Extinguishing and Amending Tax-Deductible Conservation Easements: Protecting the Federal Investment after Carpenter, Simmons, and Kaufman

94 Pages Posted: 27 Dec 2012 Last revised: 12 Apr 2013

See all articles by Nancy A. McLaughlin

Nancy A. McLaughlin

University of Utah S.J. Quinney College of Law

Date Written: December 26, 2012


Taxpayers are investing billions of dollars in conservation easements intended to permanently protect unique or otherwise significant land areas or structures through the federal charitable income tax deduction available to easement donors under Internal Revenue Code § 170(h). Astounding amounts of governmental and judicial resources are also being expended to ensure that the easements are not overvalued, that they satisfy elaborate conservation purposes and other threshold requirements, and that the donations are properly substantiated. This enormous up-front investment will be for naught, however, if the purportedly permanent protections prove to be ephemeral because government and nonprofit holders are able to release, sell, swap, or otherwise extinguish the easements in disregard of the restriction on transfer, extinguishment, division of proceeds, and other perpetuity-related requirements in § 170(h) and the Treasury Regulations. The Tax Court’s holding in Carpenter v. Commissioner was an important victory for the IRS and the public because it provides some key guidance regarding compliance with § 170(h)’s perpetuity-related requirements. However, Carpenter has also engendered some confusion and speculation, and recent Circuit Court decisions have compounded the problem by undermining the IRS’s efforts to enforce the perpetuity-related requirements. This article examines these cases against the backdrop of the legislative history of § 170(h), state law, and public policy. It concludes that clear federal rules regarding the transfer, amendment, and extinguishment of tax-deductible conservation easements are needed because, without such rules, the purportedly perpetual protections will erode over time and the enormous public investment in the easements and the conservation values they are intended to protect for the benefit of future generations will be lost.

Keywords: conservation easements, 170(h), qualified conservation contribution, extinguishment, amendment, perpetuity, Carpenter, Kaufman, Simmons, cy pres, restricted gift, restriction on transfer, mortgage subordination, proceeds

JEL Classification: K11, K34, L31, Q24

Suggested Citation

McLaughlin, Nancy A., Extinguishing and Amending Tax-Deductible Conservation Easements: Protecting the Federal Investment after Carpenter, Simmons, and Kaufman (December 26, 2012). Florida Tax Review, Vol. 13, No. 217, 2012, University of Utah College of Law Research Paper No. 17, Available at SSRN: https://ssrn.com/abstract=2194014

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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