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Abstract

On June 18, 2013, the United States Tax Court, with 15 judges agreeing (one was not participating in the decision), held that an investor in farmland which the investor bids into the Conservation Reserve Program1 is subject to the 15.3 percent self-employment tax on the basis that such an investment is a trade or business.2 The decision follows a drumbeat of published authority from the Internal Revenue Service beginning in 20033 that everyone signing up for the CRP program (and, by implication those signing up for a range of other federal programs) is subject to self-employment tax. The drumbeat continued with Notice 2006-108 which, among other unsupported assertions, stated that the key ruling Rev. Rul. 60-324 was being obsoleted by a draft revenue ruling that was never issued.5 The Tax Court, unfortunately, accepted the IRS position in the matter with little or no attention to conflicting authority with a result that appears bizarre when viewed with other authority in the area.

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