FREDERICK WUEBKER and RUTH WUEBKER v. Commissioner of Internal Revenue

1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0078P (6th Cir.)
File Name: 00a0078p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
FREDERICK W UEBKER and
R UTH W UEBKER,
Petitioners-Appellees,
v.
C OMMISSIONER OF INTERNAL
R EVENUE ,
Respondent-Appellant.
;>

1
No. 98-2287
On Appeal from the United States Tax Court.
No. 11472-96
Argued: December 10, 1999
Decided and Filed: March 3, 2000
Before: JONES, COLE, and GILMAN, Circuit Judges.
_________________
COUNSEL
ARGUED: Robert W. Metzler, U.S. DEPARTMENT OF
JUSTICE, APPELLATE SECTION TAX DIVISION,
Washington, D.C., for Appellant. John Anthony Logan,
Russell N. Cunningham, WRIGHT & LOGAN, Dublin, Ohio,
for Appellees. ON BRIEF: Robert W. Metzler, Teresa E.

-- 1 of 8 --

2 Wuebker, et al. v. Commissioner No. 98-2287
McLaughlin, U.S. DEPARTMENT OF JUSTICE,
APPELLATE SECTION TAX DIVISION, Washington, D.C.,
for Appellant. John Anthony Logan, Russell N. Cunningham,
Paul L. Wright, WRIGHT & LOGAN, Dublin, Ohio, for
Appellees. Nan M. Still, Larry R. Gearhardt, OHIO FARM
BUREAU FEDERATION, INC., Columbus, Ohio, for
Amicus Curiae.
GILMAN, J., delivered the opinion of the court, in which
COLE, J., joined. JONES, J. (pp. 14-15), delivered a separate
opinion dissenting from Part II.C. of the majority opinion.
_________________
OPINION
_________________
RONALD LEE GILMAN, Circuit Judge. This dispute
involves the proper tax treatment of payments received by
Frederick and Ruth Wuebker under the United States
Department of Agriculture’s Conservation Reserve Program
(“CRP”), 16 U.S.C. §§ 3801, 3831-36. The Commissioner of
Internal Revenue determined that the amounts received by the
Wuebkers under their CRP contract, less the deductions
attributable thereto, constituted income from the trade or
business of farming that was subject to the self-employment
tax pursuant to § 1401 of the Internal Revenue Code. To the
contrary, the Tax Court agreed with the Wuebkers’ position
that the payments constituted “rentals from real estate” that
are specifically excludible from self-employment income
pursuant to § 1402(a)(1) of the Internal Revenue Code. For
the reasons set forth below, we REVERSE the Tax Court’s
decision.
I. BACKGROUND
A. Factual background
At all times relevant to this case, the Wuebkers resided in
Fort Recovery, Ohio and jointly owned 258.67 acres of land,
much of which was considered highly erodible. After farming
No. 98-2287 Wuebker, et al. v. Commissioner 15
Wuebkers inter alia to seed and fertilize the acreage in
accordance with USDA dictates, further constricted the land’s
utility. In my view, the USDA therefore exercised sufficient
control of the CRP land that it can properly be viewed as
“us[ing]” the land. For this reason, characterization of the
CRP payment as a “rental[]” payment is entirely consistent
with ordinary definitions of the term. Accordingly, I
respectfully DISSENT from Part II.C. of the majority
opinion, but join the opinion in all other respects.

-- 2 of 8 --

14 Wuebker, et al. v. Commissioner No. 98-2287
________________
DISSENT
________________
NATHANIEL R. JONES, Circuit Judge, dissenting.
Because I believe that the substantial and wide-ranging
limitations imposed on the Wuebkers’ use of their land by the
CRP signals that the USDA did “use” the land as
contemplated by ordinary definitions of “rent,” I respectfully
DISSENT from Part II.C. of the majority opinion.
The Internal Revenue Code does not define “rentals from
real estate” for the purposes of § 1402(a)(1), and we therefore
look to ordinary definitions of “rent” to ascertain the statute’s
meaning. See Smith v. United States, 508 U.S. 223, 228
(1993) (“When a word is not defined by statute, we normally
construe it in accord with its ordinary or natural meaning.”).
As the majority notes, “[r]ent normally connotes
‘[c]onsideration paid for use or occupation of property.” Ante
at 11; see Aujero v. CDA Todco, Inc., 756 F.2d 1374, 1376
(9th Cir. 1985) (quoting Black’s Law Dictionary 1166 (5th
ed. 1979)); see also Black’s Law Dictionary (Westlaw 1999).
While the USDA did not possess or occupy the Wuebkers’
property in the traditional sense that gives rise to a tenant-
landlord relationship, see Restatement (Second) of Property
§ 1.2 (1977) (“A landlord-tenant relationship exists only if the
landlord transfers the right to possession of the leased
property.”), the CRP certainly placed a number of restrictions
on the way in which the Wuebkers could use their land.
As the Tax Court found, the Wuebkers were prohibited
from allowing any “grazing, harvesting, or other commercial
use of the crop from the cropland,” see J.A. at 35, and were
required to implement the numerous requirements of the
conservation plan. The USDA also retained a limited right to
access the land to ascertain CRP compliance. By prohibiting
all commercial farming, the USDA greatly reduced the range
of uses to which the Wuebkers could put their property. The
sundry dictates of the conservation plan, requiring the
No. 98-2287 Wuebker, et al. v. Commissioner 3
most of the property for approximately twenty years, they
decided to enroll a substantial portion of the land into the
CRP. The CRP was established pursuant to the Food Security
Act of 1985, Pub. L. No. 99-198, 99 Stat. 1354 (codified in
scattered sections). It authorizes the Department of
Agriculture to make payments to those owners and operators
of land who agree to refrain from farming their property in
order “to conserve and improve the soil and water resources
of such lands.” 16 U.S.C. § 3831(a). The Wuebkers agreed
to enroll 214.9 of their acreage into the program because they
felt that doing so would provide them with a more stable flow
of income, benefit their land, and allow them to focus their
efforts on their poultry operation.
The Wuebkers executed their CRP contract in November of
1991. Frederick Wuebker was listed as the operator of the
land and Ruth Wuebker was listed as the owner. Pursuant to
the contract, the Department of Agriculture—through the
Commodities Credit Corporation (“CCC”) and the
Agricultural Stabilization and Conservation Service
(“ASCS”)—promised to pay the Wuebkers a “rental rate per
acre” of $85 for a period of ten years. Pursuant to the
contract, the “annual rental payment” is “based on an
accepted bid multiplied by the number of determined acres
which, subject to the availability of funds, may be paid to a
participant to compensate such participant for placing eligible
land in the Conservation Reserve Program.”
In exchange for that payment, the Wuebkers agreed to,
among other things, (1) implement a conservation plan, (2)
establish vegetative cover, (3) “[n]ot engage in or allow
grazing, harvesting, or other commercial use of the crop from
the cropland,” (4) “[n]ot harvest or sell, nor otherwise make
commercial use of trees on the CRP land,” (5) “[n]ot produce
any agricultural commodity on highly erodible land,”(6)
“[c]ontrol on [the] land . . . all weeds, insects, pests and other
undesirable species,” and (7) file annual CRP reports. The
contract sets forth certain cost-sharing provisions, pursuant to
which the CCC reimburses the Wuebkers for specific
maintenance expenses. Furthermore, in order for an operator

-- 3 of 8 --

4 Wuebker, et al. v. Commissioner No. 98-2287
of land to be eligible, the participant is required to “provide
satisfactory evidence that such person will be in control of
such cropland for the full term of the CRP contract period
. . . .” The contract also grants the CCC access to inspect the
CRP land:
Representatives of CCC shall have the right of access to
[the] land subject to this contract and to examine any
other lands or records under the participant’s control for
the purpose of determining land classification and
erosion rates and for the purpose of determining whether
there is compliance with the terms and conditions of this
contract.
With respect to 181.9 of the 214.9 acres, the conservation
plan established by the parties required the Wuebkers to (1)
maintain vegetation throughout the life of the CRP contract,
(2) spot mow or chemically treat noxious weeds “at any
time,” (3) periodically seed and cultivate the land using the
“disc” and “harrow” methods, and (4) lime and fertilize the
land as needed pursuant to ASCS tests. The plan declared
that the remaining 33.0 acres had adequate existing cover,
requiring only spot mowing and vegetation maintenance. A
revision of the plan in March of 1992, however, required the
Wuebkers to seed the entire 214.9 acres. The Wuebkers
accomplished these tasks by using their existing farming
equipment, and a portion of their costs were reimbursed.
Most of the work was completed during the first year of the
contract.
In 1992 and 1993, the Wuebkers received $18,190 and
$18,267, respectively, under the CRP. On their joint tax
returns for those years, the Wuebkers reported the amounts as
rents on Schedule E, the Supplemental Income Schedule.
They did not, however, include the payments in their
computation of self-employment income. As a result of an
audit by the IRS, the Commissioner issued a notice of
deficiency on March 4, 1996, claiming that the CRP payments
constituted farm income rather than excludible rentals from
real estate, and were therefore subject to the self-employment
No. 98-2287 Wuebker, et al. v. Commissioner 13
(6th Cir. 1980) (“[C]ourts must look to the substance, rather
than the form, of transactions to determine whether payments
to a taxpayer constitute capital gain or ordinary income.”);
Mitchell v. Commissioner, 428 F.2d 259, 263 (6th Cir. 1970)
(“It is a fundamental rule of taxation that form and labels
must yield to reality.”). In fact, in setting forth the CRP
payment rules, Congress expressly qualified its use of the
term “rental” by providing that “[t]he amounts payable . . . in
the form of rental payments under contracts entered into . . .
may be determined through . . . the submission of bids . . . or
. . . [through] other means . . . .” 16 U.S.C. § 3834(c)(2)
(emphasis added).
The Tax Court also chose not to follow Ray and Revenue
Ruling 60-32, asserting that neither decision addressed
whether the payments fell within the rental exclusion. A
close reading of those decisions, however, reveals that the
both the Tax Court and the IRS were aware of the rentals-
from-real-estate exclusion. In Ray, the Tax Court explicitly
noted that the taxpayers had asserted that the exclusion should
apply: “As to the year 1990, petitioners have conceded all
respondent’s adjustments to income except respondent’s
determination that petitioners’ receipt of $43,469 of income
in that year constituted income subject to self-employment
tax, rather than rental income as claimed by petitioners.”
Ray, 1996 Tax Ct. Memo LEXIS 453, at *1 (emphasis
added). Similarly, the IRS in Revenue Ruling 60-32
specifically cites 26 U.S.C. § 1402(a)(1)—the rentals-from-
real-estate exclusion provision—making it highly unlikely
that the exclusion was not considered when the decision was
rendered. In sum, we find the Tax Court’s attempt to
distinguish these prior rulings unpersuasive.
III. CONCLUSION
For all of the reasons set forth above, we REVERSE the
Tax Court’s decision.

-- 4 of 8 --

12 Wuebker, et al. v. Commissioner No. 98-2287
347 F.2d at 165. Although it is true that the Department of
Agriculture is seeking, and receiving, a public benefit by
conserving lands enrolled in the CRP, the Wuebkers continue
to maintain control over and free access to their premises.
The dissent reasons that, because the government “greatly
reduced the range of uses to which the Wuebkers could put
their property,” it exercised a level of control akin to “use.”
We remain unpersuaded, however, that the restrictions
imposed by the Department of Agriculture on a farmer’s use
of his own land somehow translate into “use” by the
Department itself.
The essence of the program is to prevent participants from
farming the property and to require them to perform various
activities in connection with the land, both at the start of the
program and continuously throughout the life of the contract,
with the government’s access limited to compliance
inspections. Given this arrangement, we disagree with the
Tax Court’s determination that the Wuebkers’ maintenance
obligations were legally insignificant.
We also note the Wuebkers’ contention that their
involvement with the CRP land was insufficient to constitute
“material participation” within the meaning of § 1402(a)(1).
This contention, however, has no bearing on whether the CRP
payments constituted rentals from real estate. The issue of
material participation arises only when there is an
arrangement between an owner or tenant and another
individual whereby the other individual is to produce
agricultural or horticultural commodities on the land. No
such arrangement is present in this case.
The Tax Court placed great emphasis on the fact that the
CRP statute, regulations, and contract refer to the amounts
received by participants in the program as “rental” payments.
Although such references favor a conclusion that the
payments should be treated as rent for the purposes of
determining whether they should fall within the rentals-from-
real-estate exclusion, they certainly do not compel such a
conclusion. See Cline v. Commissioner, 617 F.2d 192, 195
No. 98-2287 Wuebker, et al. v. Commissioner 5
tax. The notice assessed additional taxes of $1,685 and
$1,640 for 1992 and 1993, respectively.
B. Procedural background
On June 6, 1996, the Wuebkers filed a timely petition with
the Tax Court pursuant to 26 U.S.C. § 6213(a), challenging
the additional assessments and contending that the CRP
payments constituted rental income that should be excluded
from net earnings subject to the self-employment tax.
Although they stipulated to many of the facts involved in the
case, the parties presented additional evidence on May 19,
1997.
In an opinion entered on August 27, 1998, the Tax Court
agreed with the Wuebkers, concluding that because the plain
language of the CRP statute, regulations, and contract all
describe the payments as “rent,” it should be considered as
rental income for tax purposes. The Tax Court also noted that
the Wuebkers’ service obligations under the CRP contract
“were not substantial and were incidental to the primary
purpose of the contract.” It characterized the payments as
“compensation for the use restrictions on the land, rather than
remuneration for the [Wuebkers’] labor.” Finally, the Tax
Court distinguished the Wuebkers’ case from a prior Tax
Court decision and an earlier revenue ruling holding that
payments to farmers under similar conservation plans are, in
fact, taxable as self-employment income.
In this appeal, the Commissioner contends that (1) the
description of the payments as “rent” in the various CRP
provisions does not compel the conclusion that they are, in
substance, rentals from real estate for the purposes of the self-
employment tax, (2) the CRP payments are in fact not “rent”
because they are not made in exchange for the use or
occupancy of land, and (3) the CRP payments are more
properly characterized as self-employment income because
they are made in lieu of farming income.

-- 5 of 8 --

6 Wuebker, et al. v. Commissioner No. 98-2287
II. ANALYSIS
A. Standard of review
An order of the Tax Court is “subject to the same review
. . . as a similar order of a district court.” 26 U.S.C.
§ 7482(a)(3). Thus, we will sustain the Tax Court’s findings
of fact unless they are clearly erroneous and we review its
legal conclusions de novo. See Kluener v. Commissioner, 154
F.3d 630, 637 (6th Cir. 1998).
B. The CRP payments constitute self-employment
income
The decision in this case hinges on whether the CRP
payments are determined to be farm income or rental income.
Although the Wuebkers’ additional tax liability in the range
of $1,600 to $1,700 for each tax year might appear to be
relatively small, the implications of this decision loom large.
The Commissioner in his brief asserts that the Department of
Agriculture pays approximately $1.8 billion per year to
farmers under the CRP. With the self-employment tax
currently set at the rate of 15.3%, see 26 U.S.C. § 1401(a),
(b), the cumulative amount of tax dollars at stake—even after
giving effect to the relevant caps and deductions—is
obviously substantial.
In order to finance Social Security and Medicare benefits
for the self-employed and their dependents, the government
taxes the self-employment income of every individual. See 26
U.S.C. § 1401; Patterson v. Commissioner, 740 F.2d 927, 929
(11th Cir. 1984). “‘[S]elf-employment income’ means the net
earnings from self-employment derived by an individual
. . . .” 26 U.S.C. § 1402(b). “‘[N]et earnings from
self-employment’ means the gross income derived by an
individual from any trade or business carried on by such
individual, less the deductions allowed by this subtitle . . . .”
Id. § 1402(a). Thus, “[t]o be taxable as self-employment
income, an individual’s income must be (1) derived, (2) from
a trade or business, (3) carried on by that individual.”
No. 98-2287 Wuebker, et al. v. Commissioner 11
“The term ‘net earnings from self-employment’ means the
gross income derived by an individual from any trade or
business carried on by such individual, . . . except that in
computing such gross income . . . there shall be excluded
rentals from real estate . . . together with the deductions
attributable thereto . . . .” 26 U.S.C. § 1402(a) (emphasis
added). “Rentals from real estate” is not defined by the
statute and, therefore, the phrase must be interpreted “in
accordance with its ordinary or natural meaning.” FDIC v.
Meyer, 510 U.S. 471, 476 (1994). The rentals-from-real-
estate exclusion, however, is to be “narrowly construed.”
Johnson v. Commissioner, 60 T.C. 829, 833 (1973); see also
Delno v. Celebrezze, 347 F.2d 159, 165 (9th Cir. 1965)
(noting with respect to the Social Security Act’s identical
provision that “there is specific evidence that Congress
intended the rental exclusion to be narrowly restricted to
payments for occupancy only”).
Rent is defined as “[c]onsideration paid . . . for the use or
occupancy of property . . . .” BLACK ’S LAW DICTIONARY
1299 (7th ed. 1999); see also Aujero v. CDA Todco, Inc., 756
F.2d 1374, 1376 (9th Cir. 1985) (“Rent normally connotes
‘[c]onsideration paid for use or occupation of property.’”
(citation omitted)). Here, the Wuebkers do not—and
cannot—contend that the Department of Agriculture obtained
the right to “occupy” the land enrolled in the CRP. The
government’s access is limited to inspecting the property and
determining whether the Wuebkers are in compliance with the
contract.
Whether the CRP payments constitute consideration for the
“use” of the Wuebkers’ land is a closer question. Citing the
many objectives of the CRP, such as the reduction of soil
erosion and the protection of the nation’s long-term food
production capabilities, the Wuebkers assert, and the dissent
agrees, that the government is “using” the land in question.
We believe, however, that such an argument impermissibly
stretches the plain meaning of the term “use,” especially in
light of the narrow construction required of the rentals-from-
real-estate exclusion. See Johnson, 60 T.C. at 833; Delno,

-- 6 of 8 --

10 Wuebker, et al. v. Commissioner No. 98-2287
set forth in Part II.C. below, we find that the Tax Court’s
disregard of these prior decisions is unwarranted.
In support of their argument, the Wuebkers rely primarily
on Milligan v. Commissioner, 38 F.3d 1094 (9th Cir. 1994),
and Gump v. United States, 86 F.3d 1126 (Fed. Cir. 1996).
The Milligan court held that termination payments received
by an insurance agent under a noncompetition agreement did
not derive from the taxpayer’s business activity of insurance
sales because they were not “tied to the quantity or quality of
the taxpayer’s prior labor . . . .” Milligan, 38 F.3d at 1098. In
Gump, the court followed Milligan and ruled that monthly
payments received by the taxpayer from his former employer
did not derive from his insurance trade because they arose
from the cessation of said business. Gump, 86 F.3d at 1128-
29.
Both decisions, however, are factually distinguishable from
the instant action. First, neither case involves the unique
aspects of the CRP and the maintenance obligations attendant
to the program. Second, unlike the situations in Milligan and
Gump, the Wuebkers continued to engage in their business
while they were receiving their CRP payments. Furthermore,
although the Wuebkers argue that “the CRP payments were
not conditioned upon any farming activity,” their position is
weakened by the fact that they were required to perform tasks
that are intrinsic to the farming trade or business (e.g., tilling,
seeding, fertilizing, and weed control) that required the use of
their farming equipment.
C. The CRP payments are not excludible as rentals from
real estate
The Tax Court, relying primarily on the language of the
CRP statute, regulations, and contract, concluded that the
CRP payments are not properly considered self-employment
income because they fall within the rentals-from-real-estate
exclusion. In his appeal, the Commissioner essentially argues
that the nature, not the label, of the payments compel an
opposite conclusion. We agree.
No. 98-2287 Wuebker, et al. v. Commissioner 7
Milligan v. Commissioner, 38 F.3d 1094, 1097 (9th Cir.
1994).
Despite setting forth the definition of self-employment
income and the general rules for determining whether monies
received by a taxpayer should be included as such, the Tax
Court did not expressly conclude in its opinion whether the
CRP payments in this case constitute—in the first
instance—self-employment income. Although we would
normally remand for such a preliminary conclusion, a remand
is not necessary where the lower court has implicitly made
such a finding. See Brown v. Baltimore & Ohio R.R. Co., 805
F.2d 1133, 1141 (4th Cir. 1986) (“The ordinarily preferred
course . . . is to remand for first instance determination of the
issue by the district court. . . . Nevertheless, where . . . the
issue is narrow and specific, and the implicit determination
clear beyond any doubt, we may yet review to avoid the
expensive alternative of a remand for a practically assured pro
forma express determination conforming to that one
necessarily implicit in the judgment.”). In proceeding directly
to an analysis of whether the CRP payments fell within the
rentals-from-real-estate exclusion, the Tax Court implicitly
found that, should the exclusion not apply, the payments
would be taxable as self-employment income. Based on this
conclusion, and in light of the fact the parties have briefed the
question on appeal, the issue is ripe for review.
In response to the Commissioner’s appeal, the Wuebkers do
not assert that the “trade or business” or “carried on”
requirements are lacking in this case. Rather, they argue that
the CRP payments do not constitute self-employment income
because they do not “derive” from their farming business.
The Commissioner contends, in reply, that a sufficient nexus
exists between the CRP payments and the Wuebkers’ farming
operations. As explained below, we believe that the
Commissioner’s contention represents the stronger argument.
“The term ‘derive’ requires ‘a nexus between the income
received and a trade or business that is, or was, actually
carried on.’” Milligan, 38 F.3d at 1098 (quoting Newberry v.

-- 7 of 8 --

8 Wuebker, et al. v. Commissioner No. 98-2287
Commissioner, 76 T.C. 441, 444 (1981)). Similarly, the
income “must arise from some actual (whether present, past,
or future) income-producing activity of the taxpayer . . . .”
Newberry, 76 T.C. at 446.
In Ray v. Commissioner, 72 T.C.M. (CCH) 780, 1996 Tax
Ct. Memo LEXIS 453 (1996), the Tax Court considered the
nature of CRP payments such as those involved in this case.
Connie Ray, the taxpayer, was engaged in the business of
farming and cattle grazing. He eventually purchased
additional property that had previously been enrolled in the
CRP by the seller. Ray became a party to a new contract with
the CCC, requiring him to assume obligations similar to those
undertaken by the Wuebkers in this case. During the years in
question, Ray and his wife did not report the CRP payments
as self-employment income. After the IRS assessed a
deficiency, Ray filed a petition challenging the
Commissioner’s characterization of the payments. The Tax
Court, in holding that the payments constituted self-
employment income, focused on the relationship between the
CRP payments and Ray’s farming and ranching business:
Petitioner Connie Ray was a farmer and rancher and had
apparently been so for some years. He owned and
operated farmlands in Texas. As an addition to his
holdings, he acquired the CRP tract and, by agreement
with the CCC, he continued in effect the existing
contractual relationship under the CRP program. Under
this program, he was required to tend and nourish the
land, fight diseases, and control soil erosion. What he
could not do is to farm or graze the land. In other words,
in return for nurturing and conserving the CRP acreage,
but not farming or grazing it, he would and did receive a
fee from CCC. Since the CRP acreage was added to his
existing farmland, and since petitioner Connie Ray was
already in the business of farming and ranching, this was
a payment to him in connection with his ongoing trade or
business.
No. 98-2287 Wuebker, et al. v. Commissioner 9
Id. at *5. In conclusion, the Tax Court stated that “Ray was
an active farmer/rancher with respect to additional acreage
[enrolled in the CRP], and the payments . . . had a direct
nexus to his trade or business.” Id. at *7.
The facts of Ray are almost identical to those in the case
before us, and the decision’s reasoning is sound. Like Ray,
the Wuebkers were engaged in the business of farming prior
to and during the term of their CRP contract. Their
agreement with the CCC required them to perform several
ongoing tasks with respect to the land enrolled in the CRP,
the very land they already owned and had previously farmed.
As the Tax Court concluded in Ray, the CRP payments to the
Wuebkers were “in connection with” and had a “direct nexus
to” their ongoing trade or business.
Revenue Ruling 60-32, 1960-1 C.B. 23, further supports the
above conclusion. Issued in connection with the CRP’s
predecessor agricultural plan, the Soil Bank Program, 7
U.S.C. §§ 1801-37 (repealed 1965), the ruling expressed the
IRS’s opinion that “[p]ayments and benefits attributable to the
acreage reserve program are includible in determining the
recipient’s net earnings from self-employment if he operates
his farm personally or through agents or employees.”
Although not binding on this court, a revenue ruling
constitutes the studied view of the IRS and is “entitled to
some deference unless ‘it conflicts with the statute it
supposedly interprets or with that statute’s legislative history
or if it is otherwise unreasonable.’” CenTra, Inc. v. United
States, 953 F.2d 1051, 1056 (6th Cir. 1992) (quoting
Threlkeld v. Commissioner, 848 F.2d 81, 84 (6th Cir. 1988)).
Because the Soil Bank Program was substantially the same as
the CRP, see Peterson v. Chater, 72 F.3d 675, 677 (8th Cir.
1995) (“CRP has been called ‘Son of Soil Bank.’”), and
because the judgment expressed in Revenue Ruling 60-32 is
not an unreasonable interpretation, we find it persuasive.
The Tax Court’s decision under review expressly
distinguishes Ray and Revenue Ruling 60-32. For the reasons

-- 8 of 8 --