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Tax Strategy: A syndicated conservation easement update

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The long efforts to put in place the enforcement mechanisms to attack syndicated conservation easements appear to at last be finalized. In October 2024, the Internal Revenue Service issued final regulations targeting syndicated conservation easements. The agency first started identifying claims for substantial conservation easement deductions by investors in syndicated partnerships back in 2016, and issued Notice 2017-10 identifying syndicated conservation easements as abusive and requiring reporting by participants. It also sought help from Congress to specifically disallow the abusive aspects of the transactions.

The syndicated conservation easement industry fought back. The industry won a court case on the basis that the notice issued by the IRS failed to meet Administrative Procedure Act requirements for notice and opportunity for comments. Lobbying efforts stymied the progress of congressional action and included efforts to strip the IRS of enforcement funds. Initial efforts to get taxpayers to accept settlement offers were frustrated by funds available for the defense of the transactions built into the deal structures.

The IRS has challenged $21 billion in deductions claimed by 28,000 syndicated conservation easement investors. Even the Land Trust Alliance, which administers traditional conservation easements, became concerned that the syndicated conservation easement activity would result in the complete loss of the conservation easement deduction. The IRS estimated that the number of syndicated conservation easement deductions grew from 249 deals in 2016, generating $6 billion in charitable deductions, to 296 deals in 2018 producing $9.2 billion in deductions. Traditional conservation easement deductions have resulted in around $1 billion in annual deductions.

Statutory action

After several years of frustration in getting Congress to address syndicated conservation easements, success was achieved with the enactment of Code Sec. 170(h)(7) in 2022. Code Sec 170(h)(7) provides that a contribution by a partnership is not treated as a qualified conservation contribution if the amount of such contribution exceeds 2.5 times the sum of each partner’s interest in the partnership. Exceptions are provided for three-year holding periods, contributions made by family pass-through entities, and contributions made to preserve a certified historic building. Reporting requirements apply to partnerships, S corporations, and other pass-through entities. The statute does not apply retroactively, but only to contributions made after Dec. 29, 2022.

Final regulations

In order to overcome the APA challenges to the syndicated conservation easement notice, the IRS began a process of issuing proposed regulations to meet APA requirements. In November 2022 the IRS issued proposed regulations that disallowed deduction for syndicated conservation easement transactions made by a partnership or an S corporation after Dec. 29, 2022, if the amount of the contribution exceeds 2.5 times the sum of each partner’s or S corporation shareholder’s relevant basis. The regulations also imposed new reporting requirements for the members of the entity who are seeking a deduction based on the transaction — IRS Form 8886, “Reportable Transaction Disclosure Statement.”

The final regulations were issued on Oct. 7, 2024, and are effective Oct. 8, 2024. They address three specified classes of abusive syndicated conservation easement transactions and substantially similar transactions:

1. Transactions involving contributions occurring before Dec. 30, 2022;
2. Transactions for which a charitable contribution deduction is not automatically disallowed by Code Sec. 170(h)(7); and,
3. Transactions that substitute the contribution of a fee simple interest in real property for the contribution of a conservation easement.

The final regulations generally adopt the 2022 proposed regulations with clarifications of the meanings of the terms “substantially similar transactions,” the 2.5 times rule, “conservation easement,” and “participant.” The final regulations also clarify that participants and material advisors must report syndicated conservation easement transactions to the IRS that were completed in tax years that are still open. It is possible that taxpayers could be subject to both the requirements of Code Sec. 170(h)(7) and the final regulations.

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A man walks a dog near a wetland conservation area

Lam Yik/Bloomberg

Settlement offers

The IRS initiated its third settlement offer to try to dispose of many of the audits before it in June 2024. The earlier settlement offers had only limited success. However, the final regulations and growing success in the courts may push more syndicated deals into settlement. Only taxpayers who receive a settlement offer letter from the IRS are eligible for the settlement offer. The settlement offers have typically involved agreeing that the deduction for the contribution be disallowed in full; all partners must agree to settle; the partnership must pay the full amount of tax penalties and interest before settlement; partners can deduct the cost of acquiring partnership interests; and penalties can range from 10% to 20% for investor partners and up to 40% for partners active in the transaction. The settlement offers require the cooperation of partners during the resolution of the issue.

It may be difficult for some partnerships to get the consent of all partners in a deal to participate in the settlement and to be willing to cooperate in the resolution.

Criminal and civil enforcement

With Code Sec. 170(h)(7) in place, as well as now the final regulations, the Tax Court has set aside APA concerns and started to deny overvaluation of conservation easements. For example, in Mill Road 36 Henry LLC v. Commissioner, U.S.T.C. Oct. 26, 2023, the court limited the LLC’s deduction to its tax basis and added an accuracy-related penalty. A circuit court case has also rejected the claimed deductions.

Some of the key promoters of syndicated conservation easements, as well as one of the appraisers utilized by the promoters, have been convicted of fraud and falsification of documents and some have already received substantial prison sentences.

Summary

The tools now seem to be in place to curtail the syndicated conservation easement industry. There remains a lot of work for the IRS to resolve all of the transactions still under audit. It remains to be seen how helpful settlement offers will be in disposing of some of these audits.

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Accounting

In the blogs: Judge for yourself

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Refunds without taxes; bouncing BOI; never too late for an Employee Retention Credit; and other highlights from our favorite tax bloggers.

Judge for yourself

  • TaxProf Blog (http://taxprof.typepad.com/taxprof_blog/): How income taxation can, and should, be used to regulate judicial misconduct when conduct rules fail.
  • Tax Foundation (https://taxfoundation.org/blog): The German economy has been contracting for two years, with corporate investments trailing those of other European countries. Business confidence remains low, economic outlooks pessimistic. Will the recent election produce tax policy for economic growth?
  • Taxing Subjects (https://www.drakesoftware.com/blog): The IRS has joined the Coalition Against Scam and Scheme Threats with safeguards this season to help you protect clients.
  • Institute on Taxation and Economic Policy (https://itep.org/category/blog/): A new report finds that states could raise $19 billion a year with one policy change targeting corporate tax avoidance: worldwide combined reporting.
  • Taxable Talk (http://www.taxabletalk.com/): To Err Is Golden Dept.: California says it issued incorrect 1099-Gs.
  • Tax Notes (https://www.taxnotes.com/procedurally-taxing): How a section of the TAS Act allows taxpayers who are on an installment agreement or in a CNC status to bring a refund suit even if they haven’t yet fully paid the taxes.
  • Don’t Mess with Taxes (http://dontmesswithtaxes.typepad.com/): Could the federal estate tax wind up halved rather than eliminated?
  • Tax Vox (https://www.taxpolicycenter.org/taxvox): DOGE might assume that those new IRS employees are expendable. Why they’re not.

Report cards

  • Eide Bailly (https://www.eidebailly.com/taxblog): How and why Corporate Transparency Act filing rules are back on.
  • U of I Tax School (https://taxschool.illinois.edu/blog/): Note too that the House has unanimously passed a bill to extend the deadline for pre-2024 reporting companies to 2026.
  • MBK (https://www.mbkcpa.com/insights): So now the deadline is March 21. Unless it isn’t.
  • The Tax Times (https://www.thetaxtimes.com): Though, “in keeping with Treasury’s commitment to reducing regulatory burden on businesses, during this 30-day period FinCEN will assess its options to further modify deadlines, while prioritizing reporting for those entities that pose the most significant national security risks.” 

To the swift

  • Armanino (https://www.armanino.com/articles/): Taylor Swift’s Eras Tour didn’t just shatter records for attendance and ticket sales; it showcased the unique tax challenges entertainers and athletes face when working across multiple states and countries. A look at how such folk can maximize tax credits and incentives.
  • CLA (https://www.claconnect.com/en/resources?pageNum=0): What to remind them about time remaining to claim the ERC via amended returns.
  • TaxProCenter (https://accountants.intuit.com/taxprocenter/): You may not know where they keep coming from but they sure keep coming: unprepared clients and four ways to deal with them.
  • AICPA & CIMA (https://www.aicpa-cima.com/blog): With an eye to the pipeline, why accounting should go out of its way to provide high schoolers with real-world experiences and insights about the profession.
  • Turbotax (https://blog.turbotax.intuit.com): What to remind them about LLC taxes.
  • Current Federal Tax Developments (https://www.currentfederaltaxdevelopments.com/): A look at IRS guidance on issuing health insurance coverage statements to individuals under provisions of the Paperwork Burden Reduction Act.
  • The National Association of Tax Professionals (https://blog.natptax.com/): This “You Make the Call” looks at Sandra, a partner in an LLC and who received a K-1 with $45,000 in Box 19, Code C. The instructions for this current distribution indicate that this is the partnership’s adjusted basis of property immediately before it was distributed to Sandra. Besides the adjusted basis, what does her tax preparer need to know to complete the new Form 7217, “Partner’s Report of Property Distributed by a Partnership,” to be filed with her 1040?
  • Massey and Company (https://masseyandcompanycpa.com/blog/): Software as a Service is tricky for all kinds of taxes given its recurring revenue and service obligations. Best practices and key concepts to navigate SaaS accounting. 
  • Parametric (https://www.parametricportfolio.com/blog): How bond ladders can unlock direct indexing opportunities, including the tax advantages, in fixed income.
  • Vertex (https://www.vertexinc.com/resources/resource-library/filter/field_asset_type/blog?page=0): Key points of transfer pricing and its being an essential aspect of global commerce that directly impacts multinational profitability and tax obligations. 
  • National Taxpayer Advocate (https://www.taxpayeradvocate.irs.gov/taxnews-information/blogs-nta): What to remind them about disaster-related tax relief, including deductibility of relief payments and casualty loss deductions.
  • Virginia – U.S. Tax Talk (https://us-tax.org/about-this-us-tax-blog/): For U.S. persons, purchasing or owning real estate property overseas comes with significant tax and reporting obligations. Nine points U.S. taxpayers should consider.

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IRS COO Melanie Krause named acting commissioner

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Treasury Secretary Scott Bessent named Internal Revenue Service chief operating officer Melanie Krause as acting commissioner after the retirement of acting commissioner Douglas O’Donnell.

O’Donnell has been acting commissioner since January, taking over from former IRS commissioner Danny Werfel, who announced he would be resigning on Inauguration Day after President Trump named Billy Long, a former congressman from Missouri, as the next commissioner, even though Werfel’s term wasn’t scheduled to end until November 2027. O’Donnell had been deputy commissioner at the IRS at the time, and was previously acting commissioner from November 2022 to March 2023 during the transition between former IRS Commissioner Chuck Rettig and Werfel. 

“The IRS has been my professional home for 38 years,” O’Donnell said in a statement Tuesday. “I care deeply about the institution and its people and am confident that Melanie will be an outstanding steward of the Service until a new Commissioner is confirmed.” 

The IRS has been going through a period of turmoil, with an estimated 6,700 IRS employees laid off last week in the middle of tax season. A group of former IRS commissioners is warning about the impact, including delayed refunds and longer telephone response times. 

Senate confirmation hearings have not yet been scheduled for Long, but he is expected to be questioned about his record of promoting the fraud-plagued Employee Retention Tax Credit after leaving Congress, as well as his sponsorship of a bill to eliminate the IRS while he was in Congress.

Until Long is confirmed, IRS COO Krause will now move into O’Donnell’s deputy commissioner role and serve as acting commissioner of the nation’s tax agency. 

“On behalf of the Treasury Department, I want to thank Doug O’Donnell for his decades of public service and dedication to the nation’s taxpayers,” Bessent said in a statement Tuesday. “He has been a remarkable public servant, and I wish him the best in retirement. At the same time, Melanie Krause and the agency’s leadership team are well positioned to serve during this critical period for the nation in advance of the April tax deadline.” 

Krause has served as IRS COO since April 2024 after acting as deputy commissioner of operations support since January of the same year. As COO, she oversees the operations including the Chief Financial Officer; Chief Risk Office; Facilities Management and Security Services; Human Capital Office; Office of Chief Procurement; Privacy, Governmental Liaison and Disclosure; Research, Applied Analytics and Statistics. 

She began her career at the IRS in October 2021 as chief data and analytics officer. In this role, in addition to leading the RAAS team, Krause also coordinated research activities including using AI and other advanced analytics. Krause also served as acting deputy commissioner for services and enforcement from November 2022 to March 2023. 

Prior to joining the IRS, Krause spent 12 years in the federal oversight community, including the Government Accountability Office and the Department of Veterans Affairs Office of Inspector General. Krause also maintains an active license as a registered nurse. She holds bachelor, master and doctoral degrees from the University of Wisconsin-Madison.  

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PICPA offers guide to recruiting and compensation

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The Pennsylvania Institute of CPAs released a report Tuesday analyzing how firms can attract and retain talent amid the accountant shortage.

The report analyzes how accounting firms in Pennsylvania are structuring compensation, navigating retention and recruitment challenges, and adapting their benefits to remain competitive.

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Jennifer Cryder

Jennifer Cryder

“Our latest findings make it clear: salary alone isn’t enough to attract and retain top talent in today’s market and firms need to be thinking differently about what matters,” said PICPA CEO Jennifer Cryder in a statement. “Holistic compensation strategies that include competitive benefits, flexible work arrangements, and clear career development pathways are critical in today’s world. Above all, we intend for this report to provide firm leaders with the insights they need to build a sustainable workforce for the future.”

The report found the firms surveyed by PICPA are experiencing inconsistencies in their ability to retain talent, with 48.3% reporting an increase in staff retention, while 24.1% of the respondents saw a decrease and 27.6% said retention remained stable. Firms reported an average salary increase of 8% in June 2024, up from 5% in July 2023, indicating slow but consistent average salary growth.

Offering comprehensive benefits remains a priority, with 88.5% of the firms surveyed providing medical insurance, 80.8% offering dental coverage, and 73.1% including vision insurance for employees.

Efforts to attract talent are changing, with 58.7% of the firms that responded to the survey increasing their hiring activity over the past year, while 37.9% maintained steady recruitment levels.

Many firms are responding to employee expectations for work-life balance, with 80% of the surveyed firms allowing flex hours outside of core hours and 76.9% offering flexible work options year-round.

With over half (54.2%) of the surveyed firms identifying hiring and talent retention as a top priority in 2025, the report stresses the need for firms to move beyond traditional compensation models. The report found a shift toward total rewards strategies — integrating salary, benefits, professional development and work-life balance — is essential to attracting and retaining top talent in an increasingly competitive market.

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