This is a tactic worth considering. Piedmont Breeze, LLC, Greencone Investments, LLC, Tax Matters Partner, Docket No. 12011-20, filed 2/9/22, uses it to narrow the issues for trial by trotting out their motion before even the show-and-tell, play-nice, of Tax Court’s usual discovery quadrille.

It’s another marked-up GA boondock conservation easement.

The Breezes claim that they “…had “satisfied all section 170 elements’ needed to sustain its charitable contribution deduction. It filed this motion before respondent had had the opportunity to pursue informal discovery or engage in discussions regarding stipulations of fact. Petitioner allegedly filed its motion at an early stage of the litigation in order to spare the Court from the ‘backbreaking burden in having to endure ersatz disputes on the scores of incontestable section 170 elements.’ Petitioner subsequently filed a motion for oral argument.” Order, at p. 1.(Footnote omitted).

Now I’d expect a Branerton lecture from Judge Albert G (“Scholar Al”) Lauber, extolling the merits of collaborative fact stipulation and issue-framing.

But there’s no need, as IRS has used the interval between the Breezes’ motions to engage in some informal discovery and “… appears to agree that (1) Piedmont conveyed a valid real property interest, (2) the property interest was granted in perpetuity, (3) [501(c)(3)] was a ‘qualified organization,’ (4) Piedmont obtained sufficient ‘baseline documentation,’ (5) Piedmont obtained a sufficient ‘contemporaneous written acknowledgement,’ (6) the land was not secured by a mortgage, (7) the easement deed contains no ‘judicial extinguishment’ problem, and (8) Piedmont obtained a ‘qualified appraisal’ prepared by a ‘qualified appraiser’.” Order, at p. 3, footnote 3.

OK, so what is there to try? My ultra-sophisticated boondock-bashing readers will cry with one voice “Valuation!”

Yes, but.

Judge Scholar Al seems to think there’s some problem with the Breezes’ reservation of rights respecting hunting stands, viewing platforms, picnic tables, fences, and ponds, as to all which the Breezes needn’t consult the 501(c(3). Order, at p. 4. This impacts perpetuity, and perpetuity is a fact question. Order, at pp. 4-5.

So two (count ’em, two) fact questions. Of course, post-Hewitt, I’d not lean too heavily on “highly contestable readings of what it means to be perpetual,” especially when I’m leaning on picnic tables in GA scrub.

But the Breezes’ early attack moved the football; Go Dawgs!, as they say in Georgia.