If you happened to read our article on individual debt limitations for the home mortgage interest deduction, you may be interested to know that the IRS issued an Acquiescence on Decision last week to the Ninth Circuit’s ruling in Voss v. Commissioner, 796 F.3d 1051 (9th Cir. 2015).
We found the rules that govern the grass courts can be instructive in understanding the outcome of several recent conservation easement tax cases. We put together our thoughts for the new issue of the Bloomberg BNA Real Estate Journal. Most of the article discusses the surprising decisions being reached by the courts but we do manage to reference the ITF, the USTA, Serena Williams and one of Eric Clapton’s old bands.
You can see the article here: Anyone for Tennis? Technical Foot Faults & the Conservation Easement Tax Deduction
We’ve covered developments in the litigation of conversation and facade easement cases here for some time now. We’ve recently taken that experience, added a little historical perspective, and put it together for an article in the Federal Lawyer. (Yes, we mention the Beatles too).
We have two Villanova alumni here at Asbury Law Firm and our immediate families add two more Villanova degrees. We also have two dogs named for our respective Philly experiences.
Villanova is the source of some of our greatest friends, mentors, and memories. We are honored to be associated in some small way with this team and its historic victory.
V for Villanova, V for Victory!
We’ve been away from the blog for a bit while we have focused our efforts on more traditional publications. If you’re up for an article about the home mortgage interest deduction that includes references to the bible, the Rolling Stones, the Tax Reform Act of 1986, the National Center for Lesbian Rights, Long Beach Island and Josh Ritter, then you might like what we recently published in BNA Tax Management Memorandum.
Download a copy here: Through a Glass Darkly: Sophy, Voss and Interpretation of the Internal Revenue Code
In an opinion that would make Willie Nelson shake his head, the Tax Court held that a taxpayer was not entitled to deduct business expenses related to his “Health Care” business (read: medical marijuana dispensary). The Court also disallowed the taxpayer’s cost of goods sold (COGS) and casualty loss for items seized during the Drug Enforcement Administration’s (DEA) raid of his dispensary in 2007.
The taxpayer resided in California and owned two medical marijuana dispensaries in 2007 operating under the name Alternative Herbal Health Services (“AHHS”). AHHS sold various strands of marijuana, pre-rolled marijuana joints, and edible food items prepared with marijuana. It did not sell any pipes, papers, or vaporizers, however they were made available to customers to medicate on site. AHHS provided several educational activities to its customers at no charge including “loading, grinding, and packing marijuana for customers’ use of bongs, pipes and vaporizers.” On January 11, 2007 the DEA searched the taxpayer’s dispensary in West Hollywood and seized marijuana, food items suspected to contain marijuana, and marijuana plants.
The taxpayer had a very short record retention policy, as his typical practice was to shred all sales and inventory records at the end of the day or by the next day. When it came time to prepare his 2007 tax return, the taxpayer gave the numbers to his attorney who then gave them to his tax return preparer. The Schedule C for his 2007 tax return reported a “Health Care” business with $1,700,000 in gross receipts and $1,429,614 in COGS and $194,094 in expenses. The taxpayer included $600,000 attributable to the value of the marijuana seized by the DEA in his gross receipts and COGS entries for 2007. All of the gross receipts and expenses reported on the taxpayer’s 2007 return were from the sale or expenses associated with AHHS’s marijuana or marijuana edibles. After three amended answers, the IRS asserted a tax deficiency of $1,047,743 and assessed a $209,549 accuracy-related penalty under section 6662(a) for the 2007 tax year.
Under IRC § 280E a taxpayer may not deduct any amount paid or incurred in carrying on a trade or business if such trade or business consists of trafficking controlled substances which is prohibited by Federal law or the law of any state in which the trade or business is conducted. The Court relied on its own decision in Californians Helping To Alleviate Med. Problems, Inc. (CHAMP) v. Commissioner, 128 T.C. 173 (2007) and the U.S. Supreme Court’s decision in Gonzales v. Raich, 545 U.S. 1 (2005) to determine that the taxpayer was trafficking in a controlled substance within the meaning of IRC § 280E.
However, Judge Goeke distinguished this case from CHAMP, where a potion of the taxpayer’s operating expenses were allowed because the taxpayer’s activities included those unrelated to the sale or distribution of marijuana. In this case, the taxpayer provided no evidence that AHHS sold any non-marijuana-related items.
The Court also disallowed the taxpayer’s IRC § 165 casualty loss deduction and denied his characterization of the marijuana seized by the DEA as COGS in 2007. The Court found that characterizing the marijuana seized by the DEA as COGS was difficult the taxpayer’s record retention policy left little substantiation for the value of items seized. Even if he had been able to provide substantiation the product could not be considered COGS because was confiscated and, in fact, was not sold. When the smoke cleared, Jude Goeke unsurprisingly upheld the accuracy-related penalty under IRC § 6662(a).
Read the full opinion here: Beck v. Commissioner, T.C. Memo. 2015-149.
It’s really hard to not take the opportunity to blog about the world’s greatest superhero franchise. Despite the tag line, this case might be better described as Avengers Disassemble, because that’s what Marvel wanted to do with its tax attributes following the bankruptcy of four members of its consolidated group in 1998.
The case was decided on cross motions for summary judgment. With no facts in dispute, the question boiled down to whether the consolidated net operating loss (CNOL) to be reduced under section 108(b)(2)(A) is the entire CNOL (single-entity approach) or an allocable portion of the CNOL (separate-entity approach). To put it in cinematic speak, should the Avengers superpowers be considered assembled or individually? Before going further, it should be noted that subsequently issued regulations would address this question should it happen today and application of the holding is limited to similarly situated taxpayers in pre-2005 tax periods (though that doesn’t solve the Marvel movie rankings).
At the time of the bankruptcies, Marvel’s entire consolidated group had a net operating loss of $187,154,680. The bankrupt entities had COD income of $171,462,463. Marvel had to reduce its consolidated NOL under IRC §108(b)(2)(A) to account for the COD income excluded in bankruptcy. Marvel allocated its consolidated NOLs according to the lesser of (1) each member’s excluded COD income or (2) each member’s allocable share of CNOL. Under Marvel’s allocation method, the NOLs were reduced by $89,566,469 resulting in a carryover CNOL of $71,186,863. The NOL was reported and reduced by offsetting income in subsequent years.
At the beginning of 2003, the Marvel claimed a remaining NOL carryforward of $47,424,026. The IRS denied application of the NOL carryforward in 2003 and 2004 on the theory that the 1998 tax attribute reduction of the NOLs should have been determined on a consolidated basis instead of a separate entity basis. Under the IRS theory the consolidated NOL of $187,154,680 would have been reduced by the total COD income of the bankrupt subsidiaries ($171,462,463) and there would be no remaining NOL to carryforward at the beginning of 2003. Marvel disagreed and petitioned the Tax Court. For a technical discussion of NOL carryforwards in a consolidated group, please check out Tony Nitti’s great post on this case.
In a detailed opinion that is somewhat less exciting than almost any Marvel Enterprises cinematic event (except maybe this one), the Court sided with the Assembled Avengers and applied an interpretation of the Supreme Court’s opinion in United Dominion Indus., Inc. v. United States, 532 U.S. 822 (2001), which supported the government’s consolidated group/single entity theory. Marvel lost this battle but the superheroes will be back again next year.
Read the full opinion here, while I step out for some popcorn.
All images and character references are to properties of Marvel Enterprises, LLC.
“There is a tide in the affairs of men which when taken at the flood leads on to fortune.”
Shakespeare understood the importance of timing to success. Apparently, the Tax Court holds a similar view when it comes to charitable donations of conservation easements.
This is our third post on the Tax Court’s opinion in Bosque Canyon Ranch. The memorandum decision isn’t necessarily an important case; it didn’t establish any new precedents for the Court. However, there is quite a bit about modern conservation easements packed into a fairly short opinion, which gives us an opportunity to unpack some of what is there.
Today, we look at the Court’s conclusion that the property transfers between the two Bosque Canyon limited partnerships and their partners were disguised sales. (Click here for a more detailed case summary.)
A transfer of partnership property to a partner within two years of a cash (or other) contribution by that partner is presumed to be a disguised sale under IRC §707. The Bosque Canyon partnerships received cash and transferred property to partners within a two year window. That timing is not in question.
The presumption in IRC §707 may be refuted by facts and circumstances showing that the transfer did not constitute a sale. Treas. Reg. §1.707-3(b)(2) suggests 10 circumstances when a sale might be present. The Court identified five of those factors in its opinion.
- the timing and amount of the distributions to the limited partners were determinable with reasonable certainty at the time the partnerships accepted the limited partners’ payments;
- the limited partners had legally enforceable rights, pursuant to the LP agreements, to receive their Homesite parcels and the appurtenant rights;
- the transactions effectuated exchanges of the benefits and burdens of ownership relating to the Homesite parcels;
- the distributions to the partners were disproportionately large in relation to the limited partners’ interests in partnership profits; and
- the limited partners received their Homesite parcels in fee simple without an obligation to return them to the partnerships.
When the transfers between the partnership and partners are not simultaneous, an additional rule provides that a disguised sale occurs only if “the subsequent transfer is not dependent on the entrepreneurial risks of partnership operations.” Treas. Reg. §1.707-3(b)(1)(ii). The timing of the transfers was not in dispute either. They were not simultaneous.
The timing issue, however, came in the context of entrepreneurial risk. The taxpayers argued that the limited partners’ contributions would be at risk if the anticipated conservation easements were not granted. The Court rejected this argument based on the timing of the easement grants. Unfortunately, the conservation easements for both partnerships were granted before the limited partnership agreements were executed. The Court found that the payments were not subject to the entrepreneurial risks of the partnership because the easements were secured before the partnerships were formed. In the case of Bosque Canyon Ranch I, the easement was granted just two days before the agreement execution, prompting us to recall Maxwell Smart’s famous line.
Given the Court’s determination on entrepreneurial risk, there was no need to parse the specific facts and circumstances of these transfers, or whether the five factors identified by the court were enough to warrant disguised sale treatment. It leaves open the question whether similar, or even slightly different, facts and circumstances would be sufficient to find a disguised sale. We don’t know. But with time, and another case, there’s a fair chance we will.
Last week we wrote about the Tax Court’s application of Belk v. Commissioner, 140 T.C. 1 (2013) in the Bosque Canyon Ranch case. Here’s a more detailed description of the case.
Bosque Canyon Ranch (“BCR”) is a 3,729 acre-tract in Bosque County, Texas. Petitioners formed BCR I, a Texas limited partnership, in July 2003. BCR I made $2.2 million in improvements to BC Ranch between 2003 and 2005.
In 2004, BCR I began marketing limited partnership interest (“LP units”) at $350,000 per unit. Each purchaser would become a limited partner in BCR I and the partnership would subsequently distribute a fee simple interest in a five-acre parcel of property (the “Homesite parcel”) to that limited partner. Each Homesite Parcel owner had the right to build a house on the parcel and use BC Ranch for various activities. The distribution of Homesite Parcels was conditioned on BCR I granting a conservation easement to the North American Land Trust (“NALT”) for 1,750 acres of BC Ranch.
BCR I granted the conservation easement to NALT on December 29, 2005. The land subject to the conservation easement could not be used for residential, commercial, institutional, industrial, or agricultural purposes. BCR I had 24 LP purchasers in 2005 with payments totaling $8,400,000. BCR I obtained a certified appraisal report effective November 28, 2005, valuing the conservation easement at $8,400,000.
BCR II was formed in December 2005 as a Texas limited partnership and BCR I deeded 1,866 acres of BC Ranch to BCR II. In 2006, BCR II began marketing Homesite parcels with offering documents were substantially similar to that of BCR I. BCR II granted NALT a conservation easement on September 14, 2007. BCR II collected payments of $9,957,500 from 23 purchasers and obtained an appraisal valuing the 2007 easement at $7,500,000.
After all of the transfers, the 47 limited partners of BCR I and BCR II owned approximately 235 acres and 3,482 of the remaining 3,509 acres were subject to the 2005 and 2007 NALT easements.
BCR I filed a 2005 Form 1065 reporting capital contributions of $8,400,000 and claiming an $8,400,000 charitable contribution deduction related to the 2005 NALT easement. The IRS sent petitioner a 2005 FPAA on December 29, 2008, determining that BCR I was not entitled to a charitable contribution deduction. The IRS also determined that petitioners were subject to either accuracy-related or gross valuation misstatement penalties. IRS counsel submitted an amended answer on April 26, 2010, contending that the BCR I transactions at issue were sales of real property.
BCR II filed a 2007 Form 1065 reporting capital contributions of $9,956,500 and claiming an $7,500,000 charitable contribution deduction related to the 2007 NALT easement. The IRS sent petitioner a 2007 FPAA on August 23, 2011, determining that BCR II was not entitled to a charitable contribution deduction and that petitioners were subject to either accuracy-related or gross valuation misstatement penalties. IRS counsel did not allege that the BCR II transactions were sales of real property. The Court consolidated petitioners’ cases for trial.
Charitable Contribution Deductions
The Homesite parcel owners and the NALT could, by mutual agreement, modify the Homesite boundaries. The deed forbids a decrease in “the overall property subject to the easement” and changes in the “exterior boundaries of the property subject to the easement.” The deed also provides that the boundary changes only occur between unburdened parcels (the Homesite lots).
The Court found that the property protected by the 2005 and 2007 easements could lose this protection as a result of boundary modifications allowed after the easements were granted. Citing Belk v. Commissioner, 140 T.C. 1 (2013), the Court held that the restrictions were not granted in perpetuity as required under IRC § 170(h)(2)(C) because the 2005 and 2007 deeds allow modifications between the Homesite parcels and the property subject to the easements. Thus, the easements are not qualified real property interests required under IRC § 170(h)(1)(A). (There are some distinct factual differences from Belk that we noted in an earlier post found here).
Judge Foley also took issue with the lack of documentation establishing the condition of the property provided by petitioners to NALT as required by Treas. Reg. § 1.170A-14(g)(5)(i). The Court found that the documentation was “unreliable, incomplete, and insufficient to establish the condition of the relevant property on the date the respective easements were granted.”
Judge Foley found that the partnerships deeded the Homesite properties to the limited partners within five months of the limited partners’ payments for the property. Under Treas. Reg. 1.707-3(c)(1) and 1.707-6(a) transfers between a partnership and a partner within a two-year period are presumed to be a sale of the property to the partner unless the facts and circumstances clearly establish that the transfers do not constitute a sale.
Petitioners argued that the partners’ payments would be at risk, pursuant to the terms of the LP agreements, if the easements were not granted. The Court rejected this argument based on its finding that the 2005 and 2007 easements were granted prior to the execution of the BCR I and BCR II LP agreements, respectively. Thus, the Court held that BCR I and BCR II were required to recognize income on any gains related to the 24 and 23 disguised sales by each limited partnership, respectively.
Gross Valuation Misstatement Penalties
Judge Foley held that the petitioners were liable for a 40% gross valuation misstatement penalty under IRC § 6662(h). Petitioner’s argued that they acted reasonably and in good faith by procuring a qualified appraisal from a qualified appraiser and by relying on a memorandum from their CPA. Judge Foley found that while these actions constituted a good faith investigation of the easement’s value, BCR I did not provide NALT with sufficient documentation of the condition of the property being donated and affirmed the 40% gross valuation misstatement penalty against BCR I for 2005.
For returns filed after August 17, 2006, the gross valuation misstatement penalty is modified by Treas. Reg. § 1.6662-5(g) when the determined value of the property is zero and the value claimed is greater than zero. Additionally, taxpayers who file returns after 2006 can no longer claim a reasonable cause defense for gross valuation misstatements relating to charitable contribution deductions. (Though reasonable cause is still a valid defense for substantial valuation misstatements. See, IRC § 6664(c)(3).) Thus, the Court held that BCR II is liable for the 40% gross valuation misstatement penalty relating to the 2007 tax year.
Read the full opinion here: Bosque Canyon Ranch L.P., v. Commissioner, TC-Memo. 2015-130
“Heads I win, tails you lose / to the never mind / when to draw the line”
– “Draw the Line” Aerosmith (1977)
The Tax Court continues to take a page from Steven Tyler’s songbook when it comes to property lines and conservation easements. In Bosque Canyon Ranch, L.P. v. Commissioner, the Tax Court rejected two related partnerships’ deductions for the donation of conservation easements. Among the shortcomings the Court found with the partnerships’ donations was a deed provision permitting “modifications to the boundaries between the Homesite parcels.” The Homesite parcels were not subject to the conservation restrictions placed over the remainder of the development property.
The potential post-donation modifications to the Homesite parcels were subject to the approval (within reasonable judgment) of the North American Land Trust; could not affect the exterior boundaries of the property subject to the easement; and the overall property subject to the easements could not be decreased. Despite these limitations, the Court, following Belk v. Commissioner, 140 T.C. 1 (2013), found that because the potential boundary modifications were in place at the time of the donation, the restrictions on the use of the property were not granted in perpetuity in violation of IRC 170(h)(2)(C).
The Belk court found that the perpetual donation requirement of IRC 170(h)(2)(C) was violated by a deed allowing the substitution of property subject to the original easement for continguous property of equal area and value after the donation of the easement. The Belk court seemed to be concerned with its ability to identify the specific real property interest subject to the easement at the date the easement was granted. Presumably, the Court felt it could not do that because the potential substitution of adjacent property could change the boundaries of the burdened parcel at any time. And because the specific real property interest had not been identified upon donation, it had not been burdened in perpetuity.
The Bosque Canyon opinion does not provide the detailed deed language that the Belk opinion did, but it does describe the deed as forbidding a decrease in “the overall property subject to the easement” and changes in the “exterior boundaries of the property subject to the easement.” It also suggests that the boundary changes only occur between unburdened parcels (the Homesite lots). These deed provisions – at least as characterized by the court – seem to be a bit different from those in Belk.
Under the Bosque Canyon provisions there could be no change in the borders of the burdened parcel, no diminution of the property subject to the easement and apparently no change in or substitution of property not originally identified. It seems that the Bosque Canyon deeds were limited to redrawing internal boundary lines between unburdened parcels in the same development that included the conservation easement.
If that is the case, then does the deed language in Bosque Canyon really raise the same identification of restricted real property interest subject to the conservation easement issue that concerned the Court in Belk? Is the redrawing of these lines of any real consequence to the identification of a real property interest subject to perpetual protection?
Unfortunately, the Court took issue with much more than the deed modifications in Bosque Canyon (which we will discuss in a future post) so the prospect of appellate review on this discreet deed modification issue is slim. It seems unlikely that the Tax Court intends to create a “heads I win/tails you lose” situation when it comes to deed modifications in conservation easement cases. Nonetheless, Belk might warrant a closer look if it is going to continue to guide the Court’s interpretation of IRC 170(h)(2)(C).
Read the opinion here: Bosque Canyon Ranch L.P., v. Commissioner, TC-Memo. 2015-130