2008 Subcommittee Reports of the Legal, Tax and Accounting Committee
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2008 Legal, Tax and Accounting Subcommittee Reports INTRODUCTION The LTA subcommittee reports are prepared annually through the efforts of individuals who serve on NCFC’s Legal, Tax and Accounting Committee. NCFC is deeply grateful for the dedication and generosity of these volunteers, many of whom are national experts in their respective areas of practice. The purpose of the reports is to interpret and highlight the legal, tax and accounting events of the past year, and to discuss in detail many of the issues faced by cooperatives. The legal, tax and accounting issues of farmer cooperatives are affected by a number of external forces and general practice issues, with the added focus of specific industry issues. The LTA subcommittee reports are the only resource summarizing all these issues in a single volume. If you have questions or need materials referred to in the reports, please notify me by email at [email protected] or by telephone at 202.879.0825. Sincerely, Marlis Carson General Counsel & Vice President, Legal, Tax & Accounting 2 The following reports do not constitute specific advice and may fail to address aspects of an issue or development relevant to the reader. Readers should be particularly aware of the importance of checking for subsequent developments, as these reports may not have been updated since originally composed. 3 Table of Contents 2008 Subcommittee Reports of the Legal, Tax and Accounting Committee Page Introduction..............................................................................................................2 Financial Reporting and Audit Issues of Agricultural Cooperatives.......................5 by Dick Cisne, Jay McWatters and Ken Wise Overview of New Tax, Other Legislation and Implementation Issues..................17 Affecting Farmer Cooperatives by Barry Jencik and Kevin Feeley Operating on a Cooperative Basis for Subchapter T and Section 521 Cooperatives ..........................................................................................................23 by Terry Costello and Ron Peterson Cooperative Structures: Mergers, Acquisitions, Joint Ventures and Subsidiaries .....................................................................................................24 by Dave Swanson and Charlie Woltmann Issues Specific to Marketing Orders and Bargaining Cooperatives ......................37 by Ken Manock, Julian Heron and Steve Zovickian Litigation between Cooperatives and Their Members, Including Member Insolvency ...............................................................................................46 by David M. Hayes, Terry D. Bertholf and William P. Hutchison AMT, Tax Accounting and State and Local Tax Issues Affecting Agricultural Cooperatives......................................................................................56 by Dave Simon and Wayne Sine Antitrust .................................................................................................................61 by William Sippel, Michael Lindsay and Don Barnes Environmental Laws and Regulation.....................................................................73 by Randon Wilson and Andy Brown Digest of Cases ......................................................................................................82 by George Benson IRS Industry Specialist ........................................................................................114 by Marla Aspinwall 4 Financial Reporting and Audit Issues of Agricultural Cooperatives 2008 Report Chair Vice-Chair Vice-Chair Dick Cisne Jay McWatters Ken Wise Hudson, Cisne & Co. LLP Dopkins & Company, LLP PricewaterhouseCoopers 11412 Huron Lane 200 International Drive 225 South 6th St, Ste 1400 Little Rock, AR 72211 Williamsville, NY 14221 Minneapolis, MN 55402 Ph: 501-221-1000 Ph: 716-634-8800 Ph: 612-596-6427 Fax: 501-221-9236 Fax: 716-634-8987 Fax: 612-373-7160 E-mail: [email protected] The information available on financial reporting and audit issues which could be applicable to agricultural cooperatives is vast and is beyond the scope of this subcommittee’s resources to analyze and report on each one. This year’s report will cover the most talked about developments, some with effective dates prior to 2008, but whose application is still of interest to cooperatives and their advisors. Pronouncements of the Financial Accounting Standards Board can be obtained from its website at www.FASB.org. Statements and pronouncements on auditing standards along with statements of position, interpretations and professional pronouncements by the American Institute of CPA’s can be obtained from its website at www.AICPA.org. Exposure drafts outstanding are listed each month in the Journal of Accountancy by issuer, which also lists the issuer’s web address and mailing address. Definitions/Terms: GAAP - Generally Accepted Accounting Principles AICPA - American Institute of Certified Public Accountants EITF - Emerging Issues Task Force FASB - Financial Accounting Standards Board FSP - FASB Staff Position IASB - International Accounting Standards Board IFRS - International Financial Reporting Standards APB - Accounting Principles Board ARB - Accounting Research Board SFAS - Statement of Financial Accounting Standards SOP - Statement of Position SAS - Statement of Auditing Standards SEC - Securities and Exchange Commission 5 FASB Codification Project The objective of the codification project is to integrate and topically organize all relevant accounting guidance issued by the U.S. standard setters (FASB, AICPA, EITF, and SEC). The codification project takes the existing GAAP pronouncements from all sources and organizes them into roughly 90 topics using a consistent structure. Once it is adopted, the Codification will be the sole source of non-SEC authoritative GAAP. The FASB launched a one-year verification phase in January 2008. Constituents are encouraged to use the online Codification Research System free of charge to research accounting issues and provide feedback on whether the Codification content accurately reflects existing U.S. GAAP. During the verification period, Codification content will be updated for changes resulting from constituent feedback and new standards. The Codification is open for comments through January 15, 2009 and is scheduled to become effective on July 1, 2009. IFRS – Moving Towards a Single International Accounting Standard Presently, approximately 100 nations, including those of the European Union, have adopted IFRS as their accounting standards of choice. Recent trends clearly suggest that IFRS is on track to become the high quality set of common global accounting standards that many have been calling for. The much anticipated release in August 2008 by the SEC affirms that IFRS clearly have the “inside track” to achieving that distinction. In their subsequent releases, the SEC provides a timeline for US public companies to adopt IFRS in a phased-in approach from 2010 through 2017. Large companies approved to be in the first wave of adopters can use the rules for filings they submit in 2010 for their 2009 fiscal years. It is generally held that the IFRS rules are more principles-based and generally less prescriptive than their present U.S. GAAP counterparts. For example, the number of revenue recognition standards that exist in U.S. GAAP far outnumber those in place under IFRS – there are many other examples as well. Some have asserted, with good authority, that IFRS has a tendency to report generally higher earnings than U.S. GAAP. One area that will be particularly interesting to watch for U.S. cooperatives is the distinction between liability and equity instruments under these rule sets. More instruments are likely to be classified as liabilities, as opposed to equity, under IFRS than under U.S. GAAP. After some successful discussion with the FASB to assist them in obtaining a better understanding of cooperative equity, the prospect of repeating these debates in an IFRS context might sound daunting to cooperative financial leaders. Needless to say, the standard setters’ deliberations over coming months and years will need to be carefully monitored by the cooperative community to head off any unintended accounting consequences from these inevitable changes we face. Financial executives of many of the country’s larger public companies as well as representatives of the Big Four accounting firms are expressing the view that the process of converging from U.S. GAAP to IFRS will be a complex and costly initiative. Some even contend that the cost of implementing this GAAP conversion will far outpace the stratospheric costs of implementing the Section 404 internal control assessment requirements of the Sarbanes-Oxley Act. What is clear 6 is that the process of converting and restating US GAAP financial statements will be a significant endeavor. Companies will need to thoroughly assess, document and compare their existing accounting practices to the corresponding IFRS requirements; decide what changes are necessary, and; measure and implement the new policies. Additionally, financial statement disclosures will need to be reconsidered as will the potential need to modify various pre-existing business agreements (e.g. debt covenants), strategic relationships (e.g. joint venture agreements) and operational policies (e.g. employee compensation plans). These steps do not even address the question of whether these entities have the appropriate knowledge and experience in-house to implement IFRS. Since 2002, the FASB has been working