Attorney-at-Law

THE FORTY-FIVE

In Uncategorized on 03/14/2018 at 15:15

No, not Bonnie Prince Charlie. And this being a non-political blog, firearms are not a topic of conversation. At any rate, not here.

Today’s forty-five is the forty-five days within which the American Association of Historic Preservation (AAHP), a bona fide 501(c)(3) protector, preserver and defender of historic façades, had to approve or reject (within the “secretary’s standards,” whatever those might have been) any alteration to the Tremaine building on Prospect Avenue in colorful downtown Cleveland, OH, after which the Tremaine property was a free-fire zone for Hoffman Properties II, L.P, Five M Acq I, LLC, Tax Matters Partner, Docket No. 14130-15, filed 3/14/18. Hoffman had the usual historic façade easement ploy.

This is a reconsideration motion, based on an order from last July. I never blogged it because it was another “no joy forever.” And Judge Nega sticks to the story.

Hoffman claims that even if AAHP blows the forty-five day cutoff, the OH AG or the public generally can sue. But that doesn’t satisfy the joy-forever. “None of the Ohio law cited by Hoffman, however, states that the Ohio Attorney General’s exercise of such powers imbue him with any greater right or dominion over a charitable interest, or property, than otherwise possessed by the erstwhile ineffective charitable organization. Thus, it is unclear why Hoffman believes that a hypothetical ‘enforcement’ of the agreement by the Ohio Attorney General would somehow alter the scope and applicability of the legal and equitable rights granted through the agreement’s terms.” Order, at p. 9. The OH AG gets no greater rights than AAHP had.

And if Hoffman wants to argue the AG’s cy pres rights to modify charitable agreements to promote the common good, it’s too late to raise it after losing summary J.

Hoffman tries to wild-card in a statement made under penalty of perjury that AAHP is a qualified 501(c)(3), which Section 170(h)(4)(B) requires, even though no one disputes that AAHP is so qualified.

Except the “sworn statement” is the notarial acknowledgement (commonly miscalled a “notarization”) on the easement agreement. But that doesn’t mean that the party signing the document is swearing to the truth of its contents or affirming same under penalty of perjury, only saying they signed it.

Judge Nega: “…there is no need for a notary to administer any oath, or to attest that the representations of the donor-taxpayer and donee were made thereunder. Presumably, should parties wish to comply with the sworn statement requirement by proffering a written declaration made under oath and notarized accordingly, such an affidavit may very well satisfy section 170(h)(4)(B)(ii). Hoffman, however, has neither alleged that the agreement was prepared and signed under oath, nor has Hoffman attempted to argue that any of the notaries’ declarations and seals affixed to the agreement purport to testify as much.” Order, at p. 11 (Footnote omitted, but read it; it’s the standard “he says he signed it” acknowledgement, not the jurat “sworn-to-before-me,” and that makes all the difference).

Takeaway- Boilerplate and routine can be hazardous to your clients’ tax health. And your general health.

 

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