ABA RPTE Conservation Easement Task Force Report: Recommendations Regarding Conservation Easements and Federal Tax Law

Abstract

In October 2015, the American Bar Association’s Real Property, Trust and Estate Law (RPTE) section convened a Conservation Easement Task Force. The objective of the Task Force was to provide recommendations regarding federal tax law as it relates to conservation easements. This Report is the culmination of the Task Force’s work.

Part I of the Report is an Executive Summary of the Task Force’s recommendations. Part II provides the background necessary to understand the Task Force’s recommendations. Part III briefly sets forth the Task Force’s comments on the Tax Cuts and Jobs Act of 2017 as it relates to charitable contributions in general and conservation easement donations in particular. In Part IV, the Task Force recommends that the Treasury publish safe harbor provisions that would be common to most conservation easements. Part V sets forth the Task Force’s recommendations regarding amendments and discretionary consents, the inconsistent use regulations, and furthering transparency in conservation easement administration. Part VI discusses issues surrounding valuation of conservation easements. Part VII contains a brief comment on syndicated conservation easement transactions. Part VIII is the Task Force response to certain proposals the Treasury Department made (most recently in 2016) to change conservation easement law.

Appendix A sets forth the “perpetuity” requirements of § 170(h) and the Treasury Regulations.
Appendix B offers specific language to facilitate the preparation of key safe harbor provisions.

Keywords: conservation easements, in perpetuity, perpetuity, federal tax incentives, 170(h), federal deduction for easement donations, amendments, discretionary consents, valuation

JEL Classification: K11, K12, K32, K34, Q15, Q24