My colleague Peter Reilly, CPA, dropped a bomb on me this evening. 6 Cir affirmed Tax Court in Oakbrook, and upheld Reg. Section 1.170A-14(g)(6)(ii), despite Hewitt. 6 Cir was unanimous in result, although Judge Guy upheld based on the statute; he didn’t like the Reg.

Here’s Oakbrook Land Holdings, LLC, William Duane Horton, Tax Matters Partner v CIR, 20-2117, 3/14/22.

Judge Karen Nelson Moore sends off 11 Cir.

“The petitioners also direct us to a recent decision by the Eleventh Circuit that held the proceeds regulation to be procedurally invalid under the APA. See Hewitt v. Comm’r, 21 F.4th.1336, 1339 (11th Cir. 2021). Unlike the concurrence, we find that decision’s reasoning to be unpersuasive. In concluding that the New York Landmarks Conservancy’s comment raised significant concerns about possible deterrent effects that the proceeds regulation could have on donations, the Eleventh Circuit stressed that one of I.R.C. § 170’s aims is ‘to allow deductions for the donation of conservation easements to encourage donation for such easements.’ Id. at 1352. Although encouraging the donation of conservation easements is undeniably a goal of the statute, highlighting this point overlooks a crucial condition that Congress demanded be met by donors seeking deductions: an easement’s conservation purpose must be ‘protected in perpetuity.’ I.R.C. § 170(h)(5)(A).” Opinion, at p. 19. (Footnote omitted).

So “highly contestable readings of what it means to be perpetual” are still in play, in 6 Cir. anyway.

The comments of the New York Landmarks Conservancy, now directed by my friend Peg Breen, get a heavy airing.

Man, I’ll be double dipped. The bookies must have slaughtered us punters on this one. See my blogpost “Taking the Bookies’ Money,” 1/3/22, for which I hereby heartily and humbly apologize.

But maybe so it might could be this is going to the Supremes.