After meeting with dozens of dairymen suffering financial distress, Walter sees issues that producers have likely never faced before.
By Riley Walter, attorney
In my last column, I commented on several observations about common characteristics in dealing with distressed financial situations. I knew then, as I know now, that the prior list was not by any means a comprehensive listing of the various observations I have had over the last couple of years as I met with in excess of 60 different dairymen suffering financial distress.
In this column, I want to amplify on some of my previous comments and lay out some other and additional observations. The point of these observations is to have dairymen think about issues that they have probably never really faced before.
First, too many of my distressed clients have “borrowed” from the government by not paying payroll taxes. While it is tempting to forego making the payroll tax contribution, this can have very serious consequences, as payroll tax obligations are generally not dischargeable in bankruptcy. If you are going to short someone, it should not be the government.
Second, in about 30% of the cases I have handled, the dairymen and/or the accountants have been using the incorrect name for their entity. In these modern times, many searches are done electronically. This requires that the exactly correct name be usedon various documents. There is a lot of difference between the Sanchez Dairy and the Paul Sanchez Dairy. There is a lot of difference between ABC Co. and ABC Inc. I am constantly amazed how often the name on the partnership agreement is different from the name used on the tax return, which is different from the name on the sign out in front of the dairy. Paying attention to detail is the hall mark of a good businessman.
A third, and really sad observation, is that so often the dairyman does not understand the concept of partnership liability. In at least three of my cases, the family has “given” a partnership interest to a young person. When the undigested feedstuffs hit the fan, those young people are often stunned to find out they have joint and several liability for all of the partnership debts. So often, they think that if they have a 5% interest they are liable for 5% of the debt. This is not the case. When this crisis is over, I am hopeful that a lot of dairymen will revisit the decision to be formed as a partnership.
A fourth and painful observation relates to income taxes. So often, people come to my office thinking that if they can get more cows to get more milk in the tank, their problem will be solved. However, in almost every dairy case that I have seen, the underlying issue -- if a liquidation is likely -- is income taxes. Folks just don’t seem to understand that the liquidation of assets can cause very significant income tax consequences, and those tax consequences are not necessarily dischargeable in bankruptcy. Considerable structuring and care needs to be taken to address income taxes in distressed situations.
Similarly, of late there have been a number of people who have come in to see me after they have liquidated the herd. This is a huge mistake. Some of them seem to think that, because they will have no assets, the creditors will not pursue them on the debt. This is rarely the case. Others failed to take into consideration the aforementioned tax consequence. While I do not blame anyone for wanting to save a few dollars on legal fees, this is a perfect example of being penny wise and pound foolish.
A fifth observation is that too many dairymen have been entirely relying on their cooperative retains for their retirement. It seems to stun the dairymen when I explain to them that those retains are not a protected qualified retirement plan. A qualified retirement plan can be protected from creditor claims but the retains cannot. In the future, I am hopeful that dairymen will be looking at the more modern retirement plan options available to them.
As one would glean from all of the observations in this column, one of my major observations is that at the very time when dairymen need financial help, they often skimp. Whether it is because they have not paid their accountant or cannot afford the bookkeeper matters not. This is an area that cries out to be maintained. Not having financial information during a period of financial distress will often lead to a liquidation that could be prevented if there were better financial reporting.
Another observation is the tendency to not keep the lender informed. Whether it is due to embarrassment, fear or just stress, too many dairymen are doing things that have an impact on the collateral of the lender without keeping the lender informed. As I often say to my clients, this is like an ostrich. However, remember if the ostrich has its head in the sand, it leaves only one target.
Last, I cannot resist observing that every one out of the 60 dairies I have seen is a good operator. Being a good operator, however, does not necessarily mean they are good financial managers. It is my observation that too many dairymen cannot give up day-to-day control of the cows and, instead, they forego financial management. Once this crisis abates, it is my prediction that lenders will lend only to good financial managers who have good budgets, good accounting and computer systems, and financial savvy. The days when it was enough to be “good with cows” is over.
Riley Walter is an attorney and founder of the Central Valley-based Walter & Wilhelm Law Group, a law firm specializing in agribusiness, reorganization and bankruptcy.