SLIP OP. 06-161
UNITED STATES COURT OF INTERNATIONAL TRADE
------------------------------x
ROBERT L. ANDERSON, :
:
Plaintiff, :
: Before: Pogue, Judge
v. : Court No. 05-00329
:
:
UNITED STATES SEC’Y :
OF AGRICULTURE, :
:
Defendant. :
------------------------------x
[Remanded for reconsideration of refusal to consider Plaintiff’s
claim that his net income declined on an accrual basis.]
Dated: November 1, 2006.
Robert L. Anderson, Plaintiff pro se.
Peter D. Keisler, Assistant Attorney General; David M. Cohen,
Director, Patricia M. McCarthy, Assistant Director, Commercial
Litigation Branch, Civil Division, U.S. Department of Justice
(David S. Silverbrand), for Defendant United States Secretary of
Agriculture.
OPINION
Pogue, Judge: Plaintiff Robert L. Anderson challenges the decision
of the Foreign Agricultural Service of the United States Department
of Agriculture (hereinafter “Agriculture” or the “USDA”) denying
his application for benefits under the trade adjustment for farmers
Court No. 05-00329 Page 2
program1 (“TAA program”). Plaintiff claims that Agriculture’s
decision improperly failed to recognize the actual accrual basis
decline in his net farm income for 2002. The court finds that the
USDA entirely failed to consider an important aspect of the problem
presented, see Motor Vehicle Mfs. Ass’n of U.S. v. State Farm Mut.
Auto Ins. Co., 463 U.S. 29, 43 (1983), and remands the
determination.
JURISDICTION AND STANDARD OF REVIEW
The court has jurisdiction under 19 U.S.C. § 2395.2 The court
must uphold the factual determinations of the USDA if they are
supported by substantial evidence. 19 U.S.C. § 2395(b). On legal
issues, the court considers whether the Secretary’s determination
is “in accordance with law.” Former Employees of Gateway Country
Stores LLC v. Chao, 30 CIT __,__, Slip Op. 06-32, at 9(March 3,
2006), Former Employees of Elec. Data Sys. Corp. v. United States
Sec'y of Labor, 28 CIT __, __, 350 F.Supp.2d 1282, 1286 (2004),
Former Employees of Rohm & Haas Co. v. Chao, 27 CIT __,__, 246
F.Supp.2d 1339, 1346 (2003).
1
See, Trade Adjustment Assistance Reform Act of 2002, Pub.
L. 107-210, Title 1, Subtitle C § 141, 116 Stat. 953(2002), 19
U.S.C. §§ 2401 et seq.
2
All references to 19 U.S.C. §§ 2395, 2401 et seq. are to
Supplement III of the 2000 edition of the United States Code
(2003). Otherwise references to the United States Code are to
the 2000 edition.
Court No. 05-00329 Page 3
BACKGROUND
A.
Under the TAA program, producers who have been certified as
eligible for benefits, see 19 U.S.C. § 2401a, must then
individually meet several conditions in order to receive such
benefits, 19 U.S.C. § 2401e. In particular, a producer qualifies
for assistance only if “the producer’s net farm income (as
determined by the Secretary [of Agriculture]”) for the most recent
year is less than the producer’s net farm income for the latest
year in which no adjustment assistance was received by the producer
under this chapter [19 U.S.C. §§ 2401 et seq.] ” 19 U.S.C. §
2401e(a)(1)(C)(emphasis added).3 Pursuant to this Statutory
Authority, and invoking the Internal Revenue Service (“IRS”) code,
the Secretary defined “net farm income” as “net farm profit or
loss, excluding payments under this part, reported to the Internal
Revenue Service for the tax year that most closely corresponds with
the marketing year under consideration.” 7 C.F.R. § 1580.1024
3
Though not relevant here, the agricultural commodity
producer’s adjusted gross income must also not exceed certain
levels specified in section 1308-3a of Title 7,
19 U.S.C. § 2401e(a)(2)(A)(i).
4
All references to the Code of Federal Regulations are to
the 2004 edition, except where otherwise indicated.
Court No. 05-00329 Page 4
(emphasis added)(also defining “net fishing income” the same way.).
B.
In October of 2003, the Foreign Agricultural Service of the
Department of Agriculture certified “[s]almon fishermen holding
permits and licenses in the states of Alaska and Washington” as
eligible to apply for trade adjustment assistance benefits. Trade
Adjustment Assistance for Farmers, 68 Fed. Reg. 62,766 (Dep’t
Agric. Nov. 6, 2003)(notice). Pursuant to this certification and
notification thereof, in January of 2004, Plaintiff applied for
benefits under the trade adjustment for farmers program pursuant to
19 U.S.C. § 2401e. The USDA denied Mr. Anderson’s application for
benefits on February 4, 2005, stating that the application was
denied because his “net fishing income did not decline from the
latest year in which no adjustment assistance was received (2001).”
Letter from Ronald Ford, Deputy Director, Program Division, to
Robert L. Anderson (Feb. 4, 2005) Administrative Record at 23.
Acting on the agency’s letter sent to him, and
7 C.F.R. § 1580.5055, Mr. Anderson appealed the USDA determination
5
This regulation reads: “[a]ny person aggrieved by a final
determination made with respect to an application for program
benefits under this part may appeal to the United States Court of
International Trade for a review of such determination, in
accordance with its rules and procedures.” 7 C.F.R. § 1580.505.
This provision was adopted in 2004, changing the appeals
procedure from the FSA administrative appeal procedure (the
National Appeals Division) to the Court of International Trade in
accordance with 19 U.S.C. § 2395. 7 C.F.R. Part 1580: Trade
Adjustment Assistance for Farmers, 69 Fed. Reg. 63,317, 63,317-18
(continued...)
Court No. 05-00329 Page 5
to this court. In his appeal, Mr. Anderson stated that despite
the fact that his income tax returns, which were based on cash
receipts, reflected an increase in his income over the period in
question, his true income, based on actual sales of salmon (the
“accrual method”) showed a decline in his income.6
5
(...continued)
(Dep’t Agric. Nov. 1, 2004) (final rule; technical amendments).
6
Mr. Anderson initially filed a complaint with the court on
April 25, 2005, after the 60 day filing period required by 19
U.S.C. § 2395(a); the 60 day filing period expired on April 5,
2005. Mr. Anderson produced documentation, in response to
Defendant’s argument that he was jurisdictionally barred from
pursuing his claim, that the USDA sent the letter notifying Mr.
Anderson of the denial of his request for TAA benefits to an
incorrect address despite the fact that the USDA had the correct
address on file. Pl.’s Reply Def.’s Resp. 2,5,6. Mr. Anderson
learned of the denial of his application for benefits when he
went to his local Farm Service Agency, and was informed that a
notice had been mailed to him (at the wrong address) and that the
stated time to appeal had expired. Mr. Anderson filed his appeal
anyway “assuming that it would be acceptable because it was the
Farm Service Agency’s fault that I was not informed of my
disapproval until after the 60 day period to appeal.” Id. 3.
Defendant, citing Irwin v. Dep’t of Veterans Affairs,
withdrew its 12(b)(1) motion, noting that Mr. Anderson
“demonstrated that he made a diligent effort to pursue his
claim.” Def.’s Reply 2, Irwin v. Dep’t of Veterans Affairs, 498
U.S. 89 (1990). Nevertheless, it is “always necessary that the
court determine its [own] jurisdiction irrespective of what
parties aver, or even agree among themselves." Brecoflex Co. v.
United States, 23 CIT 84, 86, 44 F. Supp. 2d 225, 228 (1999).
Defendant is correct in noting that the doctrine of
equitable tolling, as stated in Irwin v. Dept’t of Veteran’s
Affairs, 498 US 89, 95-96 (1990) would permit this claim.
However, as this court noted in Truong v. U.S. Sec’y of Agric.,
30 CIT __, Slip Op. 06-150, at 4 n.3 (Oct. 12, 2006), language in
the opinion of the Court of Appeals of the Federal Circuit in
Autoalliance Int’l Inc. v. United States may be read to indicate
otherwise. Autoalliance Int’l Inc v. United States, 357 F. 3d.
1290, 1294 (Fed. Cir. 2004) (rejecting tolling of 19 U.S.C. §
(continued...)
Court No. 05-00329 Page 6
C.
Because the USDA’s regulations defining net farm income
invoke the IRS code, the agency’s determination of a decline in
income between the relevant time periods depends on how that income
has been reported to the IRS. Pursuant to the IRS’s reporting
requirements, taxpayers must report their income for each year.
6
(...continued)
2636(a) because “in suits against the United States,
jurisdictional statutory requirements cannot be waived or
subjected to excuse based on equitable principles.” (citing
Mitsubishi Elecs. Am., Inc. v. United States, 18 CIT 929, 932,
865 F. Supp. 877, 880 (1994)).
Autoalliance notwithstanding, the court still finds that it
has jurisdiction over this case. Autoalliance dealt specifically
with tolling for suits brought under 19 U.S.C. § 2636(a), but did
not address equitable tolling under 19 U.S.C. § 2395, dealing
with trade adjustment assistance cases. Cf., Former Emples. of
BMC Software, Inc. v. United States Sec'y of Labor, 30 CIT __,
__, Slip Op. 06-132, at 9 (Aug. 31, 2006) (“The trade adjustment
assistance laws are remedial legislation and, as such, are to be
construed broadly to effectuate their intended purpose”) (citing
UAW v. Marshall, 584 F.2d 390, 396 (D.C. Cir. 1978)).
Additionally, it cannot be established that the clock
started running to establish a deadline for Mr. Anderson’s
filing. In Irwin, the Supreme Court held that the clock began
to run once the notice of final action was “received.” Irwin 498
US at 92. The statute in Irwin specifically stated that “the
complaint against the Federal Government under Title VII must be
filed ‘within thirty days of receipt of notice of the final
action taken by the EEOC.’” Id. (quoting 42 U.S.C. § 2000e-
16(c)(1988)). Unlike the statute at issue in Irwin, here, 19
U.S.C. § 2395(a) provides that a party “may, within sixty days
after notice of such determination, commence a civil action in
the United States Court of International Trade for review of [a
final] determination.” 19 U.S.C. § 2395(a). Though the two
provisions are dissimilar, the letter mailed to the wrong
address, when the correct address was on file, cannot constitute
notice. As such, the clock did not begin to run, and Mr.
Anderson’s claim is not barred on the basis of not being timely
filed.
Court No. 05-00329 Page 7
Recognizing that payment for goods and services frequently lags the
sale of such goods and services, the IRS code permits taxpayers to
report their income using two principle accounting methods: (1) the
cash receipts and disbursements method (“cash method”); and (2) an
accrual method.7 26 U.S.C. § 446(c).8
In plain terms,
7
The IRS code further allows taxpayers to report their
income using: any other method permitted by Chapter 1 of Title 26
of the U.S. Code; or any combination of the foregoing methods
permitted under regulations prescribed by the Secretary of the
Treasury. 26 U.S.C. § 446(c).
8
In defining these accounting methods, the IRS’ regulations
provide that
[G]enerally, under the cash receipts and disbursements
method in the computation of taxable income, all items
which constitute gross income (whether in the form of
cash, property, or services) are to be included for the
taxable year in which actually or constructively
received. Expenditures are to be deducted for the
taxable year in which actually made.
26 C.F.R. § 1.446-1(c)(1)(i)(2006) (emphasis added). In
contrast,
under an accrual method, income is to be included for the
taxable year when all the events have occurred that fix
the right to receive the income and the amount of the
income can be determined with reasonable accuracy. Under
such a method, a liability is incurred, and generally is
taken into account for Federal income tax purposes, in
the taxable year in which all the events have occurred
that establish the fact of the liability, the amount of
the liability can be determined with reasonable accuracy,
and economic performance has occurred with respect to the
liability.
26 C.F.R. § 1.446-1(c)(1)(ii)(A)(2006) (emphasis added).
Court No. 05-00329 Page 8
[t]he accrual method, as distinguished from the cash
receipts and disbursements method of accounting, reports
revenues when they are earned even though no cash may
have been received and reports expenses when they have
been incurred even though no payment of cash has been
made in connection with such expenses.
Charles H. Meyer, Accounting and Finance for Lawyers in a Nutshell
9
26 (3d ed. 2006).
Agriculture’s regulations do not distinguish between cash and
accrual accounting. Rather, when these accounting methods are
incorporated into Agriculture’s regulations, the regulations
implicitly define “net farm income” to mean either (a) a producer’s
cash receipts in a given year, or (b) the amount of income,
reported under the accrual method tracking the sales less expenses,
that the producer earns from agricultural production.
Consequently, Agriculture’s determination of a decline in income
between the relevant time periods depends on how that income has
been reported to the IRS.
To illustrate, consider two identical wheat farmers (Producer
A and Producer B) who, in all material respects, have the same
income stream. Producer A reports her income to the IRS on an
accrual basis and Producer B reports his income to the IRS on a
cash basis. Assume both make a sale in year 1 for $10 but do not
9
Once a taxpayer elects an accounting method, “[e]xcept as
otherwise expressly provided in [26 U.S.C. §§ 1 et seq.], a
taxpayer who changes the method of accounting on the basis of
which he regularly computes his income in keeping his books
shall, before computing his taxable income under the new method,
secure the consent of the [IRS].” 26 U.S.C. § 446(e).
Court No. 05-00329 Page 9
collect the proceeds of this sale until year 2; because of import
competition, both farmers are unable to sell any wheat in year 2.
At the end of year 2, the Secretary certifies wheat farmers for
trade adjustment assistance. By virtue of how they reported their
income to the IRS, Producer A will have reported her income to the
IRS as $10 in year 1, and $0 in year 2; Producer B would have
reported his income to the IRS as $0 in year 1 and $10 in year 2.
Consequently, under the Secretary’s definition of “net farm
income,” Producer A would qualify for adjustment assistance while
Producer B would not.10
D.
The underlying question presented by this case is whether
Agriculture’s application of its definition of net farm income is
lawful. The court’s review of such a question is guided by the
well-established test enunciated in Chevron U.S.A. Inc. v. Nat’l
Resources Defense Council, Inc., 467 U.S. 837, 842-43 (1984).
First, the court must consider whether Congress has “directly
10
Graphically:
Goods sold in year 1 with payment received in Year 2
Year 1 Year 2 Difference in income as
reported to IRS
Producer A 10 0 -10
(accrual method)
Producer B 0 10 +10
(cash method)
Court No. 05-00329 Page 10
spoken to the precise question at issue. If the intent of Congress
is clear, that is the end of the matter; for the court, as well as
the agency, must give effect to the unambiguously expressed intent
of Congress.” Id. However, “[i]f Congress has explicitly left a
gap for the agency to fill, there is an express delegation of
authority to the agency to elucidate a specific provision of the
statute by regulation. Such legislative regulations are given
controlling weight unless they are arbitrary, capricious, or
manifestly contrary to the statute.” Id.
In 19 U.S.C. § 2401e, Congress did not directly define net
farm income; rather, by requiring that a “producer’s net farm
income (as determined by the Secretary)” decline, Congress left an
explicit gap for the Secretary to fill . See Steen v. Sec’y of
Agric., 29 CIT __, 395 F. Supp. 2d 1345 (2005). The phrase “as
determined by the Secretary” provides “an express delegation of
authority to the agency to elucidate a specific provision of the
statute by regulation.” Transitional Hosps. Corp. of La. v.
Shalala, 222 F.3d 1019, 1025 (D.C. Cir. 2000) (citing Chevron, 467
U.S. at 843-44); But cf. Selivanoff v. U.S. Sec’y of Agric., 30 CIT
__,__, Slip Op. 06-55, at 11-12 (April 18, 2006). Accordingly, the
court may only reject the Secretary’s definition if she exercises
her discretion unreasonably. Transitional Hosps. Corp., 222 F.3d
at 1025.
The Secretary filled the statutory gap through 7 C.F.R.
Court No. 05-00329 Page 11
§ 1580.102, stating “Net fishing income means net profit or loss,
excluding payments under this part, reported to the Internal
Revenue Service for the tax year that most closely corresponds with
the marketing year under consideration.” 7 C.F.R. § 1580.102.
Accordingly, this regulation, issued under a specific grant of
congressional rulemaking authority, has “legislative effect,” see
Batterton v. Francis, 432 U.S. 416, 425 (1977), and the court will
pay a “very high degree of deference” to the regulation, “unless
they are arbitrary, capricious, or manifestly contrary to the
statute.’” Schuler Indus., Inc. v. United States, 109 F.3d 753, 755
(Fed. Cir. 1997) (quoting Chevron, 467 U.S. at 844). Thus, the
court must defer to the regulation “unless the Secretary's
interpretation is contrary to clear congressional intent or
frustrates the policy Congress sought to implement.” Schneider v.
Chertoff, 450 F.3d 944, 960 (9th Cir. 2006). Further, where, as
here, Congress has not specifically mandated individual
determinations, “[t]he administration of public assistance based on
a formula is not inherently arbitrary.” Schweiker v. Gray
Panthers, 453 U.S. 34, 48 (1981). Barnhart v. Thomas, 540 U.S. 20,
29 (2003) (“Virtually every legal (or other) rule has imperfect
applications in particular circumstances.”) (emphasis in original).
It follows that, in filling the gap left in the statute, the
Secretary’s regulation may discriminate between similarly situated
parties on grounds related to the statutory purpose underlying
Court No. 05-00329 Page 12
their actions. Stereo Broadcasters, Inc. v. FCC, 652 F.2d 1026,
1029 n. 5 (D.C. Cir. 1981) (citing Garrett v. FCC, 513 F.2d 1056,
1060 (D.C. Cir. 1975). This is because regulations inevitably
discriminate to some extent, and "[s]ome over- and
under-inclusiveness would not be fatal to [a regulation] if the
[agency] gave a reasonable justification for administering only
rough justice." Athens Cmty. Hosp., Inc. v. Shalala, 21 F.3d 1176,
1180 (D.C. Cir. 1994). The fact that there exists a hypothetical
scenario in which the rule might lead to an arbitrary result does
not render the rule “arbitrary or capricious.” Am. Hosp. Ass'n v.
N.L.R.B., 499 U.S. 606, 619 (1991).
Nonetheless, despite the high level of deference the court
accords to the Secretary, the court cannot uphold the application
of a regulation if it is “[in]consistent with the fundamental
principles of liberty and justice which lie at the base of our
civil and political institutions. . . .” Buchalter v. New York,
319 U.S. 427, 429 (1943) (citing Hebert v. Louisiana, 272 U.S. 312,
316-17 (1926)). One fundamental principle of law and justice is
that like cases should be treated alike. It is well-established
that the law should “‘act alike in all cases of like nature.'"
See, e.g., Henry J. Friendly, Indiscretion About Discretion, 31
Emory L. J. 747, 758 (1982) (quoting Rex v. Wilkes, 98 Eng. Rep.
327, 335 (1770) (opinion of Lord Mansfield); eBay Inc. v.
MercExchange, L.L.C., 126 S. Ct. 1837, 1841-42 (2006) (“limiting
Court No. 05-00329 Page 13
discretion according to legal standards helps promote the basic
principle of justice that like cases should be decided alike”);
Taber v. Maine, 67 F.3d 1029, 1038 (2d Cir. 1995) (“treating like
cases alike is the great engine of the law”).
The agency must “explain the relevance of those [arbitary]
differences to the purposes of the [Act].” Melody Music, Inc. v.
FCC, 345 F.2d 730, 733 (D.C. Cir. 1965). The Secretary may justify
discriminating between individuals on grounds of administrative
convenience, but ease of administration does not obliterate the
Secretary’s obligation to provide substantial evidence and follow
fundamental principles of justice. Gulf Oil Corp. v. Hickel, 435
F.2d 440, 446 (D.C. Cir. 1970) (citing Carmichael v. S. Coal & Coke
Co., 301 U.S. 495, 511 (1937)) (“An agency confronted with a
complex task may rationally turn to simplicity in ground rules, and
administrative convenience, at least where no fundamental injustice
is wrought”); United States v. Udy, 381 F.2d 455, 458 (10th Cir.
1967) (“ease of administration does not make an administrative
determination any the less arbitrary when it otherwise had no
substantial evidence to support it”).
An agency rule may still be found arbitrary and capricious
if the agency has relied on factors which Congress has
not intended it to consider, entirely failed to consider
an important aspect of the problem, offered an
explanation for its decision that runs counter to the
evidence before the agency, or is so implausible that it
could not be ascribed to a difference in view or the
product of agency expertise.
Court No. 05-00329 Page 14
State Farm, 463 U.S. at 43. Therefore, courts have found that there
exist some circumstances where it is impermissible for a rule to
arbitrarily distinguish between similarly situated individuals.
See Capital Cities Commc’ns, Inc. v. FCC, 554 F.2d 1135 (D.C. Cir.
1976); Melody Music, 345 F.2d 730.11
Agencies have a responsibility to administer their statutorily
accorded powers fairly and rationally, which includes not
“treat[ing] similar situations in dissimilar ways.” Burinskas v.
N.L.R.B., 357 F.2d 822, 827 (D.C. Cir. 1966) (citing Melody Music,
345 F.2d 730). Indeed, a principal justification for the
administrative state is that in “areas of limitless factual
variations, like cases will be treated alike.” Nat’l Muffler
Dealers Ass’n v. United States, 440 U.S. 472 (1979)(internal
citations omitted); South Shore Hosp., Inc. v. Thompson, 308 F.3d
91, 101 (1st Cir. 2002) (“The goal of regulation is not to provide
exact uniformity of treatment, but, rather, to provide uniformity
of rules so that those similarly situated will be treated alike”).
Courts will therefore not defer to an agency regulation or
adjudicative decision when they produce results which are
arbitrary, capricious, or manifestly contrary to the statutory
scheme. Exxon Corp. v. United States, 40 Fed. Cl. 73, 86 (1998)
11
In reviewing that reasonableness of an agency’s
regulation, the court applies a more stringent level of scrutiny
than a rational basis inquiry under the Due Process Clause of the
Fifth Amendment.
Court No. 05-00329 Page 15
(citing Chevron, 467 U.S. at 844); Schuler Indus., Inc. v. United
States, 109 F.3d at 755; Schneider v. Chertoff, 450 F.3d at 960.
DISCUSSION
The issue in this case arises because the USDA “defines” net
income by grafting the “net income” figure from the producer’s
income taxes into the USDA’s own regulatory framework. By relying
only on the income farmers (and fishermen) report to the IRS12, and
not distinguishing between accounting techniques, the USDA will
not, in some circumstances, be treating like persons alike. This
is because once a taxpayer has chosen a particular method of
computing and reporting taxable income for income tax purposes, he
cannot change methods without the approval of the Commissioner of
the IRS. See 26 U.S.C. § 446(e).
As explained above, where the taxpayer has chosen the cash
method, items are included in the taxable year in which they have
been actually or constructively received. 26 C.F.R.
§ 1.446-1(c)(1)(i). The cash method does not attempt to accurately
match expenses with income in a single year. See, e.g., Bonaire
Dev. Co. v. Comm’r, 679 F.2d 159, 162 (9th Cir. 1982); Jacob
12
The USDA also allows for supplemental information to be
submitted to augment the information provided by “net fishing
income.” See 7 C.F.R. § 1580.301(e)(6); see also Selivanoff v.
Sec’y of Agric., 30 CIT __, Slip Op. 06-55, at 10 n. 4 (Apr. 18,
2006); Trinh v. Sec’y of Agric., 29 CIT __,__, 395 F. Supp. 1259,
1271-72 (2005). Apparently, the agency did not utilize this
provision in considering Mr. Anderson’s case.
Court No. 05-00329 Page 16
Mertens, Jr., 2 Mertens Law of Fed. Income Tax'n § 12:14 (2006)
(“Under the cash method, there is no necessary correlation between
the period that income is earned and the period that payments are
received”). Thus, for cash method taxpayers, it is the actual or
constructive receipt of the income, rather than the time it is
earned, that determines its includability in income. 26 U.S.C.
§ 451(a).
It is well-established that the cash method usually leads to
distorted income statements for any one taxable year. See, e.g.,
Frysinger v. Comm’r, 645 F.2d 523, 527 (5th Cir. 1981). However,
the “sacrifice in accounting accuracy under the cash method
represents an historical concession by the Secretary and the
Commissioner to provide a unitary and expedient bookkeeping system
for farmers and ranchers in need of a simplified accounting
procedure.” United States v. Catto, 384 U.S. 102, 116 (1966); see
also Frysinger, 645 F.2d at 527 (finding the Commissioner has
specifically granted farmers the special privilege of using the
cash method despite the high probability for substantial
distortions of income in any one taxable year). For income
reporting purposes, the distortions are not considered material
because “over a period of years the distortions will tend to cancel
out each other.” Van Raden v. Comm’r, 71 T.C. 1083, 1104 (1979);
see also Spitalny v. United States, 430 F.2d 195, 197 (9th Cir.
1970).
Court No. 05-00329 Page 17
In contrast to the cash method, the accrual method allows
taxpayers to “charg[e] against income earned during the taxable
period, the expenses incurred in and properly attributable to the
process of earning income during that period.” United States v.
Anderson, 269 U.S. 422, 440 (1926). Although the IRS may allow the
taxpayer to use either the cash or accrual method, the taxpayer’s
reported income may be substantially different for the years in
question depending on their choice of reporting method. See, e.g.,
Ralston Dev. Corp. v. United States, 937 F.2d 510, 513 (10th Cir.
1991) (finding substantial differences in the results achieved
under the cash and accrual methods); see also supra, pp. 8-9.
This is not the first time that distortions related to the
differences between cash and accrual accounting have raised
concern. In Catto, for example, the Supreme Court considered the
Commissioner’s authority to approve a taxpayer’s request to
transition from using one method of accounting to another. Catto,
384 U.S. at 116. In approving the Commissioner’s authority under
the facts of that case, the Court found that the plaintiffs had
meaningfully elected their accounting technique. In the course of
so holding, however, the Court suggested that:
particular legislative or administrative mutations in the
tax laws may foster inequities so great between taxpayers
similarly situated that the Commissioner could not
legitimately reject a proposed change in accounting
method unless the taxpayer had exercised a meaningful
choice at the time he [or she] selected his [or her]
contemporary method.
Court No. 05-00329 Page 18
Id. at 115-16. This leaves open the possibility that there is
some level of inequity that would not allow for the different
accounting methods to be used interchangeably.
Both of the concerns identified above are necessarily present
here: (1) Plaintiff elected his accounting technique long before
knowing the consequences that his election would have on his
eligibility for trade adjustment assistance (therefore, one could
hardly attribute to him a meaningful election); and (2) because the
statute and regulations focus on one year intervals, distortions
do not necessarily cancel out each other. Consequently, there can
be no doubt that the application of the regulation here
differentiates amongst farmers or fishermen soley on the basis of
their income-reporting method to the IRS.
In defense, the government claims that the requirement that
“net farm income” and “net fishing income” be consistent with what
was reported to the IRS, regardless of whether the income was
reported on an accrual or cash basis, is necessary to prevent
fraud. See Def.’s Supp. Br. Resp. Ct.’s Questions 5 (“Def.’s Supp.
Br.”) (“Without a requirement that ‘net farm income’ and ‘net
fishing income’ be consistent with what is reported to the IRS, a
producer could manipulate the ‘net farm income’ reported to the
USDA while at the same time potentially making large year over year
profits.”) The Defendant also claims that this conforms to the
IRS’s requirement that a “taxpayer must use the same accounting
Court No. 05-00329 Page 19
method to figure [their] taxable income and to keep their books.”
Id. at 5-6. Additionally, the government argues that a contrary
rule would potentially require a TAA beneficiary to maintain two
separate sets of books, which is “specifically disallowed by IRS
rules.” Id. at 6.
While the government points to the possibility of fraud, it
has not explained how such fraud would occur. Additionally, and
more importantly, the reasons given as to why it would be
unworkable, or not material, for the USDA to consider evidence
that, as measured on an accrual basis, Mr. Anderson’s income has
declined on a year-over-year basis, are all post-hoc
rationalizations. The USDA has stated that it relies on income as
reported to the IRS, and using that parameter, Mr. Anderson’s
income did not decrease. As such, the USDA did not comment on the
issues that are raised by Mr. Anderson’s claim. Accordingly, any
of the explanations offered by the government counsel here are
post-hoc rationalizations, and therefore do not constitute a
sufficient basis for the court to reach a decision on the legality
of the Defendant’s determination. As stated by the Supreme Court:
a reviewing court, in dealing with a determination or
judgment which an administrative agency alone is
authorized to make, must judge the propriety of such
action solely by the grounds invoked by the agency. If
those grounds are inadequate or improper, the court is
powerless to affirm the administrative action by
substituting what it considers to be a more adequate or
proper basis. To do so would propel the court into the
domain which Congress has set aside exclusively for the
Court No. 05-00329 Page 20
administrative agency.
SEC v. Chenery Corp., 332 U.S. 194, 196 (1947). See also
Burlington Truck Lines Inc. v. United States, 371 U.S. 156, 168
(1962) (“courts may not accept appellate counsel's post hoc
rationalizations for agency action”).
The need for the agency to consider these issues and provide
its own rationale for a particular determination is particularly
acute when, as here, the agency has failed to consider an important
aspect of a problem. See State Farm 463 U.S. at 43. Though an
agency has the right to draw a line on the basis of efficiency, see
Barnhart, 540 U.S. at 29, at the same time, the agency has to be
aware of the line that it is drawing and provide some basis for
drawing that line, Stereo Broadcasters, 652 F.2d at 1029 n. 5;
Athens Cmty. Hosp., Inc, 21 F.3d at 1180.13
13
In the notice and comment period for 7 C.F.R. § 1580.102,
the USDA did receive comments on the “net farm income” definition
which it addressed. Specifically,
[t]hree respondents expressed concern that producers
managing diversified farms might not qualify for
adjustment assistance payments due to higher earnings
from sales of other commodities. The purpose of TAA is
to assist producers to adjust to imports by providing
technical assistance to all and cash payments to those
facing economic hardship. The final rule leaves
unchanged the requirement that producers certify to a
decline in net farm income, as reported on Internal
Revenue Service Schedule F (Form 1040) and Form 4835,
in order to receive a cash payment. However, the final
rule does exclude TAA payments from being considered
part of net farm income in subsequent qualifying years.
(continued...)
Court No. 05-00329 Page 21
Nevertheless, it is also unquestionably true that whatever
definition of “net farm income” the Secretary adopts will
undoubtedly lead to some artificial distinctions between those who
qualify for benefits and those who do not. See, e.g., Capital
Cities Commc’ns, 554 F.2d at 1139 (“Such line-drawing problems are
always with us. Any classification which requires drawing a line is
necessarily arbitrary to some extent.”). Here, however, the USDA
has not provided an explanation as to why it has drawn this line,
and why the discriminatory effects of such a line are acceptable.
Nor has the USDA considered the reasonableness of this result
compared to other available alternatives. Cf. Barnhart 540 U.S. at
29.
Therefore, the court remands this determination to the USDA
for it to consider the reasonableness of its regulation as applied
to Mr. Anderson, in view of the differences in cash versus accrual
accounting, the inequities the agency’s application presents, and
the fact that applicants elect their accounting technique without
13
(...continued)
Otherwise, TAA payments might be the cause for
excluding producers from receiving the full benefits of
the program.
7 CFR Part 1580: Trade Adjustment Assistance for Farmers, 69 Fed.
Reg. 50,048, 50,049 (Dep’t Agric. Aug. 20, 2003)(final rule).
There is no record that during the notice-and-comment period, or
in the consideration of Mr. Anderson’s application, the USDA
considered the unique situation that farmers and fishermen, as
individual producers, find themselves in, insofar as they are
able to report their income on either a cash or accrual basis.
Court No. 05-00329 Page 22
knowing that it could adversely impact their eligibility for
benefits in the future. On remand, the agency shall reconsider its
position and may reopen the record to permit an acceptable
alternative solution.
CONCLUSION
For the foregoing reasons, the court remands this matter for
further consideration consistent with this opinion. The agency
shall have until December 1, 2006, to provide a remand
determination. Plaintiff shall submit comments on the remand
determination no later than December 15, 2006, and the government
shall submit rebuttal comments no later than January 3, 2007.
SO ORDERED.
Dated: November 1, 2006
New York, N.Y.
/s/ Donald C. Pogue
Donald C. Pogue, Judge