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Down the Rabbit Hole With the IRS’ Challenge to Perpetual Conservation Easements, Part One

February 2021

Citation: 51 ELR 10136

Issue: 2

Author: Jessica E. Jay

When the Internal Revenue Service began disallowing gifts of perpetual conservation easements for claimed failures of perpetuity requirements, it tumbled land trusts, landowners, and the U.S. Tax Court down the rabbit hole to a baffling land below. The Service’s drop into matters beyond valuation and into elements intended and necessary for easement durability and flexibility has caused a confusing array of Tax Court decisions. Part One of this two-part Article examines how the Service lures the land conservation community and the Tax Court into Wonderland distortions, and the precarious tower of cards upon which its legal theories rest. Part Two, in the next issue, will identify the fundamental elements of law and the process of law to topple the Service’s card construct, and awaken and return everyone to the world above ground.

Jessica E. Jay is the founder and Principal Attorney of Conservation Law, P.C., and Adjunct Professor at Vermont Law School and Denver University Law School.

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