Saturday, April 30, 2016
RP Golf, LLC v. Comm’r—Conservation Easement Deduction Denied Because Mortgages Not Subordinated at Time of Donation
In RP Golf, LLC v. Comm'r, T.C. Memo. 2016-80 (RP Golf II), the Tax Court sustained the IRS’s disallowance of a $16.4 million deduction for a 2003 donation of a conservation easement on two private golf courses in Kansas City, Missouri. Although the IRS challenged the claimed deduction on a number of grounds, including failure to satisfy the conservation purposes test and overvaluation, the Tax Court denied the deduction on the ground that the taxpayer failed to satisfy the mortgage subordination requirement.
In RP Golf, LLC, T.C. Memo. 2012-282 (RP Golf I), the taxpayer had been forced to concede that the donation did not satisfy the clearly delineated government policy prong of the open space conservation purposes test because the Missouri conservation policy that it referenced in the easement deed did not apply to the subject properties. The Tax Court granted the IRS’s motion for summary judgment on that issue, but material facts regarding whether the donation complied with other requirements for a deduction (including the habitat protection conservation purpose test) continued to be in dispute.
On December 29, 2003, RP Golf, through National Golf, a single member LLC of which it was the sole member, executed an agreement “purporting” to grant a conservation easement to the Platte County Land Trust (PLT), a Missouri charitable conservation organization. The Tax Court referred to the easement as the “PLT agreement.” The PLT agreement expressly reserved the right for National Golf and its successors or assigns to use the property as a golf course and National Golf continues to operate two private golf clubs on the property. The legal description of the property attached to the PLT agreement included multiple sections of land, including land identified as “part of the northwest quarter of section 26,” which National Golf never owned. PLT agreed to inspect and, if necessary, enforce the easement for an annual fee of approximately $15,000.
When National Golf executed the PLT agreement, the property was subject to senior deeds of trust held by two banks. Consents subordinating the interests of the two banks to the easement were not executed by officers of the banks until April 14, 2004, approximately 100 days after execution of the PLT agreement. The consents were recorded on April 15, 2004, and each states that the subordination was made effective as of December 31, 2003, even though National Golf executed the PLT agreement on December 29, 2003, and recorded it on December 30, 2003.
The Tax Court first explained that, while RP Golf claimed a deduction for the value of a conservation easement on approximately 277 acres, neither RP Golf nor National Golf owned an interest in “the northwest quarter of section 26.” Accordingly, PLT had no power or authority to enforce the easement with regard to section 26, and the conveyance of the easement with regard to that property was not a valid conservation contribution.
The Tax Court then explained, citing Mitchell v. Comm’r, 775 F.3d 1243 (10th Cir. 2015) and Minnick v. Comm’r, 796 F.3d 1156 (9th Cir. 2015), that if there is an outstanding mortgage on the subject property at the time of a conservation easement’s donation, the donor must obtain a subordination agreement from the lender at the time of the gift. The Tax Court considered and rejected RP Golf’s argument that the two banks had orally agreed to subordinate their interests before the date of the gift, explaning “the evidence fails to establish that RP Golf and [the banks] entered into any agreements, oral or written, binding under Missouri law, regarding subordination ... on or before ... the date of the PLT agreement.
The Tax Court concluded:
The property described in the PLT agreement ... was subject to preexisting, unsubordinated mortgages on the date of the grant. Because the easement granted by National Golf could have been extinguished by foreclosure between December 29, 2003, and April 15, 2004, it was not protected in perpetuity and, therefore, was not a qualified conservation contribution.
Nancy A. McLaughlin, Robert W. Swenson Professor of Law, University of Utah S.J. Quinney College of Law, Salt Lake City, Utah