Neither Judge David Gustafson nor I attended the institution whose gameday yell first appears at the head hereof, as my expensive colleagues who attended that institution would say. But the Bulldawgs are back, looking for reconsideration. Habitat Green Investments, LLC, MM Bulldawg Manager, LLC, Tax Matters Partner, et al., Docket No. 14433-17, filed 4/23/21 wants Judge Gustafson to oblige them by reconsidering the partial summary J he gave IRS back last June. See my blogpost “The Brush Hog Gives The Brush Off,” 6/30/20.

The Bulldawgs are citing orders in support of their motion, even though that’s a Rule 50(f) no-no, but maybe, just maybe, the Bulldawgs and their counsel started reading this my blog. Howbeit, parsing orders doesn’t turn the Bulldawgs’ bark into a bite. The issue is the impact of the reserved improvements on the 501(c)(3)’s takeout.

“We agree with the Commissioner that the TMP’s motion does not support a deviation from our precedent holding that a subtraction of the value of improvements to the easement property from the proceeds of an extinguishment prior to calculating the proportional share due to the donee under 26 C.F.R. sec. 1.170A-14(g)(6) fails to protect the conservation purpose of the property in perpetuity. The easements in these cases, like those in the cases the Commissioner has cited, do in fact provide for ‘improvements’ to be made on the property subject to the easement.” Order, at p. 4.

Still betting on Judge Holmes’ dissent in Oakbrook.