Annotations 11/2011

(plaintiffs claim that defendant inhumanely raises and slaughter its chickens but advertises that its raising of its chickens is humane; court holds that plaintiffs lack standing to bring challenge and all of defendant's motions to dismiss granted, and animal rights activist group motion to intervene denied). 

(trial court determined that defendant, provider of labor in joint venture with plaintiff with respect to tomato crop, not liable for loss of part of the tomato crop; defendant responsible for selling the tomatoes on commission basis with parties splitting net proceeds; joint venture agreement did not make defendant a commission merchant under state law because defendant had no ownership interest in tomatoes; defendant not required to be licensed as commission merchant; state law licensing requirements for commission merchants applicable only to sales of produce of another producer).

(parties are two adjacent dairy operations, and defendant proposed to construct and operate creamery, processing facility and farm store on their property that plaintiff claimed violated an agricultural preservation easement held by the Maryland Agricultural Land Preservation Foundation (MALPF); MALPF determined that proposal was a "farm related use" and permissible with easement; trial court held that plaintiff lacked standing to challenge MALPF decision; trial court decision vacated as plaintiff had standing under third-party beneficiary or charitable trust theories and, as a neighbor, is prima facie aggrieved; case remanded).

(IRS issued notice of deficiency of estate tax to person who possessed decedent's property and filed estate tax return; decedent named nieces as beneficiaries of living trust and named one niece as co-trustee; no executor named, but one niece signed estate tax return without being appointed as executor; each niece received more than $3 million from decedent's estate, but estate tax return showed no taxes due; IRS issued deficiency (with accuracy-related penalty) to niece that signed return; court held that notice sent to correct person inasmuch as decedent had actual or constructive possession of estate property and, thus, was statutory executor under I.R.C. Sec. 2203 responsible for filing estate tax return). 

(decedent's gift of shares of stock to lifelong friend within six months of death deemed to have been in contemplation of death based on all facts and circumstances; statutory presumption of N.J.S.A. Sec. 54:33-1 et seq. that such transfer is a taxable as a testamentary substitute if made within three years of death not overcome; value of gifted stock included in decedent's gross estate for state inheritance/estate tax purposes). 

(intervivos transfer of stock to executor was subject to inheritance tax because it was in lieu of testamentary disposition; stock gift done with intent to qualify transferor for Medicaid benefits and made at time transferor suffering from bacterial infection; transferor romantically involved with executor at time of transfer; stock transfer amounted to more than one-half of transferor’s estate value).

(long-term homeowner credit not available against purchase of townhome for petitioners' son, because parents did not use home as their primary residence; fact that television commercial that petitioners saw failed to mention that purchased home must be used as principal residence of no effect).

(taxpayer publishes books and printed materials; taxpayer conducts market research, resource planning, content and layout development and editing which allows for the creation of electronic version of book; taxpayer uses contract manufacturers to produce books in mass; issue is whether taxpayer is eligible for the domestic production deduction of I.R.C. Sec. 199 for its activities; IRS concluded that while contract manufacturer's activities constitute the MPGE of QPP, taxpayer's activities related to producing electronic version of book do not result in QPP because it involves the production of an intangible asset that is not QPP; print specification activities are non-MPGE activities; related packaging activities are not MPGE of QPP because other activities are not qualified activities). 

(plaintiff, farmer, denied coverage for crop loss under Noninsured Crop Disaster Assistance Program (NAP) due to alleged poor farming practices; county committee determined that claimed weather-related events did not cause crop loss; decision affirmed by National Appeals Division on basis that plaintiff did not submit sufficient evidence to refute county committee's position by a preponderance of the evidence; NAD decision affirmed by NAD Director; court affirmed on basis that agency decision not irrational). 

(case involves CWA §404 permitting, NEPA and consultation requirements under the Endangered Species Act (ESA); at issue was plaintiff’s challenge to issuance of CWA §404 permit to developer to fill 54 acres of Florida wetlands for mixed-use development involving shopping mall and large parking lot; permit reinstated after human error discharged sediment and turbid water into a local creek; U.S. Army Corps of Engineers’ (COE) decision finding that there were no other practicable, less environmentally damaging means to satisfy the project’s purpose was not in violation of the CWA; COE  decision that no Environmental Impact Statement (EIS) necessary after determining human error caused the unauthorized discharges and where assurances were made prior to the decision to reinstate the permit upheld in part; COE’s  Finding of No Significant Impact (FONSI) was incomplete in addressing the affects from potential fragmentation of the “threatened” indigo snake’s habitat as required under NEPA and ESA, but that potential impact on listed wood stork sufficiently mitigated; matter remanded for consideration of impacts on indigo snake; case addresses whether and when alternatives to development project can be determined to be impractical based on economics, and is precedential on when federal government agency can issue a FONSI rather than an EIS).

(taxpayer acquired ranch for development purposes, but did not develop due to presence of two endangered species; taxpayer negotiated Mitigation Bank Agreement with government agency pursuant to which taxpayer will grant perpetual conservation easement to government in return for mitigation banking credits to allow development of other, similarly situated, land; transaction constituted sale or exchange of property under I.R.C. Sec. 1001). 

(surface water drainage case involving adjacent landowners; plaintiff owned tract to immediate north of defendant that was situated higher than defendant’s property and drainage ditch ran on west side of both tracts; plaintiff’s property contained wetland that naturally drained into drainage ditch; plaintiff obstructed natural drainage with result that surface water diverted onto defendant’s property causing crop loss; defendant constructed dam to block water flow and protect crops; both parties sue for injunctive relief; court upholds trial court determination that defendant had right to construct dam to block flow of diverted water and that claim for injunctive relief timely filed; right to damages for flooding of land by surface water via ditch does not accrue until flooding actually occurs and damage results; while water flowing into a natural drainageway cannot be dammed, a lower estate is not under a servitude to receive diffused surface waters which have not found their way into a natural drainageway and owner of lower estate may defend their property against diffused surface water in any non-negligent manner; because road ditch not a natural drainageway, defendant entitled to dam waters flowing through it onto defendant’s land; plaintiff’s drainage activity found to be negligent; proper remedy in drainage disputes is an injunction and defendant entitled to injunction so as to bar need to bring action every time flooding damaged defendant’s land; based on evidence presented, defendant entitled to damages for crop loss, but not erosion; opinion written by judge intimately familiar with Nebraska drainage law and who handled historic Barthel case at state trial court level before being appointed to state Court of Appeals).

(defendants built dairy in 2003 that included milking parlor constructed 15 feet from plaintiff's house; upon emptying manure pit in 2004, rotten egg stench and raw sewage permeated plaintiffs' home; conduct repeatedly continued until farm sold; negligence (personal injury), trespass and nuisance claims filed in 2009; negligence claim time-barred by two-year statute of limitations, but nuisance and trespass claims not time-barred by six-year statute of limitations because they were continuous and reoccurring; in footnote, court noted that state (IN) Right-To-Farm Act inapplicable to dispute between two farmers and also when the alleged nuisance results from negligent operation of farm). 

(Chapter 12 case involving issue of distribution of proceeds of equipment sale on which bank, as senior creditor, had lien and supplier had junior lien; bank held debtor's land as security for loan and was oversecured; reorganization plan proposed retention of real estate that secured senior creditor's debt; bank motioned to receive all proceeds of equipment sale, and supplier proposed marshaling with proceeds from equipment sale going to junior creditor; court rejected junior creditor's proposal because senior creditor had right to cash out it's position first and not have to rely on real estate for payment under long term-loan as proposed in reorganization plan; supplier's alternative proposal to take second lien on real estate rejected). 

(defines "interest in a limited partnership as a limited partner" for material participation test under the passive loss rules of I.R.C. Sec. 469; in defining interest, key is whether taxpayer has a right to participate in management at any time during tax year rather than whether the taxpayer has limited liability, and whether entity classified as partnership for federal income tax purposes). 

(boundary dispute case involving triangle-shaped strip of land between adjoining properties; plaintiff's maintained disputed area for 33 years, but survey in 2008 showed that disputed area within defendant's property description by deed; absent fenceline, substantial evidence present via usage of disputed area that delineated boundary; evidence demonstrated that prior owners of defendant's property had knowledge of "assumed" boundary line and failed to dispute the matter for at least 10 years; trial court has discretion to decide matter without appointment of commission; plaintiff's claim for damages to trees caused by defendant's poisoning of them in 2004 or 2005 not barred by statute of limitations because defendant did not raise statute of limitations as defense at trial). 

(will construction case involving separate wills executed by husband and wife in 1976 that left farmland to couple's ten children and granted a son the first option to buy the land at a 20 percent discount; father died in 1981 and son entered into contract with mother and siblings to buy 80 acres; contract eventually forfeited and land conveyed back to owners; mother executed new will in 2006 which excluded 5 children and also included son's purchase option; mother died in 2009; five excluded children brought declaratory judgment action claiming that parents executed contractual or mutual wills in 1976 which invalidated mother's 2006 will, and that son's purchase and forfeiture had distinguished his right to buy real estate at discount after mother died; court held that 1976 wills not determined to be contractual or mutual because neither will had any language even suggesting that they created any such agreement between the couple , and that son did not give up right to acquire farmland at 20 percent discount because contract did not indicate purpose to abandon opportunity to later purchase land at a discount). 

(federal Environment Protection Agency not subject to claims that it improperly permitted pesticide poisoning of Arizona creeks; plaintiffs claimed that defendant violated FIFRA and ESA by re-registering pesticide rotenone without consulting wildlife officials; "failure-to-consult" claims under ESA are subject to FIFRA exclusive review provision which grants jurisdiction to court of appeals for challenges to registration review (which trumps the ESA); case dismissed for lack of subject matter jurisdiction).

(petitioner's mistake in using tax preparation software sufficient excuse to eliminate imposition of penalties for underreporting income on tax return; petitioner failed to properly report income from trust for which wife was beneficiary and which was reported on K-1 issued to wife, but petitioner unfamiliar with Schedule K-1; petitioner had upgraded software to account for trust income, but made data entry error that barred interest income from being correctly reported; court noted that tax preparation software only as good as information that is input, and error was isolated and source of income correctly reported; court viewed petitioner's job with U.S. Department of Energy which required security clearance persuasive as it provided petitioner with substantial motivation to report income on return properly).

(“all events” test pegs time when taxpayer incurs expenses for purposes of first-year bonus election; qualified property is deemed acquired when taxpayer pays or incurs cost of property; ruling involved contract construction work and IRS determined that costs are incurred when all event have occurred establishing fact of liability, amount of liability can be ascertained with reasonable certainty, and property provided to taxpayer; an acquired component of larger self-constructed property is “acquired” when taxpayer incurs cost of acquired component). 

(for state inheritance tax purposes, court upheld probate court's valuation of decedent's one-half interest in real estate; valuation of decedent's interest properly reduced to reflect decedent's one-half interest, but estate not entitled to aggregate discount of 30% to reflect lack of marketability and lack of control discount). 

(defendant's conviction of using bait to hunt deer reversed; defendant is vegetable farmer that raises produce for local grocery stores and for two produce stands that he operates; defendant's practice is to leave one field fallow each year and use spoiled or unsold vegetables as "green manure"; defendant had dumped unsold pumpkins on field and was cited for deer hunting via aid of bait in violation of state (MN) law; trial court upheld conviction, but appellate court reversed; words "placed" and "vicinity" in statute vague as applied to defendant and statute proscribes normal or accepted farming practices from constituting "baiting"; statute not intended to apply to farmers who engage in normal, for them, agricultural practices and then hunt on their own property; statute does not properly delineate baiting from such practices; conviction reversed). 

(distribution received by taxpayer from employee annuity plan of parent includible in income; no transfer of distribution to eligible retirement plan within 60 days of transfer and non trustee-to-trustee transfer).

(real estate appraisers can take into consideration the listing price of a property when determining that property's fair market value; decision upholds Kansas Department of Revenue position set forth in Directive 98-033).

(after hailstorm damaged plaintiff’s nursery crops, plaintiff filed claim on insurance policy issued by company in conjunction with Federal Crop Insurance Corporation (FCIC); plaintiff claims that defendants negligently represented that policy would cover the nursery crops and negligently failed to obtain policy that would cover the nursery crops; genuine issue of material fact remained as to whether degree of person’s involvement in plaintiff’s process of getting insurance for the nursery for 2006 crop year; defendant’ s motion for summary judgment denied). 

(IRS reissued proposed regulation that provides guidance on the election and application of alternate valuation approach authorized by I.R.C. Sec. 2032 to estates; key points of the proposed regulations: (1) identification of transactions that involve sales, exchanges, distributions or dispositions of estate property; (2) such transactions occurring during six-month post-death period to be valued on transaction date unless transaction involves exchange of interest in entity includible in gross estate, or involves distribution from account or entity that decedent had interest in at death; (3) when  valuing such post-death transactions, decedent's percentage ownership/control in entity and degree of estate participation in post-death events irrelevant; (4) if post-death event deemed to have occurred at time of death, no distribution, etc., deemed to have occurred). 

(poultry manufacturer that contracts with independent farmers for facilities and labor to raise chickens off manufacturer’s premises does not qualify for exemption from ad valorem taxes under state code because not a “producer” of agricultural products under statute; manufacturer also not qualified for “subsistence of livestock” exemption; statute requires personal property seeking exemption and livestock both be “on hand”, meaning in manufacturer’s physical possession and on the premises; dissent filed, reminding that vertical integration is reality in poultry industry and poultry manufacturer is producer who retains possession of poultry through all phases of production, it should be entitled to both exemptions)

(case involves crop damage to plaintiff’s almond orchard purportedly caused by defendant’s application of fungicide to the orchard; plaintiff claims that pesticide not applied according to label in violation of FIFRA and state law, and that defendant knowingly and intentionally failed to report damages to prevent investigation and avoid discipline; defendant’s motion to strike word “intentionally” from plaintiff’s complaint denied, as was defendant’s request to strike language from complaint that defendant’s failure to notify governmental agencies was intentional failure to act in direct disregard of plaintiff’s rights). 

(question of existence of prescriptive easement or easement acquired by adverse possession submitted to special master via state law which issued finding of prescriptive easement in favor of defendant; trial court affirmed; on further review, appellate court noted that issue of permissive use was involved, but special master failed to consider state statute specifying that “permissive possession cannot be foundation of a prescription until an adverse claim and actual notice to the other party”;  trial court award of prescriptive easement in favor of defendant vacated and special master must reconsider prior decision). 

(the New York Times reports that Joe Paterno, former coach of Pennsylvania State University football team who was fired amid controversy surrounding former assistant coach and associated cover-up, on July 21, 2011, transferred family home worth $594,484.40 that was held in joint tenancy with wife to her for $1 plus "love and affection"; transfer appears to have been made with intent to shield transferor from potential creditors, but transferor's lawyers claim transfer part of overall "multiyear estate planning program").

(plaintiff sues to recover farm rent for 2009 crop year; one of defendants included USDA which is protected by sovereign immunity and is dismissed without prejudice; plaintiff claims to have perfected landlord’s lien in crops and proceeds of crops under state law, but defendant paid funds subject to lien to USDA while USDA knew of lien on proceeds which then applied proceeds on defendant’s debt on crop loan; case remanded to state trial court for decision on merits between private parties). 

(Beacon Power, located in Massachusetts and recipient of federal government loan guarantees in excess of $43 million has filed for bankruptcy; company had proposed to build storage devices for intermittent power produced by wind and solar power facilities, but failed to attract investors).

(estate fiduciary without enough property to pay all claims of estate must pay federal tax claim before other claims; if other claims paid first, fiduciary personally liable to extent of payments turned over to creditors other than U.S. if fiduciary had notice of claim of U.S. before distribution to other creditors made).

(plaintiff attempted to buy mineral rights sold by state at tax sale and case involves quiet title action against actual owner of mineral rights and lessee; trial court granted summary judgment for owner and lessee; on appeal, court affirmed because surface owner had purchased mineral rights from state and defendant not aware of forfeiture due to lack of notice from state and had leased mineral rights to third party; sale determined to be invalid due to lack of notice to defendant and state’s attempts to give notice inadequate). 

(boundary by acquiescence case; standard of proof to establish boundary by acquiescence is clear and convincing standard; defendant’s predecessors-in-interest acquiesced to barbed wire fence as property boundary and treated is as boundary and no evidence to the contrary; trial court grant of summary judgment which quieted title to disputed tract in plaintiff’s favor affirmed). 

(plaintiff is a real estate broker and defendant owned a building that needed a tenant; parties contracted for plaintiff to render brokerage services to help defendant obtain tenant for building; plaintiff claims that tenant found and defendant failed to pay brokerage commission; plaintiff sued for unpaid commission and for unjust enrichment; under state (LA) law, plaintiff entitled to commission even after termination of agency contract if plaintiff was “procuring cause” of sale or lease; unjust enrichment claim not dismissed; detrimental reliance claim not dismissed; motion for summary judgment denied). 

(plaintiffs claim that odors from defendant’s confinement hog facility created public and private nuisance, but jury rendered verdict in favor of defendant and trial court denied plaintiffs’ motion for mistrial and post-trial motion for new trial; decision affirmed on appeal on all points). 

(private foundation with expectancy in decedent’s estate not engaging in self-dealing upon estate’s sale to disqualified person in exchange for promissory note; sale qualifies as transaction occurring during administration of estate under 53.4941(d)-1(b)(3) of foundation regulations). 

(parties entered into manure easement agreement over plaintiff’s property with plaintiff receiving reduced fertilizer costs and expenses in return, but did not require plaintiff to pay for manure or require defendant to provide manure; when not all manure used in 2009 and 2010, defendant sold unused manure to third parties and plaintiff sued claiming right to unused manure based on oral agreement; trial court granted summary judgment for defendant because evidence related to oral agreement was inadmissible parol evidence; appellate court affirmed on basis that oral agreement addressed same subject matter as written easement and was inconsistent; easement contained integration clause). 

(income received from compelled lease of property that was held as rental property is includible in income and the involuntary conversion rules of I.R.C. Sec. 1033 do not apply; on the question of whether I.R.C. Sec. 1033 applies to a temporary taking of property, IRS reasoned that it did not because a fee interest was not taken and proceeds allocable to property was in nature of rent taxable as ordinary income in year of receipt).

(petitioner withdrew amounts from Section 529 plan established for petitioner’s children without consulting wife; after receiving distributions, petitioner consulted with wife and then endorsed distribution checks and redeposited withdrawn amounts; petitioner received Forms 1099-Q; petitioner’s argument that Forms 1099-Q issued in error because he had not cashed the distribution checks rejected; transaction did not constitute rollover because no distribution transferred to different Sec. 529 plan for original beneficiary or beneficiary in petitioner’s family).

(petitioner inherited funds from non-spousal IRA and transferred funds into IRA; on same day of transfer, petitioner withdrew contributed funds; no valid trustee-to-trustee transfer made and petitioner subject to income tax on distributions from IRA; no accuracy-related penalty imposed because petitioner believed that bank holding IRA account would make correct withholding and petitioner not experienced in tax law).

(case involves judicial review of decision of Land Use Board of Appeals which affirmed county's decision to permit dog breeding kennel; at time current zoning code adopted, kennel already existed and was lawful).

(plaintiff's spouse died in Florida in 2001 leaving most of estate to others via "payable on death" designations; plaintiff elected to take elective share and Florida court determined that elective share was at least $145,037 and named persons responsible for contributing to elective share, including defendant; defendant put POD assets into two accounts with total value of over $180,000; plaintiff filed action against defendant to enforce judgment against defendant and also claimed that defendant fraudulently made distributions from the two accounts with intent to avoid plaintiff as creditor; litigation settled with defendant agreeing to pay plaintiff $12,000 plus balance in account, but defendant sued account holder for placing hold on account for over a year which caused defendant to suffer loss because accounts dropped in value during 2008; court ruled that defendant failed to offer evidence he was damaged by failing withdrawing funds before decline in value; trial court decision affirmed - defendant's claim speculation). 

(holder of servient estate did not establish that actions of holder of dominant estate caused additional water (substantial increase in volume) to flow onto servient estate; trial court decision affirmed on appeal). 

(holder of servient estate did not establish that actions of holder of dominant estate caused additional water (substantial increase in volume) to flow onto servient estate; trial court decision affirmed on appeal).

(in moot decision by divided court, court holds that mandate provision contained in Patient Protection and Affordable Care Act constitutional; mandate provision is not a tax, but that provision falls within congressional power to regulate "national economic problems" substantially impacting interstate commerce). 

(court ruled that plaintiffs, seed companies that sued to stop USDA deregulation of GMO alfalfa and lost in the U.S. Supreme Court, were entitled to attorneys' fees; court found that USDA ignored plaintiffs' requests for costs and fees made in briefs and, thus, did not rebut any of plaintiffs' evidence; fee award exceeds $1.6 million). 

(plaintiff landowner sued defendant seeking right-of-way over defendant's property; at time strip of land in issue conveyed to defendant's predecessor-in-interest, land used for farming, but railroad track later built; no easement reserved over conveyed land; plaintiff sought easement to install utility lines over track; implied easement found to exist which was limited in scope). 

(case involves trespass and quiet title action concerning defendant's use of grassy strip; court determined that no easement existed because defendant had verbally sought permission to use grassy strip; no easement by necessity because property not landlocked and means of ingress and egress present).