The IRS has been cracking down on conservation easement transactions for over ten years. Nevertheless, taxpayers have continued to claim charitable contribution deductions attributable to the donation of conservation easements and promoters have continued to assemble investments utilizing conservation easement charitable deductions. The IRS began focusing on syndicated conservation easement transactions when it issued Notice 2017-10, designating syndicated conservation easement transactions as listed transactions. These syndicated investments involve the use of partnerships to raise funds from investors, who are allocated a share of a charitable contribution deduction attributable to conservation easements donated on land owned by the partnership. In fall of 2018, the IRS doubled down on its attacks of these investments when syndicated conservation easements were added to the list of LB&I compliance campaigns. While the IRS continues to crack down on these arrangements, taxpayers have continued litigating the finer points of these transactions. On the flipside, DOJ has begun cracking down on promoters who market these transactions. Below are details on the most recent developments.
Pine Mountain Preserve v. Comm’r
This case involves three conservation easements covering various portions of an assemblage of over 2,000 acres of land. The land was located in what sounds like a beautiful location in Alabama for development of recreational and horse properties. Over three years, three different easements were granted on various portions of 1,300 of the 2,000 acres. The first two easements reserved the right to allow for small parcels of development, in a location to be agreed upon between the property owner and the charity holding the easement.
Relying on its prior rulings in Belk v. Comm’r, 140 T.C. 1 (2013), supplemented by T.C. Memo. 2013-154, aff’d 774 F.3d 221 (4th Cir. 2014) and Bosque Canyon Ranch v. Comm’r, T.C. Memo. 2015-130, vacated and remanded sub nom. 867 F.3d 547 (5th Cir. 2017), the court determined that the first two easements did not a qualified real property interest due to the uncertainty created by the reservation to create pockets of development on the property subject to the conservation easement. [We note that the Tax Court was not persuaded by the Fifth Circuit opinion in Bosque Canyon and declined to follow it since this case is not appealable to the Fifth Circuit.] However, while the third easement contained a reservation for installing a water tower, it did not allow for the parties to choose after the easement areas for development within the easement area. Thus, the third easement was determined to be a qualified real property interest.
Valuation of the third easement was discussed in a Memorandum opinion issued simultaneously with the full Tax Court opinion addressing the validity of the easement. The court found the taxpayer’s expert overvalued the potential development of the property in determining the value of the easement but that the IRS expert undervalued the easement by ignoring the development potential of the property. The court went to great lengths to discuss in detail the misgivings of both valuation expert’s opinions but the result for the taxpayer was not horrible. In the end, the court valued the easement based on 50% of the value determined by both experts. Considering this meant a $4.8 million charitable contribution deduction was allowed, this was not a total loss for the taxpayer.
Sometimes developers want open space or a park included in a master plan for a residential community as a way to make the community more desirable. In that instance, because the developer expects to benefit as a result of the easement, the law does not allow a charitable contribution deduction, essentially because the contribution lacks donative intent or because the donation lacks value when weighed against the value of the expected benefit. This is exactly what happened in Wendell Falls. Here, a developer chose to place an easement on a parcel of land after it had already designed the parcel as a park in the master plan. In April of 2018, the court determined that because the highest and best use of the eased parcel was as a park, as outlined in the developer’s master plan, the easement requiring it to be preserved as a park did not diminish its value, therefore the easement had no value. However, the court did determine that the taxpayer was not subject to penalties.
The taxpayer asked the court to reconsider several of its findings, arguing that the court should have considered the value of the easement and separately considered the value of the enhancement to the donor’s property separately. The taxpayer also asserted that the receipt of a substantial benefits did not alone result in denial of a deduction and that the highest and best use of the parcel was for development rather than a park, attempting to get the court to reconsider values. On November 20, 2018, the court issued its opinion that the value of the substantial benefit expected was in excess of the value of the easement, and that parkland was the highest and best use of the property based on the proposed development. Unfortunately, the taxpayer lost all of its $1.8 million charitable contribution deduction.
Lawsuits against Promoters
The government had has enlisted another tactic for shutting down conservation easements by bringing actions against the organizers of conservation easement syndication schemes. On December 28, 2018, the Department of Justice filed a compliant in the Northern District of Georgia asserting that a group of defendants assembled partnership which were “nothing more than a thinly veiled sale of grossly overvalued federal tax deductions under the guise of investing in a partnership.” The complaint asserts that the defendants’ conservation easement syndicates have generated $2 billion in conservation easement charitable contribution deductions. The complaint seeks to enjoin the defendants from continuing to promote such schemes, and asks the court to order the defendants to disgorge all profits received as a result of the conservation easement syndicates.
The defendants include a conservation manager/broker dealer, an appraiser, and various professionals associated with EcoVest Capital, Inc., an entity that sponsors real estate investments focused on conservation. The promotional materials mentioned in the compliant set forth an example where in exchange for a $750,000 investment, an investor would receive $2 million of deductions, generating tax savings of $1 million. The syndicates were sold as securities exempt from registration through broker-dealers. The easement syndicates involved properties located in Alabama, Georgia, Indiana, Kentucky, North Carolina, South Caroline, Tennessee, and Texas.
Any taxpayer who may have invested in a syndicated conservation easement through Ecovest or any other investment advisor should carefully review Notice 2017-10 and related the disclosure requirements for listed transactions. Those taxpayers should also consult with a tax attorney to consider strategies for mitigating any damages.
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