Patrick J. Wachter & Louise M. Wachter v. Commissioner ( 2014 )

PATRICK J. WACHTER AND LOUISE M. WACHTER, PETITIONERS
v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT
MICHAEL E. WACHTER AND KELLY A. WACHTER, PETITIONERS
v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT
Docket Nos. 9213–11, 9219–11. Filed March 11, 2014.
For 2004 through 2006 Ps reported charitable contributions
that flowed to them from a partnership and an LLC, both of
which were treated as partnerships for tax purposes. For each
year the LLC reported charitable contributions of cash and
the partnership reported bargain sales of conservation ease-
ments as charitable contributions of property. R issued notices
of deficiency to Ps disallowing all of the charitable contribu-
tion deductions and determining accuracy-related penalties. R
filed a motion for partial summary judgment asserting that Ps
did not satisfy the ‘‘contemporaneous written acknowledg-
ment’’ requirement for the cash contributions. For the prop-
erty contributions, respondent asserted that the easements
were not granted in perpetuity as a result of a North Dakota
State law that limits the duration of a real property ease-
ment. Held: North Dakota State law limits the duration of an
easement to not more than 99 years, thus precluding a North
Dakota conservation easement from qualifying as granted ‘‘in
perpetuity’’ under I.R.C. sec. 170(h)(2)(C) and (5)(A). Held,
further, material facts remain in dispute regarding whether
Ps satisfied the ‘‘contemporaneous written acknowledgment’’
requirement of I.R.C. sec. 170(f )(8) and sec. 1.170A–13(f )(15),
Income Tax Regs., and thus summary judgment is not appro-
priate on this issue.
Jon J. Jensen, for petitioners.
David L. Zoss and Christina L. Cook, for respondent.
BUCH, Judge: These cases are before the Court on respond-
ent’s motion for partial summary judgment. The issues for
decision are:
(1) whether a State law that limits the duration of an ease-
ment to not more than 99 years precludes petitioners’ con-
servation easements from qualifying as granted ‘‘in per-
petuity’’ under section 170(h)(2)(C) or (5)(A). 1 We hold that
it does; and
1 Unless otherwise indicated, all section references are to the Internal
Revenue Code (Code) in effect for the years in issue, and all Rule ref-
erences are to the Tax Court Rules of Practice and Procedure.
140
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(140) WACHTER v. COMMISSIONER 141
(2) whether the documents petitioners provided to the IRS
satisfy the ‘‘contemporaneous written acknowledgment’’
requirement of section 170(f)(8) and section 1.170A–13(f)(15),
Income Tax Regs. We hold that material facts remain in dis-
pute and thus summary judgment is not appropriate for this
issue.
FINDINGS OF FACT
The transactions at issue involve members of the Wachter
family and entities that they controlled. Michael and Kelly
Wachter filed joint income tax returns for all the years in
issue: 2004 through 2006. The same is true for Patrick and
Louise Wachter. During the years in issue, Michael, Patrick,
and Louise each held varying interests in two entities: WW
Ranch, a partnership, and Wind River Properties LLC (Wind
River), a limited liability company that is treated as a part-
nership for tax purposes. Wind River at times operated
under the name Windsor Storage. For convenience, we will
refer to petitioners individually by their given names or to
Michael, Patrick, and Louise (as owners of WW Ranch and
Wind River) collectively as the Wachters.
Farm and Ranch Lands Protection Program
Section 2503 of the Farm Security and Rural Investment
Act of 2002, Pub. L. No. 107–171, 116 Stat. at 267, author-
ized the Secretary of Agriculture to purchase conservation
easements in order to protect topsoil by limiting non-
agricultural uses of certain lands and authorized funding for
such purchases. The United States, acting through the Com-
modity Credit Corporation (CCC), entered into cooperative
agreements in order to implement the Farm and Ranch
Lands Protection Program and used the Natural Resources
Conservation Service (NRCS) of the Department of Agri-
culture to administer the program. The parties provided to
the Court a copy of a 2003 cooperative agreement between
the CCC and the American Foundation for Wildlife (AFW)
with an attachment referencing land owned by WW Ranch.
The cooperative agreement listed the requirements for such
an easement, including that the easement ‘‘[r]un with the
land in perpetuity or a minimum of thirty years, where State
law prohibits a permanent easement.’’ As a part of the
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142 142 UNITED STATES TAX COURT REPORTS (140)
cooperative agreement, the NRCS listed its prerequisites for
easement purchases before the Federal Government would
release the Federal funds to reimburse AFW for up to 50%
of the easement purchase price. The cooperative agreement
included a provision whereby a landowner could donate up to
25% of the appraised fair market value of the easement and
that such a donation may be considered as part of AFW’s
contribution to the purchase price. However, in order for the
landowner’s donation to be considered part of AFW’s con-
tribution, AFW was required to get a current appraisal of the
contribution. In the event the landowner made such a dona-
tion, NRCS required a copy of the landowner’s IRS Form
8283, Noncash Charitable Contributions, before the NRCS
would release the federal funds.
Cash Contributions
On its returns for the years in issue, Wind River reported
the following cash charitable contributions, which it allocated
amongst its members:
2004 ............................................................ $170,000
2005 ............................................................ 171,150
2006 ............................................................ 144,500
On behalf of Wind River, Michael and Patrick signed an
agreement dated February 26, 2004, with North Dakota Nat-
ural Resource Trust (NRT) agreeing to donate $170,000 by
March 1, 2004. Michael signed a check dated February 26,
2004, from Windsor Storage payable to NRT for $170,000.
NRT provided a letter dated March 23, 2004, to Michael and
Patrick ‘‘dba WW Ranch’’ acknowledging the cash gift and
stating that NRT provided no goods or services in exchange
for the donation.
Michael signed a check dated March 23, 2005, from
Windsor Storage payable to NRT for $171,150. The Wachters
provided the IRS with a letter from NRT dated March 21,
2005, to Windsor Storage acknowledging the cash gift and
stating that NRT provided no goods or services in exchange
for the donation. The only copy of this letter in the record is
unsigned.
Someone prepared a check dated May 9, 2006, from
Windsor Storage payable to NRT for $144,500. The only copy
of this check in the record is unsigned, but the parties do not
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(140) WACHTER v. COMMISSIONER 143
appear to dispute that the payment was made. NRT provided
a letter dated May 10, 2006, to Windsor Storage acknowl-
edging the cash gift and stating that NRT provided no goods
or services in exchange for the donation.
Bargain Sale Charitable Contributions
On its partnership returns for the years in issue, WW
Ranch reported bargain sales of conservation easements as
charitable contributions as follows:
2004 ............................................................ $349,000
2005 ............................................................ 247,550
2006 ............................................................ 162,500
For each year, the parties to the transaction obtained two
appraisals of the property that was to be contributed. Each
appraisal valued the property according to a different land
use, and the Wachters used the difference in appraised
values to determine the value of the conservation easement
and thus the amounts of their charitable contributions.
NRT obtained an appraisal of WW Ranch’s sections 5 and
6 parcel 2 as of April 30, 2003, determining a value of
$31,000 for use as agricultural property. A second appraisal
dated May 14, 2003, was prepared for the sections 5 and 6
parcel, determining a value of $1,400,000 for use as ‘‘rural
residential sites’’. On March 8, 2004, WW Ranch sold a con-
servation easement on its sections 5 and 6 parcel to AFW for
$1,020,000 (of which $170,000 was supplied by NRT). The
Wachters subtracted the sale price of $1,020,000 from the
difference in value of the two appraisals of $1,369,000 to
arrive at their charitable contribution deduction of $349,000.
NRT obtained two appraisals of WW Ranch’s section 8
parcel as of February 21, 2005, one for use as agricultural
property determining a value of $10,000 and one for ‘‘full
developmental value’’ determining a value of $915,000. On
March 24, 2005, WW Ranch sold a conservation easement on
the section 8 parcel to AFW for $657,450 (of which $171,150
was supplied by NRT). The Wachters subtracted the sale
2 Each
parcel at issue is located in one or more sections of Township 140
North, Range 81 West of Morton County, North Dakota. The parties refer
to the properties at issue as the ‘‘sections 5 and 6 parcel’’, the ‘‘section 8
parcel’’, and the ‘‘sections 16 and 18 parcels’’, and we adopt their termi-
nology.
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144 142 UNITED STATES TAX COURT REPORTS (140)
price of $657,450 from the difference in value of the two
appraisals of $905,000 to arrive at their charitable contribu-
tion deduction of $247,550.
NRT obtained two appraisals of WW Ranch’s sections 16
and 18 parcels as of August 25, 2005, one subject to a pro-
posed conservation easement determining a value of $46,000
and one for rural residential development determining a
value of $696,000. On May 11, 2006, WW Ranch sold a con-
servation easement on its section 16 and 18 parcels to AFW
for $487,500 (of which $144,500 was supplied by NRT). The
Wachters subtracted the sale price of $487,500 from the dif-
ference in value of the two appraisals of $650,000 to arrive
at their charitable contribution deduction of $162,500.
Individual Reporting
Patrick and Louise reported charitable contributions on
their joint Federal income tax returns as follows:
2004 Cash—Wind River $85,000
Noncash—WW Ranch 174,500
2005 Cash 85,575
Noncash 123,775
2006 Cash 72,250
Noncash 81,250
Michael and Kelly reported charitable contributions on
their joint Federal income tax returns as follows:
2004 Cash—Wind River $85,000
Noncash—WW Ranch 174,500
2005 Cash 85,575
Noncash 123,775
2006 Cash 72,250
Noncash 81,250
On April 8, 2011, respondent issued notices of deficiency to
both couples disallowing the charitable contribution deduc-
tions related to WW Ranch and Wind River and determining
accuracy-related penalties under section 6662. Each couple
timely filed a petition disputing their notice of deficiency,
and the Court consolidated the cases for trial, briefing, and
opinion. Respondent filed a motion for partial summary judg-
ment and a memorandum of facts and law in support of his
motion for partial summary judgment, the Wachters filed a
response, and respondent filed a reply.
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(140) WACHTER v. COMMISSIONER 145
OPINION
Either party may move for summary judgment regarding
all or any part of the legal issues in controversy. See Rule
121(a). We may grant summary judgment only if there are
no genuine disputes of fact. See Rule 121(b); Naftel v.
Commissioner, 85 T.C. 527, 529 (1985). Respondent, as the
moving party, bears the burden of proving that no genuine
dispute exists as to any material fact and that respondent is
entitled to judgment as a matter of law. See Sundstrand
Corp. v. Commissioner, 98 T.C. 518, 520 (1992), aff ’d, 17
F.3d 965 (7th Cir. 1994). In deciding whether to grant sum-
mary judgment, the factual materials and the inferences
drawn from them must be considered in the light most favor-
able to the nonmoving party. See FPL Grp., Inc. v. Commis-
sioner, 115 T.C. 554, 559 (2000); Bond v. Commissioner, 100
T.C. 32, 36 (1993); Naftel v. Commissioner, 85 T.C. 529.
When a motion for summary judgment is made and properly
supported, the nonmoving party may not rest on mere allega-
tions or denials but must set forth specific facts showing that
there is a genuine dispute for trial. See Celotex Corp. v.
Catrett, 477 U.S. 317, 324 (1986); Sundstrand Corp. v.
Commissioner, 98 T.C. 520; see also Rule 121(d).
Respondent filed the motion for partial summary judgment;
therefore we construe all factual disputes and draw all
inferences in favor of the Wachters.
A deduction is allowed for any charitable contribution for
which payment is made within the taxable year if the con-
tribution is verified under regulations prescribed by the Sec-
retary. Sec. 170(a)(1). The Wachters claimed charitable con-
tribution deductions for both cash and noncash contributions
for each year. We discuss each in turn.
Noncash Contributions
Generally, a charitable contribution deduction is not
allowed for a charitable gift of property consisting of less
than the donor’s entire interest in that property. Sec.
170(f)(3)(A). However, there is an exception for a ‘‘qualified
conservation contribution.’’ Sec. 170(f)(3)(B)(iii). A contribu-
tion of real property is a qualified conservation contribution
if (1) the real property is a ‘‘qualified real property interest’’,
(2) the contributee is a ‘‘qualified organization’’, and (3) the
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146 142 UNITED STATES TAX COURT REPORTS (140)
contribution is ‘‘exclusively for conservation purposes.’’ Sec.
170(h)(1); see also sec. 1.170A–14(a), Income Tax Regs. For
the purposes of the motion for partial summary judgment,
respondent argues that the State law restricting easements
to 99 years prevents the conservation easements from being
qualified real property interests and prevents the conserva-
tion easements from being exclusively for conservation pur-
poses.
North Dakota Law
We look to State law to determine the nature of property
rights, whereas Federal law determines the appropriate tax
treatment of those rights. United States v. Nat’l Bank of
Commerce, 472 U.S. 713, 722 (1985); see also 61 York
Acquisition, LLC v. Commissioner, T.C. Memo. 2013–266, at
*8.
Beginning in 1915, the United States signed several trea-
ties agreeing to protect migratory birds and their habitats.
See North Dakota v. United States, 460 U.S. 300, 309–310
n.12 (1983), aff ’g 650 F.2d 911 (8th Cir. 1981). Between 1931
and 1977 the United States acquired easements covering
nearly 1 million acres of land in North Dakota for use as
migratory bird refuges. Id. at 304–305. However, cooperation
between the Federal Government and the State of North
Dakota broke down such that in 1977 the State enacted a
law, which it amended in 1979 and 1981, (1) requiring
approval for all wetland acquisitions first by the board of
county commissioners and only then by the governor, (2)
allowing the landowner to negotiate the terms of the ease-
ment and ‘‘‘drain any after-expanded wetland or water area
in excess of the legal description’’’, and (3) restricting all
easements to a maximum of 99 years. Id. at 306–308 & n.8
(quoting N.D. Cent. Code sec. 20.1–02–18.2 (1981)).
The United States brought a declaratory judgment action
in the U.S. District Court for the District of North Dakota,
seeking judgment that, inter alia, the State law was hostile
to Federal law in certain respects and could not be applied.
Id. at 309. The District Court granted the United States
summary judgment, and the United States Court of Appeals
for the Eighth Circuit affirmed. Id. The Supreme Court
determined that because of the migratory bird treaties and
the ‘‘ ‘certainty and finality’ that we have regarded as ‘critical
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(140) WACHTER v. COMMISSIONER 147
when * * * federal officials carrying out the mandate of Con-
gress irrevocably commit scarce funds’ ’’, the North Dakota
statute was hostile to Federal interests and may not be
applied to the easements for which the Federal Government
had already received consent. Id. at 320 (quoting United
States v. Little Lake Misere, 412 U.S. 580, 596 (1973)).
The Supreme Court in North Dakota v. United States
invalidated the 99-year restriction only insofar as it related
to easements on wetlands for which the Federal Government
had already received consent. The Supreme Court did not
invalidate the 99-year restriction in all situations in which
the Federal Government is a party, directly or indirectly, to
an easement purchase.
For the years in issue, N.D. Cent. Code sec. 47–05–02.1
(1999 & Supp. 2013) provided in pertinent part:
Real property easements * * * which become binding after July 1, 1977,
shall be subject to the requirements of this section. These requirements
are deemed a part of any agreement for such interests in real property
whether or not printed in a document of agreement.
* * * * * * *
2. The duration of the easement * * * on the use of real property must
be specifically set out, and in no case may the duration of any interest
in real property regulated by this section exceed ninety-nine years. * * *
Both parties allege that the State law at issue here is
unique because this is the only State that has a law that pro-
vides for a maximum duration that may not be overcome by
agreement. The parties agree that, by operation of State law,
the easements at issue will expire 99 years after they were
conveyed. The parties do not draw a distinction where the
donee of the easement is the Federal Government or an
entity acting on behalf of the Federal Government. Nor do we
see a distinction.
Respondent asserts that the State law restriction prevents
the easements from being granted in perpetuity, which in
turn prevents them from being both qualified real property
interests under section 170(h)(2) and contributions exclu-
sively for conservation purposes under section 170(h)(5). Peti-
tioners, however, assert that the 99-year limitation should be
considered the equivalent of a remote future event or the
retention of a negligible interest because at present the
remainder is ‘‘essentially valueless.’’ There are two separate
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148 142 UNITED STATES TAX COURT REPORTS (140)
and distinct perpetuity requirements, and the failure to sat-
isfy either of them will prevent the easements from being
qualified conservation contributions. See Belk v. Commis-
sioner, 140 T.C. 1, 12 (2013).
Qualified Real Property Interest
Under section 170(h)(2)(C), a qualified real property
interest means ‘‘a restriction (granted in perpetuity) on the
use which may be made of the real property.’’ The Wachters
assert that the possibility that the land would revert back to
them, WW Ranch, or their successors in interest is the
equivalent of a remote future event that will not prevent the
easements from being perpetual. Section 1.170A–14(g)(3),
Income Tax Regs., provides:
(3) Remote future event.—A deduction shall not be disallowed under
section 170(f)(3)(B)(iii) and this section merely because the interest
which passes to, or is vested in, the donee organization may be defeated
by the performance of some act or the happening of some event, if on
the date of the gift it appears that the possibility that such act or event
will occur is so remote as to be negligible. * * *
This Court has construed ‘‘so remote as to be negligible’’ as
‘‘ ‘a chance which persons generally would disregard as so
highly improbable that it might be ignored with reasonable
safety in undertaking a serious business transaction’ ’’, 885
Inv. Co. v. Commissioner, 95 T.C. 156, 161 (1990) (quoting
United States v. Dean, 224 F.2d 26, 29 (1st Cir. 1955)), or ‘‘ ‘a
chance which every dictate of reason would justify an intel-
ligent person in disregarding as so highly improbable and
remote as to be lacking in reason and substance’ ’’, Graev v.
Commissioner, 140 T.C. 377, 394 (2013) (quoting Briggs v.
Commissioner, 72 T.C. 646, 657 (1979), aff ’d without pub-
lished opinion, 665 F.2d 1051 (9th Cir. 1981)). ‘‘[A] conserva-
tion easement fails to be ‘in perpetuity’ * * * if, on the date
of the donation, the possibility that the charity may be
divested of its interest in the easement is not so remote as
to be negligible.’’ Id. at 393.
‘‘Remote’’ has various commonly accepted meanings. For
example, remote can mean ‘‘far distant in space’’, ‘‘secluded’’,
‘‘distant in time’’, ‘‘distant in relationship’’, or ‘‘slight or faint;
unlikely’’. Webster’s New Universal Unabridged Dictionary
1630 (2d ed. 2003). As is relevant here, ‘‘remote’’ could refer
to a temporal sense (distant, remote in time) or in a probable
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(140) WACHTER v. COMMISSIONER 149
sense (unlikely, a remote possibility). Id.; see also The Amer-
ican Heritage Dictionary of the English Language 1476 (4th
ed. 2000). Both the regulation and our caselaw focus on the
term ‘‘remote’’ in terms of likelihood.
As used in the regulation and as interpreted by our
caselaw, the event is not remote. On the dates of the dona-
tions it was not only possible, it was inevitable that AFW
would be divested of its interests in the easements by oper-
ation of North Dakota law. Therefore, the easements were
not restrictions granted in perpetuity and were thus not
qualified conservation contributions. 3 As a result, we will
grant respondent’s motion for partial summary judgment
insofar as the State law prevents a charitable contribution
deduction for a conservation easement conveyed under the
State law. 4
Cash Contributions
For any cash charitable contribution of $250 or more, the
taxpayer must obtain a contemporaneous written acknowl-
edgment from the donee. Sec. 170(f)(8)(A). Section 170(f)(8)(B)
provides that the contemporaneous written acknowledgment
must include the following:
(B) CONTENT OF ACKNOWLEDGEMENT.—An acknowledgment meets the
requirements of this subparagraph if it includes the following informa-
tion:
(i) The amount of cash and a description (but not value) of any prop-
erty other than cash contributed.
(ii) Whether the donee organization provided any goods or services
in consideration, in whole or in part, for any property described in
clause (i).
(iii) A description and good faith estimate of the value of any goods
or services referred to in clause (ii) or, if such goods or services consist
solely of intangible religious benefits, a statement to that effect.
3 We note that, in isolated situations, a long-term lease may be treated
as the equivalent of a fee simple interest. See, e.g., secs. 1.1031(a)–1(c),
1.1033(g)–1(b)(4), Income Tax Regs. But unlike section 170(h)(2)(C), those
isolated situations address exchanges for ‘‘like’’ or ‘‘similar’’ property and
do not involve an express statutory requirement that an interest be ‘‘in
perpetuity’’.
4 We express no opinion on petitioners’ argument that at present the re-
mainder is essentially valueless; to do so would require that we resolve a
question of fact regarding value.
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150 142 UNITED STATES TAX COURT REPORTS (140)
Section 170(f)(8)(C) provides that a written acknowledg-
ment is contemporaneous when the taxpayer obtains it on or
before the earlier of: (1) the date the taxpayer files a return
for the taxable year of contribution or (2) the due date,
including extensions, for filing that return.
Respondent asserts that none of the letters the Wachters
provided to the IRS constitutes a valid contemporaneous
written acknowledgment. Respondent asserts (1) that none of
the letters was addressed to Wind River, the entity that
made the cash contributions, (2) NRT provided goods or serv-
ices to the Wachters each year that were not mentioned in
the letters, 5 and (3) the values of the goods or services were
not mentioned in the letters. Further, respondent asserts the
2005 letter fails to qualify as a contemporaneous written
acknowledgment because the letter is unsigned and it pre-
dates the check by two days. 6
With respect to the assertion that the Wachters received
some benefit that was not disclosed or valued in the letters,
respondent has not proven on this record that the Wachters
expected or received a benefit in exchange for their cash
donations. If a taxpayer receives or expects to receive a ben-
efit that is not disclosed in the contemporaneous written
acknowledgment, the entire cash contribution deduction is
disallowed. See Addis v. Commissioner, 118 T.C. 528 (2002),
aff ’d, 374 F.3d 881 (9th Cir. 2004); see also Viralam v.
Commissioner, 136 T.C. 151, 170–171 (2011); Averyt v.
Commissioner, T.C. Memo. 2012–198. Because the receipt of
an expected or actual benefit is a material fact that remains
in dispute, summary judgment is not proper on this issue.
The Wachters assert that the checks and letters for each
year as well as the 2004 agreement can be taken together to
meet the requirements of a contemporaneous written
acknowledgment. In Irby v. Commissioner, 139 T.C. 371, 389
(2012), the Court held that a series of documents may con-
stitute a contemporaneous written acknowledgment, and the
Wachters may yet be able to authenticate disputed docu-
ments and provide additional documents to supplement those
5 At
minimum, respondent asserts that the goods or services provided
were the appraisals NRT obtained and the partial funding it supplied for
the bargain sales.
6 Respondent also contests the authenticity of this document.
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(140) WACHTER v. COMMISSIONER 151
they have included with the stipulation of facts. Because we
must construe all factual inferences in favor of the non-
moving party, we must deny summary judgment regarding
the cash charitable contribution deductions.
Conclusion
We conclude that respondent is entitled to partial sum-
mary judgment disallowing the charitable contribution
deductions for the bargain sales of the conservation ease-
ments because North Dakota law prohibits real property
easements from being granted in perpetuity. Thus a con-
servation easement conveyed subject to the statute cannot
result in a charitable contribution deduction under section
170(f)(3)(B)(iii). However, because material facts remain in
dispute as to whether the Wachters expected to receive or
actually received goods or services in exchange for their cash
contributions and the Wachters may yet be able to supple-
ment the record to meet all of the requirements of a contem-
poraneous written acknowledgment, we will deny the motion
for partial summary judgment on the issue of the cash con-
tributions.
To reflect the foregoing,
An appropriate order will be issued.
f
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