Cooperative's grain payments treated as per-unit retain allocations

Plain-English summary

The IRS ruled that an agricultural cooperative's cash payments to members for grain marketed by the cooperative were per-unit retain allocations paid in money. The cooperative calculated those payments under agreements based on the amount, timing, and terms of each member's grain sale, without reference to the cooperative's net earnings. The cooperative could therefore disregard the payments when computing its section 199 domestic production activities deduction. The ruling also explains that the cooperative's patrons could not include the qualified payments in their own section 199 computations unless the cooperative passed through a section 199 amount as permitted by law. The conclusion applied to the covered grain purchases during the taxable year, but not to purchases of grain remaining in inventory at year end.

Ruling snapshot

• Question: Were the cooperative's cash grain payments per-unit retain allocations, and could they be disregarded in its section 199 computation?
• Outcome: Approved
• Key authorities: IRC §§ 1382(b)(3), 1388(f), and 199(d)(3); Treas. Reg. §§ 1.1382-3(c)(2) and 1.199-6

Full text (IRS public release)

Internal Revenue Service Department of the Treasury
Washington, DC 20224

Number: 201023011 Third Party Communication: None
Release Date: 6/11/2010 Date of Communication: Not Applicable
Index Number: 1382.00-00, 199.06-00
Person To Contact:
-------------- ----------------------------, ID No. ----------
----------------------------- Telephone Number:
------------------------------------------- ---------------------
-------------------------------- Refer Reply To:
---------------------------------- CC:PSI:B05
PLR-140105-09
Date: March 3, 2010

LEGEND:

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

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

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

  This is in response to a request for rulings dated September 2, 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 under the State A Cooperative

Law. Taxpayer files a federal income tax return (Form 1120-C) on the basis of a fiscal
year ended --------------. Taxpayer’s overall method of accounting for federal income tax
purposes is the accrual basis.

 Taxpayer is a local grain marketing and farm supply cooperative. It is

headquartered in -------------, State A. It serves farmers located in a -- county area.

     Taxpayer markets grain for its farmer members and others. During its fiscal year

ended -----------------------, Taxpayer’s grain sales were approximately $------------------.
Principal commodities marketed in 2008 were corn ($----------------), soybeans ($-----------
----------), and wheat ($----------------). Taxpayer also marketed some sunflowers ($--------
------------).
PLR-140105-09 2

   Taxpayer provides farm supplies to its members and others – including

principally plant food (fertilizers), agricultural chemicals (herbicides and pesticides), and
seed. During its fiscal year ending -----------------------, Taxpayer’s farm supply sales
totaled approximately $----------------.

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

approximately-------members. Most of Taxpayer’s business is with members. To the
extent that Taxpayer purchases grain from or sells supplies to persons who are not
members, it does so on a nonpatronage basis.

    Taxpayer is organized and operated on a cooperative basis. 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, Section -------------------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 “[t]his association shall be

operated on a cooperative basis for the mutual benefit of its members as producers.”
Articles of Incorporation, Article VI. Article VII provides for the sharing of its earnings on
a cooperative basis:

           “All net proceeds (savings) of this association in excess of
   dividends, if any, and additions to reserves shall be distributed to patrons
   annually or oftener on the basis of patronage as more particularly provided
   for in the By-Laws, and the records of the association may show the
   interest of patrons and members in the reserves. Patronage refunds may
   be distributed in cash or credits as more particularly provided for in the By-
   Laws. Any such credits shall be redeemable only at the option of the
   Board of Directors.”

   The Articles of Incorporation provide that Taxpayer “is organized without

capital stock on a membership basis.” Article V. The Articles limit membership
in Taxpayer to “producers of agricultural products (individual, firm, partnership,
corporations, or associations) who reside in the territory served by this
association.” Article VI. Article VI goes on to provide that “[t]he voting rights of
the members of the association shall be equal, and no member shall have more
than one vote upon each matter submitted to a vote at a meeting of the
members.”
PLR-140105-09 3

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

computes and pays patronage refunds.

  Article VII, Section 1 of the Bylaws provides:

  “This association shall be operated upon the cooperative basis in carrying
  out its business within the scope of the objects and purposes defined in
  the Articles of Incorporation. The term ‘patron’ as used in the Articles of
  Incorporation shall mean member-patrons and patrons eligible for
  membership. Each transaction between this association and each
  member-patron and patron eligible to become a member shall be subject
  to and shall include as a part of its terms each provision of the Articles of
  Incorporation and By-Laws of this association, whether the same be
  expressly referred to in said transaction or not. Upon delivering or selling
  or contracting to deliver or sell any agricultural products to this
  association, or upon receiving or buying or contracting to receive or buy
  any supplies or equipment or services from this association, each
  member-patron or patron eligible for membership so delivering, selling, or
  receiving, buying or contracting, as the case may be, shall be entitled to
  any and all patronage refunds as defined in this Article VII of the By-Laws
  arising out of said patronage.”

   Article VII, Section 6 of the Bylaws provides for the payment of annual patronage

dividends:

  “The annual net savings from patronage, less any deductions therefrom or
  exceptions thereto as determined by this Article VII, 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 amount 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 By-Laws, and said patrons shall be notified
  thereof.”

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

patronage dividends based upon allocation units:

  “In making said [patronage] distributions, 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 using a number of allocation units. For grain,
each of its principal commodities (i.e., corn, soybeans and wheat) is treated as a
separate allocation unit, and the profits of each allocation unit are allocated based upon
PLR-140105-09 4

bushels of grain marketed through Taxpayer in that unit. Grain storage is treated as a
separate allocation unit, with patronage allocated based upon dollars of storage fees
paid. Grain drying is included in a general services allocation unit. For supplies and
other services, Taxpayer has a number of allocation units, based on principal product
lines (e.g., fertilizer, agronomy, chemicals, etc.)

    Article VI, Section 6 of Taxpayer’s Bylaws authorizes Taxpayer to pay patronage

dividends in “cash or in allocated patronage equities, revolving fund certificates, or any
other evidences 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.

   During its fiscal year ended -----------------------, Taxpayer operated -------- grain

elevators located throughout the territory it serves. Collectively, the elevators had the
capacity to store approximately ----------million bushels of grain. --------of the elevators
were located on rail lines. ------ of the elevators were truck facilities.

   Taxpayer principally sells its grain to the export market. Grain is shipped by rail

to the West Coast, destined for the Asian market. Taxpayer also sells corn to ethanol
producers and soybeans to soybean processors. That grain typically is shipped by
truck. Taxpayer’s grain business consists of buying grain from patrons, handling and
storing the grain at its elevators, and then selling the grain to the export market, to
ethanol producers and to soybean processors.

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

subchapter T of the Code and section 199 of payments (referred to in this ruling as
“grain payments”) that Taxpayer makes to members when it acquires their grain for
marketing on a patronage basis. For purposes of this ruling, “grain payments” do not
include amounts paid to nonmembers and other persons not entitled to share in
patronage dividends. For its fiscal year ended -----------------------, over 95 percent of
Taxpayer’s grain business was conducted with members on a patronage basis, and the
remainder was with nonmembers and other persons on a nonpatronage basis. For
purposes of this ruling, the term “grain payments” also does not include patronage
dividends paid to members with respect to grain marketed for them.

    Taxpayer does not operate on a pooling basis. Thus, the members 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 members as would be the case if Taxpayer operated
like a pooling cooperative. Commodity price risk does not shift from Taxpayer’s
members to a pool at the time of harvest, but rather remains with members 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.
PLR-140105-09 5

   Rather, Taxpayer pays each member 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 member

chooses to sell his or her grain to Taxpayer. Payments are made in cash (by check)
and occur throughout the year as members sell grain to Taxpayer for marketing and are
paid pursuant to the terms of their grain contracts.

   After purchasing grain from members, Taxpayer then markets each member’s

grain along with all of its other grain 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 members 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 choose to sell their grain to a cooperative
for marketing on a patronage basis or to a commercial grain company. Members 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 member selling grain to Taxpayer for 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 member 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 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 member can deliver and sell grain to Taxpayer at the cash bid price at the
PLR-140105-09 6

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 members 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 members deliver grain to Taxpayer for storage, not for immediate sale.

The members retain ownership of the grain in the elevator and pay storage fees to
Taxpayer. Later, when a member believes the cash bid price is right, he or she can sell
the grain to Taxpayer for marketing on a cooperative basis.

    A member 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. Members 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
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. Taxpayer rarely uses minimum price contracts.
PLR-140105-09 7

    Members 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 member to Taxpayer at
the time of delivery. Members are given the opportunity to wait until later to price the
grain. When the member chooses to price the contract, Taxpayer’s then current bid
price is used to fill the open price term. Once the price is determined the member is
paid.

   Some members 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 members for selling their grain to Taxpayer

and other grain companies provide members with a great deal of flexibility. Members
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 Members prefer to do so after they can estimate the costs of
production to lock in a reasonable margin. If a member is happy with the futures price
at that time, but not the basis, the member can enter into a forward contract that leaves
the basis open. If a member is happy with the basis, but not the futures price, the
member can enter into a forward contract that leaves the futures price open.

   If a member thinks that the cash price is low at the time of harvest, he or she can

harvest and store crops, either on the farm or at Taxpayer, while waiting for the price to
improve. Alternatively, a member can deliver the crops to Taxpayer and enter into a
deferred price contract.

   These choices are available to all members 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.

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

members of approximately $----------------. Taxpayer paid patronage dividends to
members with respect to their grain of approximately $-----------. The patronage
dividends were paid 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 to members as “per-unit
PLR-140105-09 8

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 members
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 members. Taxpayer did not
pass any portion of its section 199 deduction through to its members in prior years.

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

grain payments to members for purposes of its section 199 computation. For reasons
described below, Taxpayer is seeking confirmation that all grain payments to members
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 section 199 purposes. Taxpayer plans
to begin disregarding grain payments made to members for purposes of computing its
qualified production activities income and its taxable income. It also is considering
passing through to members all or a portion of its section 199 deduction.

   Based on the foregoing Taxpayer request the following rulings:

1. Grain payments to members 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.

   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.”
   PLR-140105-09 9

   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
   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
   PLR-140105-09 10

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
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.
PLR-140105-09 11

  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
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.

   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.
PLR-140105-09 12

    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
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
PLR-140105-09 13

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
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.”

PLR-140105-09 14

    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
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.”
PLR-140105-09 15

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 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.

   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.

   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)