I’ve been accused of issuing “sardonic” comments. Let’s parse out that word. The dictionary says “grimly cynical, mocking.”

Well, “cynical” maybe; a client’s comptroller, treating me to dinner and a bottle Antinori’s finest (hi, Judge Holmes, and thanks again, David K) once called me that. I replied it was what practicing law does to me. “Mocking”? That’s a bit strong; I hoped I was gentler than that. But “grim”? Never. Perhaps “harsh” sometimes.

Yesterday, I fear I was a bit heavy-handed with Judge James S. (“Big Jim”) Halpern in my blogpost “A Document Never Says What You Think It Says,” 11/19/20. I thought he stood the façade easement Deed on its head, and maybe he did, but it was in a good cause.

Maybe I’m standing his order in 901 South Broadway Limited  Partnership, Standard Development, LLC, Tax Matters Partner, 11/20/20, on its head. Or, to put it better, reading in.

But, on reflection, maybe Judge Big Jim was echoing Judge Holmes’ dissent in Oakbrook, for which see my blogpost “They Always Must Be With Us,” 5/12/20.

I can’t do better than quote Judge Holmes. “Conservation-easement cases might have been more reasonably resolved case-by-case in contests of valuation. The syndicated conservation-easement deals with wildly inflated deductions on land bought at much lower prices would seem perfectly fine fodder for feeding into a valuation grinder. Valuation law is reasonably well known, and valuation cases are exceptionally capable of settlement.

“Congress, however, enacted these sections of the Code and presumably wanted reasonably valued conservation easements to be allowed. Yet we’ve come to a point where we are disallowing a great many conservation-easement deductions altogether, not for exaggeration of their value or lack of conservation purpose, but because of very contestable readings of what it means for an easement to be perpetual.” 154 T. C. 10, at pp. 126-127.”

The bottom line for Judge Big Jim is in his questions 4 and 6: what besides the deemed approval (30-day clause) violates the Section 170(h) restrictions? In short, are we again engaging in “very contestable readings of what it means for an easement to be perpetual”?

IRS fixated on the extinguishment gambit because it was quick and cheap, and IRS’ resources are Congressionally-mandated anemic. Trials take time, and experts cost money.

Note, Judge Big Jim sat out Oakbrook, joining none of the majority, the concurrence, or Judge Holmes’ lonely dissent.  Again, perhaps I’m reading my own views into his order, but I think he has joined in Judge Holmes’ dissent now.