September 2015

September 2015

IRS Sticking to Its (Unofficial) Position That CRP Payments Are Subject to SE Tax

In 2014, the U.S. Court of Appeals for the Eighth Circuit reversed the Tax Court and held that Conservation Reserve Program (CRP) payments paid to non-farmers are rents from real estate that are excluded from self-employment tax under I.R.C. §1402(a)(1). In so holding, the court gave no deference to an IRS Notice of Proposed Revenue Ruling, which, had it been formally adopted, would have reversed the longstanding position of the IRS that land conservation payments paid to non-farmers are not subject to self-employment tax. After the judicial rejection of the unofficial IRS position, the IRS did not issue the Revenue Ruling that would have obsoleted the older contrary rulings.  Instead, the IRS issued a non-acquiescence to the court’s decision, sticking to its new (unofficial) position on the self-employment taxability of CRP payments and announced that audits would continue unabated – even in the Eighth Circuit.                                                                                                   

The Conservation Reserve Program (CRP), originally enacted in 1985, is an agricultural program administered by the U.S. Department of Agriculture (USDA).  Under the program, the program participant agrees to remove the land from active farming, implement a conservation plan, and seed the tract to permanent grass or other vegetative cover to prevent erosion and improve soil and water resources.  The USDA, in exchange, generally shares the initial cost of the conservation measures and makes an annual rental payment (reported on a Form 1099) to the owner of the land. Continue reading here (free on TaxPlace).

Most Syngenta Claims Survive Motion to Dismiss...What’s Next?

We last updated you on the status of the Syngenta litigation in April. This month we’ll update you on several key developments that have occurred since April, primarily this month’s ruling on Syngenta’s motion to dismiss. We’ll also provide a brief roadmap as to possible next steps in this complex legal battle.

As discussed more thoroughly in past articles, Syngenta is facing legal complaints from thousands of plaintiffs across the country regarding its alleged premature commercialization of a genetically-modified (GM) corn trait. Although the product had been approved for sale in the United States and many other countries, it had not been approved for import into China at the time it was offered for sale in the U.S. In November of 2013, China rejected the import of all U.S. corn, asserting that it was tainted with traces of the unapproved trait. The average price of corn per bushel dropped by more than half between the summer of 2012 and the fall of 2014. A number of corn exporters, handlers, grain elevators, and farmers alleged that the drop in price was largely due to China’s rejection of U.S. corn. They asserted that Syngenta wrongly marketed the product before China had agreed to accept it. They began filing lawsuits in 2014, and the lawsuits continue in 2015. Continue reading here.

Clean Water Rule Litigation Rages On

The new Clean Water Rule (often called the “waters of the United States” or WOTUS rule) went into effect August 28, 2015. Well, partially that is. The much-publicized Rule that establishes the formal definition of waters subject to regulation under the Clean Water Act went into effect in 37 states on August 28. Landowners in the other 13 states—which include North Dakota, Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, South Dakota, and Wyoming—are still subject to the old definition of jurisdictional waters.

That’s because a federal judge in the United States District Court for the District of North Dakota entered a temporary injunction on August 27 blocking the Rule’s implementation. The judge ruled the following week, however, that the injunction applied only to those 13 states involved in the North Dakota lawsuit. The judge decided to narrow the application of the injunction because there were so many similar lawsuits pending. He cited competing “sovereign interests” and “judicial rulings” as the basis for his decision. To be successful, the other 18 states that have filed lawsuits challenging the Rule will have to convince the judges in their own jurisdictions to also block the Rule. Or one plaintiff will have to convince one of the courts considering the question to issue a nationwide injunction. So far, that has not happened, but the battle has just begun. Continue reading here.


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