Trying Times: Conservation Easements and Federal Tax Law 2020
Online Program – Friday, July 17, 2020
11:00am-2:10pm EST/10:00am-1:10pm CST/9:00am-12:10pm MST/8am-11:10pm PST
This three-hour program will address the latest case law and IRS guidance impacting conservation easements. Experts will offer practical advice to land trust staff and board members, government employees, attorneys, appraisers, and landowners. Attendees will have the opportunity to hear the IRS’s perspective and ask questions of a diverse group of panelists who collectively have almost 200 years of experience with conservation easements and tax incentives. Extra time will be devoted to Q&A.
The program will be streamed live (available as audio and video, or just audio). If July 17th does not work for your schedule, a recording of the program will be made available for a period of time after the event to those who register by July 15th.
3.0 hours Utah CLE (pending). Utah online attendees will need to apply for self-study CLE credits. For CLE in other states, attendees should apply directly to the relevant state bar.
$30 – General Public
$10 – Students
Karin Gross, Special Counsel, IRS Office of Chief Counsel, Washington D.C.
Stephen J. Small, Esq., Law Office of Stephen J. Small, Esq., P.C., Newton, Massachusetts
Mark Weston, Consulting appraiser, former AQB Certified USPAP Instructor, and former Director, Colorado Division of Conservation
Nancy A. McLaughlin, Robert W. Swenson Professor of Law, University of Utah S.J. Quinney College of Law
Wendy Fisher, Executive Director, Utah Open Lands
Jeanie McIntyre, President, Upper Valley Land Trust
Topics to be covered (subject to change based on developments):
Conservation Purposes and Inconsistent Uses
—Are ag and forestry valid §170(h) conservation purposes or reserved rights?
—Understanding the Treasury Regulation’s “no inconsistent use” rule.
—What is (and is not) a “clearly delineated governmental conservation policy”?
—What is (and is not) “significant relatively natural habitat”?
Holder Approval Rights
—Hoffman jettisons the “automatic approval” clause; IRS blesses a “constructive denial” clause.
—What can (and cannot) be subject to holder approval post-donation?
Movable Building Areas
—170(h) and Treasury Regulation limits on reserved development rights.
—Drafting in light of Pine Mountain Preserve and Carter.
—170(h) and Treasury Regulation limits on amendment discretion.
—Drafting in light of IRS guidance and Pine Mountain Preserve.
—Drafting a compliant proceeds clause.
—Validity of “proceeds” regulation.
Syndications and Valuation
—An update from the IRS.
—What is “highest and best use”?
Karin Gross is Special Counsel in the IRS Office of Chief Counsel in Washington D.C. She has been involved in much of the litigation and other IRS developments regarding interpretation and enforcement of the § 170(h) deduction for conservation easements donations. She lectures widely in a variety of venues on these issues.
Stephen J. Small is a tax attorney at his own firm, the Law Office of Stephen J. Small, Esq., P.C., in Newton, Massachusetts. Before going into private practice, Mr. Small was an attorney-advisor in the IRS Office of Chief Counsel in Washington, D.C., where he wrote the federal income tax regulations on conservation easements. Mr. Small advises business and individual landowners and is recognized as the nation’s leading authority on private land protection options. He has worked directly on matters that have resulted in the protection of more than 1.5 million acres around the country. Mr. Small has given more than 400 speeches, seminars, and workshops around the country on tax planning for landowners, succession planning for family lands, and tax incentives for land conservation. He is a member of the Massachusetts and District of Columbia Bars.
Mark Weston is a consulting appraiser in mid-coast Maine. He retired as the Director of the State of Colorado’s Division of Conservation in September 2019. Prior to joining state government in 2016, he practiced 30 years as an independent real estate appraiser, with special interest in valuation of conservation easements encumbering private land. Weston assisted in development of and was an instructor of the five-day conservation easement valuation seminar developed by the American Society of Farm Mangers and Rural Appraisers, and the Appraisal Institute, and was an AQB Certified USPAP Instructor, 2004-2020. Mark co-authored the Land Trust Alliance’s “Tax Benefits & Appraisals of Conservation Projects,” 2007. He is a contributing author of the “Water Rights Handbook for Colorado Conservation Professionals,” Colorado Water Trust, 2011, and “Appraising Easements: Guidelines for Valuation of Land Conservation and Historic Preservation Easements,” 3rd ed., Land Trust Alliance & National Trust for Historic Preservation, 1999.
Nancy A. McLaughlin is the Robert W. Swenson Professor of Law at University of Utah S.J. Quinney College of Law. She is serving as Associate Reporter for the new Restatement of the Law of Charitable Nonprofit Organizations, the first comprehensive source of legal guidance regarding the charitable sector in the U.S. She is a member of the ABA’s Real Property, Trust, and Estate Law Section’s Conservation Easement Task Force, which recently published a report on conservation easements and federal tax law. She served as Reporter for the Uniform Law Commission’s Uniform Conservation Easement Act Study Committee. She is a member of the Board of Directors of Utah Open Lands (a state-wide land trust), the Habitat Protection Advisory Committee of the Humane Society’s Wildlife Land Trust, and the Lands Protection Committee of Vital Ground (a land trust that conserves and connects habitat for grizzly bears and other wildlife). She also is a Fellow and serves on the Board of Regents and the Charitable Planning Committee of the American College of Trust and Estate Counsel. Her research focuses on conservation easements, tax incentives, and nonprofit governance issues and she writes and lectures extensively on these issues. She consults with land trusts, landowners, government entities, federal and state regulators, and others regarding conservation easements and nonprofit governance issues. Her articles on conservation easements, which address federal tax issues, valuation, perpetuity, interpretation, condemnation, merger, and other topics can be downloaded at https://bit.ly/2H5RaPV.
Wendy Fisher is the Executive Director of Utah Open Lands (UOL), an accredited land trust that has preserved over 60,000 acres in the state of Utah. She has more than 28 years of experience with conservation easements and land trusts, having joined with the original Board of Directors in founding UOL in 1990 and served as its Executive Director since 1993. Ms. Fisher and UOL have been recognized as leaders in conservation efforts in Utah and have been awarded many distinguished honors. For example, in 2010, UOL was awarded Utah State University’s Botanical Center’s Environmental Stewardship Award, and in 2016, Ms. Fisher was named Park City Rotary’s Professional Citizen of the Year in recognition of UOL’s successful campaign to save the cherished 1,350-acre parcel known as Bonanza Flat. Ms. Fisher also has served on various state legislative task forces addressing agricultural, trail, and open space preservation issues, and in 2018 she chaired a subcommittee of the Utah Legislature’s Executive Water Task Force. She also gave the opening remarks at Columbia Law School’s 2014 Conservation Easement Conference, co-sponsored by the National Association of Attorneys General Program and the National Association of State Charity Officials. Her story of the protection of Toll Canyon, Managing, Accommodating and Sustaining the Wild, was published in 2018 as part of the Reimagining a Place for the Wild collection of essays, first presented at the Reimagine Western Landscapes symposium held in Montana’s Centennial Valley.
Jeanie McIntyre is the President of the Upper Valley Land Trust (UVLT), an accredited regional land conservancy serving 45 towns in the Connecticut River Valley of Vermont and New Hampshire. UVLT manages a portfolio of over 500 conservation easements, 50 public trails, nine campsites used by Connecticut River paddlers and 22 conservation areas it owns for educational and recreational use by the general public. Jeanie has been with UVLT since 1987. She is a recipient of New Hampshire’s Andrew L. Felker award in honor of her advocacy for farmland conservation and her work bringing farmers and conservationists together to assure the long term viability of agriculture; Society for the Protection of NH Forest’s Sara Thorne award enhancing the capacity of others to accomplish land conservation and Audubon Society of NH’s Tudor Richards award for her love and knowledge of the outdoors and her effective work on behalf of conservation in New Hampshire.
This program is a special installment of Utah Open Lands’ Gaining Ground Seminars, in partnership with University of Utah S.J. Quinney College of Law.
Sponsored by the Cultural Vision Fund and in cooperation with the Wallace Stegner Center.
For questions about this event contact Kris (801) 585-3440.