Conservation Easements and the Doctrine Of Merger

McLaughlin talks about conservation easements and the doctrine of merger. This article explains that merger generally should not occur in such cases because the unity of ownership that is required for the doctrine to apply typically will not be present. For merger to occur, the two estates must be in the same person at the same time and in the same right

Amendment Clauses in Easements: Ensuring Protection in Perpetuity

Internal Revenue Code § 170(h)(5)(A) requires that the conservation purpose of a deductible conservation easement be “protected in perpetuity.” This article explains how the protected-in-perpetuity requirement should limit the parties’ ability to reserve the right to make post-donation changes to the terms of a deductible easement

Amici Curiae Brief of Law Professors, Belk v. Commissioner, U.S. Court of Appeals for the Fourth Circuit

Amici Curiae Brief of five law professors filed in the U.S. Court of Appeals for the Fourth Circuit in support of affirming of the Tax Court\u27s holding in Belk v. Commissioner, T.C. Memo 2013-154, and Belk v. Commissioner, 140 T.C. 1 (2013)

Second Amici Curiae Brief of Law Professors et al., Pine Mountain Preserve, LLP v. Commissioner, filed in the U.S. Court of Appeals for the Eleventh Circuit

Second Amici Curiae Brief of Law Professors et al., filed in support of the government in the U.S. Court of Appeals for the Eleventh Circuit in Pine Mountain Preserve, LLP v. Commissioner, on appeal from U.S Tax Court No. 8956-13, 151 T.C. 247 (2018)

Conservation Easements and the Proceeds Regulation

This article provides an in-depth look at Treasury Regulation § 1.170A-14(g)(6)(ii), known as the proceeds regulation. The proceeds regulation is intended to protect the public investment in conservation if a perpetual conservation easement that was the subject of a charitable deduction under Internal Revenue Code § 170(h) is later extinguished. A proper understanding of the proceeds regulation is critical because the public investment in deductible easements is significant—billions of dollars are being invested in such easements annually—and the regulation has recently been subject to challenges regarding its interpretation and validity. This article examines the history and operation of the proceeds regulation as well as possible alternatives. It explains that the proceeds regulation provides a simple and easy-to-implement rule that avoids a host of future valuation difficulties. It demonstrates that the proceeds regulation is neither irrational nor inherently unfair to donors or subsequent property owners, and serves to temper the perverse incentive that property owners may have to seek to extinguish easements. This article concludes that the proceeds regulation provides a reasonable solution to the difficult problem of ensuring that the conservation purpose of a contribution will be protected in perpetuity as required by § 170(h)(5)(A)

Enforcing Conservation Easements: The Through Line

In enforcement cases, courts tend to treat conservation easements as if they were traditional servitudes. This poses a major risk to the effectiveness of conservation easements as land protection tools. If, for example, courts extinguish conservation easements via merger, or bar holders from enforcing them on laches or estoppel grounds, or interpret them in favor of free use of property, many of the conservation gains made in the United States over the last three decades could end up being ephemeral. This article tackles this problem by providing a solid foundation for the next chapter in conservation easement enforcement. It clearly articulates the ways in which conservation easements are different from traditional servitudes. It provides a roadmap of often-overlooked bodies of law relevant to their enforcement. It also brings together the handful of enforcement cases in which the courts (in one case, the dissenting judges) recognized the special status of conservation easements. These cases address different issues but there is a clear unifying theme—a through line: conservation easements are created to benefit the public and carry out legislatively stated public purposes, and it is contrary to the public interest to blindly apply to them principles intended to facilitate the marketability and development of land or resolve disputes between private parties. Armed with this knowledge, courts as well as nonprofit and government holders will be far better equipped to deal with the coming wave of enforcement cases in a manner that protects the public interest

Amici Curiae Brief, Pine Mountain Preserve, LLP V. Commissioner, Filed in the U.S. Court of Appeals for the Eleventh Circuit

Amici Curiae Brief of Law Professors et al., filed in support of the government in the U.S. Court of Appeals for the Eleventh Circuit in Pine Mountain Preserve, LLP v. Commissioner, on appeal from U.S Tax Court No. 8956-13, 151 T.C. 247 (2018)

Americans for Prosperity Foundation v. Matthew Rodriquez

The twelve individuals filing this amicus brief are professors and scholars of the law of nonprofit organizations. No party in this case represents all three of charity’s key stakeholders: charities, states, and taxpayers who underwrite the charities’ funding. Amici are participating in this litigation in order to aid the Court in understanding how these three interests depend on one another. They also attempt to provide a clearer understanding of state supervision of charities and how that supervision related to federal tax law

Uniform Conservation Easement Act Study Committee Background Report

This report was prepared by Nancy A. McLaughlin, Robert W. Swenson Professor of Law at the University of Utah S.J. Quinney College of Law, in her role as Reporter for the Uniform Law Commission\u27s Uniform Conservation Easement Act Study Committee. The report provides an overview of the Uniform Conservation Easement Act (UCEA), which was approved by the Commission in 1981, and examines the provisions in individual state conservation easement enabling statutes that differ from the provisions in the UCEA

2016 Trying Times: Important Lessons to Be Learned from Recent Federal Tax Cases

Since 2005, the courts have collectively issued more than 80 opinions involving challenges to deductions claimed under IRC § 170(h) with regard to conservation and facade easement donations. This outline provides a brief history of developments in the deduction context, discusses the practical implications of the recent court decisions, and offers advice on how to file a tax return package to minimize the risk of audit. It also briefly notes various other important issues, such as the IRS\u27s focus on valuation and syndicated deals, quid pro quo, and reserved development rights