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Internal Revenue Code Section 170(h):
National Perpetuity Standards for
Federally Subsidized Conservation Easements
Part 1: The Standards


Nancy A. McLaughlin


University of Utah S.J. Quinney College of Law

January 20, 2010

Real Property, Trust & Estate Law Journal, Vol. 45, p. 473, 2010

Abstract:     
This Article is the first of two companion articles that (i) analyze the requirements in Internal Revenue Code section 170(h) that a deductible conservation easement be “granted in perpetuity” and its conservation purpose be “protected in perpetuity” and (ii) compare those requirements to state law provisions addressing the transfer, modification, or termination of conservation easements. This first Article discusses the historical development of the federal charitable income tax deduction for conservation easement donations, the legislative history of section 170(h), and the Treasury Regulations interpreting that section. It explains that section 170(h) and the Treasury Regulations contain a complex web of requirements intended to ensure that a federal subsidy is provided only with respect to conservation easements that permanently protect unique or otherwise significant properties. Such requirements are also intended to ensure that, in the unlikely event changed conditions make continued use of the subject property for conservation or historic preservation purposes impossible or impractical and the easement is extinguished in a state court proceeding, the holder will receive proceeds and use those proceeds to replace the lost conservation or historic values on behalf of the public.

The companion article, which will be published in the Winter 2010 edition of the Real Property, Trust & Estate Law Journal, surveys the over one hundred statutes extant in the fifty states and the District of Columbia that authorize the creation or acquisition of conservation easements. That article explains that such statutes contain widely divergent transfer, modification, and termination provisions that were not, for the most part, crafted with an eye toward complying with federal tax law perpetuity requirements. The author concludes that landowners wishing to take advantage of the federal tax incentives offered for conservation easement donations should be required to draft their easements and otherwise structure their donations to satisfy the perpetuity requirements imposed under federal tax law, and any additional conditions or restrictions on the transfer, modification, or termination of conservation easements imposed under state law should also apply, and should provide an added layer of protection of the public interest and investment in such gifts.

Number of Pages in PDF File: 56

Keywords: conservation easement, granted in perpetuity, protected in perpetuity, perpetuity, section 170(h), easement enabling statute, conservation, historic preservation, easement termination

JEL Classification: H20, H77, K11, K32, K34, L31, N50, Q15, Q24, Q28, Q30

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Date posted: January 20, 2011  

Suggested Citation

McLaughlin, Nancy A., Internal Revenue Code Section 170(h): National Perpetuity Standards for Federally Subsidized Conservation Easements Part 1: The Standards (January 20, 2010). Real Property, Trust & Estate Law Journal, Vol. 45, p. 473, 2010. Available at SSRN: http://ssrn.com/abstract=1743204

Contact Information

Nancy A. McLaughlin (Contact Author)
University of Utah S.J. Quinney College of Law ( email )
332 South 1400 East, Rm 101
Salt Lake City, UT 84112-0730
United States
801-581-5944 (Phone)
801-581-6897 (Fax)

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