Law360 (June 21, 2018, 10:14 AM EDT) — The U.S. Supreme Court on Thursday decided that stock options given to employees of several subsidiaries of a Canadian railroad company are not taxable compensation under the Railroad Retirement Tax Act, reversing the Seventh Circuit in a $13.3 million lawsuit against the Internal Revenue Service.
In a 5-4 decision the court found the stock options did not qualify as taxable “money remuneration” under the RRTA. The court said it departed from the Seventh Circuit’s decision because the IRS issued a regulation stipulating that the RRTA taxes remuneration such as salaries, wages, commissions, fees and bonuses but did not mention stock.
“In light of these textual and structural clues and others, the Court thinks it’s clear enough that the term ‘money’ unambiguously excludes ‘stock,'” Justice Neil Gorsuch said in the court’s opinion.
Subsidiaries of Canadian National Railway Co. asked the Supreme Court to take on the case in October, saying the Seventh Circuit’s ruling departed from an Eighth Circuit decision that reached the opposite conclusion that such stock options were not taxable. The government similarly urged the Supreme Court to hear the case in December for the same reasons.
That Eighth Circuit case, USA v. Union Pacific Railroad Co., has a separate petition for certiorari request that is pending before the Supreme Court and is regarding $75 million paid in stock options to railroad employees.
Despite the separate petitions before the Supreme Court, the crux of both cases rely upon the meaning of “money remuneration” under the RRTA and whether stock options were envisioned as taxable pay under the meaning of the statute when it was originally enacted in the 1930s.
The Supreme Court decided to take the Seventh Circuit case in December and in April heard oral arguments from counsel in the case of Wisconsin Central Ltd. and the other Canadian National Railway Co. subsidiaries — Illinois Central Railroad Co., and Grand Trunk Western Railroad Co. — in April.
In its brief filed with the Supreme Court before oral arguments were held, Wisconsin Central said the Seventh Circuit’s decision departed from the Eighth Circuit’s view that while stock has cash value and can be exchanged for money, it is not a medium of exchange and therefore cannot be taxed under the RRTA.
The Association of American Railroads and other railway companies such as Norfolk Southern Corp. and Union Pacific wrote separate amicus briefs that were filed in February and urged the Supreme Court to find that stock options are not a form of compensation because the history of the RRTA showed the statute’s definition of taxable pay does not apply to stock.
In March the government said that stock options should be treated like money under the Federal Insurance Contributions Act, where taxable wages include stock options because the two statutes parallel each other.
Norfolk Southern Corp. is represented by M. Miller Baker, David R. Fuller and Sarah P. Hogarth of McDermott Will & Emery LLP.
Union Pacific and CSX are represented by Bryan Michael Killian, Mary B. Hevener, Robert R. Martinelli, Steven P. Johnson and Stephanie Schuster of Morgan Lewis & Bockius LLP.
The Association of American Railroads is represented by Daniel Saphire, Kathryn D. Kirmayer and Janet L. Bartelmay of the association.
Canadian National Railway and its subsidiaries are represented by William J. McKenna, Jonathan W. Garlough, David T. Ralston Jr. and Richard F. Riley Jr. of Foley & Lardner LLP and Thomas H. Dupree Jr. and Rajiv Mohan of Gibson Dunn & Crutcher LLP.
The IRS is represented by Solicitor General Noel J. Francisco, Deputy Assistant Attorney General David A. Hubbert and attorneys Francesca Ugolini and Ellen Page DelSole of the U.S. Department of Justice.
The case is Wisconsin Central Ltd. et al. v. United States of America, case number 17-530, in the U.S. Supreme Court.
–Editing by Neil Cohen.
Freight rail is used every day to transport a wide variety of goods across our country. In Minnesota, trains move agricultural goods from the field to market, haul chemicals that purify drinking water and deliver fertilizers for crops. Everything Minnesotans use every day moves by freight rail at some point, from the food we eat and the vehicles we drive to construction materials to build homes and roads and the electronics we rely on.
The economic impact of freight rail in Minnesota — and the country — cannot be discounted. Freight rail creates and sustains thousands of Minnesota jobs. A study conservatively estimated that freight rail is responsible for at least 7 percent of Minnesota jobs and $40 billion of state GDP.
But, moving all these things safely is always our No. 1 priority. It is in our best interest to protect our employees and the communities our trains travel through, as well as the products we are hauling. That is why the investments we make in safety go above and beyond the already strict state and federal requirements imposed on our industry.
As Union Pacific’s hazardous materials manager in Minnesota, I am part of the front line for railroad safety in our state. UP and the other 19 railroads in Minnesota are all committed to enhancing safety along our routes with improvements to our track and equipment, expanded use of technology and ongoing training for our employees, as well as emergency responders.
Our safety record is unmatched by any other industry.
Railroads are required to move a great deal of hazardous materials and we deliver them safely 99.997 percent of the time. As the economy has picked up in recent years and rail traffic has increased, these have also been the safest years in the history of our industry. Over the last decade, system-wide train derailments have decreased by 25 percent.
Our Hazardous Materials Management (HMM) group is trained in hazardous material transportation safety and response. We are all dedicated to a four-part mission:
Minnesota’s freight railroads recently introduced “AskRail,” a new real-time mobile application developed by the Association of American Railroads exclusively for first responders. AskRail allows them to determine the contents of any railcar and advises on the best safety incident response. With this detailed information at their fingertips, first responders can quickly address nearly any emergency situation.
Rail is a safe and reliable way to move goods across the state and throughout the continent. Those of us working in the industry will keep it this way, because our customers, our employees and the people of Minnesota depend on it.
The railroad industry came to Brainerd Wednesday to try to improve its image, speaking to local leaders about safety and economic impact.
BNSF Railway and the Minnesota Regional Railroads Association both had representatives talk about the rail industry inside Roundhouse Brewing, a craft brewery inside the Northern Pacific Center. In the railroad heyday, Brainerd’s railroad hub featured a roundhouse, a rotating train platform with garages so Northern Pacific could repair and maintain its trains. The Northern Pacific Railroad forms part of the corporate lineage of what eventually became BNSF.
As Brainerd Lakes Chamber of Commerce President Matt Kilian noted, the town of Brainerd is named after the maiden surname of a Northern Pacific Railroad president’s wife. The Brainerd chamber and the Brainerd Lakes Area Economic Development Corporation helped organize Wednesday’s presentation, which featured Amy McBeth, a spokesperson for BNSF, and John Apitz, a lobbyist for the Minnesota Regional Railroads Association trade group. Craft beer and lunch was served for the attendees, which included city officials, local businesspeople and Minnesota legislators including Senate Majority Leader Paul Gazelka, R-Fairview Township, and Sen. Carrie Ruud, R-Breezy Point.
Apitz opened his talk by saying the presentations, which he called “Railroads 101,” were intended to counter bad publicity the industry received in the last few years.
“We’re trying to dispel some of that criticism, dispel some of that concern, and tell you what we’re doing,” he said.
The industry has shrunk since 40 years ago—4,500 miles of track in the state now compared to about double that in the 1970s, Apitz said. During the 1970s, the rail industry had “almost been regulated out of existence” and Congress almost nationalized what was left of it, he said. But they opted not to. Forty-seven large railroad companies consolidated into seven railroads, and the private industry survived. Railroads carry 26-27 percent of all freight in Minnesota, Apitz said, including consumer product and agriculture products.
“We’re going to bump into each other,” he said. “We’re going to bump into each other at grade crossings, we’re going find out that we’re going to have to find some ways of working together.”
The industry still pays a great deal of taxes, Apitz said, although Gov. Mark Dayton had “toned down his fervor” for taxing the railroads.
A BNSF facility in Brainerd employs about 100 people, McBeth said. The employees manufacture and repair road equipment for the entire BNSF network—state-of-the-art, software-assisted machines like track-lifting units that pick up entire sections of track at once while simultaneously evening out the rocks underneath and allowing employees to replace bad railroad ties.
“Railroad is really a very modern industry,” McBeth said. “We might be 150-160 years old, but the amount of technology we use and deploy, and are continually updating and implementing, is amazing.”
The five or so trains that typically run through Brainerd usually carry coal, McBeth said. But she talked at length about the hot-button issue of crude oil by rail, referencing a fiery derailment in Quebec that killed 47 people in 2013. Generally, freight railroads are the safest way of moving commodities, she said.
BNSF continually invests in safety and renovations, she said, with an estimated $85 million going to maintaining and upgrading its rail network in Minnesota this year. Over the past 30 years, the rate of collisions and derailments decreased about 80 percent, she said. BNSF track is inspected four times a week, double what is federally mandated, she said. In what the federal government calls “high-threat urban areas,” BNSF limits its crude oil trains to 35 mph and 50 mph outside those areas. Urban routes are actually considered safer than rural ones because first responders are closer to the line.
Crude oil cars are owned by whatever company is paying BNSF to ship the oil or third parties, not BNSF itself, McBeth said. However, BNSF earmarks those cars for expedited removal off the rail line in the case of malfunction warning signs. The company also incentivizes its shippers to switch to safer, more modern oil cars. Of the type of rail cars considered less safe and connected to the Quebec incident, none are moving crude on BNSF lines, she said. Crude oil never made up more than 5 percent of BNSF volume, she added. The company also maintains close ties with local first responders.
“Despite what you might have heard from the governor and some others over the last couple of years, we have for decades worked with and trained with first responders,” McBeth said.
The new www.bnsfhazmat.com website allows first responders to request information on what hazardous materials trains are carrying and when. There’s also a mobile app so first responders can type in a rail car’s number to find out what it’s carrying and how to respond to a leak.
McBeth’s presentation focused on safety and crude by rail, but after she opened the event up for questions, Baxter Mayor Darrel Olson wanted to know about the noise of train horns.
“You talk about (having) control of all the operations … are the whistles controlled?” Olson asked. “One of the big complaints we get from residents is, it’s so loud, it’s so long, and it’s different.”
McBeth answered it’s federally mandated for safety that the operators blow their horns at certain points when the train is passing through a town, the pattern of which is dictated by federal law. Municipalities can create “quiet zones,” or special rail crossings with safety measures to compensate for the driver not blowing the horn. However, they are often cost prohibitive, McBeth said.
Even if a community institutes a quiet zone, the operators will blow the horn anyway if they see people near the track, she said.
The company can see when an operator blows the horn by looking at an event recorder—essentially a “black box” for trains. McBeth encouraged people with multiple complaint instances to contact her, and to include the time and ideally, the train number.
The Trump administration will soon be appointing the key officials who will oversee the nation’s freight rail system and have the opportunity to expand on the positive safety trends that have made the past several years the industry’s safest on record. Many of these trends are due to implementation of safety protocols and new technologies by the industry itself, not the traditional prescriptive policies of federal agencies.
To continue these improvements, the safety community and rail industry hope for a new regulatory approach that focuses on performance-based measures and outcome-oriented solutions rather than rigid command-and-control, top-down dictates. Perhaps more importantly, a new head of the Federal Railroad Administration will have a unique opportunity to restore healthy collaboration with the industry to achieve the common goal of even safer rails.
Substantial private sector investments — some $26 billion annually in recent years — have paid off significantly for the freight sector and, more importantly, for the public. In 2016, U.S. railroads recorded all-time lows in track-caused accidents and derailments, confirming the trend seen in recent years in which freight rail has been getting safer and safer.
Here are the facts: Accident rates have plummeted 44 percent since 2000, while equipment-caused accidents are down 34 percent. Over the same time, track-caused accidents dropped 52 percent, and derailments fell 44 percent. All of this has been achieved during a 17-year-long period of increased volume.
Unlike some other transportation industries — and without prodding by the federal government — freight railroads have been pumping billions of dollars annually into developing and implementing new safety technologies and approaches. The correlation is clear: This sustained investment is paying off in safer operations. What the railroads do not need are politically driven regulations and rules that are not supported by data and threaten to stifle this private investment.
Further progress will be made with a more modern and nimble oversight structure. A data-driven, results-oriented safety system based on partnership, not punishment, should be the goal for the new transportation leadership.
Safety professionals across all industries have found that performance-based standards are more effective than the old punitive system of oversight, regulation and punishment. A one-size-fits-all outlook coupled with severe penalties does not produce the safety records that the public now demands. Nor does it incentivize innovation and adoption of new technologies, because it can lock technology in place and discourage forward-thinking changes.
A prime example, and one which I have studied closely over the years in my capacity at the National Transportation Safety Board, as well as a safety consultant, is the evolution of aviation safety policy that has yielded world-leading results. The United States has the safest commercial aviation system in the world, and it has delivered this enviable status through a system of regulation, oversight and operator participation that is driven by data and performance-based decision-making.
Through sustained commitment, the Federal Aviation Administration and the industry have largely found a balance that gives airlines the flexibility to find solutions that work for each individual component while still ensuring proper oversight and consumer protection. Rules and regulations are enacted with substantive industry input. Air carriers are seldom told how to specifically implement the rule or regulation. Instead, it is understood that each carrier is a unique operating entity in a unique environment and solutions of one size do not fit all.
The rail industry is pushing hard to emulate this approach, and the new administration and congressional lawmakers should listen — just as Congressman Jeff Denham (R-Calif.) is, for instance.
The rail industry may have a long history, but it remains a growing and vital component of our economy because of its commitment to investing in innovation. A new federal regulatory system that recognizes and supports this innovation will ensure that freight rail continues to move the nation’s goods and services using the most advanced safety technology.
By Carolyn Lange, West Central Tribune
WILLMAR — With 4,500 miles of track and a long history that stretches back 150 years, Minnesota is a state that’s rich in railroads.
It’s currently ranked eighth in the state in the number of rail miles.
While impressive, it’s about half of what it used to be during the glory years prior to World War II, said John Apitz, a lobbyist with the Minnesota Regional Railroads Association, who was in Willmar on Friday to talk about the industry’s safety record and impact on the economy. The event was sponsored by the Willmar Lakes Area Chamber of Commerce.
According to Apitz, there are 4,600 railroad employees in Minnesota and 15,000 railroad retirees.
“Willmar is a railroad town,” Apitz said, with about 200 railroad employees working here.
The industry pays $50 million in property taxes every year, with about 60 percent coming back to communities, he said.
Taking advantage of an opportunity to make his case to Rep. Dave Baker and Sen. Andrew Lang, who were at the meeting, Apitz spoke against a proposal by Gov. Dayton to increase taxes on railroads.
Apitz also urged legislators to allow railroads to have their own officers with police powers. Minnesota is one of two states that does not allow railroad police officers, he said.
Willmar residents’ relationship with the railroad may depend on what side of the tracks they’re on.
Amy McBeth, the public affairs coordinator for BNSF Railway, acknowledged that many people may only see the negative side when they’re waiting to cross an at-grade crossing while a train goes by.
Willmar is “one of our big locations in the state,” said McBeth, who gives credit to the BNSF employees who work out of the Willmar yard. “Willmar is an important place for us on the network.”
Plans to install a railroad bypass on the west edge of Willmar will help reduce the number of trains coming into the downtown Willmar train yard and will reduce the time people spending waiting for trains, she said.
The Willmar Wye project, as it’s known, also includes rail access to the Willmar Industrial Park.
In the last four years, BNSF invested $700 million in Minnesota to significantly increase the rail network to handle a high demand for rail that soared when crude oil was being pumped out of North Dakota in large quantities and farmers had bumper crops, McBeth said.
Since the peak in 2006, however, rail demand has declined as more oil is transported through pipelines and less coal is being used.
Customer demand is inching back up, McBeth said. Although the total number of units shipped by BNSF in 2016 was about 5 percent less company-wide than in 2015, she said demand for shipping grain by rail continues to be strong.
“We’re seeing those swings happen more frequently than in recent past,” McBeth said.
The company will spend about $85 million in capital improvements this year in Minnesota, which will be dedicated to maintenance, she said.
According to a 2016 study sponsored by BNSF, freight rail is responsible for $40 billion of Minnesota’s gross domestic product and since 2014 was instrumental in helping 16 new or expanded businesses find a home here, including the Glacial Plains Co-op in Murdock.
The BNSF Foundation has given nearly $1.8 million to local charities since 2012, including $35,000 to the Willmar Destination Playground project slated to be built next month at Robbins Island.
Improving the overall safety of hauling freight on railroads — especially following high-profile cases involving the volatile Bakken crude oil — has been a big priority, Apitz said.
According to the railroad association, rail accidents have dropped by 44 percent since 2000.
McBeth said 2016 was the “all-time best safety record” for BNSF, which had the lowest number of mainline derailments in the company’s history. “Safety is the most important thing that we do,” she said. “We’re an extremely safe industry.”
HOPKINS, Minn. (KMSP) – Hopkins, Minnesota, is facing problems with people stopping on or near train tracks, and now, police and railroad officials teamed up to implement a crackdown.
From the very first pass through Wednesday afternoon, Hopkins Police Sgt. Mike Glassberg spotted not one, but two drivers stopped illegally in the so-called “danger zone” of the intersection of Excelsior Boulevard and Milwaukee Street to the south, and Jackson Avenue to the north.
“It’s a complex intersection, but it’s clearly posted where drivers are supposed to stop,” Glassberg said.
In two years there have been two crashes at this intersection involving trains slamming into cars on the tracks. Drivers stopping at the crosswalk instead of the solid white line before for the flashing rail arms is a constant battle.
“They’ve actually had to stop -thankfully, they are going slow – and walk out in front of the engine and get the motorists and say ‘hey you need to move your car or it’s going to get hit,’” Glassberg said.
“A train hitting a car at a crossing is the same weight ratio as a car running over a soda can,” said Canadian Pacific Police Special Agent Steven Scurek. “The train wins every time.”
Gaylen Johnson has been with Twin Cities and Western Railroad Company for more than 30 years. In his career, he’s hit 10 cars at other intersections. He believes the complex layout in Hopkins is partially to blame, along with drivers who are distracted.
“Sometimes people pull out in front of you, and you don’t have a chance,” Johnson said.
Each driver during this crack down claimed to be confused about where to stop. As part of the joint effort officers and Operation Lifesaver gave out warnings instead of tickets.
Between four and eight trains pass through here every day with a speed limit of 25 mph.
WAHPETON, N.D. –The Red River Valley & Western Railroad has appointed Daniel Zink to the newly created post of vice president – economic development and community affairs of the 577-mile short-line railroad.
Mr. Zink joined RRVW in 1992, serving as director of administration with responsibility for finance and accounting, business development, legislative affairs and capital investment analysis.
Based at Wahpeton, North Dakota and reporting to RRVW President Nate Asplund, Mr. Zink’s expanded role includes responsibility for executing the railroad’s strategy to locate new industries on the RRVW network.
Mr. Zink will also lead RRVW’s engagement with public sector leaders at the state, county, and local level. In addition, he will oversee the railroad’s property and contract management activities. Reporting to him is Jill Kvidera, who will coordinate the administration of land purchases, easements, and leases of RRVW property and track.
Prior to joining the RRVW, Mr. Zink was a research associate at the Upper Great Plains Transportation Institute from 1981 to 1992.
He has degrees in agricultural economics from North Dakota State University.
Mr. Zink is a director of the American Short Line & Regional Railroad Association as well as community development boards in Wahpeton. He also serves on the Advisory Council of the Upper Great Plains Transportation Institute.
The Red River Valley & Western started in July 1987 over track acquired from BNSF Railway in central and southeastern North Dakota and western Minnesota. RRVW has tripled its original volume.
This summer BNSF worked with the National Guard to load 400 railcars of military equipment for a major training exercise in the Mojave Desert. Humvees, Bradley Fighting Vehicles, Abrams tanks and other equipment were loaded at Camp Ripley. In all, 8 trains made the nearly 2,000 mile trip to the Mojave Desert for the soldiers of the 1st Armored Brigade Combat Team, 34th Infantry Division.
For generations, railroads have assisted the U.S. Department of Defense (DOD) with the movement of military equipment. The DOD established the Strategic Rail Corridor Network (STRACNET), initially designed to mobilize military units during wartime. Today, the STRACNET maintains its use as an economically and environmentally responsible method of moving heavy military equipment. STRACNET consists of 38,800 miles of rail lines important to national defense and provides service to 193 defense installations.
To provide an update on BNSF training resources and thank first responders for everything they do for the community, BNSF invited area firefighters, police, other first responders, and their families for a two-hour train ride in Dilworth, and another in St Paul earlier this summer. In total, 400 passengers were treated to snacks and beverages and children were given wooden train whistles on the rides called the “First Responder Express.”
At the Dilworth stop, the BNSF Railway Foundation donated $10,000 to the American Red Cross Dakota Region, which covers western Minnesota, and in St Paul, a $5,000 donation was given to the St. Paul Fire Foundation.
ST. PAUL, Minn. (WCCO) — State emergency officials say they have trained 5,700 first responders since 2014 on what to do in case of an oil train derailment and explosion.
That training is now required for emergency responders in Minnesota after a series of oil train explosions and fires around the country.
In Minnesota: Each one of the 15 to 25 trains running through Minnesota every day can carry up to a million gallons of volatile Bakken crude oil from North Dakota.
What state officials fear is a deadly derailment and explosion like one near Toronto that killed 47 people.
That’s why Minnesota first responders along oil train corridors are taking rail safety training classes, including one offered in St. Paul.
In just two years, state officials say they’ve trained 5,700 first responders on what to do if an oil train derails.
“We like to show them in a classroom setting what the worst case could possibly be,” said Kevin Reed, deputy director of the Minnesota Department of Public Safety Homeland Security and Emergency Management Agency. “And then back down in their training so they feel comfortable when they have to respond.”
But the ranking Democrat on the House Transportation Committee says 375,000 Minnesotans live within one-half mile of railroad tracks — and the state needs to do more to protect them.
“More track inspectors,” said Hornstein. “See if we can route the most dangerous materials around densely populated areas. These are things we need. The training is important, but we really need to prevent these accidents from happening in the first place.”
BNSF, the largest rail carrier in Minnesota, says it spent $300 million for safety improvements in just the last year.
And one top St. Paul firefighter says his department is working closely with the railroads to make the rails safer.
“The rail has been transporting similarly dangerous materials, chemicals, poisonous gases for a long long time,” said Steve Zaccard, St. Paul Fire Marshal, “and you don’t hear about it because they are very safe.”
Amy McBeth, the public affairs director for BNSF Railway, says the company has cut derailments on main lines by 50 percent in the last 10 years.
It also reduces train speeds to 35 mph in cities with populations of 100,000 or more.
And it conducts daily inspections of crude oil rail lines.
Here’s more detail from BNSF on its rail safety efforts:
BNSF and other railroads have been committed to training with first responders for decades, long before the state began requiring it. We conduct ongoing training with first responders and will continue our efforts with them.
BNSF has trained 80,000 first responders across our network since 1996. In Minnesota, BNSF trained 2,150 first responders in the state in 2014 and 2015. In addition, the past two years we paid tuition and travel expenses for another 165 firefighters to travel to Colorado to the nation’s railroad training and research center for more specific crude by rail training. An example of our ongoing training will occur later this week in Morris, MN, where we’re participating in a table top exercise with local officials.
We have made significant improvements in safety and the statistics show it – during the past 10 years, BNSF has reduced mainline derailments by nearly 50 percent.
This strong safety record comes from our multi-layered approach to preventing incidents through record investments in our private infrastructure, increased track inspections and technology, and strict operating procedures for trains carrying certain levels of hazmat.
In the past few years in particular, BNSF and the industry have taken several steps to further reduce risk of moving crude by rail.
BNSF reduced speeds of these trains to a maximum of 35mph in areas of 100,000 people or more.
BNSF conducts daily inspections of our main lines carrying crude oil in this region, which is more frequent than required by the FRA.
We put more trackside detectors along our routes (about every 20 miles on average in this area) and even more still along critical waterways (every 10 miles). These detectors warn of equipment issues and then if needed, we remove the cars from service sooner to prevent a potential incident.
In terms of transparency, BNSF has worked closely with first responders and emergency managers to get them the information they want and to continue to protect security sensitive information. Much of the information is already available upon request. BNSF created a website for responders to request information such as reports of hazardous materials shipped through their communities, online training, community training, the AskRail App that gives real-time information on rail cars, contents, and railroad contacts.