Annotations 03/2010

(case involves gate placed by defendant across roadway on plaintiff’s property; road determined to be private road rather than county road and defendant’s action improper).


(plaintiff, operator of registered Angus cattle breeding ranch located near commercial gravel pit, challenge defendant's decision to grant special use permit for operation of the gravel pit; court upholds trial court's decision overturning defendant's grant of permit - operation of gravel pit not prescribed use within county zoning ordinance and, therefore, cannot be subject of special use permit; operation of gravel pit not a conditional use under the county zoning ordinance). 


(case involves descendant's petition to quiet title to wild, formerly strip-mined land adjacent to farmland acquired from ancestors via claim of adverse possession through recreational use of subject area; appellate court reinstated jury verdict in favor of plaintiffs; court reverses appellate opinion and reinstates JNOV in favor of record owners because plaintiffs failed to sufficiently define and mark boundary of their claim and recreational use not adequate to establish adverse possession).


(plaintiff's use of property found to be agricultural and not residential for purposes of ad valorem real property taxation). 


(party entitled to attorney fees and costs related to dissolving wrongfully issued injunction in boundary dispute matter; preliminary restraining order prohibiting movement of common fence was not necessary and was wrongful). 


(recreational use not sufficient to establish adverse possession of another's land under either common law or statutory law and petitioners failed to prove "well defined boundary" element of claim). 


(energy service company must pay sales tax on natural gas delivery charges; tax is imposed on transfer of title to ultimate user of natural gas and is imposed on delivery service if transport and sale done by different parties).


(taxpayer not eligible for long-term homeowner tax credit because home purchased before Nov. 7, 2009).


(pickup pulling livestock trailer transporting cattle while enroute to livestock auction exempt from state law requirement to display license plate because trailer was "farm machinery" as defined by the statute - Sec. 4501.01(U) of Ohio Rev. Code).


(letter between secured creditor of bankrupt debtor and buyer of secured crop under which lender agreed to subordinate lien on crop proceeds to allow crop buyer to pay crop harvester and seed supplier out of crop proceeds with balance of proceeds to be paid to lender constitutes enforceable contract; letter satisfies requirements of enforceable contract and crop buyer breached obligation by failing to remit net harvest proceeds to secured creditor as promised). 


(nuisance case against dairy alleging manure run-off from dairy onto plaintiff's property; dairy properly established affirmative defenses under state right-to-farm law, and right-to-farm law also precludes trespass action). 


(court rejects Tyson’s various motions for summary judgment and to decertify several classes of workers in multidistrict doffing and donning case involving doffing and donning of hair nets, goggles and other gear; Tyson had common practice of compensating workers by mastercard method; trial set for August 2010).


(defendant’s motion to dismiss granted against plaintiff’s claim that defendant violated Clean Water Act and state Water Control Law by discharging pollutants without a permit onto plaintiff’s property via defendant’s stormwater retention basin discharge point; plaintiff failed to establish that defendant was required, under either state or federal law, to get a discharge permit). 


(case involves plaintiff's appeal from the state's denial of the plaintiff's application for funds to cover costs incurred in acquiring farm property, with the intention to preserve a portion as farmland; plaintiff claims that state's decision was arbitrary, capricious and unreasonable and that state should be equitably estopped from denying funding; state's decision affirmed).


(plaintiff planted sunflowers and sprayed them, post-emergent, with tank mix of chemicals that defendant manufactured; on various motions for summary judgment, court grants summary judgment on plaintiff's products liability, negligence, failure to warn, breach of implied warranties, and statutory violation claims, but denies summary judgment on plaintiff's breach of express warranties claim).


(gifts of LLC interests by couple to children failed to qualify as present interest annual exclusion gifts because the LLC interests remained subject to substantial restrictions in the hands of the donee children).


(on certified question, court holds that 1905 state law giving water to the Klamath Irrigation Project does not give farmers a property interest in the federally owned water, but does not preclude it either; water rights cannot be separated from ownership of adjacent land; case now sent to U.S. Court of Appeals for Federal Circuit to decide whether farmers have a property right to the water and, if so, the value of the right).


(gifts of LLC interests by couple to children failed to qualify as present interest annual exclusion gifts because the LLC interests remained subject to substantial restrictions in the hands of the donee children). 


(milk and other dairy products produced by plaintiffs at their dairy farm subject to regulation by state department of agriculture; permit required if dairy products made available to consumers irrespective of whether such products were sold to consumers). 


(defendant's affirmance of order of Department of Environmental Protection approving issuance of permits to wind power station developer affirmed; defendant's finding that developer met applicable licensing criteria with respect to sound level limits, impact on public health and impact on wildlife habitats supported by substantial evidence; ME Wind Power Act is constitutional as it is rationally related to a legitimate state interest in facilitating the rapid development of alternative, renewable energy sources). 


(references to God on U.S. money and in the Pledge of Allegiance are constitutional). 


(plaintiff not engaged in agricultural activities on subject property and is, therefore, not exempt from township's residential zoning restrictions).


(plaintiff, landlord of farm property and house on property, entitled to award for damages to leased property by defendant (tenant) caused by defendant's dogs and horses; written lease created specific duty of care owed by tenant to maintain the property and that any repairs or replacements had to be to the satisfaction of the plaintiff).


(court upholds trial court's order reforming warranty deed in which mineral rights were reserved. but reversed on attorney fee award).


(court upholds trial court's award of $190,000 to defendant, landowner who had two tracts of land condemned for road project; trial court did not abuse its discretion in admitting into evidence sale of other farmland as a comparable sale). 


(plaintiff, environmental group, has standing to challenge defendants discharge of selenium in high concentration into subject waters in violation of applicable effluent limitations of state and federal law).


(petitioner must report in 2006 income amount of check received in 2006, but which was not cashed until 2007; check not subject to substantial restriction and petitioner failed to establish existence of agreement not to cash check until later year). 


(married couple did not qualify for long-term homeowner credit; wife did not reside in current home for five consecutive years in eight year period preceding purchase). 


(plaintiff, owner of patented strain of herbicide-resistant soy, cannot collect royalties on soy meal imported from Argentina and used for animal feed; while soy meal contains residue of plaintiff's patented gene, it is no longer being used (post-harvest) for patented purpose of resisting pesticides; DNA that simply exists is not patentable under European Union biotech directive and for a patent to be enforceable, the genetic information must be "performing the functions described in the patent"). 


(defendant, Amish, has a religious right to be exempt from state Livestock Premises Registration Law (law which requires anyone who keeps, houses or co-mingles livestock to register their premises with the state); the provision of names and addresses of buyers of livestock at time of purchase sufficient for plaintiff to track down animals in event of disease outbreak). 


(premarital agreement valid and enforceable and resulted in each spouse waiving any interest in property owned by the other spouse on the date of the marriage, but did not defeat surviving spouse's claim to property acquired after date of marriage). 


(plaintiff, a poultry processing company, filed claim against defendant insurer under plaintiff's property and business interruption policy with defendant; plaintiff claimed $154,984 of covered business expenses (fixed labor and overhead costs), and $29,989 in personal property losses (dead chickens) caused by ice storm which caused a break in electrical service to plaintiff's plant; court determined that fixed expenses were within a policy exclusion for costs that normally would have been incurred in conducting the business during the same period had the direct physical loss or damage not occurred; in addition, court determined that exclusion for "animals" included dead chickens).


(taxpayer, agricultural marketing cooperative, and payments made to members for grain pursuant to marketing agreements constituted PURPIMs within meaning of I.R.C. Sec. 1382(b)(3); for purposes of computing cooperative's I.R.C. Sec. 199 deduction, cooperative's QPAI and taxable income to be computed without regard to any deduction for such payments to members for grain pursuant to marketing agreements). 


(case involves creditor's motion for relief from automatic stay to recover over 3,000 tons of corn silage from debtor over lender's objection that lender has priority via blanket lien; creditor did not take steps to become a buyer in the ordinary course; motion for relief denied).


(adverse possession case involving application of state's "fence-out" rule; issues require factual development and trial court's award of summary judgment reversed and case remanded). 


(petitioner, employee of Merrill Lynch sued the company and received a $393,000 settlement ($120,000 of which was paid to petitioner's lawyer); petitioner deducted lawyer fees as Schedule C deduction for new investment advisory business that petitioner established, but court determined that lawyer fees were incurred by petitioner as employee rather than as independent contractor; thus, fees are deductible on Schedule A where they were limited). 


(taxpayer, farmer's cooperative, may treat payments made for grain to members as PURPIMs for purposes of computing the taxpayer's I.R.C. Sec. 199 deduction; taxpayer's QPAI and taxable income to be computed without regard to any deduction for such payments). 


(attorneys who provide bankruptcy assistance are "debt relief agencies" under BAPCPA (11 U.S.C. Sec. 101(12A)).


(court's earlier decision that plaintiff entitled to implied roadway easement over defendant's property and that defendant entitled to maintain locked gate across roadway if plaintiff advised of lock's combination vacated; on remand, lower court to determine facts relevant to inconvenience that gate will cause plaintiff and facts relevant to defendant's justification for the gate and whether gate unreasonably interferes with plaintiff's use of easement).


(plaintiffs claim rejected that its reservation still exists and has the same boundaries as Osage County, Oklahoma; court held that the reservation had been disestablished by the Congress under the Osage Allotment Act of 1906; plaintiffs sought reservation status so as to regulate and tax business operations in the county). 


(plaintiff's land held to not qualify for preferential tax assessment under the PA Farmland and Forest Land Assessment Act of 1974 (i.e., Clean and Green Act) because the land at issue did not meet the 10-acre requirement and did not produce at least $2,000 in annual income from products). Annotation


(inherited IRA, unlike traditional IRA, is not an exempt asset in bankruptcy because account funds not “retirement funds” in hands of person who inherits the funds and because funds not exempt from tax under I.R.C. Sec. 408; likely that inherited plan assets would be treated likewise and court’s opinion follows Robertson v. Deeb and RBC Wealth Management, 16 So. 3d 936 (Fla. Ct. App. 2009)(state law exemption for IRA account funds inapplicable to inherited IRAs), but is contrary to In re Nessa, No. BKY 09-60081, 2010 Bankr. LEXIS 40 (Bankr. D. Min. Jan. 11, 2010)(inherited IRA protected from debtor’s creditors under federal exempt property scheme) – Note:  the easy way to avoid the uncertainty surrounding the differing outcomes on this issue is to name a trust as beneficiary of the proceeds with spendthrift language limiting the owner’s power over the trust assets). 


(plaintiff, seller of perishable commodities, sued under PACA to recover amounts owed for produce sold to bankrupt produce distributor; defendant is finance company that provided working capital to bankrupt produce company; plaintiff seeks recovery of accounts receivable held by defendant as collateral; accounts receivable held to be part of PACA trust which had to be used to pay unpaid cash sellers before other creditors). 


(trust was beneficiary of IRA but did not have designated beneficiary and trustee pursued reformation action in state court to modify trust so that beneficiary designated and, thus, payout from IRA could be spread and tax deferred over lifetime of designated beneficiary; IRS ruled that retroactive modification would not be respected for federal tax purposes because there is no provision in the I.R.C. authorizing reformation that would qualify a trust as having a designated beneficiary). 


(grain payments paid by farmers' cooperative are PURPIMs within meaning of I.R.C. Sec. 1382(b); for purposes of computing cooperative's I.R.C. Sec. 199 deduction, cooperative's QPAI and taxable income should be computed without regard to any deduction for grain payments to members).


(IRS announcement that it agrees that medical students are not subject to FICA tax due to the student exception; applicable for tax periods ending before April 1, 2005 (effective date of current IRS regulations on the matter)). 


(CRS notes that a Congressional increase in the renewable fuel standard would increase corn-based ethanol production, which would, in turn, negatively impact the federal budget by approximately $200 billion for the 2009-2022 period by virtue of the application of the biofuels production tax credit).


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