Understanding eminent domain

Construction is all around us. Expansion projects, improvement efforts, new buildings taking shape — these types of things have become the norm. While we all want better infrastructure, the inconvenience of orange barrels can be dreadful. Bring on some additional dread when projects have a more personal impact and they come at the expense of your land.

Let’s take closer look at eminent domain, which is affecting more and more land owners. The Fifth Amendment states “… nor shall private property be taken for public use, without just compensation.” The usual process of obtaining land through eminent domain includes passage of a resolution by the acquiring agency to take the property (condemnation), including a declaration of public need, followed by an appraisal and an offer, generally with some opportunity for negotiation. If the offer is not accepted, the agency may then file a petition in court to acquire the property by eminent domain. If the owner wishes to challenge the petition, the owner must file an answer in the court case in a timely manner. While it often seems to be the case that we are not happy as land owners with the initial offer, it is important to note that the government may become owner while litigation is on-going, if the amount of the offer is deposited into a trust account.

In Court, the landowner can potentially challenge the authority of the agency to acquire the property, the necessity of the acquisition, and/or the amount of compensation to be paid for the property. Challenging the authority or the necessity of the acquisition can often be a difficult burden for the owner. Most legal challenges to an acquisition under eminent domain end up focused on compensation. The owner is entitled to have a jury determine the compensation. The measure of compensation is the difference between the value of the property before the acquisition and the value of the property after the acquisition.

In effect, the owner is compensated for the property that is taken as well as any diminution in value or damage to the residue or remaining portion of the property. The compensation may also include damage to crops, compensation for temporary use of land during construction, etc. The testimony of a qualified appraiser is generally necessary to prove the compensation. Most eminent domain trials end up dominated by the testimony of the parties’ appraisers. Either side could potentially appeal the final decision in the case.

In some instances, a property owner may be able to reach a satisfactory deal with the agency by negotiation before a petition is filed. Obviously, the financial compensation would need to be satisfactory to the owner. Resolving the acquisition through negotiation may also allow the owner to address specific terms and conditions that may be important to the owner. These might include establishing specific requirements for restoration of land, providing for advance notice of construction of the land allowing future enhanced use of the adjoining property that is not taken, providing for reversion to the owner and removing equipment if the agency’s use is discontinued in the future. If the acquisition ends up in court, only compensation can be addressed.

Now that you have reached a settlement and compensation has been determined, you may be thinking, what are the tax consequences? Many agricultural landowners are familiar with §1031 of the Internal Revenue Code (IRC), which allows them to avoid or reduce costly federal and state taxes by reinvesting proceeds from a sale of farmland in like-kind property. A lesser-known tax provision is §1033, which deals with eminent domain and government takings of private property (“condemnation,” or more technically, an “involuntary conversion”). Similar to §1031, §1033 permits deferral of taxable gain by reinvesting in replacement property. Unlike §1031, §1033 allows the taxpayer to have control of the money received from the sale of his property for several years before purchasing replacement property. For conversions due to a sale arising from the threat or imminence thereof, there is a three-year replacement period beginning at the end of the tax year the proceeds are received. Upon request, the IRS may extend the replacement period.

Realty sold pursuant to a threat of eminent domain which is used in a business or trade or held for investment can be replaced with like-kind replacement property applying the same liberal standards afforded IRC §1031 exchanges. Unlike the more stringent “similar or related in service or use” standard, the replacement property does not have to be used in the same manner and for the same purpose.

You make the election to apply the involuntary conversion rules by not reporting the sale on your return. You should then attach a statement to your return showing the particulars of the sale and the resulting gain and indicating that you intend the rules of Section 1033 (like-kind exchange) apply to the conversion. If you change your mind, are unable to find a good replacement property, or just plain forget to reinvest in the time allotted, you must amend your return for the year of the gain and pay the back taxes and interest.

Another option is to take the money and pay the taxes. You will be permitted to reduce the revenue received from the conversion by your tax basis in the property. For many farmers, this will be a small amount, especially if the property has been owned for many years, was passed down while land prices were low, or the property has been fully depreciated. You will be taxed at applicable rates depending upon the use of the property as an active or passive investment.

There are many tax issues surrounding eminent domain, but these discussions would be beyond the scope of this article. Due to the complexity of these matters, we suggest that legal counsel and tax planners coordinate efforts from inception to negotiate transfers to ensure that any deal takes advantage of tax deferral opportunities.

Don’t let eminent domain become a large financial issue at tax time. Contact your CPA and legal counsel today for more guidance on this topic.

Brian E. Ravencraft, CPA, CGMA is a Principal with Holbrook & Manter, CPAs. Brian has been with Holbrook & Manter since 1995, primarily focusing on the areas of Tax Consulting and Management Advisory Services within several firm service areas, focusing on agri-business and closely held businesses and their owners. Holbrook & Manter is a professional services firm founded in 1919 and we are unique in that we offer the resources of a large firm without compromising the focused and responsive personal attention that each client deserves. You can reach Brian through the firm website at: www.HolbrookManter.com 

Jeffrey A. Easterday is a partner in the law firm Barrett, Easterday, Cunningham & Eselgroth, LLP. The firm offers a wide range of services such as estate and business planning, probate and trust administration, real estate, tax planning, oil and gas issues, agribusiness and cooperatives, food safety, arbitration, mediation, and litigation. Visit them online at www.ohiocounsel.com.