Minding Ag's Business

Pay Limits and Burden of Proof

By  Marcia Zarley Taylor

The U.S. Attorney in Springfield Illinois announced that it had reached a $5.364 million civil settlement with a prominent Illinois farm family, as DTN's Chris Clayton reported Wednesday, and that's been the buzz in farm country since (see DTN Farm Business page). The central Illinois family farm business, collectively known as Dowson Farms, had been newsworthy for setting the bar on sizzling cash rents in recent years, much to local farmers' dismay. But Illinois farm management firms held them in high regard as tenants, both for their farming practices and their returns.

Now the Justice Department alleges the farm's principal owners violated the False Claims Act by creating sham business entities and claiming farm subsidies they were not entitled to receive between 2002 through 2008. If that sounds like ancient history, welcome to our legal system.

The issue in question is the now defunct "three-entity rule," which died in the 2008 Farm Act. Under that restriction, no person could receive payments subject to these rules from more than three businesses they owned, such as partnerships or limited liability companies. Using this provision, an individual was effectively allowed to receive payments to himself and on up to two additional entities in which the individual help up to a 50% interest. According to the U.S. Attorney, the Dowsons allegedly created multiple limited partnerships to conceal their interests, using employees as straw men.

In their defense, the Dowsons note that they cleared their arrangements with the Farm Service Agency in advance, both at the county and state level. Neither side admitted wrong doing in this settlement and no criminal charges are involved.

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One irony is that the 2008 Farm Act linked farm payments to Social Security numbers, to prevent overpayments, so potential abuses have been limited since then. Todd Jennison, an agricultural consultant for Kennedy and Coe in Garden City, Kan., would not comment specifically on the Dowson case, but thinks USDA is stepping up enforcement even though farm program payments have waned in recent years. "It's probably anecdotal, but it appears USDA is being more vigilant in the reviews," he told DTN.

To be actively engaged in farming and eligible for payments, an individual must have share risk, divide business returns commensurate with their contributions and provide either land, equipment or capital and either active labor or active management, Jennison said. Farm operators should document their contributions--including the hours they work and minutes from regular management meetings. To qualify for a labor contribution, one must work at least 1,000 hours per year.

IRS generally has a seven-year statute of limitations on tax disputes. However, once the government opens a negotiation in cases like this, it can go back as far as it feels justified, a spokeswoman for the U.S. Attorney in Springfield said. In essence, there is no statute of limitations on farm program payments so growers must keep records indefinitely. Often, the government seeks back payments, penalties and interest, so a 12-year-old offense can add up, Jennison said.

Follow me on Twitter@MarciaZTaylor.

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Comments

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Don Thompson
2/6/2014 | 10:40 AM CST
Would it be throwing cold water on the blogs' collective paranoia if one were to point out that this is the way business has always been? Government or not. When you or anyone signs up for government benefits of any kind your signature verifies that you understand all the ramifications of your signature on the paper? It is ridiculous to think that the opinion a low level administrator for any organization makes one immune to all the legalities that a desired action might incur. You folks are smarter than this. When you play near the edge, it is reasonable to assume someone might fall off the cliff.
Unknown
2/5/2014 | 2:23 PM CST
Maybe they should also advise all partisipants to bring a lawyer with and make sure to get copies of all of the fine print not just the front page along with a copy of the full written law not a handbook with someone's interpitation
W Kuster
2/5/2014 | 10:14 AM CST
Typical government - no one knows what they are doing. Obama does not know, congress doesn't know, and the bureaucrats don't know. But obviously those who have to deal with this bureaucracy are expected to know all.
Marcia Taylor
2/5/2014 | 7:56 AM CST
Readers, here's another interesting comment from my e- mailbag, from a former Risk Management Agency manager: Getting the approval of the FSA bureaucracy in Sangamon county IL and Springfield bunch was a nice effort but Dowsons got bit by a six-decades old finding. The Supreme Court ruling was in 1947 and interestingly involved a federal crop adjuster telling farmer to tear up some damaged wheat. Dowsons state they relied on the FSA county and state level employee opinions to implement their plan. Well for trivia that Dowson error and the involvement of the U.S Attorney likely was linked to the FCIC v. Merrill which finds that no one should rely on any statement by a bureaucrat!! Dowsons found this in spades. Some years ago there was a scare among the FSA/RMA troops about taking Errors and Omissions insurance. The theme then was that if some bureaucrat did something that was off procedure they could be held personally liable for the resulting damages. I would guess that FCIC v. Merrill SC ruling was involved in the settlement. Citing: Federal Crop Ins. Corp v. Merrill, 332 U.S. 380, the Supreme Court held: �Whatever the form in which the government functions, anyone entering into an arrangement with the government takes a risk of having accurately ascertained that he who purports to act for the government stays within the bounds of his authority, even though the agent himself may be unaware of the limitations upon his authority.�
Don Thompson
2/3/2014 | 7:16 PM CST
Oh, I see now. It's us against them.
Unknown
2/3/2014 | 11:43 AM CST
It seems like all of the responses to my response is in defense of federal employees. If you think small producers are not going to be scrutinized for conservation violations in the future with the linking of crop insurance subsides your only fooling yourself. With the age of drones, EPA teaming with special interest groups, you better think a little about what these so-called farm groups have sold out to. Corn Growers released a joint statement with the Nature Conservatory, do I need to say anymore?
Marcia Taylor
2/3/2014 | 11:20 AM CST
Here is a response from an FSA County Director who has to remain anonymous for obvious reasons: It is so easy for some things to be taken out of context or the level of factual information gets a little â?˜out of sortsâ?™. I do not have any specific information on this case. Since they were not convicted and the case was settled out of court, not a whole lot of specifics can be discussed. Once the matter goes into public court that is when the facts or documents can be discussed to any degree. As far as the blame being levied against the employees that â?˜handledâ?™ the documents and the county director or committee that made the decision at the local level, I think the assessment they are at fault is probably overstated by Mr. Unknown. If anyone thinks the role of the county office employees are there to provide legal advice or recommendations, they are wrong. The employees are there to make sure the documents are completed and signed. They will answer questions and explain some of the program policies for completing the forms, but never should they provide legal advice or recommendations what a farmer or farming operation asks. Also, county employees are not allowed to fill the forms out or any section for the farmer! Obviously, the parties involved with this legal case had hired a private firm for legal advice and direction; Kennedy & Coe. I doubt it very much that Dowson Farms relied on the legal advice or recommendations from a county office employee or the county director. And itâ?™s a pretty good bet the county office relied heavily on input from the specialist at the state office level while handling their eligibility documents. Entities with 6 or more recipients automatically go to the state committee for review. The biggest problem the county office employees has is the farmers and landowners not reading their mail or responding to the letters and phone messages we leave trying to get their attention before they miss a deadline or lose their benefits. Generally, itâ?™s the same people every year that always blow off the office employeesâ?™ efforts to help them to be timely. This behavior is common with about 1% of the customers consisting of both large and small farmers.
Marcia Taylor
2/3/2014 | 10:00 AM CST
Jennison points out a small correction: The minimum labor contribution to qualify is actually the lessor of 1) 1,000 hours, or 2) half the individual's commensurate share. For example, if I am a 50% partner in an operation, I must provide either 1,000 hours of labor or 25% of the total labor hours needed to operate the farm, whichever is smaller.
Pedro Sanchez
2/3/2014 | 9:04 AM CST
Small producers would probably not have more than 1 entity and are not farming for direct payments. They would have no trouble with this enforcement. I think the USDA should keep digging. There are plenty of these shells out there set up by company's like Kennedy and Coe for example.
Unknown
2/2/2014 | 7:27 PM CST
Now with conservation compliance tied to crop insurance and such power laying in such few hands it could get interesting. Where is the accountability for these federal employees that helped set this up? People better watch who they trust? If you get bad information from the people that are administrating the program who do you trust? Seem like this stuff is happening a lot more these days. These guys probably had a lot more resources and money to defend them selfs, what will happen to small producers that might face different problems in the future? Somebody needs to be asking these questions and getting some answers.