                       110 T.C. No. 31



                UNITED STATES TAX COURT



     FREDRICK J. AND RUTH WUEBKER, Petitioners v.
     COMMISSIONER OF INTERNAL REVENUE, Respondent



Docket No. 11472-96.               Filed June 23, 1998.



     P executed a contract enrolling his farmland for
10 years in the Conservation Reserve Program. Food
Security Act of 1985, Pub. L. 99-198, 99 Stat. 1509-
1514, current version at 16 U.S.C. secs. 3831-3836
(1994). P agreed to remove the farmland from
production and was required to establish vegetative
cover on such land during the first year of the
contract. P was required to maintain established
conservation practices throughout the term of the
contract, and, in return, P received annual rental
payments.

     Held: Annual payments received by P under the
contract were rentals from real estate and therefore
not subject to self-employment tax under secs. 1401 and
1402, I.R.C.
                               - 2 -


     Paul L. Wright, for petitioners.

     Stephen J. Neubeck, for respondent.


     GERBER, Judge:   This case was heard by Special Trial Judge

Stanley J. Goldberg, pursuant to the provisions of section

7443A(b)(3) and Rules 180, 181, and 182.1    The Court agrees with

and adopts the opinion of the Special Trial Judge, which is set

forth below.

               OPINION OF THE SPECIAL TRIAL JUDGE

     GOLDBERG, Special Trial Judge:     Respondent determined

deficiencies in petitioners’ Federal income taxes for 1992 and

1993 in the respective amounts of $1,685 and $1,640.    The issue

for decision is whether petitioners are liable for self-

employment taxes on payments received under the U.S. Department

of Agriculture (USDA) Conservation Reserve Program (CRP).

                         FINDINGS OF FACT

     Some of the facts have been stipulated and are so found.

The stipulation of facts and the attached exhibits are

incorporated herein by this reference.    Petitioners resided in

Fort Recovery, Ohio, at the time that they filed their petition.




1
     Unless otherwise indicated, all section references are to
the Internal Revenue Code in effect for the years in issue, and
all Rule references are to the Tax Court Rules of Practice and
Procedure.
                                 - 3 -


     Prior to the years in issue, Fredrick J. Wuebker

(petitioner) had been farming for approximately 20 years.

Petitioners were joint owners of 258.67 acres of land, including

approximately 214 acres of tillable land.    The remaining acreage

was made up of woods, waterways, and land containing

improvements.    Petitioners' property contained hilly land, prone

to erosion, on which petitioner had grown various crops including

corn, soybeans, and wheat prior to the years in issue.    In

addition, petitioner raised laying hens on petitioners' land as

part of his farming operations.

     In 1991, petitioners offered their tillable land for

enrollment in the CRP.   Petitioners believed that participation

in the CRP program would be beneficial for their land and that it

would increase the productivity of petitioner's poultry operation

by allowing him to devote more time and efforts thereto.

     A CRP contract was executed on behalf of the Commodity

Credit Corporation (CCC) in November 1991.    The CRP contract is a

form contract.   The CRP contract covered approximately 214 acres

of petitioners' farm (the CRP land).     Under the CRP contract, in

order to qualify for the program, the land must "Have been

annually planted or considered planted to an agricultural

commodity in 2 of the 5 crop years, from 1986 to 1990", and it

must be able to be planted to an agricultural commodity and be

predominantly highly erodible.
                                - 4 -


     Only an owner or operator or tenant of eligible cropland may

enter into a CRP contract.   The CRP contract provides that to

qualify for the program, an operator must provide evidence that

he will remain in control of such cropland for the duration of

the CRP contract.   The CRP contract listed the operator of the

land as Fred Wuebker, and provided that he was to receive 100

percent of the payments thereunder.     The CRP contract listed the

owner of the land as Ruth Wuebker (Mrs. Wuebker).

     Petitioner agreed to place the CRP land into the program for

10 crop years; to implement the conservation plan which is part

of the contract; to establish and maintain vegetative cover; not

to engage in or allow grazing, harvesting, or other commercial

use of the crop from the CRP land; and to control weeds, insects,

and pests on the CRP land.   The conservation plan, which was

incorporated into the CRP contract, included seeding

recommendations for the CRP land and provided an estimated cost-

share for the plan.   The plan provided that once the conservation

practices described in the conservation plan had been

established, petitioner was required to maintain such practices

at no cost to the Government.

     Under the CRP contract, the CCC agreed to make "annual

rental payments" to petitioner.   The rental rate was set at $85

per acre enrolled in the program.   The CCC further agreed to
                              - 5 -


share the cost with petitioner of establishing the conservation

plan.

     According to the terms of the CRP contract, the

representatives of the CCC had the right of access to the CRP

land and the right to examine petitioner's records or other lands

for the purpose of determining whether petitioner was complying

with the terms and conditions of the CRP contract.     Finally, the

CRP contract incorporated the regulations in 7 C.F.R. sec. 1410

(1997) for the CRP and stated that in the event of conflict, the

regulations would prevail.

     The CRP program was administered by the CCC and the

Agricultural Stabilization Conservation Service during the years

in issue.

     In 1992, the first year of the CRP contract term, petitioner

disked the CRP land and planted seed to establish ground cover.

In doing so, petitioner used the same equipment he had used

previously in farming the CRP land.   In subsequent years,

petitioner performed minimal, if any, upkeep on the CRP land.

     During the years in issue, petitioner worked a farm, under a

sharecrop arrangement, on a separate piece of land north of

petitioners' farm, and he continued to raise laying hens on their

farmland contiguous with the CRP land.   Petitioner did not grow

any crops on petitioners’ farmland during the years in issue.    In
                                - 6 -


1991 petitioners owned approximately 40,000 laying hens.    By 1997

this number had increased to approximately 57,000.

     Petitioner received CRP payments in the amount of $18,190 in

1992.    In the same year petitioner received cost-share payments

for establishing ground cover on the CRP land.2   In 1993, he

received CRP payments totaling $18,267.

     In 1992, Mrs. Wuebker began attending college, and, in 1993,

she was employed part-time.

     On Schedule E of the returns for 1992 and 1993, petitioners

reported rents received on the CRP land, less mortgage interest

and taxes,3 as farm rental income not subject to self-employment

taxes.    For 1992, petitioners included the cost-share payments

received with respect to the CRP land on Schedule F, Profit or

Loss From Farming.4   Petitioners paid self-employment taxes with

respect to petitioner’s reported net profit from farming.

     In the notice of deficiency, respondent determined that the

amounts received by petitioner under the CRP contract, less the




2
     On the record, the amount of such payments is not clear.
3
     In 1992, petitioners did not claim a deduction for taxes on
Schedule E.
4
     The parties stipulated that petitioners reported the CRP
contract payments and related expenses on Schedule E for the
taxable years 1992 and 1993. To the extent that this stipulation
is contrary to the facts revealed on the record, we are not bound
by it. Cal-Maine Foods, Inc. v. Commissioner, 93 T.C. 181, 195
(1989).
                               - 7 -


deductions attributable thereto,5 constituted income from self-

employment.   Respondent accordingly determined deficiencies in

petitioners' self-employment tax for the years in issue.

Respondent allowed petitioners additional deductions with respect

to the self-employment tax liability.   In addition, as a

computational result of the adjustments, respondent decreased the

amount of the general business credits and earned income credits

allowed to petitioners for the years in issue.

                              OPINION

     Section 1401 imposes a tax on the self-employment income of

every individual.   Self-employment income is defined as "net

earnings from self-employment".   Sec. 1402(b).   The term "net

earnings from self-employment" is defined as gross income derived

by an individual from a trade or business carried on by such

individual less the deductions attributable thereto.    Sec.

1402(a).

     In order to be subject to the self-employment tax, income

must be derived from a trade or business carried on by an

individual.   Jackson v. Commissioner, 108 T.C. 130, 134 (1997);

Newberry v. Commissioner, 76 T.C. 441, 444 (1981).     There must be

a nexus between the income received and a trade or business that


5
     Respondent disallowed $102 of the mortgage interest
deduction claimed by petitioners in 1992. Petitioners did not
contest this adjustment at trial or on brief. Petitioners are
deemed to have conceded this issue.
                               - 8 -


is, or was, actually carried on by the individual.     Newberry v.

Commissioner, supra.   Under this Court's interpretation of the

"nexus" standard, income must arise from some income-producing

activity of the taxpayer before such income is subject to self-

employment tax.   Jackson v. Commissioner, supra.

     Generally, net earnings from self-employment do not include

rentals from real estate and the deductions attributable thereto.

Sec. 1402(a)(1); sec. 1.1402(a)-4(d), Income Tax Regs.     An

exception to the exclusion exists under sec. 1402(a)(1)(A) and

(B) for certain arrangements with respect to the production of

agricultural or horticultural commodities.6   Respondent does not

contend that the exception to the exclusion applies in these

circumstances, nor do we think that it applies.     Simply put,




6
     Sec. 1402(a)(1) provides that the exclusion shall not apply:

     to any income derived by the owner or tenant of land if (A)
     such income is derived under an arrangement, between the
     owner or tenant and another individual, which provides that
     such other individual shall produce agricultural or
     horticultural commodities (including livestock, bees,
     poultry, and fur-bearing animals and wildlife) on such land,
     and that there shall be material participation by the owner
     or tenant * * * in the production or the management of the
     production of such agricultural or horticultural
     commodities, and (B) there is material participation by the
     owner or tenant * * * with respect to such agricultural or
     horticultural commodity;

The arrangement must impose an obligation to produce one or more
agricultural or horticultural commodities. Sec. 1.1402(a)-
4(b)(3), Income Tax Regs.
                               - 9 -


there was no agreement to produce or actual production of

agricultural or horticultural commodities on the CRP land.

     In determining whether compensation is includable in self-

employment income, sections 1401 and 1402 are to be construed

broadly so as to favor coverage for Social Security purposes.

Braddock v. Commissioner, 95 T.C. 639, 644 (1990).   In order to

achieve this end, the rental exclusion is narrowly construed.

Johnson v. Commissioner, 60 T.C. 829, 833 (1973).    In Delno v.

Celebrezze, 347 F.2d 159, 163 (9th Cir. 1965), the court

considered the parallel provision of the Social Security Act, ch.

531, tit. II, sec. 211 (1935), 42 U.S.C. sec. 411(a)(1994), as

added by Social Security Act Amendments of 1950, ch. 809, tit. I,

sec. 104(a), 64 Stat. 502, and stated:

       The apparent intent of Congress was that section
     211(a)(1)[42 U.S.C. sec. 411(a)] should be applied to
     exclude only payments for use of space, and, by implication,
     such services as are required to maintain the space in
     condition for occupancy. If the owner performs additional
     services of such substantial nature that compensation for
     them can be said to constitute a material part of the
     payment made by the tenant, the "rent" received then
     consists in part of income attributable to the performance
     of labor which is not incidental to the realization of
     return from passive investment. In such circumstances, the
     entire payment is to be included in computing the
     recipient's "net earnings from self-employment."

Rent is ordinarily defined as compensation for the occupancy or

use of property.   See Black's Law Dictionary 1297 (6th ed. 1990);

see also sec. 1.61-8(a), Income Tax Regs.
                               - 10 -


     Under the CRP, the Secretary of Agriculture is authorized to

enter into long-term contracts with owners or operators of

farmlands to convert highly erodible croplands to soil-conserving

uses.   See 16 U.S.C. sec. 3831 (1994), added by the Food Security

Act of 1985, Pub. L. 99-198, sec. 1231, 99 Stat. 1509, amended by

the Food, Agriculture, Conservation, and Trade Act of 1990, Pub.

L. 101-624, sec. 1932(2), 104 Stat. 3577.   Title 16 U.S.C.

section 3833 provides that in return for the contract entered

into by an owner or operator of land, the Secretary of

Agriculture will make "annual rental payments" in the amount

necessary to compensate for "the conversion of highly erodible

cropland normally devoted to the production of an agricultural

commodity on a farm or ranch to a less intensive use".   16 U.S.C.

sec. 3833(2)(A).

     Petitioners argue that the CRP payments they received were

rent as the term is ordinarily defined.   Petitioners point out

the CRP authorizing statute and the CRP contract use of the word

"rental".   Petitioners contend that Congress intended for the

payments to be excluded from self-employment income because

Congress is presumed to have known that rental income is excluded

from self-employment income.

     Respondent counters that the payments received were not

rentals from real estate.   We agree with petitioners.
                               - 11 -


     The statute, the regulations, and the CRP contract identify

the payments as rental payments or rent.   The CRP statute and

regulations repeatedly and consistently refer to the annual

payments as rent or rentals.   See 16 U.S.C. secs. 3833(2),

3834(a), (c); 7 C.F.R. secs. 1401.3, 1410.101 (1998).   Generally

in construing the meaning of a statute, we give the language its

plain meaning, assuming that Congress uses common words in their

popular meaning and relying on the words as generally understood.

Norfolk S. Corp v. Commissioner, 104 T.C. 13, 36-37, modified 104

T.C. 417 (1995), affd. 104 F.3d 240 (4th Cir. 1998).

     The primary purpose of the CRP is to achieve specified

environmental benefits, in particular, reducing soil erosion by

removing land from production.   See S. Rept. 101-357, at 199-200

(1990); H. Rept. 99-271(I) at 81 (1985).   In determining the

acceptability of bids, the Secretary of Agriculture may consider

the extent to which the enrollment of land would improve the soil

resources, water quality, or wildlife habitat or provide other

environmental benefits.   16 U.S.C. sec. 3834(c)(3).   Consistent

with these goals, under the CRP contract petitioner was

prohibited from harvesting the CRP land and was required to

implement a conservation plan.   Beyond establishing vegetative

ground cover in the first year of the contract, for which
                              - 12 -


petitioner received a cost-share payment,7 petitioner was

obligated to perform minimal services in connection with the CRP

land.

     In imposing the above-described restrictions on the use of

the land, the primary purpose of the CRP contract was to

effectuate the statutory intention of converting highly erodible

croplands to soil conserving uses.     The services that petitioner

was required to perform over the contract term included

maintaining the vegetative cover, controlling weeds, insects, and

pests on the land, and fulfilling certain reporting requirements.

These service obligations were not substantial and were

incidental to the primary purpose of the contract.    Thus, the CRP

payments represented compensation for the use restrictions on the

land, rather than remuneration for petitioner's labor.    Our

conclusion is consistent with and supported by the language used

by Congress in the CRP statute, which describes the payments as

rentals.   Therefore, the payments are excluded from petitioner's

earnings from self-employment as rentals from real estate within

the meaning of section 1402(a)(1).8

7
     The cost-share rate was 50 percent. Food Security Act of
1985, Pub. L. 99-198, sec. 1234, 99 Stat. 1511, 16 U.S.C. sec.
3834(b)(1)(1994).
8
     Respondent points out that the legislative history of the
Food Security Act of 1985 indicates that in addition to the
environmental benefits, a successful conservation reserve would
"curb production of surplus commodities" and "provide some needed
                                                   (continued...)
                              - 13 -


     Respondent argues that petitioner was actively engaged in

farming and that the CRP payments had a direct nexus with that

operation.   Respondent contends that the CRP program was

inextricably intertwined with petitioner's trade or business of

farming.

     Section 1.1402(a)-4(d), Income Tax Regs., provides:

     Except in the case of a real-estate dealer, where an
     individual or a partnership is engaged in a trade or
     business the income of which is classifiable in part as
     rentals from real estate, only that portion of such income
     which is not classifiable as rentals from real estate, and
     the expenses attributable to such portion, are included in
     determining net earnings from self-employment.

Thus, because we have determined that the payments qualify as

rentals from real estate under section 1402(a)(1), even if such

payments were derived from petitioner's farming operations, the

payments would not be includable in petitioner's earnings from

self-employment.

     Respondent argues that this case is indistinguishable from

Ray v. Commissioner, T.C. Memo. 1996-436.    In Ray, the taxpayer,

who owned land he used for farming and/or cattle grazing,

purchased an additional tract of land which had been enrolled in

the CRP program by the prior owner.    The taxpayer executed an

agreement to continue the CRP contract.    The taxpayer did not


8
 (...continued)
income support for farmers". H. Rept. 99-271(I) at 81 (1985),
1985 U.S.C.C.A.N. 1185. We do not think that these concurrent
goals change the primary character of the payments received.
                               - 14 -


farm the property, but he applied herbicide and shredded natural

grasses to the property.    After considering the provisions of

Rev. Rul. 60-32, 1960-1 C.B. 23, the Court found that the

taxpayer was an "active farmer/rancher" with respect to other

acreage.    The Court regarded the payments as having a direct

nexus to his trade or business of farming, and, on this basis,

the Court held that the payments were subject to self-employment

taxes.   In Ray v. Commissioner, supra, the Court did not address

whether the payments qualified under the rental exclusion

provisions of section 1402(a)(1).    In contrast, because we have

found that the CRP payments herein are rentals, such payments are

not subject to self-employment taxes even if a nexus exists

between the CRP payments and petitioner's farming trade or

business.

     In Rev. Rul. 60-32, supra, the Internal Revenue Service

(IRS) ruled that certain payments received under the Soil Bank

Act, title I of the Agricultural Act of 1956, ch. 327, 70 Stat.

188 (formerly 7 U.S.C. 1801), were includable in gross income and

concluded that such payments were "in the nature of receipts from

farm operations in that they replace income which producers could

have expected to realize from the normal use of the land devoted

to the program."    Rev. Rul. 60-32, 1960-1 C.B. at 25.   Without

any further analysis, the IRS ruled that the payments and
                                - 15 -


benefits are includable in determining the recipient's net

earnings from self-employment.

     In our view, Rev. Rul. 60-32, supra, is not persuasive in

these circumstances.   The IRS did not address whether the

payments constituted rentals.

     The CRP payments received by petitioner during the years in

issue were rentals from real estate and not self-employment

earnings.

     We have considered all of the arguments presented by the

parties, and, to the extent not discussed above, they are without

merit or not relevant.

     To reflect the foregoing,


                                          Decision will be entered

                                     under Rule 155.
