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Tax Planning.

Pay Now and Play Later and The Wimpy Doctrine.

In most years, a  tax estimate prepared prior to the end of the year is a valuable tool to allow operators to make decisions on end of year purchases to manage what income tax bracket the operator falls into .

This year, with the looming expiration of decades long tax rates and a return of higher rates, the estimate may take on extra significance, as deciding to trigger income in 2012 may net savings in a lower tax rate than taking the income in 2013. As the law stands today, tax brackets are going to be compressed (meaning more people pay higher rates) and the higher rates are higher than current rates. Additionally, capital gains rates move upward, dividend rates expire, and married tax payers will once again, be penalized in the form of a lower standard deduction than if the tax payers where single and the child tax credit is slashed in half. And finally, section 179, which allowed accelerated expensing of machinery and sheds over the last  years, looks to be limited in the future.

Pay Now and Play Later:

Many farm operators spend money at the end of the year on prepaid expenses as a way to adjust income. Interest cannot be prepaid past what is due and rent prepayments are limited to 12 months.  In order to pass the smell test regarding expenses from the IRS, farm operators would do well to remember the following guide posts:

1.       Terms. Price, quantity and grade without refund or sale back options must be included in the purchase. No throwing money “on the books” to be applied to whatever expenses come up in the future.

2.       Valid, non tax reason, for purchase. Farm operators should document the incentive to prepay (like better price or  concerns regarding specific quantities not being available at a later date (think seed numbers)).

3.       No giant swing in income.  Purchasing a limestone quarry and then attempting to expense it all off as fertilizer expense is distorting. Purchasing a pile of lime to apply with in the next 12 months is likely not.

4.       Only Half. Prepaid expenses should only be about 50%  of non prepaid expense. Operators can look at the last three years in total to show the 50% test is met.

5.       Proof and Payment. Keeping the written offer regarding prepay discounts are a great idea. Additionally, payment by credit card is fine, but offering a check to the supplier and asking them to hold it upon receipt or postdating a check is not acceptable. Likewise, offering a check on an overdrawn account (unless backed by a line of credit) is not a legitimate prepay. Borrowed funds are also okay, as long as the seller is not providing direct financing.  Be ware of wholly owned subsidiaries of the input supplier offering financing as it may knock  the operator out of the benefit they are seeking to maximize.

 

Do you have that in Writing

In each of these cases reviewed below, having it in writing was central to the case. Sometimes a writing is good enough and some times it isn't worth the paper it is printed on. Stopping to think about whether or not a "handshake" will hold up in a dispute is worth the time and effort it takes.

Collect the data or don't collect the reward

Using grid soil sampling and yield monitoring is the industry standard for modern farming. Consider all the ways you can establish your yield. Monitors, weigh wagons, grain warehouse receipts, scale tickets. A farmer filed suit against a Cooperative for impaired crop due to lack of proper spraying. The farmer had no yield records to support his claim. This farmer apparently had no records to support his yield claim and yet demanded compensation. It is a true stretch in those cases to get anywhere. The farmer learned that the hard way. The lesson is to invest in your operation and ensure you have accurate data, especially if you think you are going to have a loss based on some one else's misconduct.

Sometimes, a handshake agreement just leads to being slapped. An older farmer agreed to help a young farmer with access to land and equipment. The older farmer allowed the young farmer to trade the older equipment off on newer equipment. Nothing was documented or written down. The relationship went south and the young farmer left with all of the shiny new equipment. The older farmer sued for theft of the equipment. The court found that ownership wasn't clearly proven and the young farmer retained ownership of the equipment. 
 

According to the US National Intelligence Office, by 2030 (that’s not that far away) the world is projected to be urban, dangerous, and not dominated by American interests.  United States, European, and Japanese global incomes (currently at 56% of the world's income) will fall to less than ½ while China, India, Russia and Brazil will grab increased income opportunities.  Where income is generated is where the power is generated as well.

Further, the report goes on to indicate that of the projected 8.3 billion people, sixty percent will live in urban areas.  By comparison, in 1950, only 30% of the world lived in urban areas. Urban areas, especially those bounded by geographical restraints like water and international boundaries, have entrenched criminal networks, insider power struggles, and sanitation and health issues. Who wants to live there? Instead the areas away from the urban areas will grow, as cheaper housing and land will bring residents and manufacturing. This will put further pressure on the areas that are still available to grow crops to produce.  In addition, all those folks are going to consume water.  Demand is expected to increase by 40%.

Ag is highly dependent upon access to water and fertilizer, which is an energy intensive resource.  How does the American Ag sector ensure access to energy to create fertilizer and not limit access to water by diverting water for urban use or regulating ourselves out of access to the water?

California Proposition 2 enacted Jan 1 abolishes confinement crates for veal and hogs and laying cages for hens.  Their compatriots on the left coast in Washington and Oregon (along with Michigan and Ohio) are considering similar laws. New Jersey’s governor vetoed a similar law in November. This impacts Iowa, just not California. Iowa is the number one producer of eggs, selling about 40 million eggs per day out of state.  Iowa brought a law suit against California asserting that the  California laws violate the federal constitution by favoring instate producers who have to meet the requirement over out of state producers who do not. Iowa lost at the trial court level but has filed an appeal. Starbucks, Burger King and Whole Foods have pledged to not buy eggs from caged laying hens. Combined, the response from the industry is telling. Egg producers have to put fewer hens per cage or reconfigure existing house. Projections are that egg prices will rise 10%-40% as result of this and avian flu issues in Canadian and Mexican flocks.  The hog industry will have similar long term impacts, with several producer groups already moving away from gestation crates.

The implication is clear, social legation and not science based legislation is gaining a foothold in the statehouses of the Union. The hallowed reverence for the farmer is fading, as less than 2% of the population is connected directly to an active Ag operation. The stereotypes of bib overalls,   hand milking cows and putting along on a narrow front tractor with a six foot disk are fading. The question is what is the new stereotype of the farmer? When urban dwellers think of farmers they will either see technology using stewards of animal and natural resources who are vested in their product or they will see miles of confinement pig barns, piles of manure and endless rows of grain crops with no human connection.  When one of these bills come up, who with the legislator think about when casting the vote?  Some commentators believe the only reason New Jersey vetoed the legislation is because of the governors concern of his own presidential run, which of course, runs through Iowa.

Tuesday, September 17, 2019
  • Patrick B. Dillon
  • Jill Dillon
Dillon Law PC
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.
Dillon Law PC
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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