T.C. Memo. 1999-333
UNITED STATES TAX COURT
MICHAEL & NANCY MCNAMARA, Petitioners v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 7537-98. Filed October 4, 1999.
Garry A. Pearson and Jon J. Jensen, for petitioners.
Blaine C. Holiday, for respondent.
MEMORANDUM FINDINGS OF FACT AND OPINION
PAJAK, Special Trial Judge: Respondent determined
deficiencies in petitioners' Federal income taxes in the amounts
of $2,507, $3,191, and $2,963, for the taxable years 1993, 1994,
and 1995, respectively. All section references are to the
Internal Revenue Code in effect for the years in issue.
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FINDINGS OF FACT
The sole issue for decision is whether rental payments
received by petitioners from McNamara Farms, Inc. (McNamara
Farms), a corporation solely owned by petitioner Michael McNamara
(Mr. McNamara), are includible in petitioners' net earnings from
self-employment under section 1402(a)(1) and thus subject to
self-employment taxes.
Some of the facts have been stipulated and are so found.
Petitioners resided in Bird Island, Minnesota, at the time the
petition was filed.
Mr. McNamara began farming in 1977. Mr. McNamara has farmed
for approximately 21 years. Mr. McNamara operated the farm as a
joint venture with his wife until he incorporated the farm on
January 17, 1992. Mr. McNamara is the sole shareholder, officer,
and director of McNamara Farms. During the farming seasons,
McNamara Farms employed 10 to 20 employees and laid them off
during the off-season.
McNamara Farms carries on its business on approximately
1,250 acres of farmland. McNamara Farms rents the farmland from
three landlords. Petitioners are one set of landlords, and Mr.
McNamara's father is one of the other landlords.
During the taxable years at issue, McNamara Farms rented 460
acres of farmland, including a house, from petitioners under a
lease characterized as a Cash Rent Farm Lease. Petitioners owned
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the 460 acres of farmland equally as joint tenants. McNamara
Farms paid petitioners rent in the amounts of $45,620, $56,168,
and $57,000 in 1993, 1994, and 1995, respectively.
McNamara Farms used the land rented from petitioners in its
farming operation to produce agricultural commodities such as
corn, soybeans, seed corn, sweet corn, and sugar beets.
On February 1, 1992, Mr. McNamara entered into a purported
Employment Agreement with McNamara Farms, signed by Mr. McNamara
as President. The Employment Agreement provided that Mr.
McNamara was to be the general manager of the business, that he
was to do field work, that he was to do marketing, that he had
the responsibility for security of machinery and inventory, that
he was to manage other employees, and that he was to do such
other usual and customary duties required by the agricultural
production operation of McNamara Farms. In essence, the
Agreement memorialized almost the same duties Mr. McNamara had
done since he began farming. The Employment Agreement further
provided that any portion of compensation not paid in kind (e.g.,
grain crops) "will be subject to required FICA social security
tax and income tax withholding." The Employment Agreement
provided that Mr. McNamara could participate in the McNamara
Farms medical reimbursement plan and that he would be provided
with medical insurance for himself and his dependents.
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Mr. McNamara would have continued to do the same farming
jobs even if there had been no lease agreement.
On February 1, 1992, Mrs. McNamara also entered into a
purported Employment Agreement with McNamara Farms, signed by Mr.
McNamara as President. The Employment Agreement provided that
Mrs. McNamara was to perform the following duties for the farming
business: Bookkeeping, preparation of meals for employees, field
work, assistance in providing security for machinery and
inventory, and such other usual and customary duties as may be
delegated by the employer from time to time. In essence, the
Agreement memorialized almost the same duties that Mrs. McNamara
had been performing since Mr. and Mrs. McNamara began farming
together. The Employment Agreement further provided that any
portion of compensation not paid in kind (e.g., grain crops)
"will be subject to required FICA social security tax and income
tax withholding." The Agreement also provided that Mrs. McNamara
could participate in the McNamara Farms medical reimbursement
plans and that she would be provided medical insurance coverage
for herself and her dependents.
For all 3 years in issue, petitioners filed their Forms 1040
income tax returns as married individuals filing joint returns.
Mr. McNamara stated his occupation was "farmer" and Mrs. McNamara
stated her occupation was "bookkeeper". On their Schedules E,
Supplemental Income and Loss, petitioners reported that they
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received net rental income in the amounts of $19,180, $24,442 and
$22,671 in 1993, 1994, and 1995, respectively. On line 7, Wages,
salaries, tips, etc., of their Forms 1040, petitioners reported
that they received wages in the amounts of $30,603, $30,466, and
$31,252 for 1993, 1994, and 1995, respectively. Elsewhere on
their 1993, 1994, and 1995 returns, Mr. McNamara and Mrs.
McNamara reported earnings from McNamara Farms of $28,019 and
$2,584, respectively (total of $30,603), $27,775 and $2,691,
respectively, (total of $30,466) and $28,561 and $2,691,
respectively (total of $31,252). Contrary to the terms of the
Employment Agreements, McNamara Farms failed to withhold Federal
income taxes and State income taxes from their earnings.
McNamara Farms withheld Federal Insurance Contribution Act taxes
and Medicare tax for all 3 years from their earnings.
In the notice of deficiency, respondent determined that the
real estate rental payments petitioners received from McNamara
Farms during the taxable years at issue are includible in
petitioners' net earnings from self-employment under section
1402(a)(1), and thus subject to self-employment tax income.
Respondent divided the amounts equally between petitioners with
respect to self-employment income and self-employment tax.
Respondent also allowed petitioners a deduction for one-half of
the self-employment taxes imposed for the taxable years at issue.
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OPINION
Section 1401 provides that a tax shall be imposed on the
self-employment income of every individual. Generally, rentals
from real estate are excluded from the computation of net
earnings from self-employment. Sec. 1402(a)(1). However,
section 1402(a)(1) also provides that rentals derived by the
owner or tenant of land are not excluded from the computation of
net earnings from self-employment if:
(A) such income is derived under an arrangement, between the
owner or tenant and another individual, which provides that
such other individual shall produce agricultural * * *
commodities * * * on such land, and that there shall be
material participation by the owner or tenant * * * in the
production or the management of the production of such
agricultural * * * commodities, and (B) there is material
participation by the owner or tenant * * * with respect to
any such agricultural * * * commodity;
In other words, as the regulations under section 1402(a)(1)
provide in pertinent part, there is a special rule when:
The income is derived under an arrangement between the owner
* * * of land and another person which provides that such
other person shall produce agricultural * * * commodities on
such land, and that there shall be material participation by
the owner * * * in the production or the management of the
production of such agricultural * * * commodities; and * * *
There is material participation by the owner * * * with
respect to any such agricultural * * * commodity. [Sec.
1.1402(a)-4(b)(1)(i) and (ii), Income Tax Regs.]
Under those circumstances, such income is characterized as
"includible farm rental income". Sec. 1.1402(a)-4(b)(1), Income
Tax Regs. The includible farm rental income received by the
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owner pursuant to the arrangement is considered earnings from
self-employment. Id.
In determining whether compensation is includible in
self-employment income under sections 1401-1403 such provisions
are to be broadly construed so as to favor coverage for Social
Security purposes. Braddock v. Commissioner, 95 T.C. 639, 644
(1990). The rental exclusion in section 1402(a)(1) is to be
strictly construed to prevent this exclusion from interfering
with the congressional purpose of effectuating maximum coverage
under the Social Security umbrella. Johnson v. Commissioner, 60
T.C. 829, 832 (1973); Gill v. Commissioner, T.C. Memo. 1995-328.
Petitioners contend that the written lease agreement does
not require material participation by petitioners in the farming
operations. Petitioners further contend that the rental income
that petitioners received from McNamara Farms was cash rent from
real estate, and therefore should be excluded in determining
whether petitioners had any net earnings from self-employment as
that term is used in section 1402(a)(1).
This Court has held that cash rental payments were
includible in self-employment income in Gill v. Commissioner,
supra. This is the same conclusion this Court reached in two
similar cases, decided after this case was heard. Bot v.
Commissioner, T.C. Memo. 1999-256, and Hennen v. Commissioner,
T.C. Memo. 1999-306. In Gill, this Court further held that
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payments received by husband-wife farmers from a corporation were
earnings from self-employment subject to the self-employment tax.
In light of all the facts and circumstances, we must decide
whether petitioners received rental income from McNamara Farms
pursuant to an "arrangement" between the parties to produce
agricultural commodities on the farm within the meaning of
section 1402(a)(1)(A).
In Mizell v. Commissioner, T.C. Memo. 1995-571, this Court
explained that:
The word "arrangement" is defined as an agreement.
Webster's Third New International Dictionary 120 (1993).
While the concept of an agreement certainly includes a
contractual agreement, it is a broader concept that would
also include other forms of agreements not necessarily
arising from strict contractual relationships. Consistent
with its dictionary definition, in most of the instances
where it is used in the Internal Revenue Code, the word
"arrangement" refers to some general relationship or overall
understanding between or among parties in connection with a
specific activity or situation. Generally, it is not
limited only to contractual relationships, or used in a way
that suggests that its terms and conditions must be included
in a single agreement, contractual or otherwise. Congress
obviously recognized a distinction between a contract and
the broader concept of an "arrangement", as is evident from
those sections of the Internal Revenue Code that make
reference to both. * * *
McNamara Farms used the farmland to produce agricultural
commodities such as corn, soybeans, seed corn, sweet corn, and
sugar beets. With respect to whether under the arrangement
petitioners were to materially participate in the farming
operations, we look not only to the obligations imposed upon them
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by the written lease, "but to those obligations that existed
within the overall scheme of the farming operations which were to
take place" on their property. Mizell v. Commissioner, T.C.
Memo. 1995-571. (Emphasis supplied.) These include petitioners'
obligations as longstanding participants in the farming business
as well as the "general understanding between * * * [petitioners
and McNamara Farms] with respect to the production of
agricultural products". Id. Viewed in this light, the
arrangement between petitioners and McNamara Farms provided, or
contemplated, that petitioners materially participate in the
production of agricultural commodities on the farmland.
Mr. McNamara was candid as is evident from the following
question during direct examination:
Q. And what do you do for McNamara Farms?
A. I operate the farm. I run the farm from planting to
harvest.
Mr. McNamara claimed he made all the management decisions. Mr.
McNamara asserted that his wife "was a homemaker and ran when she
was needed for, you know, meals or parts." Before incorporation,
Mrs. McNamara did not do the bookkeeping, but otherwise performed
the duties outlined above. Mr. McNamara tried to downplay his
wife's participation. Mrs. McNamara did not appear in Court,
even though petitioners' trial memorandum stated that both
parties would testify. Under these circumstances, we are not
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required to accept the self-serving testimony of Mr. McNamara as
gospel. Tokarski v. Commissioner, 87 T.C. 74, 77 (1986).
Although petitioners contend that the written lease agreement did
not require them to materially participate in the farming
operations, the record supports a finding that petitioners played
a material role in the production of agricultural commodities
under an arrangement with McNamara Farms.
For about 21 years through the taxable years at issue, Mr.
McNamara performed general farming services on the farm on a
regular and intermittent basis, as we detailed in the findings of
fact. Mrs. McNamara failed to testify, but it is clear that for
a good number of years she did the same. In our view, these
"regularly performed services are material to the production of
an agricultural commodity, and the intermittent services
performed are material to the production operations to which they
relate." Sec. 1.1402(a)-4(b)(6), Example (1), Income Tax Regs.
The regulations provide in pertinent part, that if the
rental income is derived under an arrangement between the owner
of land and another person which provides that such other person
shall produce agricultural commodities on such land, and that
there shall be material participation by the owner in the
production or the management of the production of such
agricultural commodities, and there is such material
participation by the owner, then the rental income received by
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the owner pursuant to the arrangement is considered earnings from
self-employment. Sec. 1.1402(a)-4(b), Income Tax Regs.
Accordingly, we find that the rental income is includible farm
rental income that is part of petitioners' net earnings from
self-employment under section 1402(a)(1) for each of the taxable
years at issue.
We have considered all of the arguments presented by the
parties, and, to the extent not discussed above, they are without
merit or not relevant.
To reflect the foregoing,
Decision will be entered
for respondent.