as suppliers and subcontractors) to perform their obligations to a contracting party. However, sometimes a contracting party will attempt to use the clause to extract themselves from a contract that has turned out to not be profitable for them.

A force majeure clause is not uncommon in contracts.  It concerns how the parties allocate risk and, in essence, frees the contracting parties from liability or obligation when an extraordinary event or circumstance beyond their control prevents at least one party from fulfilling their contractual obligations.  The event or circumstance must be one that the parties couldn’t have anticipated at the time the contract was entered into; the party seeking to remove themselves from the contract must not have caused the problem; and the event or circumstance makes it impossible or impractical to perform the contract.  

The wording of a force majeure clause is critical and should be negotiated by the contracting parties so that it applies equally to all parties to the contract. Often, it is helpful if the clause includes examples of acts that will excuse performance under the provision.

A contract may distinguish between “acts of God” and force majeure, and a contract may include an “act of God” clause rather than a force majeure clause.  Many contracts contain language specifying that if a particular event occurs, then no performance is required.  That type of language tends to deal with “acts of God.”  Again, it’s a matter of how the parties allocated risk. Perhaps the virus is such an event that is comparable to those that fall under the category of an “act of God.”

Conclusion

In the next post, I will start the journey through the “Top Ten” of 2020 in ag law and ag tax.

January 5, 2021 in Civil Liabilities, Contracts, Real Property | Permalink | Comments (0)

Sunday, December 27, 2020

Boundaries and Surveys – What Are the Rules?

Overview

Boundary issues are rather common in rural settings.  Often boundary disputes arise because a survey doesn’t match an existing fence line.  In that situation, what controls?  How is the actual legal property boundary determined?  There are numerous legal rules and doctrines that can come into play and a later, accurate survey may not actually determine the outcome.  Over 25 years ago, I participated in a the writing of a book involving Kansas agricultural law with the late James Wadley of Washburn Law School and Sam Brownback who would later become a member of the U.S. Congress and then the U.S. Senate followed by being elected to two terms as the Governor of Kansas.  Today’s article involves some of the concepts we discussed in that book.

Boundaries involving rural properties – it’s the topic of today’s post.

Old Fences

Landowners generally consider existing fences to be the partition (boundary) between adjacent properties.  But the law may view things differently.  The actual boundary is an imaginary line that can be found by examining the deeds to the adjacent properties.  An existing fence line is merely evidence of where the boundary line between the properties is located.  It is immaterial whether the fence is a permanent fence or not.

However, there may be situations where the fence line has become part of the property description over time as the land changed hands.  This is particularly true in the eastern third of the United States where a metes and bounds property description is used that describes the perimeter of the land.  In other parts of the country where the Government Survey System is utilized, an existing fence line may be treated by the adjoining landowners as the physical boundary between adjacent tracts.  In either of these situations, the fence line may be considered to be the legal property boundary. 

In most situations a parcel of land will be identified described by mapping out survey lines.  This can result in an existing fence not being on the precise surveyed boundary.  The fence may have been constructed off of the true legal boundary as a matter of convenience.  For example, if the true boundary crosses a stream or goes through thick brush, maintenance of the fence is made simpler if there is no stream crossing or brush to clear.  This does not present any issues when the fence is not intended to be the boundary line.  But, when a fence is an old fence that has been in its present location for quite some time and the adjacent owners treat the fence line as the boundary line irrespective of whether it actually is the true legal boundary, problems can arise.  In that situation, the issue is whether the fence line can be substituted for the actual legal boundary and, if so, how it can become the true boundary. 

Adverse Possession

The mere passage of time, by itself, does not cause a fence line to be substituted for the actual property boundary.  But, the manner in which the adjacent owners have used the property over time may cause the fence line to become fixed as the boundary with the legal effect of changing the boundary as described in the deed to the property.  Under the legal doctrine of adverse possession title can be acquired to property that one doesn’t actually own via the usage of the property for a prescribed amount of time (e.g., 15 years in Kansas).  The party attempting to acquire title via adverse possession must know that the property that they are using does not belong to them.  In other words, the party asserting the doctrine knows that the existing fence line is not on the property boundary and uses the additional property between the true boundary and the fence line as their own, adverse to the true owner. 

If the true boundary is not known, courts typically examine the intent of the party holding property beyond the true line (i.e., the party benefitting from the misplaced fence).  If the property is occupied by mere mistake and with no intent to claim land that does not belong to the person, the occupation of the property will not be considered to be adverse.  Alternatively, if the occupant takes possession of the property believing the land to be his or her own up to the mistaken line and claiming title to it, the possession will be considered adverse if the true owner knows of the possession and assertion of ownership and does nothing to prevent it for the statutory timeframe.

A boundary that changes via adverse possession is formalized by a “quiet title” action in court.

Settling Disputes

Most efforts to resolve fence problems on the basis of adverse possession fail because both parties believe the existing fence is the boundary and, therefore, neither party intends to claim any more than they are legally entitled to.  Thus, their occupation is usually not considered to be adverse, and the boundary dispute will have to be settled via other means.

Written agreement.  One way in which the parties may settle the boundary dispute is by executing a written agreement followed by the issuing of corrective deeds.  With this approach, the property descriptions of the adjoining tracts can be changed to reflect the fence line.  This may require the execution of one or more deeds from one party to the other to transfer the area being adjusted.

Memorandum of uncertain boundary.  Another manner in which a boundary dispute may be resolved is by the parties executing a memorandum of understanding designating the existing fence line as the boundary.  The memorandum can be recorded in the land records.  Once recorded it will bind the present and subsequent owners of the property and their successors.  But, for the memorandum to be enforceable, the boundary must be uncertain or in dispute.  The memorandum, known as a “parol agreement” is not subject to state statutes that govern conveyances of land.  Even so, the memorandum should accurately describe the land at issue, and the parties should sign it.  The adjacent landowners, as parties to the agreement, should then treat the agreed-upon line as the boundary between the tracts. 

Note: If prior owners had agreed to a boundary but didn’t reduce it to writing or record it on the land records, the boundary may be relocated in accordance with the prior agreement if it can be proved. 

Doctrine of practical location.  Also knows as “boundary by acquiescence,” the “doctrine of practical location” applies when the adjoining landowners don’t know where the true legal boundary between their tracts is and one party occupies to the fence line.  In Kansas, if the other party acquiesces in that occupation for 15 years, the result is that the existing fence will become the true boundary.  The parties could also reach an agreement that the existing fence line is the true boundary.  However, if the parties know that the fence is not on the true boundary but do know where the true boundary is, neither parol agreements nor boundary by acquiescence will be applicable.

Equitable exchange.  Some courts will grant an “equitable exchange.”  With an equitable exchange, one party is ordered to trade property on one side of the line for property that is on the other side.  For a court to grant such a remedy, it must be shown that the true location of the boundary will present an unusual hardship or some other circumstance that would cause a court to take action. 

Conflicting Surveys

If a boundary remains in dispute because of conflicting surveys, any boundaries and markers set by the first survey control in a conflict with a subsequent survey.  This is true even if there were errors in the original survey.  When a subsequent survey is done, the issue is where the original survey located the boundary lines.  In other words, the goal of a subsequent survey is to locate the lost boundary line.  The objective is not to dispute the location of the boundary.  This rule applies to both government and private surveys.  The reason for the rule is to protect the property rights of parties who have purchased, occupied and enjoyed the land in reliance on the original survey.  But, if the reason for the rule doesn’t exist and no one has taken action based on the incorrect survey, there is no need to apply the rule.  In that instance, if the original survey is inaccurate, it may be corrected with an accurate, new survey.

Note:  Unfortunately, the rule is often overlooked by subsequent surveyors who mistakenly believe that the line should be located in accordance with the most accurate survey possible. 

When a boundary dispute involves a disagreement between surveys, it is necessary to consider how the use of the land has been affected by the original survey’s location of the boundary.  If the fence was erected along the old but erroneous survey line, and the parties have actively farmed to the fence line, the fence should not be moved.  If the fence does not follow either the original survey or the later survey, the true boundary line may need to be designated.  Whether the fence will need to be moved as a result will depend on the application of the other principles and doctrines discussed above. 

Recent Case

A recent case from Iowa illustrates some of the principles that commonly arise in a boundary disputed involving agricultural land.  In Black v. Jorgensen, No. 19-1576, 2020 Iowa App. LEXIS 1161 (Iowa Ct. App. Dec. 16, 2020), the plaintiff sought to quiet title related to a disputed area where her land adjoined the defendant’s property. The disputed property consisted of 6.44 acres between the boundary of record east to the fence that had been maintained by the parties’ predecessors. The boundary of record was a government survey line that ran through a drainage ditch that was densely wooded and vegetated. The parties’ predecessors had built a fence fifty years prior on the east side of the ditch to keep cattle from going into the ditch.  The defendant built a new fence that ran partially along the government survey line, curved around the eastern embankment of the ditch, and ended on the south end of the survey line. Two acres of land fell between where the old fence allegedly ran and the defendant’s new fence. The other four and a half acres were between the new fence line and the government survey line in the ditch.

The plaintiff claimed ownership of the land between the survey line and the old fence built by the parties’ predecessors. The plaintiff argued she had obtained title to the disputed land by boundary by acquiescence, practical location, and adverse possession.

The trial court held that the plaintiff did not prove a boundary by acquiescence, practical location, or adverse possession. On appeal, the plaintiff argued the trial court erred in failing to quiet title in her favor. The appellate court held that the plaintiff failed to establish a boundary by acquiescence. The appellate court noted that neither the plaintiff  or the defendant, nor the parties’ predecessors had ever discussed that the old fence was the boundary line, and the predecessors considered the government survey line to be the boundary line. On the issue of boundary by practical location, the appellate court held that the plaintiff had failed to establish the boundary was disputed, indefinite, or uncertain. The appellate court noted that county plat maps and the legal descriptions of the land all indicated a straight-line border between the properties through the drainage ditch.

On the issue of adverse possession, the appellate court held that the plaintiff failed to establish that she had exercised hostile, open, exclusive, and continuous possession of the disputed area for at least ten years (the Iowa statutory timeframe). The appellate court noted that the parties rarely used the disputed area, and that it was mainly used for hunting by both parties. Therefore, the appellate court affirmed the trial court’s rejection of the plaintiff’s boundary claims and confirmed that the defendant owned the disputed area.

Conclusion

Boundary disputes are not uncommon when farm and ranch land is involved.  Numerous principles can come into play when determining the true boundary.  In rural settings, usage of adjoining properties may more commonly determine the boundary between properties than does a survey.  That last point can come as a surprise to many, including surveyors.

December 27, 2020 in Real Property | Permalink | Comments (0)

Thursday, November 12, 2020

Is it a Farm Lease Or Not? – And Why it Might Matter

Overview

In the agricultural sector, agreements other than leases are sometimes utilized which authorize a person to conduct farming operations on behalf of the landowner.  The status of that person can differ.  The person may be classified as a farm tenant or an employee or a cropper.  What are the differences and why does the classification matter?     

The classification of persons conducting farming operations for a farm landowner – it’s the topic of today’s post.

Status of a Person Conducting Farming Operations

Some farming and ranching operations utilize employees, while other operations hire a farm management company or an individual as an independent contractor with compensation based on a certain number of dollars per acre to prepare, plant, cultivate and harvest. Custom cutters provide combine crews that follow the harvest each year from Texas to Canada. Usually, those who hire custom cutters treat them as independent contractors from a legal perspective.

While the status of a tenant or independent contractor is usually clear, the status of a cropper is less clear. A cropper occupies a legal position somewhere between the status of a tenant and an employee or independent contractor. A person is likely to be a cropper and not a tenant when the landowner supplies land and all the inputs, controls the operation of the farm and pays a portion of the crop to the person who actually raises and harvests the crop.

A cropper, unlike a tenant who has a possessory interest in the leased premises and control over the farming operation, only has permission to be on the land. A cropper does not have any legally enforceable interest in the crops and has only a contract right to be compensated in-kind for the cropper’s labor. This has bearing on whether the farmer is entitled to statutory notice of lease termination under state law.  Under Iowa law, for example, a “cropper” is distinguished from a “tenant.”  The relevant statute defines a person as a cropper rather than a tenant if the landowner supplies the land and the inputs, controls the operation of the farm and pays a portion of the crop to the person raising and harvesting the crop.  In that situation, the farmer has no legally enforceable interest in the crop or land involved, only has a contract right for compensation in-kind for labor provided, and is basically an employee of the landowner (i.e., a wage earner) that is hired to produce a crop. See Henney v. Lambert, 237 Iowa 146, 21 N.W.2d 301 (1946). Therefore, because a cropper does not have any property right in the leased premises, the cropper is not entitled to statutory notice of termination - there is no interest to be terminated.  Instead, a cropper’s “lease” terminates upon harvest of the crop. 

As opposed to a cropper, a farmer operating under a crop-share arrangement with the landowner is a crop-share tenant and not a cropper.  Thus, the statutory notice of termination requirement applies.  For example, in Hoffman v. Estate of Siler, 306 S.W.3d 854 (Mo. Ct. App. 2010), the plaintiff was held to be a year-to-year tenant under an oral farm lease rather than a cropper.  As a result, he was entitled to a statutory 60-day notice of termination of tenancy.  The arrangement was determined to be a typical 50/50 crop-share arrangement. The plaintiff supplied his own farming equipment, made all of the farming decisions, performed unpaid maintenance, applied for government programs and dealt with conservation agents. 

When a question arises with respect to the status of the parties, courts attempt to determine the intent of the parties as evidenced by the terms of the written or oral contract, circumstances surrounding the agreement, the action of the parties and the type of farming operation. Typically, no single factor controls. Instead, an examination of all the factors is necessary in most situations to determine the status of the parties. Indeed, most courts do not find controlling the parties’ characterization of the arrangement. But if a landowner gives exclusive possession of a farm to another party, some courts have held that act to establish a landlord-tenant relationship. As for croppers, a court could find them to be employees instead of independent contractors under a state workers’ compensation law.

Recent Case

The issue of the legal status of a farmer was involved in a recent Arizona case.  In F.S.T. Farms Inc. v. Vanderwey, 2019 Ariz. App. Unpub. LEXIS 1430 (Ariz. Ct. App. 2019), the plaintiff farmed for the defendant. The defendant leased farmland from a company and the plaintiff would farm the land, and both would split the crops produced. The state condemned the land and reached a settlement with the company, causing the defendant to be unable to furnish the land to the plaintiff. Neither the plaintiff nor defendant was a party to the condemnation action, and neither received any part of the settlement.

The plaintiff sued, alleging breach of contract and breach of the implied covenant of good faith and fair dealing. At trial, the main point of contention was whether the sharecrop agreement was a lease giving the plaintiff a property interest or a cropper’s contract creating an employment-like relationship. The plaintiff argued the agreement was a lease entitling him to one-half of the amount allocated to crop loss in settling the condemnation matter – approximately $500,000. While the defendant admitted contractual liability, he argued the agreement was a cropper’s contract, therefore the plaintiff’s damages should be limited to its lost profits totaling $10,000. The trial court jury found the agreement was a cropper’s contract and awarded the plaintiff damages of $207,214.40, equivalent to one-fifth of the settlement allocation.

On appeal, the defendant argued that the jury’s conclusion that the sharecropper agreement was a cropper’s contract necessarily limited the plaintiff’s recovery to $10,000. The appellate court held that as a matter of contract law, the plaintiff’s recovery was limited to the $10,000 in lost profits. The appellate court noted that the agreement provided that the parties would share all crops produced on the property and income received on account of growing and sale of crops from the property, and that while both parties were aware of the condemnation action, neither received any income from the settlement. The appellate court held that contract damages are intended to compensate for what the claimant lost because of the other party’s non-performance, and additional recovery is only available in exceptional circumstances, which were not present in this case. On remand, the trial court must determine the amount of damages on the plaintiff’s claims for breach of contract and breach of the implied covenant of good faith and fair dealing.

Conclusion

It is important that parties to a farming arrangement clearly understand the legal nature of the relationship and the legal implications that flow from that relationship.  Disappointed expectations can lead to litigation, and that’s what farmers and others in rural areas desire to avoid.  

November 12, 2020 in Contracts, Real Property | Permalink | Comments (0)