Sparta Pink Property, LLC, Sparta Pink Manager, LLC, Tax Matters Partner

United States Tax Court

T.C. Memo. 2022-88

SPARTA PINK PROPERTY, LLC, SPARTA PINK MANAGER, LLC,

TAX MATTERS PARTNER,

Petitioner

v.

COMMISSIONER OF INTERNAL REVENUE,

Respondent

—————

Docket No. 12114-20. Filed August 29, 2022.

—————

Vivian D. Hoard, for petitioner.

Christopher D. Bradley, Lori Katrine Shelton, and Alexandra E. Nicho-

laides, for respondent.

MEMORANDUM OPINION

LAUBER, Judge: This case involves a charitable contribution de-

duction claimed by Sparta Pink Property, LLC (Sparta), for the donation

of a conservation easement. The Internal Revenue Service (IRS or re-

spondent) disallowed most of the deduction and determined penalties.

Petitioner timely petitioned this Court for readjustment of the partner-

ship items.

Currently before the Court is respondent’s Motion for Partial

Summary Judgment. Respondent contends that the deduction was

properly disallowed because the easement’s conservation purpose was

not “protected in perpetuity.” See § 170(h)(5)(A). 1 Separately,

1 Unless otherwise indicated, all statutory references are to the Internal Reve-

nue Code, Title 26 U.S.C., in effect at all relevant times, all regulation references are

to the Code of Federal Regulations, Title 26 (Treas. Reg.), in effect at all relevant times,

and all Rule references are to the Tax Court Rules of Practice and Procedure.

Served 08/29/22

2

[*2] respondent contends that the IRS complied with the requirements

of section 6751(b)(1) by securing timely supervisory approval of the pen-

alties. We will deny the Motion on the section 170(h)(5)(A) question but

grant it with respect to section 6751(b)(1).

Background

The following facts are derived from the pleadings, the parties’

motion papers, and the exhibits and declarations attached thereto. They

are stated solely for purposes of deciding respondent’s Motion and not

as findings of fact in this case. See Sundstrand Corp. v. Commissioner,

98 T.C. 518, 520 (1992), aff’d, 17 F.3d 965 (7th Cir. 1994).

Sparta is a Georgia limited liability company organized in 2016.

It is treated as a TEFRA partnership for Federal income tax purposes,

and petitioner Sparta Pink Manager, LLC, is its tax matters partner. 2

Sparta had its principal place of business in Georgia when the Petition

was timely filed.

In August 2016 WASCO, LLC, acquired a 99% interest in Sparta

by contributing to it roughly 286 acres of land (Property) in Hancock

County, Georgia. In December 2016 Sparta granted to the Southern

Conservation Trust (grantee) a conservation easement over the Prop-

erty. The deed of easement was recorded on December 29, 2016.

Sparta timely filed Form 1065, U.S. Return of Partnership In-

come, for its 2016 tax year. On that return it claimed a charitable con-

tribution deduction of $15,632,748 for its donation of the easement. In

support of this supposed value Sparta relied on an appraisal prepared

by Clayton M. Weibel.

The easement deed recites the conservation purposes and gener-

ally prohibits commercial or residential development. But it reserves

certain rights to Sparta, including the rights to repair, improve, enlarge,

and replace existing improvements on the Property and construct addi-

tional improvements. 3 Additional improvements could include

2Before its repeal, TEFRA (the Tax Equity and Fiscal Responsibility Act of

1982, Pub. L. No. 97-248, §§ 401–407, 96 Stat. 324, 648–71) governed the tax treatment

and audit procedures for many partnerships, including Sparta.

3 When the easement was donated, the Property had a variety of existing im-

provements including two pole sheds (one of which covered an above-ground storage

tank for fuel and electrical power meters), two enclosed storage sheds, a small silo, dog

3

[*3] agricultural structures such as barns and sheds, as well as roads

and utilities to service them.

Paragraph 17 expresses the parties’ intention that “the Purpose

of this Conservation Easement be carried out in perpetuity.” However,

“[i]f circumstances arise in the future that render the Purpose of this

Conservation Easement impossible to accomplish,” giving rise to a judi-

cial extinguishment of the easement, then on any subsequent sale or

conversion the grantee is entitled to a portion of the proceeds.

Paragraph 19 defines the grantee’s share of the proceeds as equal

to “the current fair market value” (FMV) of the easement. The FMV of

the easement is determined by multiplying the sale proceeds by a frac-

tion specified in the regulations. But before this fraction is applied, the

sale proceeds are reduced by “any increase in value after the date of this

Conservation Easement attributable to improvements.”

The IRS selected Sparta’s return for examination and assigned

the case to Revenue Agent (RA) Thomas Rikard. He concluded that

Sparta had significantly overvalued the easement. He determined that

it was entitled to a charitable contribution deduction of only $44,748, as

opposed to the $15,632,748 deduction it claimed.

In January 2020, as his examination of Sparta neared completion,

RA Rikard recommended assertation of the penalty for gross valuation

misstatement. See § 6662(e), (h). In the alternative he recommended

assertion of the penalties for substantial valuation misstatement, re-

portable transaction understatement, negligence, and/or substantial un-

derstatement of income tax. See §§ 6662(b)(1)-(3), (c)-(e), 6662A(b).

RA Rikard’s recommendations to this effect were set forth in a

civil penalty approval form that he prepared on January 27, 2020. His

group manager, Margaret McCarter, digitally signed the form on Feb-

ruary 10, 2020. Ms. McCarter has submitted a declaration confirming

that she supervised RA Rikard’s work during the examination and that

she approved assertion of the penalties by signing the civil penalty ap-

proval form on February 10, 2020.

On February 24, 2020, RA Rikard mailed petitioner a packet of

documents, including his draft revenue agent report (RAR), that set

forth his proposed adjustments and penalty recommendations. More

kennels, gardens, a rock wall with a metal gate, and a high game fence enclosure with

sheds used for deer feeding and management.

4

[*4] than four months later, on July 9, 2020, the IRS issued petitioner a

notice of final partnership administrative adjustment (FPAA), including

a Form 886–A, Explanation of Items. The FPAA reduced the allowable

charitable contribution deduction by $15,588,000—i.e., from

$15,632,748 to $44,748—and determined the penalties set forth on the

penalty approval form. Petitioner timely petitioned this Court for read-

justment of partnership items.

Discussion

I. Summary Judgment Standard

The purpose of summary judgment is to expedite litigation and

avoid costly, unnecessary, and time-consuming trials. See FPL Grp.,

Inc. & Subs. v. Commissioner, 116 T.C. 73, 74 (2001). We may grant

partial summary judgment regarding an issue as to which there is no

genuine dispute of material fact and a decision may be rendered as a

matter of law. See Rule 121(b); Sundstrand Corp., 98 T.C. at 520. In

deciding whether to grant partial summary judgment, we construe fac-

tual materials and inferences drawn from them in the light most favor-

able to the nonmoving party. Sundstrand Corp., 98 T.C. at 520. Where

the moving party properly makes and supports a motion for summary

judgment, “an adverse party may not rest upon the mere allegations or

denials of such party’s pleading” but must set forth specific facts, by af-

fidavit or otherwise, showing that there is a genuine dispute for trial.

Rule 121(d).

II. Analysis

A. “Protected in Perpetuity”

The Internal Revenue Code generally restricts a taxpayer’s char-

itable contribution deduction for the donation of “an interest in property

which consists of less than the taxpayer’s entire interest in such prop-

erty.” § 170(f)(3)(A). But there is an exception for a “qualified conser-

vation contribution.” § 170(f)(3)(B)(iii), (h)(1). For the donation of an

easement to be a “qualified conservation contribution,” the conservation

purpose must be “protected in perpetuity.” § 170(h)(1)(C), (5)(A); see

TOT Prop. Holdings, LLC. v. Commissioner, 1 F.4th 1354, 1362 (11th

Cir. 2021); PBBM-Rose Hill, Ltd. v. Commissioner, 900 F.3d 193, 201

(5th Cir. 2018).

In 1986 the Department of the Treasury issued final rules for de-

termining whether this “protected in perpetuity” requirement is met. Of

5

[*5] importance here are the rules governing the mandatory division of

proceeds in the event the property is sold following extinguishment of

the easement. See Treas. Reg. § 1.170A-14(g)(6). The regulations rec-

ognize that “a subsequent unexpected change in the conditions sur-

rounding the [donated] property . . . can make impossible or impractical

the continued use of the property for conservation purposes.” Id.

subdiv. (i). Despite that possibility, “the conservation purpose can none-

theless be treated as protected in perpetuity if the restrictions are extin-

guished by judicial proceeding” and the easement deed ensures that the

charitable grantee, following sale of the property, will receive a propor-

tionate share of the proceeds and use those proceeds consistently with

the conservation purposes underlying the original gift. Ibid. In effect,

the “perpetuity” requirement is deemed satisfied because the sale pro-

ceeds replace the easement as an asset deployed by the donee “exclu-

sively for conservation purposes.” § 170(h)(5)(A).

In Coal Property Holdings, LLC v. Commissioner, 153 T.C. 126,

137–40 (2019), we held that a deed of easement failed to satisfy these

requirements where the grantee’s share of postextinguishment sale pro-

ceeds was improperly reduced by carve-outs for “donor improvements.”

See also TOT Prop., 1 F.4th at 1363; PBBM-Rose Hill, 900 F.3d 193 at

207–08. Respondent contends that the deed in this case has this defect.

Petitioner contends that the Motion should be denied in light of

Hewitt v. Commissioner, 21 F.4th 1336 (11th Cir. 2021), rev’g and re-

manding T.C. Memo. 2020-89. In Hewitt the U.S. Court of Appeals for

the Eleventh Circuit held that “the Commissioner’s interpretation of

§ 1.170A-14(g)(6)(ii), to disallow the subtraction of the value of

post-donation improvements . . . , is arbitrary and capricious and there-

fore invalid under the [Administrative Procedure Act’s] procedural re-

quirements.” Id. at 1353. Contra Oakbrook Land Holdings, LLC v.

Commissioner, 28 F.4th 700, 717–18 (6th Cir. 2022) (disagreeing with

Hewitt and holding the regulation to be valid), aff’g 154 T.C. 180 (2020).

Absent stipulation to the contrary, appeal of this case would lie to

the Eleventh Circuit. See § 7482(b)(1)(E). We are therefore obligated to

follow the law as established by the Eleventh Circuit on this question.

See Golsen v. Commissioner, 54 T.C. 742, 756–57 (1970), aff’d, 445 F.2d

985 (10th Cir. 1971). We will accordingly deny respondent’s Motion for

Partial Summary Judgment on this point, without prejudice to his re-

submission of the arguments set forth therein should subsequent devel-

opments warrant that action.

6

[*6] B. Penalty Approval

Section 6751(b)(1) provides that “[n]o penalty under this title

shall be assessed unless the initial determination of such assessment is

personally approved (in writing) by the immediate supervisor of the in-

dividual making such determination.” In a TEFRA case such as this,

supervisory approval generally must be obtained before the IRS issues

an FPAA to the partnership. See Palmolive Bldg. Invs., LLC v. Commis-

sioner, 152 T.C. 75, 83 (2019). Once the Commissioner introduces evi-

dence sufficient to show that written supervisory approval was obtained

by that date, the partnership must establish that the approval was un-

timely, i.e., “that there was a formal communication of the penalty be-

fore the proffered approval” was secured. See Frost v. Commissioner,

154 T.C. 23, 35 (2020). 4

Respondent has supplied a copy of the civil penalty approval form

by which RA Rikard recommended assertion of penalties against Sparta.

RA Rikard finalized that form on January 27, 2020. His immediate su-

pervisor, Ms. McCarter, digitally signed the form on February 10, 2020.

The RAR notifying Sparta of the proposed penalties was sent on Febru-

ary 24, 2020. The FPAA with enclosed Form 886–A was issued on

July 9, 2020. Because RA Rikard secured supervisory approval from Ms.

McCarter before either of those communications was made to Sparta,

the approval was timely. See Frost, 154 T.C. at 35. 5

4 Although the Commissioner does not bear a burden of production with respect

to penalties in a partnership-level proceeding, a partnership may raise section 6751(b)

as an affirmative defense. See Dynamo Holdings Ltd. P’ship v. Commissioner, 150 T.C.

224, 236–37 (2018).

5 Because RA Rikard secured supervisory approval on February 10, 2020, we

need not decide whether the “initial determination” to assert penalties was embodied

in the RAR (dated February 24, 2020) or in the FPAA (dated July 9, 2020). In

Laidlaw’s Harley Davidson Sales, Inc. v. Commissioner, 29 F.4th 1066 (9th Cir. 2022),

rev’g and remanding 154 T.C. 68 (2020), the U.S. Court of Appeals for the Ninth Circuit

considered the timeline for obtaining supervisory approval of “assessable penalties,”

which are not subject to deficiency or TEFRA procedures. The court held that, for an

assessable penalty, supervisory approval is timely if secured before the penalty is as-

sessed or “before the relevant supervisor loses discretion whether to approve the pen-

alty assessment.” Id. at 1074. The court suggested that, in a deficiency or TEFRA case

such as this, the deadline for securing supervisory approval would be the issuance of

the notice of deficiency or the FPAA. See id. at 1071 n.4. If that analysis were adopted

here, supervisory approval of the penalties was clearly timely: Approval was secured

in February 2020, and the FPAA was not issued until July 2020.

7

[*7] Petitioner does not allege that the IRS formally communicated to

Sparta, before February 10, 2020, its decision to assert penalties. Ra-

ther, petitioner argues that “[r]espondent did not make any effort to au-

thenticate the documents attached to the declarations,” including the

civil penalty approval form and the sworn declarations from Ms.

McCarter and RA Rikard. Petitioner asserts that the relevant facts

must be established at trial.

We disagree. Respondent has supplied documentary evidence

confirming that RA Rikard’s immediate supervisor approved the asser-

tion of penalties on February 10, 2020. Ms. McCarter has supplied a

declaration, under penalties of perjury, averring: “In my role as group

manager, I reviewed Mr. Rikard’s work, including his revenue agent re-

port and work papers from the examination . . . .” See Sand Inv. Co. v.

Commissioner, 157 T.C. 136, 142 (2021) (holding that the “immediate

supervisor” is the person who supervises the agent’s substantive work

on an examination).

We have repeatedly held that a “group manager’s signature on

the Civil Penalty Approval Form is sufficient to satisfy the statutory re-

quirements.” Belair Woods, LLC v. Commissioner, 154 T.C. 1, 17 (2020).

And we have regularly decided section 6751(b)(1) questions on summary

judgment on the basis of IRS records and declarations from relevant IRS

officers. See, e.g., Sand Inv., 157 T.C. at 142; Long Branch Land, LLC

v. Commissioner, T.C. Memo. 2022-2; Excelsior Aggregates, LLC v. Com-

missioner, T.C. Memo. 2021-125. In so doing, we have rejected the no-

tion that examining agents and their supervisors must be subjected to

cross-examination. See Thompson v. Commissioner, T.C. Memo. 2022-

80, at *8; Raifman v. Commissioner, T.C. Memo. 2018-101, 116 T.C.M.

(CCH) 13, 27–28 (holding that cross-examination “would be immaterial

and wholly irrelevant to ascertaining whether [the IRS] complied with

the written supervisory approval requirement”).

With respect to the valuation misstatement penalties in particu-

lar, petitioner asserts that neither RA Rikard nor Ms. McCarter “had a

factual basis to assert penalties” at the time these penalties were rec-

ommended and approved. That is supposedly because, according to RA

Rikard’s case activity record, the IRS engineer did not transmit an ap-

praisal to him until February 24, 2020, two weeks after Ms. McCarter

signed the penalty approval form. Petitioner surmises that Ms.

McCarter approved the “categorical assertion of penalties based on the

type of transaction” rather than undertaking an “actual review of the

agent’s substantive work.”

8

[*8] Petitioner misapprehends the requirements of section 6751(b).

That provision is captioned “Approval of assessment,” not “Explanation

of assessment,” and requires that the initiated determination be “ap-

proved.” See Pickens Decorative Stone, LLC v. Commissioner, T.C.

Memo. 2022-22, at *7. As we have said before: “The written supervisory

approval requirement . . . requires just that: written supervisory ap-

proval.” Ibid. (quoting Raifman, 116 T.C.M. (CCH) at 28).

We have repeatedly rejected any suggestion that a penalty ap-

proval form or similar document must “demonstrate the depth or com-

prehensiveness of the supervisor’s review.” Belair Woods, 154 T.C.

at 17. Faced with assertions that IRS officers gave insufficient consid-

eration to the matters before them, we have ruled such lines of inquiry

“immaterial and wholly irrelevant to ascertaining whether respondent

complied with the written supervisory approval requirement.” Patel v.

Commissioner, T.C. Memo. 2020-133, 120 T.C.M. (CCH) 211, 214 (quot-

ing Raifman, 116 T.C.M. (CCH) at 27–28); see Estate of Morrissette v.

Commissioner, T.C. Memo. 2021-60, 121 T.C.M. (CCH) 1447, 1474.

To the extent petitioner asks us to look behind the civil penalty

approval form, “it would be imprudent for this Court to now begin ex-

amining the propriety of the Commissioner’s administrative policy or

procedure underlying his penalty determinations.” See Raifman, 116

T.C.M. (CCH) at 28 (citing Greenberg’s Express, Inc. v. Commissioner,

62 T.C. 324, 328–29 (1974)). We reiterate (as if it needed reiteration)

that a group manager’s signature on a civil penalty approval form, with-

out more, is sufficient to satisfy the statutory requirements. See Belair

Woods, 154 T.C. at 17. 6

To defeat a motion for summary judgment, petitioner “must set

forth specific facts showing that there is a genuine dispute for trial.”

Rule 121(d). Petitioner has set forth no “specific facts” to dispute the

existence or timeliness of Ms. McCarter’s signature. We thus hold that

6 Petitioner asks that we defer decision of this question pending further discov-

ery into the IRS administrative file, which petitioner hopes will confirm its submission

that RA Rikard and Ms. McCarter lacked “a factual basis to assert penalties.” Because

the information sought is not relevant to any issue decided in this Opinion, we decline

petitioner’s request. See Thompson, T.C. Memo. 2022-80, at *9 n.6; Estate of Goldstein

v. Commissioner, T.C. Memo. 1986-599, 52 T.C.M. (CCH) 1244, 1246–47 (finding tax-

payer’s formal discovery request irrelevant when the information sought would not

affect the outcome).

9

[*9] all of the penalties determined have received the requisite supervi-

sory approval.

To reflect the foregoing,

An order will be issued granting in part and denying in part re-

spondent’s Motion for Partial Summary Judgment.