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Proceeds from an Easement or Right-of-Way

August 15, 2018 | Mitch Estling

When you hear someone talk about building new pipelines or wind turbines, they often refer to securing an easement or a right-of-way. Farmers and ranchers are increasingly receiving easement, or right-of-way payments for expanded roadways, pipelines, wind turbines, electrical towers and similar permanent improvements that have a permanent impact on the use of their property. Temporary easements are generally treated as rental income, whereas perpetual easements involve a permanent impact to the land and thus are treated as an outright sale.

Background on perpetual easements

Easements and right-of-way payments, even if they are labeled as a lease, do receive sales treatment. Keep in mind:

  • Easements are treated as a recovery of the basis of the property first, with any excess proceeds treated as capital gain, which is taxed at a lower rate than ordinary income.
  • The basis of property that offsets an easement is limited to the basis of the affected acres or square footage.
  • If damages are paid for the impact on growing crops or repair and maintenance of the soil, the proceeds are reported as ordinary income on Schedule F.

For example, John, an active farmer, grants a permanent easement to an investment group to construct two wind turbines on his farmland. The terms of the arrangement specify a $10,000 payment for damage and disruption to crops during the construction period, and a one-time “lease payment” of $30,000 for the four acres that are affected by the wind turbines.

John reports the $10,000 easement payment for the damage to crops as ordinary income on his Schedule F. The $30,000 payment for the impact of the wind turbines on the four acres of property is treated as a sale of the property. John uses the $30,000 amount to reduce his basis in the land for the four acres that have been affected. If the basis is less than $30,000, the excess is reported as a Section 1231 capital gain from the sale of land held for more than one year.

Long-term vs. perpetual easements

Easements with a term of 30 or 40 years are generally classified as long-term.  Examples of long-term easements granted sale treatment include:

  • Air rights granted to the government.
  • Easement of an indefinite duration to a livestock producer.
  • Easement to an electric power company for a pipeline with no mention of duration of easement to farmer.
  • Perpetual conservation easement.
  • Pipeline company easement whereby under the contract, the easement and right-of-way grants amounted to perpetual easement in land.

Examples of fixed-term easements which are reported as ordinary income or rent treatment include:

  • Coal mining surface rights granted under a 35 year easement.
  • Conveyance of easement limited to period required to remove minerals.
  • Easement right to use a road for ten year contractual period.

Treatment of long-term easements

There are situations where long-term leasehold (easement) interests are treated as the equivalent of a real property interest:

  • Like-kind exchange regulations allow a leasehold interest of 30 or more years, to be eligible for exchange treatment.
  • In the information reporting requirements, regulations provide that a leasehold, easement or timeshare of a term of at least 30 years is subject to reporting as the gross proceeds from real estate transactions on Schedule 1099-S.

 

To learn more about easement and right-of-way payments, start here.

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