PLR 1022006: Cooperative grain payments qualify as per-unit retain allocations for the § 199 deduction

Plain-English summary

The IRS ruled that a farmers’ cooperative’s cash payments to eligible patrons for grain marketed through the cooperative qualified as per-unit retain allocations paid in money under subchapter T. The cooperative could therefore disregard those payments when computing its own domestic production activities deduction under IRC § 199, subject to the ruling’s stated limits. The IRS explained that the payments were made under agreements, related to products marketed for the patrons, and were fixed without reference to the cooperative’s net earnings. The ruling also addressed the reporting of the payments and stated that the conclusions applied only to grain marketed during the taxable year, not grain remaining in year-end inventory.

Ruling snapshot

• Question: Do the cooperative’s cash grain payments qualify as per-unit retain allocations paid in money, and how do they affect the cooperative’s § 199 deduction?
• Outcome: Approved
• Key authorities: IRC §§ 1382(b), 1388(f), and 199(d)(3); Treas. Reg. §§ 1.199-6(c), 1.199-6(e), 1.199-6(f), and 1.199-6(k)

Full text (IRS public release)

Internal Revenue Service Department of the Treasury
Washington, DC 20224

Number: 201022006 Third Party Communication: None
Release Date: 6/4/2010 Date of Communication: Not Applicable
Person To Contact:
Index Number: 1382.00-00, 199.06-00 ----------------------------, ID No. ----------
Telephone Number:
---------------------
------------------ Refer Reply To:
------------------------ CC:PSI:B05
------------------------------------- PLR-139580-09
------------------ Date:
------------------------------ February 24, 2010

LEGEND:

Taxpayer = -------------------------------------

State A = --------------

Dear ----------------:

   This is in response to a request for rulings dated August 28 2009, submitted by

your authorized representative. The rulings concern the interplay of the rules in
subchapter T of the Internal Revenue Code (concerning the taxation of cooperatives
and their patrons) and the calculation of the section 199 deduction for certain
cooperatives contained in section 199(d)(3).

    Taxpayer is a farmers’ cooperative organized as a cooperative corporation under

State A law. Taxpayer is a local grain marketing and farm supply cooperative. It is
headquartered in State A. It serves farmers located predominately in a --- county area
in southwestern State A. Taxpayer markets grain for its farmer members and for other
patrons. During -------, Taxpayer’s grain sales were approximately $------------------.
Principal commodities marketed in--------were corn and soybeans. Taxpayer also
marketed some wheat and oats.

      Taxpayer provides a broad range of the farm supplies to its farmer members and

other patrons – including petroleum products (such as diesel fuel, propane, heating oil,
and gasoline), plant food (fertilizers), agricultural chemicals (herbicides and pesticides),
feed, and seed. During -------, Taxpayer’s farm supply sales totaled approximately $-----
-------- ----------.
PLR-139580-09 2

   Taxpayer’s “members” are farmers who do business with it. Taxpayer also does

business with other patrons. Taxpayer pays patronage dividends to members and other
patrons who have consented to take patronage dividends into account under the
provisions of subchapter T of the Code. During--------, Taxpayer had --------members
and paid patronage dividends to approximately --------patrons (including members and
nonmembers).

     The State A Cooperative Law applies to organizations “formed or incorporated on

a cooperative plan” for a variety of purposes including for the purpose of conducting an
“agricultural, dairy, [or] marketing … business.” State A Statutes, -----------------------------
The State A Cooperative Law requires that a cooperative distribute “[n]et income in
excess of dividends on capital stock and additions to reserves … on the basis of
patronage.” State A Statutes, Section -----------------. The statute provides that the
distribution shall be made “at least annually.” State A Statutes, Section -----------------. A
distribution may be “in cash, capital stock credits, allocated patronage equities,
revolving fund certificates, or its own or other securities.” State A Statutes, Section ------
-----------------.

   Taxpayer’s Articles of Incorporation provide that “[a]ll of its activities shall be

conducted strictly upon the cooperative plan and at cost and without profit to either this
association or any member or stockholder as such.” Article II, Section 1. More
specifically, Article VI provides:

   “The Association’s net savings from patronage in excess of additions to
   reserves and other deductions, as more specifically defined and provided
   in the Bylaws, shall be distributed to its patrons at least annually on the
   basis of their patronage.”

   The Articles of Incorporation provide that Taxpayer is organized with capital

stock. Article V, Section 1. Two classes of stock are authorized: common stock with a
par value of twenty-five dollars ($25.00) per share, and preferred stock with a par value
of twenty-five dollars ($25.00) a share. Article IV, Section 1. No shares of preferred
stock are outstanding.

    Common stock is membership stock. The Articles of Incorporation limit

ownership of common stock and therefore membership in Taxpayer to “producers (i)
who reside in the territory served by this association, (ii) who patronize this Association,
and (iii) who have been approved by the Board of Directors.” Article V, Section 3(a).
Each member is limited to “only one vote in the affairs of this association.” Article V,
Section 3(c).

  Article V of Taxpayer’s Bylaws provides a detailed description of how Taxpayer

computes and pays patronage refunds. Article V, Section 5 of the Bylaws provides for
the annual distribution of patronage dividends:
PLR-139580-09 3

   “The annual net savings from patronage, less any deductions therefrom or
   exceptions thereto as determined by Section 4 of this Article V, shall be
   distributed annually (except as hereinafter provided) to the patrons of the
   Association who consent to take into account patronage distributions from
   the Association in the manner provided in 26 U.S.C. §1385. Said
   distributions shall be made on the basis of the respective patronage of
   said patrons in accordance with these Bylaws, and said patrons shall be
   notified thereof.” Bylaws, Article V, Section 5.

   Article V, Section 5 of Taxpayer’s Bylaws permits Taxpayer to pay patronage

dividends based upon allocation units:

   “In making said distributions [of patronage dividends], due regard may be
   given to the sources from which said savings accrue, and separate
   allocations and distributions may be made for the various operations as
   separate divisions of the Association.”

   Taxpayer allocates patronage dividends upon the basis of six allocation units.

One of the units is for its grain business, and the net earnings of that allocation unit are
allocated based on bushels (without regard to the kind of grain marketed). Taxpayer
also has separate allocation units for petroleum, feed, agronomy, miscellaneous
merchandise and grain storage.

   Article V, Section 5 of Taxpayer’s Bylaws authorizes Taxpayer to pay patronage

dividends in “cash or in capital stock, stock credits, allocated patronage equities,
revolving fund certificates, and any other evidence of equity, or by any combination
thereof designated by the Board of Directors.” Patronage dividends are normally paid in
a combination of cash and revolving fund certificates. The revolving fund certificates
are “qualified written notices of allocation” as defined in subchapter T of the Code.

     The ruling request relates to Taxpayer’s grain marketing activities. Taxpayer

operates --------- grain elevators located throughout the territory it serves. Collectively,
the elevators have the capacity to store approximately ---------------bushels of grain. -----
------- of the elevators are located on rail lines. --------- of the elevators are truck
facilities.

    Taxpayer sells its grain to livestock producers, grain processors, ethanol

producers and others for resale, both domestically and in the export market. Taxpayer’s
grain business consists of buying grain from patrons, handling and storing the grain at
its elevators, and then selling the grain to terminal grain elevators, grain processors,
feed lots, grain exporters and others.

   The issue in the ruling request relates to the characterization for purposes of

subchapter T of the Code and section 199 of payments (referred to in the ruling request
as “grain payments”) that Taxpayer makes to members and other patrons eligible to
PLR-139580-09 4

share in patronage dividends when it acquires their grain for marketing on a patronage
basis. Thus, any payments to persons not eligible to share in patronage dividends are
not “grain payments” as that term is used in the ruling request. For purposes of the
request, the term “grain payments” also does not include patronage dividends paid to
members and other patrons of Taxpayer with respect to grain marketed for them.

   Taxpayer does not operate on a pooling basis. Thus, the patrons of Taxpayer do

not commit to deliver all of the grain they grow from specified acreage to Taxpayer to be
pooled with the grain of other patrons as would be the case if Taxpayer operated like a
pooling cooperative. Commodity price risk does not shift from Taxpayer’s patrons to a
pool at the time of harvest, but rather remains with patrons until they decide to sell their
grain to Taxpayer for marketing. All of Taxpayer’s marketing proceeds are not shared
equally on the basis of patronage and distributed in the form of harvest advances and
progress payments with a final settlement after the pool closes as they would be if
Taxpayer pooled.

    Rather, Taxpayer pays each patron a market price for his or her grain. That

market price is determined without regard to the actual net proceeds from marketing
grain. What that market price is depends upon where, when and how a patron chooses
to sell his or her grain to Taxpayer. Payments are made in cash (by check) and occur
throughout the year as patrons sell grain to Taxpayer for marketing and are paid
pursuant to the terms of their grain contracts.

   After purchasing grain from patrons, Taxpayer then markets each patron’s grain

along with the grain of all of its patrons in the manner that it judges will produce the best
return. After year end, when net earnings for the year have been determined, Taxpayer
pays a patronage dividend to its patrons with respect to the grain they market through
Taxpayer.

   Farmers historically have retained the decision of when and how to sell their

grain. They have also retained the option to sell their grain to a cooperative for
marketing on a patronage basis or to a commercial grain company. Farmers have a
variety of alternatives when they sell their grain to Taxpayer. The choices are similar to
those offered farmers by commercial grain companies, though commercial grain
companies do not market grain on a patronage basis and do not pay patronage
dividends.

    The basic choices available to a farmer selling grain to Taxpayer or marketing on

a cooperative basis are: (i) to sell the grain for Taxpayer’s current cash bid price, (ii) to
sell the grain to Taxpayer using a forward contract, and (iii) to sell the grain to Taxpayer
using a deferred price or a deferred payment contract. Under each of these basic
choices, there are additional options available to farmers.

 One way for a farmer to sell grain to Taxpayer for marketing is to sell the grain to

Taxpayer and be paid the cash bid price. Typically a country elevator’s cash bid price
PLR-139580-09 5

for a commodity is the nearby futures price in a specified reference market where the
commodity is actively traded (e.g., the Chicago Board of Trade or the Minneapolis Grain
Exchange) plus or minus a fixed spread (referred to as the “basis”) set from time to time
by the elevator based upon local market conditions. Thus, the cash bid price at a
country elevator reflects the condition of the overall market for grain (the futures price)
and the condition of the local market for grain (the basis). An elevator’s cash bid price
changes during the course of each day as the reference futures price fluctuates. It also
changes as the elevator adjusts the basis. The bid price schedule at country elevators
changes from hour to hour and day to day.

   A farmer can deliver and sell grain to Taxpayer at the cash bid price at the time

of harvest, delivering the grain directly from the field. However, it usually is not
advantageous for farmers to sell then since prices often are lowest at harvest. Many
farmers have the capacity to store grain on their farm and so can wait until later, when
they think that the cash bid price is right, to deliver and sell their grain to Taxpayer.
Other farmers deliver grain to Taxpayer for storage, not for immediate sale. The
farmers retain ownership of the grain in the elevator and pay storage fees to Taxpayer.
Later, when a farmer believes the cash bid price is right, he or she can sell the grain to
Taxpayer for marketing on a cooperative basis.

    A farmer has the option of entering into a forward contract to sell his or her grain

to Taxpayer. Forward contracts call for delivery of a specified quantity and quality of
grain, at a specified location, during a specified time period. Forward contracts can be
entered into before the grain is planted, while it is growing or after harvest while the
grain is being stored on the farm or in an elevator.

   Forward contracts can be priced in a variety of ways. Many contracts provide for

a fixed price, referred to as a “flat” price. Farmers interested in entering into a forward
contract with Taxpayer can determine the flat price Taxpayer is willing to pay at any
time at any of its locations for delivery at various times in the future from Taxpayer’s bid
schedules for grain for future delivery.

    Typically a country elevator’s bid price for future delivery is determined in a

manner similar to the way the cash bid price is determined. However, when the bid
price is for future delivery, it is based upon the nearby futures price for the time
specified for delivery plus or minus the basis set by the country elevator for that delivery
month. The bid price for future delivery changes during the course of each day as the
specified reference price fluctuates. It also changes as the country elevator adjusts its
basis.

   Farmers also can enter into forward contracts where the pricing is left open for

future determination. For instance, the contracts may fix the basis and leave the futures
price open, to be determined based upon the futures price at the time chosen by the
farmer before a specified date in the future. Alternatively, the contracts may specify the
futures price and leave the basis open, to be determined based upon the elevator’s
PLR-139580-09 6

basis for delivery during the future month at the time chosen by the farmer before a
specified date in the future. Some cooperatives use contracts which specify a minimum
price that will be paid for the member’s grain, giving the farmer the option to fix the price
before a specified date in the future based upon a reference futures price, leaving open
the possibility that a price greater than the minimum price will be paid if futures prices
go up

    Farmers have the option to deliver grain to Taxpayer, leaving the determination

of the price partly or wholly open. Contracts of this sort are called by various names –
deferred price contracts, delayed price contracts, credit-sale contracts, etc. Under a
deferred price contract, ownership of the grain passes from the farmer to Taxpayer at
the time of delivery. Farmers are given the opportunity to wait until later to price the
grain. When the farmer chooses to price the contract, the cooperative’s then current bid
price is used to fill the open price term. Once the price is determined the farmer
member is paid.

   Some farmers prefer to sell their grain to Taxpayer on a deferred payment basis.

Grain sold on that basis might be delivered in October, the price set at that time, but
with payment to be made in January. Ownership of the grain passes to Taxpayer when
the grain is delivered.

    The variety of options available to farmers for selling their grain to Taxpayer and

other grain companies provide farmers with a great deal of flexibility. Farmers can lock
in prices for their crops (even before they are planted or while they are growing) at any
time if they think that the price is right by using flat price forward contracts. Some
farmers prefer to do so after they can estimate the costs of production to lock in a
reasonable margin. If a farmer is happy with the futures price, but not the basis, the
farmer can enter into a forward contract that leaves the basis open. If a farmer is happy
with the basis, but not the futures price, the farmer can enter into a forward contract that
leaves the futures price open. If a farmer wants the assurance of a minimum price, the
farmer can enter into a forward contract that specifies a minimum price, but leaves final
pricing open. Such a contract can result in a higher price if the futures price increases,
or a guaranteed minimum price (albeit somewhat lower than the farmer could otherwise
have obtained) if the futures price does not increase.

   If farmers think that the cash price is low at the time of harvest, they can harvest

and store their crops while waiting for the price to improve. Alternatively, they can
deliver the crops and enter into a deferred price contract.

    These choices are available to all farmers marketing their grain on a cooperative

basis through Taxpayer. Because of these choices, two neighbors that market the
same quantity and quality of a particular kind of grain through Taxpayer during any year
will receive different grain payments depending upon where, when and how they sell
their grain to Taxpayer. However, they will receive the same patronage dividends.
PLR-139580-09 7

     For the fiscal year ended -------------------, Taxpayer made grain payments to

patrons eligible to share in patronage dividends of approximately $----------------.
Taxpayer has not paid patronage dividends yet for the year, but estimates that it will be
paying patronage dividends to patrons with respect to their grain of approximately $------
----------. Taxpayer anticipates paying the patronage dividends in cash and qualified
written notices of allocation (revolving fund certificates).

    Taxpayer has treated grain payments made in cash to members as “purchases”

for tax purposes and reported them on Schedule A, Line 2 of its Form 1120-C.
Taxpayer has not reported the grain payments made in cash as “per-unit retain
allocations paid in money” and therefore has not reported them on Schedule A, Line 4b
of its Form 1120-C. It has reported the patronage dividends paid to patrons as a
patronage dividend paid in money and qualified written notices of allocation on
Schedule H, line 3a of its Form 1120-C.

  Because of this reporting, grain payments paid in cash have entered into the

determination for tax purposes of Taxpayer’s cost of goods sold for tax purposes. As is
customary in the grain business, Taxpayer values its grain inventories at year end at
market for financial statement and tax purposes.

   Taxpayer did not add back grain payments in its section 199 computations for

prior years, but it did add back patronage dividends paid to patrons. In--------Taxpayer
passed a portion of its section 199 deduction through to patrons.

   Recent developments have caused Taxpayer to reconsider how it should treat its

grain payments for purposes of its section 199 computation. Taxpayer is seeking
confirmation that all grain payments to patrons that are paid in cash should be classified
as “per-unit retain allocations paid in money.”

    In prior years, Taxpayer has disregarded patronage dividends paid in cash and

qualified written notices of allocation for purposes of determining qualified production
activities income (QPAI) and taxable income for purposes of section 199 of the Code.
Taxpayer plans to begin disregarding grain payments made to patrons for purposes of
computing its QPAI and its taxable income. It also is considering passing through to
members all or a portion of its section 199 deduction.

RULINGS REQUESTED

   1. Grain payments to members and other patrons eligible to share in patronage

dividends constitute “per-unit retain allocations paid in money” within the meaning of
section 1382(b)(3) of the Code.

  2. For purposes of computing its section 199 domestic production activities

deduction, Taxpayer’s qualified production activities income and taxable income should,
pursuant to section 199(d)(3)(C) of the Code, be computed without regard to any
PLR-139580-09 8

deduction for grain payments to members and other patrons eligible to share in
patronage dividends

    Nonexempt subchapter T cooperatives are permitted to exclude or deduct

distributions to patrons that qualify as per-unit retain allocations or patronage dividends,
provided the distributions other meet the requirements of subchapter T of the Code.

   Section 1388(f) of the Code defines the term “per-unit retain allocation” to mean

“any allocation, by an organization to which part I of [subchapter T] applies, to a patron
with respect to products marketed for him, the amount of which is fixed without
reference to net earnings of the organization pursuant to an agreement between the
organization and the patron.”

    Per-unit retain allocations may be made in money, property or certificates. Per-

unit retain allocations paid in money and in property are excludable or deductible under
section 1382(b)(3) of the Code. Per-unit retain allocations paid in certificates are
deductible under section 1382(b)(3) if the certificates are qualified. If the certificates are
nonqualified, the cooperative is permitted a deduction under section 1382(b)(4) (or a tax
benefit figured under section 1383) when the certificates are later redeemed.

   Section 1388(a)(1) of the Code provides that the term “patronage dividend”

means an amount paid to a patron by a cooperative on the basis of the quantity or value
of business done with or for such patron. Section 1388(a)(2) provides that a “patronage
dividend” is an amount paid “under an obligation” that must have existed before the
cooperative received the amount so paid. Section 1388(a)(3) provides that “patronage
dividend” means an amount paid to a patron that is determined by reference to the net
earnings of the cooperative from business done with or for its patrons. That section
further provides that a “patronage dividend” does not include any amount paid to a
patron to the extent that such amount is out of earnings other than from business done
with or for patrons. Section 1.1382-3(c)(2) of the Income Tax Regulations states that
income derived from sources other than patronage means incidental income derived
from sources not directly related to the marketing, purchasing, or service activities of the
cooperative association.

   Patronage dividends may be paid in money, property or written notices of

allocation. Patronage dividends paid in money and in property are excludable or
deductible under section 1382(b)(1) of the Code. Patronage dividends paid in written
notices of allocation are deductible under section 1382(b)(1) if the written notices of
allocation are qualified. If the notices are nonqualified, the cooperative is permitted a
deduction under section 1382(b)(2) (or a tax benefit figured under section 1383) when
the notices are later redeemed.

 Section 1388(b) of the Code provides that the term “written notice of allocation”

means any capital stock, revolving fund certificate, retain certificate, certificate of
PLR-139580-09 9

indebtedness, letter of advice, or other written notice, which discloses to the recipient
the stated dollar amount allocated to him by the organization and the portion thereof, if
any, which constitutes a patronage dividend.

   For cooperatives that use pooling, Rev. Rul. 67-333, 1967-2 C.B. 299, provides

that pool advances are treated as per-unit retain allocations and the final pool payment,
made after net earnings have been determined, is treated as a patronage dividend.

    Under section 199(d)(3) of the Code, patrons that receive a qualified payment

from a specified agricultural or horticultural cooperative are allowed a deduction for an
amount allocable to their portion of QPAI of the organization received as a qualified
patronage dividend or per-unit retain allocation which is paid in qualified per-unit retain
certificates. In particular, section 199(d)(3)(F) requires the cooperative to be engaged in
the manufacturing, production, growth, or extraction in whole or significant part of any
agricultural or horticultural product, or in the marketing of agricultural or horticultural
products. Under section 199(d)(3)(D), in the case of a cooperative engaged in the
marketing of agricultural and horticultural products, the cooperative is treated as having
manufactured, produced, grown, or extracted (MPGE) in whole or significant part any
qualifying production property marketed by the cooperative that its patrons have MPGE
(this is known in the industry as the “cooperative attribution rule”). In addition, section
199(d)(3)(A)(ii) requires the cooperative to designate the patron’s portion of the income
allocable to the QPAI of the organization in a written notice mailed by the cooperative to
its patrons no later than the 15th day of the ninth month following the close of the tax
year.

    Under section 1.199-6(c) of the regulations, for purposes of determining a

cooperative’s section 199 deduction, the cooperative’s QPAI and taxable income are
computed without taking into account any deduction allowable under section 1382(b) or
(c) of the Code (relating to patronage dividends, per-unit retain allocations, and
nonpatronage distributions).

   An agricultural or horticultural cooperative is permitted to “pass-through” to its

patrons all or any portion of its section 199 deduction for the year provided it does so in
the manner and within the time limits set by section 199(d)(3) of the Code. When a
cooperative passes-through all or any portion of the section 199 deduction, the
cooperative remains entitled to claim the entire section 199 deduction on its return
(provided that it does not create or increase a patronage tax loss), but is required under
section 199(d)(3)(B) to reduce the deduction or exclusion it would otherwise claim under
section 1382(b) for per-unit retain allocations and patronage dividends.

  Section 199(d)(3)(A) of the Code provides that a cooperative passes through an

amount of its section 199 deduction by “identifying” such amount in a written notice
mailed to such person during the payment period described in section 1382(d).
Section 1382(d) provides that the payment period for a year is the period beginning with
PLR-139580-09 10

the first day of such taxable year and ending with the fifteenth day of the ninth month
following the close of such year.

    Section 1.199-6(g) of the regulations provide that in order for a patron to qualify

for the section 199 deduction, section 1.199-6(a) requires that the cooperative identify in
a written notice the patron's portion of the section 199 deduction that is attributable to
the portion of the cooperative's QPAI for which the cooperative is allowed a section 199
deduction. This written notice must be mailed by the cooperative to its patrons no later
than the 15th day of the ninth month following the close of the taxable year. The
cooperative may use the same written notice, if any, that it uses to notify patrons of their
respective allocations of patronage dividends, or may use a separate timely written
notice(s) to comply with this section. The cooperative must report the amount of the
patron's section 199 deduction on Form 1099-PATR, “Taxable Distributions Received
From Cooperatives,” issued to the patron.

  While a cooperative is permitted to disregard per-unit retain allocations and

patronage dividends in its section 199 deduction, section 1.199-6(l) of the regulations
provide that a qualified payment received by a patron of a cooperative is not taken into
account by the patron for purposes of section 199.

    Section 1.199-6(e) of the regulations defines the term “qualified payment” to

mean any amount of a patronage dividend or per-unit retain allocation, as described in
section 1385(a)(1) or (3) of the Code received by the patron from a cooperative, that is
attributable to the portion of the cooperative’s QPAI, for which the cooperative is
allowed a section 199 deduction. For this purpose, patronage dividends and per-unit
retain allocations include any advances on patronage and per-unit retains paid in money
during the taxable year.

   Taxpayer is a “specified agricultural or horticultural cooperative” within the

meaning of section 199(d)(3)(F) of the Code and section 1.199-6(f) of the regulations. It
is an organization “to which part I of subchapter T applies” (i.e., it is a nonexempt
cooperative to which subchapter T applies). It is engaged “in the marketing of
agricultural or horticultural products” (i.e., grain).

    As a specified agricultural or horticultural cooperative, Taxpayer is entitled to the

benefit of section 199(d)(3)(C) of the Code and section 1.199-6(c) of the regulations,
which permit such cooperatives to disregard deductions under section 1382(b) and (c)
for purposes of computing QPAI and taxable income for purposes of section 199.
Section 1382(b) provides deductions for per-unit retain allocations paid in money,
property and qualified per-unit retain certificates as well as for patronage dividends paid
in money, property and qualified written notices of allocation. It also provides for
deductions when nonqualified per-unit retain certificates and nonqualified written notices
of allocation are redeemed. As a specified agricultural or horticultural cooperative,
Taxpayer is entitled to the benefit of section 199(d)(3)(C) and section 1.199-6(c), which
PLR-139580-09 11

permit such cooperatives to disregard deductions under section 1382(b) and (c)1 for
purposes of computing QPAI and taxable income for purposes of section 199. Section
1382(b) provides deductions for per-unit retain allocations paid in money, property and
qualified per-unit retain certificates as well as for patronage dividends paid in money,
property and qualified written notices of allocation. It also provides for deductions when
nonqualified per-unit retain certificates and nonqualified written notices of allocation are
redeemed.

   Taxpayer does not operate on a pooling basis. Taxpayer purchases grain from

patrons and markets that grain. The amount that each patron receives when he or she
sells grain to Taxpayer for marketing depends upon where, how, and when the patron
chooses to sell that grain to Taxpayer. Patrons are not required to deliver their grain to
Taxpayer. They are free to sell as little or as much of their grain to Taxpayer as they
choose.

    Patrons have a number of options for determining how and when sales are

made. As a result, two neighbors delivering the same amount of grain to Taxpayer
during any year will be paid different amounts for that grain depending upon where,
when and how they sell the grain to Taxpayer. However, all patrons share in
Taxpayer’s net earnings from grain operations in proportion to the number of bushels of
grain they market through Taxpayer. Those net earnings are distributed after the end of
each year in the form of patronage dividends paid in cash and qualified written notices
of allocation (revolving capital).

 The question presented by the ruling request is whether the grain payments

made by Taxpayer to patrons for grain qualify as per-unit retain allocations paid in
money within the meaning of Section 1388(f) of the Code.

   Under section 199 of the Code and section 1.199-6 of the regulations, the

answer to this question determines who gets to include the grain payments in the
section 199 computation. If the grain payments to patrons are per-unit retain allocations
paid in money, then they should be added-back in Taxpayer’s section 199 computation
and not included in the patrons’ section 199 computations. If the grain payments to
patrons are not per-unit retain allocations paid in money, then they should not be
added-back in Taxpayer’s section 199 computation, but should be included in the
patrons’ section 199 computations. These results are the same whether Taxpayer
decides to keep or to pass-through all or a portion of its section 199 deduction.

 Grain marketing cooperatives like Taxpayer have never thought of their grain

payments as per-unit retain allocations paid in money. However, Taxpayer’s grain

1. Section 1382(c) permits section 521 cooperatives to claim deductions for certain dividends paid on preferred
   stock and for patronage-based distributions of nonpatronage income. While Taxpayer is a section 521 cooperative,
   it does not pay dividends on preferred stock and it has not made patronage-based distributions of nonpatronage
   income, and thus does not claim any deductions under section 1382(c) of the Code.
   PLR-139580-09 12

payments appear to meet the definition of “per-unit retain allocations paid in money”
which are excludible or deductible under section 1382(b)(3) of the Code. The grain
payments are made in cash so the “paid in money” requirement is met.

     Taxpayer’s grain payments also meet all the requirements of the definition of

“per-unit retain allocation” contained in section 1388(f) of the Code, which defines the
term “per-unit retain allocation” to mean “any allocation, by an organization to which part
I of this subchapter applies, to a patron with respect to products marketed for him, the
amount of which is fixed without reference to the net earnings of the organization
pursuant to an agreement between the organization and the patron.”

   First, Taxpayer’s grain payments to a patron are paid “pursuant to an

agreement,” namely the particular agreement applicable to the method the patron uses
to determine how and when his or her grain is sold to Taxpayer.

    Second, Taxpayer’s grain payments to a patron are made “with respect to

products marketed for him,” namely, the grain delivered by the member or other patron
eligible to share in patronage dividends for marketing by Taxpayer. As described
above, Taxpayer markets the grain it acquires from members and other patrons, and
members and other patrons share in Taxpayer’s net earnings from its marketing
activities in the form of patronage dividends.

   Third, the amount of the grain payments to each patron “is fixed without

reference to the net earnings” of Taxpayer since, at the time the payments are made,
Taxpayer’s actual net earnings for the year are neither known nor determinable.

   While per-unit retains are often made on the basis of a specified amount per unit

of product marketed, what is important is that they not be made with respect to net
earnings. Rev. Rul. 68-236, 1968-2 C.B. 236, provides that “to constitute a per-unit
retain allocation, the allocation need not be made strictly on the basis of a specified
amount per-unit of product marketed provided it is made with respect to products
marketed for the patron and not with respect to the net earnings of the organization.
Whether an allocation meets the foregoing description will be a question of fact.”

   The fact that all members and other patrons eligible to share in patronage

dividends do not receive the same payments for their grain (i.e., that Taxpayer does not
pool) does not mean that grain payments should not be treated as per-unit retain
allocations paid in money. In Farm Service Cooperative v. Commissioner, 619 F. 2d
718 (8th Cir. 1980), the Eighth Circuit Court of Appeals characterized payments to Farm
Service’s poultry growers as per-unit retain allocations paid in money, even though they
were determined under a formula that resulted in some poultry growers receiving more
than others depending upon the efficiency of their operations and the market price of
chickens when they delivered their chickens to Farm Service. The Tax Court in Farm
PLR-139580-09 13

Service Cooperative v. Commissioner, 70 T.C. 145, 147-148 (1978), described the
formula as follows:

   “The grower was paid by petitioner for growing chickens based on the
   delivery weight to the processing plant, less the weight of chickens
   condemned by the U.S. Department of Agriculture. The formula under
   which the grower was paid also took into account variable market rates for
   full grown chickens, and an efficiency factor that related the number of
   pounds of feed to the pounds of chickens produced. The efficiency factor
   was figured into the grower's compensation because Farm Service
   supplied all chicken feed. Under the contract provisions established with
   each of the growers, there was also a guaranteed minimum amount the
   grower would receive from the cooperative irrespective of wholesale
   market variations. For example, the contract in effect on July 1, 1968,
   provided that ‘In no event will the Grower Member receive less than 1.25
   cents per pound less U.S.D.A. condemnation.’ On its books, petitioner
   treated payments to its growers as a cost of production.”

    Historically, Taxpayer has treated its grain payments as “purchases,” not as “per-

unit retain allocations paid in money.” However, how the payments have been reported
should not obscure what they really are.

  Whether or not Taxpayer is pooling is a moot issue for purpose of this ruling

because its grain payments meet the definition of “per-unit retain allocations paid in
money” in any event. Nothing in subchapter T of the Code limits the exclusion or
deduction for per-unit retain allocations to cooperatives with pools.

   Section 1.199-6(k) of the regulations provides that section 1.199-6 is the

exclusive method for the cooperative and its patrons to compute the amount of the
section 199 deduction.

    The effect of these sections is that a cooperative such as Taxpayer will compute

the entire section 199 deduction at the cooperative level and that none of the
distributions whether patronage dividends or per-unit retain allocations received from
the cooperative will be eligible for section 199 in the patron’s hands. That is, the patron
may not count the qualified payment received from the cooperative in the patron’s own
section 199 computation whether or not the cooperative keeps or passes through the
section 199 deduction. Accordingly, the only way that a patron can claim a section 199
deduction for a qualified payment received from a cooperative is for the cooperative to
pass-through the section 199 amount in accordance with the provisions of section
199(d)(3) of the Code and the regulations thereunder.

     We note that to prevent a cooperative from deducting the per-unit retain

allocations made in money or qualified certificates for the second time when the
associated grain is sold, the cost of goods sold mechanism associated with inventory
PLR-139580-09 14

must be adjusted to reflect the deductions allowable under subchapter T of the Code.
Specifically, cooperatives need to include the per-unit retain allocations in inventory cost
for purposes of making inventory and section 263A of the Code computations and then
adjust the ending inventory and cost of goods sold to prevent double deduction of the
per-unit retain allocations. The adjustments can be made to either the inventory or the
line item deduction for the per-unit retain allocations. In other words, if the per-unit
retain allocations are deducted on a deduction line in the cooperative's tax return, they
should be removed entirely from the ending inventory and cost of goods sold computed
for the tax year. Alternatively, if the per-unit retain allocations are not deducted on a
deduction line in the tax return, the per-unit retain allocations reflected in the ending
inventory should be removed and included in the cost of goods sold amount for that tax
year. This procedure will allow the cooperative to deduct the per-unit retain allocations
once while also preserving the integrity of its section 263A calculation.

    For reasons described above, Taxpayer’s grain payments meet the definition of

“per-unit retain allocations paid in money.” Such per-unit retains are to be reported in
box 3 of Form 1099-PATR, “Taxable Distributions Received From Cooperatives.”
Taxpayer should be entitled to disregard such payments in determining the amount of
its section 199 deduction.

   Accordingly, we rule as requested that:

   1. Grain payments to members and other patrons eligible to share in patronage

dividends constitute “per-unit retain allocations paid in money” within the meaning of
section 1382(b)(3) of the Code.

  2. For purposes of computing its section 199 domestic production activities

deduction, Taxpayer’s qualified production activities income and taxable income should,
pursuant to section 199(d)(3)(C) of the Code, be computed without regard to any
deduction for grain payments to members and other patrons eligible to share in
patronage dividends

   The conclusions set forth in this ruling address only purchases that are per-unit

retain allocations paid in money as they relate to grain marketed by the cooperative
during the taxable year and does not apply to purchases of grain that remain in
inventory at year end. No opinion is expressed or implied regarding the application of
any other provision in the Code or regulations.
PLR-139580-09 15

   This ruling is directed only to the taxpayer that requested it. Under section

6110(k)(3) of the Code it may not be used or cited as precedent. In accordance with a
power of attorney filed with the request, a copy of the ruling is being sent to your
authorized representative.

                                       Sincerely yours,

                                       Paul F. Handleman

                                       Paul F. Handleman
                                       Chief, Branch 5
                                       Office of the Associate Chief Counsel
                                       (Passthroughs & Special Industries)

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