Yes: Private funding meets conservation needs and eases burdens on governments
In our growing and fast-changing world, opportunities to preserve scenic open space, protect wildlife habitat and safeguard natural resources for future generations are fleeting.
As the leader of a nonprofit land trust that works to conserve environmentally valuable property, I see the need for such preservation daily.
But conservation groups like mine are challenged by a lack of available funding from both government and private sources. And unfortunately, the Internal Revenue Service recently made the situation worse with guidance that threatens to chill an attractive source of private conservation financing.
At issue is how the IRS treats certain conservation easement donations. A conservation easement is a voluntary, legally binding agreement that forever restricts a property’s future development, making it one of the most powerful and effective conservation tools available.
The land under easement remains privately owned, and activities like farming, ranching, and hunting are often permitted to continue. My organization, like many other land trusts, primarily preserves land through the acquisition and donation of conservation easements.
The tax code provides landowners who donate an easement with a tax deduction equal to its fair market value.
Since the late 1970s, the availability of this deduction has helped conserve millions of acres of American land. In 2015, Congress passed a bipartisan bill permanently increasing the tax incentives for conservation easements with the goal of encouraging more landowners to donate.
The IRS, though, recently took steps that will limit access to this conservation tool when the landowner is a partnership or pass-through entity. In the closing months of the Obama administration, IRS officials designated certain conservation easement donations by partnerships as “listed transactions.”
While this guidance does not invalidate any compliant conservation easement donations, it unfairly labels these already highly disclosed charitable contributions as “tax avoidance transactions.”
The IRS rightly guards against taxpayers claiming overvalued tax deductions based on faulty appraisals. Other conservation leaders and I share that goal.
Fortunately, there is no evidence that abuses of valuation with easement donations are widespread or that they’re more likely to come from a particular type of donor, whether a wealthy landowner, a family partnership or a partnership of unrelated individuals.
That’s why it is unfair that the IRS is stigmatizing a certain class of easement donors, namely partnerships, by retroactively applying onerous and duplicative reporting requirements going all the way back to 2010.
The expansive reach of this guidance and its hostility toward landowners willing to give up property development rights in perpetuity will drive future donors away, effectively repealing congressional intent to extend the tax incentive.
Conservation is expensive. In an era when government cannot finance the cost of land preservation alone, significant new sources of private funding are required. Individuals, family partnerships and investment partnerships should all be allowed to play an important role in advancing needed conservation projects. These easement donations allow ecologically valuable land to be conserved permanently and cost the government less than purchasing and managing the land with federal or state funds.
While conservation is never a landowner’s most profitable option for land use, we must make it at least an economically viable alternative to development if our country is truly committed to protecting precious natural resources.
The IRS guidance fails to address the real problem at hand — over-valuation of appraisals — and should be suspended. My land trust stands ready to work with Congress, the IRS and other conservation stakeholders to develop meaningful solutions that address potential over-valuation and do so without excluding legitimate funding sources.
Without government action to solve this problem, innovative conservation solutions may simply disappear along with more green-space.
Drew D. Troyer is chairman of the board at the Compatible Lands Foundation, a nonprofit land trust headquartered in Oklahoma that oversees conservation easements in six states. Readers may write him at CLF, 1305 E. 15th St., suite 202, Tulsa, OK, 74120.
No: Environmental land trusts are not always a good deal
Generally speaking, charitable deductions are a financially losing proposition. That’s why a deduction is allowed as a means of supporting and encouraging charitable activity.
With the top income tax rate of 39.6 percent, the very most that a contribution of $100 can generate in tax savings is $39.60.
Put another way, at a minimum, the contribution of $100 will typically result in a loss of $60.40 to the donor. Charity is definitely not an activity for profit-motivated investors.
The syndication of charitable deductions resulting from conservation easement contributions, however, has turned all of this on its head.
Participants in such syndications have turned charity into a moneymaking proposition. Profits are almost immediate and typically reflect returns of 110 percent or more. As icing on the cake, meaningful land conservation may also result. What is not to like?
In its typical Grinch-like fashion, on Dec. 23, 2016, the IRS issued Notice 2017-10, making these “for-profit easement deduction syndications” transactions that must be reported to the IRS for special scrutiny on the presumption that many constitute tax shams.
The reason for this is quite simple. Let’s go back to the dismal financial arithmetic of charitable giving: For every $100 contributed, the donor loses $60.40. How can this ever be profitable? It can be when you inflate the value of the contribution.
The value of a conservation easement is the difference between the value of the land subject to the easement before the easement and after the easement.
For example, if land before an easement is worth $100 and after an easement is worth $40, the easement — and the charitable deduction — is worth $60.
If I buy land for $100 and I contribute a conservation easement over it that reduces its value by $60, I have lost $60 in value, but earned a $60 tax deduction that, at most, results in $23.76 in tax savings (39.6 percent of $60).
However, if I buy land for $100, and my appraiser finds that it was really worth $1,000, and that the easement reduces its value by $600, my tax savings will be $237.60, resulting in a nearly 237 percent return on my investment in the land — and I still own the land!
That is how for-profit syndications of conservation easement deductions work. They require dramatically inflated appraisals.
Now, it is true that it’s possible for investors to buy land that happens to have substantial deposits of gold that were unknown to the investors or the seller at the time of the sale. It’s also possible to negotiate access to a public road where no such access existed at the time of sale; or to obtain rezonings, or the extension of utilities; or to simply to find a seller clueless about the value of his land.
However; the chance of such serendipitous circumstances occurring repeatedly in dozens of for-profit easement deduction syndications seems, to put it mildly, unlikely.
One of the principal drivers of voluntary land conservation in the United States today are federal and state tax benefits for easement contributions. Repeated, dramatic abuses of these benefits, as is the case of the syndications I have reviewed, can only lead to curtailment of these benefits.
While significant conservation may result from such arrangements, if it comes at the cost of the tax benefits that support voluntary land conservation nationwide, it is not an end that justifies the means.
Timothy Lindstrom is an attorney specializing in the tax law related to conservation easements and is the author of “A Tax Guide to Conservation Easements.” He can be reached by email at email@example.com.