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 Tax Policy Implications Run Far Deeper Than a Temporary Reprieve

I am reluctant to write about the pending attempt to change the tax code. I haven’t even signed up for the annual tax school update, because I am certain information presented in November will be stale by December with the way things are moving in the federal landscape.

However, some larger, broad brush policy strokes are clearly being established, and regardless of five or seven tax brackets, the implications to the rural portion of the country are beginning to be seen. Of course, the 70 million Americans who don’t make enough to pay taxes, or the 1/3 of those who technically should pay but have enough exemptions to not actually pay, are not impacted at all by these proposed changes.

First, what everybody is asking about, rates. The proposed tax rates from the House:

12%: $0 - $45,000 for individuals ($90,000 for married taxpayers)

25%: $45,001 - $200,000 for individuals ($260,000 for married taxpayers)

35%: $200,001 - $500,000 for individuals ($1 million for married taxpayers)

39.6%: $500,001+ for individuals ($1,000,001+ for married taxpayers)

Under this plan, by the year 2027, 31% of the “middle class” will be paying higher actual taxes than under the current law due to roll backs.

The Senate brackets start at 10% and move six times, up to 38.5%.  Both house and senate plans eliminate, or limit, deductions for mortgage interest, state and local taxes paid, property taxes, retirement savings, personal deduction credit, educator expense, AMT, and alimony. The house does away with student loan interest deductions.

Most likely, the senate’s tax plan impact is a 10% reduction for those under $30,000 in income, those under $70,000 would see about a 7.15% cut in the first year, but with the loss of deductions, taxes actually go up for people earning less than $200,000.

Specific thoughts:

First, the Estate Tax “repeal”, or its sexier name, the “Death Tax”. Current suggestions would raise the death tax bar from the “low” $5.49 million dollars of property that EACH PERSON can transfer during life or death before paying 40% tax to $10 million per person. That would be about 2000 acres at $10,000 per acre (with no debt against it). “Step up” in basis would be allowed for property held at death despite rumors that it was on the chopping block. Yes, when the thresholds for estate tax were traumatically lower, people were impacted and hard choices to stay or farm had to be made. I personally find the idea of a death tax offensive and socialist. However, many, many more people will have capital gains issues. Heirs selling newly inherited property, and putting that capital to use in projects they understand and are passionate about is good. Heirs who are tax adverse and hang on to property because they don’t want to pay taxes rarely invest in the land or the local community. That is bad. Those heirs, as a generality, do not care about beginning farmers, 4H fund raisers, or continuing any one specific person’s farm operations. They are, rightly so, focused on a return on their asset. The retention under the plan of step up in basis is a far bigger deal than the elimination of the estate tax. With the retention of 1031 tax free exchanges, which were also in doubt of continued authorization, this plan means that farm real estate transactions may continue as we have come to see them in recent years.

Second, the proposals do little to impact those who earn less than $260,000 of taxable income. Many farm operations have a large gross income but have taxable income less than that number. If you make more than that through actual work and not rental or passive income, the tax adjustments are a negative. The cuts are largely available to those who do not need to work to provide cash. Those who make money through S Corp holdings and real estate partnerships will be better off than those who earn similar money via work like CPAs, counselors, dentists and  yes, lawyers.

Third, the deduction for medical expenses would be eliminated, as have the deductions for student loan interest, tax prep expenses, moving expenses, unreimbursed employee expenses, and alimony. That is concerning, as many older land owners look to a contract sale to move the farm into the hands of the next generation. As they realize the capital gains, they have increasing medical expenses in the form of nursing home or hospital bills to offset the tax.  Student loans are quite expensive and are supposed to be taken to invest in higher paying jobs and further career advancements. Loan rates set by the government, which are now also not deductible, when determining taxes to pay to the government, looks like a nice continued source of taxation. Currently, each dollar of income is reduced by each dollar of interest paid for student loans until a substantial income threshold is met. The removal of this deduction is a wet blanket on higher education loans, which may not be a bad thing.  Free access to government loans without a thought on pay back prospects needs to be curtailed. Four year degrees costing $100,000 in leisure studies seems like a long shot to get a return salary commensurate with the education investment.

Fourth, earned income tax credit (EITC) stays. As a tax preparer, it has been a source of frustration to jump through the hoops to ensure those who are entitled to it can claim it, because of the fraud associated with the program. It also skews towards rewarding partial, but not full employment, and off the books work to keep income reporting artificially low. I am not a fan of the EITC and wish it would have gone on the chopping block. It almost has a “buying low income votes” feel to it, and I doubt it will ever be eliminated.

Fifth, under the proposal, businesses conducted as sole proprietorships, partnerships, and S corporations would be taxed at a rate of 25%. However, businesses that offer "professional services", read doctors, lawyers, and accountants who don’t work for large companies don’t get this break. Other business owners can choose to categorize 70% of their income as wages (and pay the individual tax rate) and 30% as business income (taxable at 25%) OR fix the ratio of wage income to business income based on capital investment. Corporations that pay tax on profits (c corporation) at the corporate level drops to 20%.

Finally, plans increase the ability to expense equipment purchases instead of slowly depreciating them over the time of their expected useful life. Some farm operators who have a strong desire to not pay tax use new equipment purchases with immediate expensing to erase profit. They run into trouble in future years when the payments are due and the profits are shrinking. The payments are made with dollars that are profit, and not associated with the expense, as the expense was already consumed in a prior year.

For illustration purposes, imagine a widower with social security and just enough farm ground (288 acres tillable $2.88 million valuation) to cover her current nursing home expenses, with rental income at $250 per acre. She has a daughter who would like to own the farm, as she rents it currently.  It’s a fact pattern that is, plus or minus an annuity payment, is fairly common.  We will compare her facts to the policy implications of what is being proposed in Washington.

Our widower likely doesn’t have an estate tax problem. If her daughter has a viable wife and husband operation with an equipment line of $3 million dollars (which is easier to accumulate) and 1500 acres free and clear, she would be flirting with the new proposed cap for estate taxes. Using discounted gifting tactics can stretch that cap a ways past the $20 million mark.

The widower in our example would lose a substantial deduction and begin to pay on her income with the elimination of medical payments as an expense deduction. This will make her less likely to sell the property on contract as she will pay capital gains tax on the sale with no corresponding deduction like she would have under the current system. This deduction loss will not be offset by the increase in standard deductions, as medical expenses for nursing care are well above $50,000 per year in most locations.

All of this is, of course, subject to change. The concern is that the passive investors (or idle rich if you will) are receiving a break on income generation and on the death tax, while those who work continue to pay into the system.

 

Farming is complex, and it makes sense that the plan to move it to the next operator, whether they are family or not, is going to be complex as well. “Dying well” is hard to do, even in a non-farming context, when you must also balance competing interests between your children who may all want your stuff.

We recommend that a complex plan with business interests, also intertwined with family concerns, be an open plan. If the plan is open knowledge, then the children and business partner children can make plans for the future.

Having disclosures in place for who can understand the plan and look at it can yield beneficial results to your family for generations.

Consider the difference between:

A:   A farming daughter who keeps a war chest of cash and liquid assets on hand to buy out her siblings when mom and dad die because she has no idea what the plan is post death for the acres she currently crop shares with her parents. 

B:   A farming son who knows he has a buy/sell agreement, and a first right of rents on ground that he and his non-farming sibling are both part beneficiaries on.

A forty-acre tract lies between these two operations. At auction, which operation is likely to expand, take risks, and grow, and which one is likely to continue to mold?

An office practice that has been beneficial is to bring the clients and children in (no in laws) for a “work through” of the parents established estate plans. The children get some idea now of what the plan is and it cuts against undue influence concerns when the client is still alive and confirming the plan.

A Warm Hand Now or a Cold Hand from the Grave.

What makes sense from a planning stand point may not make sense on a grander scale. Giving in contemplation of death or decline with the grim reaper on the door step is not a great plan. Giving away well in advance can be part of a well-organized estate plan.

Gifts are tricky to accomplish effectively. They are required to be made at a point when the client is willing to let go of the asset and the control associated with it.  Most people hang on to assets well past when it is appropriate to consider giving them away.

Some of the considerations that should be contemplated before enacting a gift plan are:

*        Impact on Medicaid eligibility.

*        Realistic fair market value.

*        Encumbrances against property.

*        Impact on basis. Retained basis.

*        Expected value increases.

*        Capital gains: $250,000 exclusion for a single person ($500,000 for married couple) for primary principle residence.

*        Gift tax.

*        Intent of recipient, and is that recipient reliable.

*        Family impact.

*        Loss of control. A gift is a gift.

Estate planning for a farm operation can be difficult to discuss with loved ones; however, they will be thankful you did as it will be one less burden your family will have to deal with after you are gone. If you are ready to plan for your future, and your family’s future, set up an appointment today to discuss how we can help you make this process easier.

 

 

Look Before You Leap

In the last several months, the Iowa Court of Appeals has issued opinions that reinforce a common-sense sentiment; look before you leap.  In two separate cases, adjoining landowners engaged earth movers and heavy construction operators to build roads, but failed to get a survey to determine what ground they actually owned, thus failing to build the road on their own land.

In one matter, the road moving party is facing nearly $20,000 of cost to move the road back onto the property that the party owns and off of his neighbors. That figure doesn’t include the cost of installing the road, the subsequent law suit, or the appeal.  In the other matter, the court awarded triple damages for the removal of trees belonging to the adjoining property owner, and the cost of restoring her property to the condition it was in prior to the encroaching road. In both matters, the cost of a survey would have been 10% or less of the cost these road builders ultimately paid.

Dicamba and its continued use.

Dicamba is a chemical that is used to attack weeds resistant to the popular herbicide glyphosate (known by its trade name Roundup). Dicamba has been the source of widespread crop damage this summer, as it was sprayed incorrectly or applied with unintended results. Resistant weeds are becoming more of a production problem for crop farming enterprises. These resistant weeds can mean more passes across the field to control weed growth, which cuts into already tightening margins for operators.

The EPA is moving to allow farmers to spray dicamba next year, but with additional rules for its use. Reuben Baris, acting chief for the herbicide branch of the Environmental Protection Agency’s (EPA) Office of Pesticide Programs, said the agency had not yet determined what steps it would take to address these problems.

Baris commented that the EPA is in negotiations with Monsanto and BASF (which sell dicamba) to make changes regarding how they are used.

It appears that the EPA will look to state regulators to help create a responsible application requirement. States have taken a broad range of actions, including contemplation of placing the chemical on a “do not spray” list for the coming years.

Iowa Citizens for Community Improvement Back Door Attempt to Stunt Livestock Industry Defeated.

ICCI, long known for being anti-production agriculture, submitted a petition to the Iowa Environmental Protection Commission to make the installation of additional livestock facilities very difficult, if not impossible. The group submitted the petition after getting themselves on county level board of supervisor’s agendas in an attempt to get the local boards to endorse their petition.

The proposal would have increased the setback distances, given higher credit for pollution control, and increased the amount of compliance required to obtain a construction permit. The Iowa DNR, who administers the program, was against the petition’s demands.

 

 

Wont Crack: California’s Egg Sales Law Stands Up to First Attack.

The U.S. Supreme Court declined to review a challenge to California’s egg sale law that was filed by several states, including Iowa. The complaint comes against the law’s requirement that egg producers in Iowa have to modify their operations and increase costs to sell eggs in California under its state law. The Supreme Court didn’t decide the merits, but simply decided the State did not have the “standing” or legal status, to challenge the law. Iowa is a top egg producer and this is not good for other forms of ag either, as California is a large consumer of ag products and subject to ballot measures that groups can use to quickly change state law.

Snakes in the Mail:  Reptile Keepers Win Against FWS Ban on Giant Snake Trade.

The Lacey Act bans “any shipment” of injurious species (which not surprisingly includes Giant Snakes) “between the continental United States, the District of Columbia, Hawaii, the Commonwealth of Puerto Rico, or any possession of the United States.” The U.S. Fish and Wildlife Service interpreted the shipment clause to ban transport between the 49 continental states as well.

The United States Association of Reptile Keepers (ARK) challenged the rule, arguing language of “between” covers only shipments between the listed jurisdictions and the continental United States. The district court found the law does not bar shipments between the 49 continental states.  Look for the next Amazon Prime day for a special on King Cobras with free shipping.

No Dolphins Hurt, Only Pocket Books. Bumblebee Tuna Will Plead Guilty to Price Fixing Charges.

Bumble Bee Foods has agreed to plead guilty to federal charges of price fixing. Bumblebee Tuna, Chicken of the Sea, and StarKist agreed to fix the prices of shelf stable tuna fish from 2011-2013. In addition to pleading guilty, Bumble Bee has also agreed to pay a $25 million criminal fine. Two of Bumble Bee senior vice president have also pled guilty to fixing prices.  Walmart, and several other retailers, have filed civil suits against the tuna companies, alleging that the price fixing has been a long-lasting conspiracy.

Out of Water: EPA & U.S. Army Corps of Engineers Move Away Expansive Water Jurisdiction.

The Environmental Protection Agency, Department of Army, and Army Corps of Engineers are proposing a rule to rescind the Clean Water Rule and move back to the regulations that existed prior to 2015 defining “waters of the United States” or WOTUS. This will hopefully, shrink the EPA’s jurisdiction as well as the Corps of Engineers.

Montana Beef Producers Rustle Up a Stay of the Beef Check Off Program.

The Federal District of Montana confirmed a lower court ruling that the USDA beef checkoff program violates the First Amendment rights of the state’s cattle ranchers.  The ruling is a noteworthy development as the check offs are widely considered government speech. I still enjoy the “BEEF: Its what’s for dinner” ad campaign that the check off funded, and the “Support Beef: Run over chicken” bumper sticker, though I am not sure that was check off dollar supported.

After Years of Fighting Against COOL, Now Farmers are Suing to Implement it.

A suit against the USDA alleged that country-of-origin labeling (COOL) regulations are harming farmers and misleading consumers. The farmers claimed that not having COOL “reinstated regulations that reclassify imported beef and pork as domestic goods, enabling that meat to be passed off as a United States product.” 

Incomplete Job: Dakota Access Pipeline Needs New Environmental Impact Assessment.

In June, the Federal Court for the District of Columbia found that the US Army Corps of Engineers did not consider the impacts of an oil spill on fishing rights, hunting rights, or environmental justice for the Dakota Access Pipeline process. The Corps will have to reconsider those sections of its environmental analysis. However, the court also declined to stop the pipeline’s operation and indicated that it is an issue for another day. Classic example of both sides being able to claim a victory from one ruling.

Silence is Consent: Court Considers Actual Production History (APH) Yield Exclusion 

A group of winter wheat farmers challenged how federal crop applied the Actual Production History (APH) Yield Exclusion to their crop insurance claims.. The court found that Congress addressed other crops specific application/implementation language but did not for winter wheat. This indicates an intention to allow the existing law to be applicable. 

Monsanto Not Responsible for Off Label Use of Dicamba by Farmers.

A claim was made in court that Monsanto should foresee the illegal use of dicamba and be held responsible for those who are injured by a farmer’s off label use. However, because of the use of warning labels placed on the seed products, the claim was rejected. Monsanto included warning labels, providing notice to farmers that the spraying of dicamba on GE crops would be in violation of state and federal law. So yeah, labels will still be a thing for a long time.

In other dicamba litigation, a group of Arkansas farmers allege that Monsanto’s and BASF’s “negligent control, development, and distribution of the dicamba crop system . . . proximately caused significant and material injury and damage to Plaintiffs’ crops in 2016.” The lawsuit states that farmers who did not plant dicamba-resistant seeds had no way of protecting themselves, and have been victimized by Monsanto’s and BASF’s conduct. The case is pending.

Data Dump Costs the EPA: Farm Groups and EPA Reach Privacy Settlement Regarding Agricultural Data

The American Farm Bureau reached a settlement regarding violation of the Freedom of Information Act brought by AFB and the National Pork Producers Council against the EPA. The litigation started after EPA released spreadsheets containing personal information about farmers and ranchers in 29 states who raise livestock and poultry. In some cases this included the names of farmers, ranchers, other family members, home addresses, email addresses, GPS coordinates and telephone numbers.

 

 

Saturday, December 16, 2017
  • Patrick B. Dillon
  • Jill Dillon
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Patrick B. Dillon enjoys finding solutions to legal issues and catching problems for clients. Pat practices in the Sumner office regularly represents clients in district, associate district and magistrate courts for agricultural, real estate, criminal and collection issues. He drafts wills and trusts, creates estate plans and helps clients through the probate process.
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Jill Dillon focuses on family law, estate planning and IRS matters. Jill is a University of Northern Iowa undergraduate (Political Science Cum Laude) and a Drake University Law School graduate. Jill spent extensive time advocating for low income tax payers in front of the IRS and the State of Iowa Department of Revenue while at Drake.

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