Attorney-at-Law

ESCAPE AND EVASION

In Uncategorized on 05/23/2022 at 16:44

No, not the basic combat orientation of my long-ago days; I remember none of it. But today Judge Christian N. (“Speedy”) Weiler utilizes the judicial equivalent in escaping from the clutches of 11 Cir’s Hewitt decision in Michael Davis & Amy L. Davis, Docket No. 14870-20, filed 5/23/22.

It’s the usual striking gold in GA boondocks. Mike and partner buy just shy of 10 acres for $6K and take a $2.51 million conservation write-off. Those hills must be alive with dilithium crystals; or something. And of course the conservation easement deed is the usual improvements-out, although there’s a subsequent correction deed putting them back in.

But the improvements themselves is what Judge Speedy Weiler grabs to escape Hewitt and evade IRS’ motion for summary J.

“Under the deed, [the partnership] reserves the right to make improvements to the property, including the right to construct trails and footpaths on the property, install signs and other marks, construct low impact amenities, maintain and manage the property to prevent erosion, and install picnic tables, benches, and the like.” Order, at p. 2.

My astute, battle-hardened readers will shout as one “Improvements de minimis!” And quote Oconee and Little Horse Creek.

Judge Speedy Weiler doesn’t know, but that’s enough to scupper IRS’ motion for summary J.

“In short, the property has no existing improvements, and the permitted future improvements appear to consist of modest use intended for conservation, recreational, and educational purposes. At trial, petitioners may be able to establish that these improvements (if built) would be unlikely to increase the property’s fair market value in a material way (if at all). If any increase in value attributable to improvements would be de minimis, petitioners could contend that the deed’s ‘donor improvements’ clause would not cause [501(c)(3)] to receive less than its proportionate share of the proceeds in the event the property was sold following judicial extinguishment of the easement.” Order, at p. 6.

Value of improvements is fact-specific, hence ill-suited to summary J.

But IRS’ Boss Hossery is sufficient to allow them summary J for chops…if they get that far.

Having turned their $6K investment into a $2.5 million tax write-off, I doubt Mike and partner will spend a whole lot on improvements.

There’s a T. C. Memo. today, Genecure, L.L.C., Frank Y. Tung, Tax Matters Partner, T. C. Memo. 2022-52, filed 5/23/22, but it’s indocumentado meets Tokarski, and IRS messing up the Boss Hossery. Not worth noting.

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