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 “Don’t Waste a Crisis — Your Patient’s or Your Own” M. F. Weiner   Medical Economics, 1976.

Okay, so some of you will say Churchill said and some will say Rahm Emanuel is the proper attribution, but this one I could find and cite. Regardless of who said it first, we are in a crisis so are we wasting it? Extra time to do books instead of running to a social obligation, time to contemplate operation changes, estate planning, or financial moves if available, and you have less competition for your most precious commodity, time. Acknowledged, other demands, such as extra supervisors in the form of newly stay at home spouses or the kids on extended, early summer break are present, but you owe yourself to carve out a small block of time to reinvest in your operation.

If you don’t think enemies of production ag are using this event to further their own agenda, you are wrong. While milk is being dumped, hogs and poultry are being euthanized rather than harvested and fat steers are held off the truck, anti ag is hard at their own goals.

The easy things, like lobbying against aid packages for production ag and pushing plant-based foods only is to be expected. After all those organizations have deep war chests (Funded in part, by purposely confusing the public between local pet shelters and their national lobbying arms). But also, they are pushing on fronts that are not as watched by the public. For example, Chicago recently banned horse carriages without much public notice or outcry as we all remain affixed on acute economic strain. Protests are arranged at the harvest facilities; they engage producers on social media and are working hard to get “gotcha” footage of farm operations to create out of context images to incite the public.

 These activities include trying to ban the use of animals on COVID related research, trying to plant the seed in op ed pieces that livestock and production ag is the root of the economic problems, and buying stock distressed companies in the fabric and food industry. PETA has purchased stock in Tyson, Sanderson Farms, Maple Leaf Foods, Oscar Meyer’s parent company Kraft Heinz, WH Group (owner of Smithfield) and Hormel Foods. Buying stock is a way to gain a foot hold on shareholders meetings and attempts to influence the board of directors and their polices.  A new animal impact fund, with the former head of Human Society of the United States involvement, features publicly traded companies that support the anti-animal production agendas. 

Sygneta claims are being paid.  The claims administrator mailed the first round of checks on April 7th

1) This is not the full payout. These checks are expected to be about 60-65% of the final payout. Funds have been set aside for pending claims appeals, attorney’s fees, and administration costs. Once all work is completed and all appeals final, the remaining funds in those accounts will be disbursed, pro-rata, to the clients. We have no idea what that amount will be.

2) Whether or not the operator planted Syngenta seed DOES impact the payout. Operators will receive significantly less than the neighbor if they checked “yes” in that box because those planted Syngenta seeds, will get less money. They signed a stewardship agreement that waived rights to recover.

3) The total paid out has NOTHING to do with which law firm you used. No law firm has access to the data. The court let the lawyers take it to trial and push the issue maximize the recovery and then removed the lawyers from the total paid out. That action is still under appeal but will not impact payment to the clients. Only the claims administrator and the Court are involved in the calculation of payouts.   Lawyers do not know the exact numbers used to calculate payments. Only the claims administration firm has access to final totals. There is no final per bushel pay-out amount until there are final checks. (We do know that they used a $0.12/bushel baseline for this check.) This is a preliminary estimate and is not a final number. It also does not mean anyone actually received 12 cents for any bushel of production. Each compensable year has a percentage recovery rate so it’s not a straight percentage of production. The maximum possible recovery under a 12 cent/bushel calculation is less than 4 cents/bushel since the maximum percentage annual basis is 33% for 2014.)  Attorneys have no way of keeping the claims administrator accountable and can only take them at their word. The attorneys don’t have access to the data.

4) Regardless of what happens with the appeals, clients will NOT be required to pay any of the money received to attorneys. Attorney’s fees are being handled by the court.   Clients will NOT under ANY circumstances, be required to compensate us from the money they just received. If you hear of any lawyer or firm requesting clients to compensate them directly, please let me know. That would be in direct violation of the court’s order.  The attorneys will not be receiving a contingency based fee. Instead, the court will determine what we get paid. As of now, approximately 30% of the original settlement is in a trust fund pending the outcome of the appeals. The attorneys will be paid from that fund, not the client fund.

5) If  an operator down the way, who farms less than you do, claims to have received more money than you, that operator is most likely either not letting truth get in the way of a good story or there is some distinction between your claims (ag, fed-on-farm, Syngenta seed)

6) However, the administrators have made mistakes and typos in the past. If you believe your numbers are wrong based on the claims of other farmers, and you can get a copy of the other party’s determination letter, the attorneys can review the numbers and attempt to determine why there is a discrepancy. The farm operator or the attorney can ask the administrators to confirm the number.

7) If an operator received a determination letter that stated they had “0” bushels compensable and ignored it because they didn’t think the suit would ever get any real money, they  will not get a check.

8) If the operator did not send in a signed W-9, or log-in to the portal and fill out the W-9 form, you will not get a check.

9) If you have not received a check yet, that does not mean you will not get one. If you received a determination letter with compensable production listed, you will receive a check. The claims administrator is printing checks in a rolling fashion. They will not reveal the basis for that or when to expect checks for certain categories of claimant.

10) If the operator did not submit the required claim notification paperwork within the oft-extended deadlines, they will not get a check. Ever. For those who quit responding to calls and letters or believed that they were signed up by virtue of being a farm operator without further action it is too late. 

In brief, taxes are a constant, like death. Failure to plan for either gives a headache to who discovers your lack of planning.

In the past, some farm operators accepted losses and gleefully avoided paying tax and opting instead to pray at the Altar of No tax via the intoxicating Section 179 and Bonus depreciation rules. Subtly slid into the new tax law as a wet blanket over the “fun” of having losses year to year to year.

First, the tax code took away the CCC free pass. Under the old rules, CCC loans made losses limited in deductibility but were allowed to be carried forward and the next year treated like a new loss.

Now losses of all types are now subject to "excess business loss" limitations. Excess business losses are carried forward as part of the taxpayer's net operating loss (NOL) instead of claiming the loss on Schedule F.

Previously, excess farm losses offset farm income without limitation. Because it went on Schedule F, it also offset income subject to self-employment tax, which is a great thing, huge really, wonderful, the very best kind of tax break to paraphrase the executive branch head.

Now, an excess business loss is NOT deducted on the Schedule F and does NOT offset self-employment income. Also, post-2017 NOLs can only offset 80% of pre-NOL taxable income.

Therefore, even if you have a loss in 2019 followed by a profit in 2020 (which happens for example, when you have fat calves that don’t sell in the same calendar year on occasion), you could offset no more than 80% of the 2019 taxable income. Farmers are allowed to carry back farm NOLs two years, giving some flexibility. However, the farm NOL will be limited to $250,000 for single filers and double that for joint filers.

So, what are some strategies? Start by avoiding creating NOLs. If losses are unavoidable, keep business losses less than $250,000/$500,000

Also:

  1. Stop prepaying expenses.
  2. Hold off equipment purchases.
  3. Don't elect to expense equipment purchases under Section 179 or bonus depreciation.
  4. Sell assets you do not need to generate profits.
  5. Elect out of deferred payment contracts.
  6. Depreciate instead of deduction of repair costs.
  7. Depreciate fertilizer and lime costs over their useful life instead of taking them as a current year expense.

Barb Wire was said to tame the wild west and end the free range. It was a technological break through that rearranged the way ag was conducted in large stretches of the United States. Barb wire is not alone in sweeping changes to ag. The moldboard plow, the Power Take Off, hydraulics, year-round cabs and GPS all have made dramatic changes to how ag operations perform.

Rural broadband will likely join the above list. The question is, when and will it come quick enough to benefit current operations. The USDA predicts a truly connected rural America could lead to an additional $50 million dollars per year for US Ag.

Broadband is defined as at least 25 megs per second download and 3 Megs upload. While only 1.5% of urban America does not have access to broadband, 24% of rural areas don’t have access to fixed broadband. Making that number worse, some studies say that the true number is nearly 50%. Microsoft says 162.8 Million people don’t have access to broadband and broadband doesn’t solve in field access problems.

A companion service, wireless 5G is a cornucopia of different tech platforms and process that work together to get greater bandwidth to a greater number of handheld and other devices. In addition to cell phones and handheld devices that we are familiar with, 5G will support base station antennas that will connect devices directly, using more of the radio spectrum. Mesh networks are also incorporated which will help data flow from one device to another that works well for devices with steady power and are always on. Field sensors and devices that stay asleep don’t perform well in the mesh. It looks like 5G will be a better boon for urban areas over rural applications.

How did we get there? It used to be acceptable that an internet company could report a census block had access to broadband service if they could show one home in given block had service. In the rural spots, those blocks are up to 250 square miles. One wealthy neighbor who has to have Japanese amine delivered to their door could skew the reporting.

What are the steps that the law is taking to support this growth potential? The FCC has advanced over $20 million in funding for rural broad band connectivity. Specifically, the Rural Digital Opportunity fund is designed to put internet infrastructure in 45 states and over 700,000 homes.

The impact on ag is not only in being able to stream movies like the urban areas and check the markets, but connectivity in the fields is a key component of artificial intelligence applications like automated operations. This is because the intelligence network relies upon cloud-based data and mainframes. Losing service because of connectivity is a dangerous proposition that artificial intelligence operators can’t risk.

As law makers allocate dollars to breach the digital divide, the type of purchase is as important to success of the ag operation as choosing between high tensile, three barb or five barb wire.

Thursday, May 28, 2020
  • 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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