Major v. Major

1998 NMCA 001, 952 P.2d 37, 124 N.M. 436, 1997 WL 809216
CourtNew Mexico Court of Appeals
DecidedDecember 9, 1997
Docket18326
StatusPublished
Cited by14 cases

This text of 1998 NMCA 001 (Major v. Major) is published on Counsel Stack Legal Research, covering New Mexico Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Major v. Major, 1998 NMCA 001, 952 P.2d 37, 124 N.M. 436, 1997 WL 809216 (N.M. Ct. App. 1997).

Opinion

OPINION

BUSTAMANTE, Judge.

1. Randell Major (Father) appeals an order setting the amount of child support to be paid by him to Jacqueline Major (Mother). His primary concern is that the trial court improperly determined his income when it allowed only a portion of the actual cost of replenishing his breeding herd as an ordinary and necessary business expense. We conclude the trial court erred and reverse and remand for a redetermination of child support, as well as attorney fees.

2. Father is a cattle rancher. He operates the business as a sole proprietorship. His main source of income is the sale of calves produced each spring from his breeding herd. He also has some income from the sale of cull cattle, those which do not become impregnated. In the ordinary course of business, during the fall, Father sells off all his cull cattle, as it is not profitable to keep them over the winter. In the spring, he purchases impregnated cattle to replace the cull cattle sold in the fall. He also replaces cattle because of death and disease in the prior year. It is not disputed that these purchases are routine, ordinary, and necessary to maintain the size of Father’s breeding herd at approximately 600 head.

3. In 1995, Father purchased 115 head of impregnated cattle for $72,815 to replenish his herd. In 1996, he purchased replacement cattle for $37,438. Mother does not dispute these figures. The issue here is whether these amounts should be deducted in full from his gross income as ordinary and necessary business expenses for purposes of determining child support. Mother requested that the trial court treat both depreciation and the cost of replenishing the breeding herd as non-deductible expenses for child support purposes. Father agreed that depreciation should be added to his net taxable income, but requested that the yearly cost of replenishing the breeding herd be deducted as an ordinary business expense. The trial court accepted that depreciation should be added to Father’s taxable income. It also determined that cost of replenishing the herd should be allowed, but limited the amount to $17,500, the maximum allowable deduction under 26 U.S.C.A § 179 (West.Supp.1997) (hereinafter “Section 179”).

DISCUSSION

4.The award of child support is within the sound discretion of the trial court. Henderson v. Lekvold, 99 N.M. 269, 271, 657 P.2d 125, 127 (1983). In order to determine the appropriate amount of child support, the trial court must determine the gross income of the parents. NMSA 1978, § 40-4-11.1 (1995). In making that determination for self-employed parents or the owners of a sole proprietorship, “ ‘gross income’ means gross receipts minus ordinary and necessary expenses required to produce such income.” Id. at (C)(2)(b). However, “ordinary and necessary expenses do not include expenses determined by the court to be inappropriate for purposes of calculating child support.” Id. The question here is whether the annual cost of replenishing the breeding herd is an ordinary expense required to produce business income under the facts of this case.

5. We have twice had the opportunity, in the context of child support proceedings, to discuss what is meant by ordinary and necessary business expenses for self-employed individuals. In Roberts v. Wright, 117 N.M. 294, 296-97, 871 P.2d 390, 392-93 (Ct.App.1994), we affirmed the allowance of a deduction of the reinvested earnings of mother’s corporation, which were used to purchase inventory to sustain the one sales contract that made mother’s business successful. Likewise, in Jurado v. Jurado, 119 N.M. 522, 530, 892 P.2d 969, 977 (Ct.App.1995), we reversed the disallowance of a deduction for that portion of the earnings reinvested in the business which the evidence established were necessary to sustain it. In Jurado, we made it clear that earnings reinvested in the business for the purpose of growth of the business should be treated as income for the purpose of child support. Id. The lesson we glean from these cases is that we are more concerned with a parent’s actual cash flow than we are with income as represented on tax returns. See also Padilla v. Montano, 116 N.M. 398, 406, 862 P.2d 1257, 1265 (Ct. App.1993). We do not rely on technical treatments more appropriate for accounting and tax purposes unless there is evidence that those technical treatments bear some relation to actual cash flow. See Roberts, 117 N.M. at 297, 871 P.2d at 393. (“[Business expenses that are valid for accounting or tax purposes may not affect a parent’s actual cash flow, so they would normally not be considered ordinary and necessary for purposes of calculating support.”) In considering business expenses, a court should make appropriate allowance for expenses that are actually necessary for the parent to sustain his or her business.

6. In this case we are not concerned with undistributed profits; nor are we faced with a request to allow a broad depreciation figure. We are strictly concerned with an annual expense associated with Father’s business. The trial court found that the cost of replenishing the herd was a necessary expense. There was sufficient evidence to support this finding. Father testified that the majority of his income came from the sale of calves. Thus, it was important to the maintenance of his business that he have impregnated cattle. If he failed to replace barren or lost cattle, at some point his breeding herd would diminish to the point where there would be essentially no income. As a result, the expense of purchasing impregnated cattle to replace those that he sold or lost was necessary to maintain his business. There is no evidence he expanded the size of his breeding herd. He simply attempted to maintain the herd at 600 head. These purchases were required simply to maintain his business at the same level.

7.Although the trial court determined that the cost was a necessary business expense, it determined that a limit on that expense was required and, therefore, capped the allowance at $17,500 per year, to be increased as the tax code permitted. We believe the trial court abused its discretion in so limiting Father’s expense to maintain his breeding herd.

8. The limitation imposed by the trial court comes from Section 179 of the Internal Revenue Code. This section allows a taxpayer to elect to treat the cost of depreciable property purchased for use in the active conduct of a trade or business as an expense in the year the property is placed in service, rather than as property that is capitalized and thereafter subject to depreciation over a number of years. See 26 U.S.C.A. Section 179; see also 5 Jacob Mertens, Jr., Mertens Law of Federal Income Taxation § 23.95, at 158-59 (Lisa Fagan et. al. eds., 1997 Cum. Supp.). It is designed to “ ‘encourage additional investment in small business since it provides for a faster recovery of capital before the taxing of earnings.’” Smyers v. Commissioner of Internal Revenue, 57 T.C. 189, 203, 1971 WL 2598 (1971) (quoting H.R. Rep. 85-2198 (1958)). Additionally, since the property is immediately expensed, there is no need to maintain a depreciation schedule on these assets.

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Bluebook (online)
1998 NMCA 001, 952 P.2d 37, 124 N.M. 436, 1997 WL 809216, Counsel Stack Legal Research, https://law.counselstack.com/opinion/major-v-major-nmctapp-1997.