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Course Details

Course Information
  • smart_display Format

    On-Demand

  • signal_cellular_alt Difficulty Level

    Intermediate

  • work Practice Area

    Environmental

Date & Time
  • event Date

    Tuesday, February 20, 2024

  • schedule Time

    1:00 p.m. ET./10:00 a.m. PT

  • timer Program Length

    90 minutes

Credit Information

  • This 90-minute webinar is eligible in most states for 1.5 CLE credits.

$297.00
CLE
ALL

This CLE course will address how to approach conservation easement donations, considering the significant recent judicial and legislative activity focused in this area, and offer practical guidance on overcoming IRS challenges once presented.

Faculty

Brian Gardner
Partner
Asbury Law Firm, LLC

Mr. Gardner focuses his practice on tax controversy and litigation matters. He represents taxpayers in all phases of tax litigation including U.S. District Courts, U.S. Tax Court, United States Courts of Appeals, and the Georgia Tax Tribunal. Brian has extensive experience working with the IRS and the Georgia Department of Revenue in matters concerning, among other things, defense of conservation easements, passive activity losses, net operating losses, estate taxes, 831(b) captive insurance, promoter penalties, employment taxes, and international tax issues.

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Gregory P. Rhodes
Shareholder
Dentons Sirote

Mr. Rhodes is a shareholder in Dentons Sirote’s Birmingham, Alabama office, where he is a member of the Tax practice group and leads the Dentons Sirote Tax Controversy team. In his practice, he focuses on complex tax controversy and tax litigation work. Mr. Rhodes has successfully represented professional athletes, partnerships, corporations, and individuals as a first-chair trial attorney in high-stakes federal and local tax litigation throughout the country. He has also successfully handled complex tax cases in various United States Circuit Courts of Appeals. Mr. Rhodes is a former law school professor and remains a frequent lecturer and author on tax topics and is often interviewed and quoted by national publications.

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Anson H. Asbury
Founder and Principal
Asbury Law Firm, LLC

Mr. Asbury has represented clients in federal and state tax controversies, tax litigation, business tax planning and corporate organization for nearly 20 years. He has successfully defended over $500 million of federal income tax adjustments for his clients, ranging from individuals to Fortune 500 companies. Mr. Asbury has represented clients across the country in numerous docketed cases in the U.S. Tax Court, U.S. Court of Federal Claims, and U.S. District Courts. The substantive issues in those cases have included conservation easement donations, various listed transactions, net operating loss deductions, business expenses, alimony deductions, and foreign tax credits. He is a nationally recognized speaker, often appearing on panels alongside members of the U.S. Tax Court.

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Description

Conservation easements are as varied in purpose as the land they protect. The easements are tailored to specific conservation objectives and the needs of the landowner. The conservation objective can be as narrow as protecting a particular water or animal habitat or structured broadly to more generalized preservation efforts, like safeguarding farmland or ensuring unobstructed views.

In the case of donated conservation easements, the benefit to donor-landowners can be myriad, not the least of which are the considerable tax advantages available. IRS attacks on those benefits have been rooted firmly in challenging the issue of perpetuity, particularly proceeds upon extinguishment.

In recent years, there have been significant legal challenges and legislative activity related to IRS enforcement of the proceeds clause and the allocation of proceeds upon extinguishment that resulted in a circuit split, as well as the passing of SECURE Act 2.0, Section 605(d) in December 2022, and the IRS issuance of Notice 2023-30 that gave conservation easement donors a safe harbor to amend provisions related to extinguishment and boundary line adjustment.

Additionally, other IRS assertions challenging perpetuity include merger of title and deemed consent to exercise reserved rights. The IRS is also now more carefully scrutinizing conservation purposes and valuation as more cases are headed to litigation.

Practitioners structuring conservation easements must be aware of the IRS' most common challenges amid this evolving drafting landscape and be prepared to defend IRS challenges.

Listen as our panel of attorneys discusses how to approach conservation easement donations going forward and offers practical guidance on overcoming IRS challenges once presented.

Outline

  1. Conservation easements overview
  2. Preserving the deduction through careful drafting
    1. Guidance for donor-landowners
    2. Guidance for donees
  3. Troublesome clauses
    1. Deemed consent provisions
    2. Proceeds clause
      1. Proceeds allocation formula
      2. Proceeds attributable to post-easement improvements
      3. Proceeds from third-party contracts
    3. Amendment clause
    4. Merger clause
    5. Reserve development sites
    6. Form 8283
  4. Case law and legislative developments
  5. Takeaways for practitioners

Benefits

The panel will review these and other key issues:

  • What are the most common methods of attack on easement deductions?
  • What are the more troublesome agreement provisions for counsel preparing a sturdy conservation easement?
  • What is the status of recent case law and legislative developments related to conservation easements and what can practitioners expect moving forward?