Executive summary: Safe harbor procedures issued for conservation easement deeds with extinguishment and boundary line adjustment clauses.
Notice 2023-30 provides safe harbor deed language for extinguishment and boundary line adjustment clauses as required by section 605(d) of the SECURE 2.0 Act of 2022. Donors with existing conservation easement deeds have until July 24, 2023, to record their safe harbor deed amendments. However, taxpayers are not required to amend their deeds to include the safe harbor language.
Background: Conservation easement charitable contribution deductions
Conservation easements may give rise to section 170 charitable contribution deductions if certain requirements are met, including an enforceable perpetual restriction to protect the property’s conservation purposes. The section 170 regulations clarify that a judicial extinguishment of the easement will not jeopardize the perpetuity requirement if (1) a subsequent and unexpected change in the conditions surrounding the easement make it impossible or impractical to continue to use the property for conservation purposes and (2) the proceeds from a subsequent sale or exchange of the property are used by the charitable organization in a manner consistent with the conservation purposes of the original contribution. Neither the code nor the regulations address boundary line adjustments.
Recently, numerous court cases have evaluated whether conservation easement deed language related to extinguishment and boundary line adjustments affect the perpetuity requirement necessary for a charitable contribution deduction. Congress responded through section 605(d)(1) of the SECURE 2.0 Act, which directs the Treasury Department to provide safe harbor deed language for extinguishment clauses and boundary line adjustment clauses. It also gives donors 90 days from publication of the guidance to amend an easement deed to substitute the safe harbor language.
Notice 2023-30 was published in the Internal Revenue Bulletin on April 24, 2023. Therefore, taxpayers have until Monday, July 24, 2023, to record amended deeds. Both the donor and donee must sign the amended deed. If the deed contains the safe harbor language and otherwise meets these requirements, it will be treated as effective as of the date of the original deed for purposes of section 170 (regardless of whether state law does so). Not all conservation easement deeds are eligible for this amendment, including syndicated conservation easements.
Safe harbor deed language
The clauses set forth in the Notice also may be used in future conservation easement deeds and need not be exact provided that the replacement terms have the same meaning. For example, donor/donee may be replaced with grantor/grantee and easement, restriction, or servitude may be used interchangeably.
Section 4.01 of the Notice provides the following language for extinguishment clauses:
Pursuant to Notice 2023-30, Donor and Donee agree that, if a subsequent unexpected change in the conditions surrounding the property that is the subject of a donation of the perpetual conservation restriction renders impossible or impractical the continued use of the property for conservation purposes, the conservation purpose can nonetheless be treated as protected in perpetuity if (1) the restrictions are extinguished by judicial proceeding and (2) all of Donee’s portion of the proceeds (as determined below) from a subsequent sale or exchange of the property are used by the Donee in a manner consistent with the conservation purposes of the original contribution.
Determination of Proceeds. Donor and Donee agree that the donation of the perpetual conservation restriction gives rise to a property right, immediately vested in Donee, with a fair market value that is at least equal to the proportionate value that the perpetual conservation restriction, at the time of the gift, bears to the fair market value of the property as a whole at that time. The proportionate value of Donee’s property rights remains constant such that if a subsequent sale, exchange, or involuntary conversion of the subject property occurs, Donee is entitled to a portion of the proceeds at least equal to that proportionate value of the perpetual conservation restriction, unless state law provides that the donor is entitled to the full proceeds from the conversion without regard to the terms of the prior perpetual conservation restriction.
Section 4.02 provides the following boundary line adjustments clause:
Pursuant to Notice 2023-30, Donor and Donee agree that boundary line adjustments to the real property subject to the restrictions may be made only pursuant to a judicial proceeding to resolve a bona fide dispute regarding a boundary line’s location.