The U.S. Tax Court has upheld a tax deduction for a property owner in Washington DC who claimed a tax deduction for a property easement, finding against the IRS. The IRS has sought to end tax deductions for donations of historic easements, a common practice among historic properties in the District.
In Simmons v. Commissioner (T.C. Memo. 2009-208), the court ruled in September that two easements made to The L'Enfant Trust , at 17 Logan Circle (pictured) and 1503 Vermont Avenue, were valid charitable contributions, warranting federal tax deductions valued at 5% of the property's value. Preservation easements are common agreements between the owner of a historic or archaeologically significant property and a charitable organization that is chartered to preserve such properties. The agreement grants the charitable organization a legal right to control that portion of the property, a right which is recorded and retained in perpetuity. The property owner's grant to the charity results in a donation, the amount of which is therefore deductible as charitable. Grants in Washington DC generally involve the facade of a property, which thereafter cannot be altered without the consent of the charitable organization.
The L'Enfant Trust requires property owners to affix a plaque on the facade, maintain the subject portion of the property, and make cash contributions to the Trust to facilitate future enforcement. The IRS has disputed this practice, finding no deductible donation. In the case of Simmons, the IRS disputed that the easement had any value, and that the statutory requirements for grants had been met. The Tax Court disagreed, finding that easements do affect the fair market value of the property, in this case by 5%.
While the IRS allows for charitable deductions for a portion of a property (Section 170 (f)(3)(B)(iii), since you were wondering), the IRS determined that in this case L'Enfant could, theoretically, consent to a change in the facade, countermanding the preservation aspect, and that the mortgage was not subordinated to the easement, making it invalid. The court disagreed with the latter, and found it sufficient that the stated purpose of the easement was preservation, finding that the Trust had the legal means to enforce preservation against the owner. The IRS argued in the alternative that the appraiser, who found an 11% decline in the value of the property resulting from the easement, botched (not their words) the appraisal. While that may be a common complaint in the real estate industry, here the court again disagreed, finding 'before' and 'after' values of properties with easements showed a decline in value, though finding only half the drop the appraiser found.
While the ruling applied strictly to federal taxation, and to the L'Enfant Trust in particular, many states and localities have similar statutes and deduction rules, and the logic of the court's ruling will likely support such statutes as well as other charitable organizations.