T .C . Memo . 2009-20 8
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T .C . Memo . 2009-20 8
UNITED STATES TAX COUR T
DOROTHY JEAN SIMMONS , Petitioner v .
COMMISSIONER OF INTERNAL REVENUE, Responden t,
Docket Nos . 18647- 06, 18654-06 . Filed September 15, 2009 .
Robert J . Onda and Timothy S . Rankin , for petitioner .
Michael A . Raiken , for respondent .
MEMORANDUM FINDINGS OF FACT AND OPINION
GOEKE,
Judge : Respondent determined the following income
tax deficiencies and additions to tax with respect to petitioner
in these consolidated cases :
SERVED SEP 15 2009
- 2 Additions to Ta x
Year Deficiency Sec . 6651(a)(1) Sec . 6651(a)(2) Sec . 665 4
2003 $84,739 .60 $19,066 .41 $10,168 .75 $2,217 .64
4 ;065 .12 1,9661,.6 3
2004 67,752 .00 15,244 .20
After concessions,' the issue for decision
is whether petitione r
is entitled to charitable contribution deductions with respect to
r-conservation easements petitioner granted to L' Enfant Trust, Inc .
(L'Enfant) . For the reasons stated herein, we find tha t
-jpett'oner is entitled to charitable contribution deductions o f
56,r250 for 2003 and $42,250 for 2004 .
--= .Unle`ss otherwise indicated, all section references are t o
the .-Internal Revenue Code in effect for the years at issue and
;1r-a11- -' Rule .,,reference s are to the .Tax Court Rules of Practice an d
Procedure .
FINDINGS OF FACT
Some of the facts have been stipulated and are so found .
The stipulation of facts and the attached exhibits are
incorporated herein by this reference . Petitioner resided i n
1 : Washington, District of Columbia, at the time she filed he r
petition in this case . Petitioner was a real estate agent during
2003 and 2004, operating under the real estate brokerage firm of
Coldwell Banker .
'The parties settled before trial a number of unrelated
issues in the notice of deficiency . That settlement will be
taken into account in the parties' Rule 155 computations . The
parties further agree that additions to tax under secs .
6651(a)(1) and (2) and 6654 are applicable to any resulting
deficiency .
Petitioner'owned t`wo improved properties in Washington,'
D .C ., during the years at issue . `The first was at 17 Logan
Circle (the Logan Circle parcel) . The second was at 1503`Vermont
Avenue (the Vermont Avenue parcel) .- Both were rowhouses subject
to the Historic Landmark and Historic Preservation Act of 1978
during the years-at issue .
L'Enfant' .is a District of -Columbianonprofit corporation
chartered in
1978 .- L' Enfant is a section 501(c)(3)
.corporation
organized for the tax purpose of holding and enforcing
conservation'easements on historic designated properties in
Washington,
D .C .
L' Enfant 'currently -holds about 1, 100 easements `
After an easement is-donated to L'Enfant,• it isrecorded
with the District of Columbia . L' Enfant -requires' all donors, t o.
affix a bronze plaque to the donated facade . The` plaque serve s
to inform local citizens that the facade will be preserved, and
L'Enfant often receives call .s,or'tips from local citizens about'
any construction or alterations to the facades of historic '
buildings bearing the L'Enfant plaque . L'Enfant also actively
inspects buildings on which it holds easements . This is often
done during the-winter when L'Enfant inspectors cantake detailed
photographs of the donated facades .. L'Enfant uses these photos
to build a database of =its easements . The-annual photographs are
used to .verify that there have not been,any changes"to donated
facades . L'Enfant also reviews all building permits received by
the District of Columbia Historic . Preservation Office, annuall y
inspects its properties,-and .takes legal action to enforce it s
rights under the easements . .
Petitioner granted facade easements onboth the Logan Circle
and Vermont Avenue parcels to L'Enfant . Each,facade conservation
easement was memorialized by a "Conservation Easement Deed o f
Gift" (the deed) . The deed memorializing -,the,easement .:at th e
° Logan Circle parcel . was made on November 18, 2003 . The ;; deed for
the Vermont Avenue parcel was ;made on January 24, 2004 .x. Th e
3 terms of both easements are essentially identical except for the .
identification of the underlying-properties .
.The deeds provided in effect that petitioner could not mak e
any material changes to the respective facades in
anyway withou t
L'Enfant's consent . There : were-exceptions, however, if .Lth e
facades were damaged ., Should the facades be damaged , petitioner .
would have to make any repairs. .in such a way that they would b e
consistent with the historical aesthetic that the easements were,
meant to _protect .
.,The deeds .-also required that petitioner periodically clean
the facades, keep the L'Enfant plaques polished and visible-fromthe street, and maintain the properties .in good condition . The .
deeds also provided that any work done on`the properties, whethe r
L'Enfant .consented,or not, was required to comply with al l
ig
applicable Federal,, State, and local government` laws and
regulations .- ' .
The deeds also provided that should petitioner sell th e
subject properties, . the,-easements would remain~in force . Lastly.,
the deeds provided that should the-easements be . extinguished
through condemnation or judicial decree,'-L'Enfant would be
entitled to .a portion of any proceeds petitioner received on
account of such extinguishment .
Petitioner hired appraisers` to .determine -the values of the
conservation easements : The'=appraisals were done by James
Donnelly (Mr .': .Donnelly) of J . Lee, .Donnelly'& Son, Inc . (Donnelly'
& Son) . -Mr Donnelly`is a licensed and certified appraiser for
the Appraisal Institute and has appraised residential properties .
for more than 30 years .
Donnelly valued the Logan Circle parcel-at-$1,250,000,
'
and the Vermont Avenue parcel at $845,000 .' The appraisal for the
Logan Circle parcel valued the'contribution as of November 12,
2003, while the appraisal forthe Vermont Street address valued
the contribution .~as of`January 26, 2004 . Mr .'Donnelly valued the
Logan Circle easement at $162,500'and the Vermont Avenue easemen t
$93,000 .
Petitioner made cash contributions of-$8,625 and- .$4,378 t o
L'Enfant with the easements .2 L'Enfant requires donors o f
preservation easements to make cash= contributions to its
endowment fund . The donations are used to fund L'Enfant-' s
monitoring and enforcement-of the donated easements .
Petitioner did not timely file a Federal income tax retur n
for 2003° .or 2004 . Respondent prepared substitutes for returns
under section 6020(b) on behalf of petitioner for those years .
On June 12, 2006,srespondent .issued statutory notices o
deficiency to petitioner for tax years 2003 .and 2004 .
'On September 15, 2006, petitioner filed petitions-in thi s
Court contesting respondent' determinations . On or about April
15, 2007, petitioner executed a .Federal- :tax return for 2'003 and
mailed it to the Internal Revenue Service (IRS) service center in
Andover, Massachusetts . Petitioner did the same on or about Jun e
2, 200 .7, for 2004 . . Respondent-did not process the returns
because this case was pending at the time .
Petitioner claimed a facade conservation easement charitable
contribution toL'Enfant of $162,500 on the delinquent . 2003
return . .. ` This, .contribution reflected .the claimed value of'the
conservation easement granted on the Logan Circle parcel .Petitioner also claimed a facade conservation easement charitabl e
2The treatment of these cash contributions was dealt with in
the parties' settlement, discussed supra note 1 .
7 -
contribution to L'Enfant of $93 , 000 on the delinquent 2004
return .
This contribution reflected the claimed value of the
conservation easement granted on the Vermont Avenue parcel .
A trial was held on June 25 , 2008 ,
in Washington ,
D .C . The
only issue of fact in dispute was the values of the claimed
conservation easements .
Petitioner produced two fact witnesses,
while respondent produced'one .
Both parties introduced exper t
reports valuating the contributions .
OPINION-
I . - Burden of Proo f
The Commissioner's determinations in a notice of deficiency
are presumed correct, and the'taxpayer bears the burden of
proving, by a preponderance of the evidence, that these
determinations are incorrect . Rule 142(a)(1) ;
Welch v .
Helvering , 290 U .S . 111, 115 (1933) . Tax deductions are a matter
of legislative grace, and a taxpayer has the burden of proving
that he is entitled to the deductions claimed . Rule 142(a)(1) ;
INDOPCO, Inc . v . Commissioner , 503 U .S . 79, 84 (1992) ;
New
Colonial Ice Co . v . Helvering , 292'U .S . 435, 440 (1934) . The
burden of proof on factual issues that affect a taxpayer's
liability for tax may be shifted to the Commissioner- where the
"taxpayer introduces credible evidence with respect'to * * * such
issue ." Sec . 7491(a)(1) . .. Petitioner does not claim that the,
burden shifts to respondent under section 7491(a) . In any event,`'
petitioner has failed,to establish that she has satisfied the
requirements of section 7491(a)(2) . On the record before us, w e
find that the burden of proof does not shift to respondent under
section 7491(a) .
Respondent does not argue that petitioner is not entitled to
a charitable contribution deduction because she filed delinquen t
1!~ returns . Instead, respondent puts forth .the following
alternative arguments in . support of his contention that
petitioner is not entitled for either year to a charitable
contribution deduction in any amount :
Al)
That the easements granted to L'Enfant are not valid
easements for purposes of section 170 ;
(2) that even,if we :find the easements valid, petitioner' s
1i
appraisals are not qualified appraisals ;
(3) that petitioner has not met her burden of proof because
petitioner's appraisals are not credible .
We will take each argument . in . turn .
II .
Charitable Contribution Deductions in Genera l
Section 170(a)(1) provides that there shall be allowable as
a deduction any charitable contribution, payment of which is made
within the taxable year . Section 170(a)(1) further provides that
a charitable contribution : shall be-allowable as'a deduction only
if verified under regulations prescribed by the secretary .
9 Generally, section 170(f)(3) does not permit a deduction for
a charitable gift of property consisting of less than the donor's
entire interest in that property . Section 170(f)(3)(B)(iii),
however, provides an exception to this general rule in the case
of a "qualified conservation contribution ." Section 170(h)(1)
provides that a contribution of real property may constitute a
qualified conservation contribution-if the real property is a
"qualified real property interest ;"-the donee is a qualified
organization, and the contribution is "exclusively for
conservation purposes ." All three requirements must be met for a
donation to qualify as .a qualified conservation contribution .
Section 170(h)(2)(C) provides that for purposes of section
170(h), the, term "qualified real property interest" means "a
restriction (granted in perpetuity) on the use which may be made
of the real property ." A restriction'granted in perpetuity on
the use-of the property must be'based upon legally enforceable
restrictions that will prevent uses of the retained interest-in
the property that are inconsistent with the conservation purposes
of the contribution . See sec . 1 .170A-14(g)(1),- Income Tax Regs .
Section 170(h)(4)(A)(iv) provides in pertinent part that for
purposes of-section 170(h), the term "conservation purpose" means
the preservation of an historically important land area or a
certified historic structure . Section 1 .170A-14(d)(5), Income
Tax Regs ., provides that when restrictions to preserve a building
s
- 10 within a re g istered historic distric t p ermit future development
on the site, a deduction will be-allowed under section f70 onl y
if the terms of the restriction require that . such developmen t
conform with appropriate local, State, or Federal standards for
construction or rehabilitation within that historic district . A
contribution shall not be treated as exclusively for conservation
purposes unless the conservation purpose is protected in
perpetuity . See sec . 170(h)(5)(A) .
Respondent argues that petitioner is not entitled t o
deductions because the purpose of the easements does not meet th e
requirements of section 170(h)(4) and (5)(A) . First, respondent
argues that no conservation purpose described in section
170(h)(4) has been met because L'Enfant : (1) Can consent to
changes in the facades, even if they are contrary to the
conservation purposes of the easements and (2) has the right no t
to exercise any ' of
i ts obligations under the easements .
respondent contends that the requirements of section
Second,
1 .1170A-
14(g), Income Tax Regs ., have not been met because the
restrictions in . the easements allow L'Enfant to consent t o
ki
changes in the facades .
Third, respondent argues that petitioner . is not entitled to
deductions because the subordination requirements-of section
1 .17OA-14(g)(2), Income Tax Regs ., were not satisfied .
-
Respondent contends that these requirements were not met because
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the easements were not granted in perpetuity .
As discussed
above, the properties at issue were subject to mortgages .
Respondent argues that although the mortgage-holders of the
properties signed acknowledgments of easements , . the documents d o
not expressly identify-the easements at issue and do not
subordinate the holders' interests to L'Enfant's interests in the
properties . Therefore, respondent argues, the subordination
requirements of section 1 .170A-14(g)(2), Income Tax Regs ., have
not been met .
Petitioner disputes respondent's contentions and argues that
the easements are valid conservation easements . Petitioner
argues that the .,facade easements are qualified real property
interests, that L'Enfant .is a qualified organization, and that
the easements were granted exclusively for conservation purposes .
We agree with petitioner that the easements granted to
L'Enfant are .valid'conservation easements . Although the grants
do allow L'Enfant to,consent to'changes to the properties, the
grants require any rehabilitative work or new construction on th e
.facades to-comply`with the requirements of all applicable
Federal, State, and local government laws and regulations .
Section 1 .170A-14(d)(5), Income Tax Regs ., specifically allows a
donation to satisfy the conservation purposes test even if future
development is allowed, as long as that future development-is
subject to local, State, and Federal laws and regulations .
- 12 Further, the subordination rights of section 1 .170A14(g)(2), Income Tax Regs ., have been met . Both-deeds contain
paragraphs explicitly indicating that the properties were
currently securing mortgages to National City Mortgage an d
Countrywide Home Loans- . Those paragraphs provided in pertinent
part that the lenders "[subordinate] .their rights in the Property
to the right of the Grantee, its successors or assigns,ito
enforce the conservation purposes of this easement in
perpetuity" .
As discussed above, the-Logan Circle parcel was subject t o
two mortgages while the Vermont Avenue parcel was subject to on e
mortgage . Both the Logan Circle and Vermont Avenue deeds
contained sections titled "Lender Acknowledgments - .Conservation
Easements" from the banks holding .. mortgages on both properties .
Respondent' .s contention that the, documents did not expressl y
identify the easements is not persuasive ; the deeds included a
document titled "Exhibit A", which provided descriptions of-the
respective parcels .
In sum, the easements were valid conservation easements .
Accordingly, we move on to respondent's alternative arguments .
III .
Substantiation of Charitable Contribution s
The obligation to substantiate a claimed charitable
contribution is clear and unambiguous .
T .C . Memo, . 2007-368 ;
r
Smith v . Commissioner ,
Blair v . Commissioner , T .C . Memo . 1988-581 .
- 13 No deduction is allowed for a contribution in excess of $5,000
unless the taxpayer meets the substantiation requirements of
section 1 .170A-13(c)(2), Income Tax Regs .
Todd v . Commissioner ,
118 T .C . 334, 340 .(2002) ; sec . 1 .170A-13(c)(1)(i), Income Tax
Regs . Section 1 .170A-13(c)(2)(i), Income Tax Regs ., provides
that a taxpayer must generally comply with three requirements :
(A) Obtain a qualified appraisal (as defined in
paragraph (c)(3) of this section) for such property
contributed . If the contributed property is a partial
interest, the appraisal shall be of the partial interes t
(B) Attach a fully completed appraisal summary (as
defined in paragraph (c)(4) of this section) to the tax
return (or, in the case of a donor that is a partnership o r
S corporation, the information return) on which the
deduction for the contribution is first claimed (or
reported) by the donor .
(C) Maintain records containing the information
required by paragraph (b)(2)(ii) of this section .
Additionally, section 170(f)(8)(A) provides that a taxpayer
must obtain a contemporaneous written acknowledgment from the
donee organization for contributions of $250 or more . Section
170(f)(8)(B) provides that this acknowledgment must include the
amount of cash and a description of any property other than cash
along with certain information about any goods or services
provided by the donee . Section 170(f)(8)(C) provides that this
acknowledgment must be obtained by the earlier of the date the
return is filed or its due date .-
14 -
Section 1 .170A-13(c-)(3)(i) and (ii), Income Tax Regs .,
contains the specific requirements that a "qualified appraisal"
must meet, as summarized below :
,(A) Be made not earlier than 60 days before the date of
the contribution nor later than the due date of the return,
including extensions, on which a deduction is first claimed
or reported ;
(B) be prepared, signed, and dated by a qualified
appraiser ;
(C) contain the name, address, identifying number, and
qualifications of the qualified appraiser ;
(D) contain a statement that it was prepared for income
tax purposes ;
(E) contain a description of the property in sufficient
detail for a person who is not generally familiar with the
type of property to ascertain that the property that was
appraised is the property that was contributed ;
(F) include the terms of any agreement of understanding
entered into or expected to be entered into by or on behalf
of.,the donor or donee that relates to the use, sale, or
other disposition of the property, including an agreemen t
.that restricts temporarily or permanently a donee's right to
dispose of the property ;
(G) show the date on which the property was
contributed ;
(H) show the fair market value of the property on th e
date of contribution ;
(I) show the method of valuation and the specific bases
for the .valuation ; an d
it
(J)-show the date on which the appraisal was made .
In Bond v . Commissioner , 100 T .C . 32, 41 (1993), this Cour t
I'I considered whether certain aspects of the above-reference d
I ; regulations were mandatory or directory and whether the taxpayer
- 15 -
in that case had substantially complied so as to be entitled to a
charitable contribution deduction .' This Court found the
requirements to be directory rather than mandatory,
id . , and
found the taxpayers to have substantially complied with the
qualified appraisal requirements because substantially all of the
information required had been provided, except the qualifications
of the appraiser on the .Form 8283, Noncash Charitable
Contributions, attached to the return .
In Hewitt v . Commissioner , 109 T .C . 258 (1997), affd .
without published opinion 166 F .3d 332 (4th Cir . 1998), the
taxpayers had claimed a charitable contribution deduction for a
donation of shares of stock that was not publicly traded . The
taxpayers, however, had not obtained qualified appraisals before
filing their returns for the years at issue . The IRS disallowed
a portion of the deduction because of the lack of a qualified
appraisal . The taxpayers countered that they had substantially
complied with the appraisal requirements and attempted to rely on
Bond v . Commissioner ,
supra .
We rejected the taxpayers' argumen t
'For charitable contributions made after June 3, 2004,
Congress, in the American Jobs,Creation Act of 2004, Pub . L . 108357, sec . 883, 118 Stat . 1631, which added sec . 170(f)(11),
specifically codified the substantiation requirements and
provided an exception where there is reasonable cause for failure
to comply with the substantiation requirements for noncas h
.charitable contributions . See Smith v . Commissioner , T .C . Memo .
2007-368 . Petitioner granted both easements before June 3, 2004 .
Accordingly, the reasonable cause exception is not available to
petitioner .
16 -
because the taxpayers had not provided any of the information
required by section 170 and the regulations thereunder .
Taken together,
Bond and Hewitt ."provide a standard, by which
we can consider whether [petitioner] provided sufficient
information to permit respondent to evaluate *,* * [her] reported
contributions, as intended by Congress ."
Smith v . Commissioner ,
T .C . Memo . 20 0 7-368 :
Respondent argues that petitioner is not entitled to
deduction because she
a
failed to comply with the reporting
requirements of section 170 and the underlying regulations .
3p discussed above,
section 170(a)(1) provides that a charitabl e
contribution is allowable as a deduction only if verified under
regulations prescribed by the Secretary . See also Hewitt v .
Commissioner ,
supra at 2-61 . Section 170(f)(8)(A) provides that
a
taxpayer must obtain a contemporaneous written acknowledgment
from the donee organization for contributions, of $250 or more .
Section 170(f)(8)(B) provides that this acknowledgment must
include the .amount .of cash and a description of any property
other than cash along with certain information about any goods or
services provided by the donee . Section 170(f)(8)(C) provides
that this acknowledgment must be obtained by the earlier of th e
date the return is filed or its due date . The deeds themselve s
satisfy the requirements of section 170(f)(8)(A) and (B), as the y
are signed by a representative of L'Enfant, are contemporaneous
- 17
with the donation of the easements, and describe the
properties
donated . The deeds were also obtained before petitioner's .
returns were due .
Respondent argues that the appraisals petitioner relies on
are not qualified appraisals as defined in section 1 .170A-,
13(c)(3 ),
Income Tax Regs .,
because they : (1) Fail to adequately
describe the properties contributed ; ( 2) fail to accurately
identify the method of valuation used to determine
the fair
market value of the contributed easements or to adequately
describe the specific basis for valuation ; ( 3) do not include a
statement that the appraisals were prepared for income tax
purposes ; and (4 )
do not provide the dates of the contributions .
Petitioner argues ,
however ,
that the appraisals meet the
requirements of a qualified appraisal ,
and that even if the
appraisals do not satisfy all of the requirements of a qualified
appraisal ,
petitioner has substantially complied with those
requirements .
The appraisals petitioner obtained are qualified appraisals .
The appraisals adequately describe the parcels of land owned by
petitioner and the structures built thereon .
The appraisals also
contain lengthy discussions of historic preservation easements-in
general .
In addition ,
the appraisals contain statistics gathered
by L'Enfant and the Capital Preservation Alliance that Mr :
Donnelly took into account in preparing the appraisals . The
- 18 -
appraisals likewise identify the method of valuation used and'the
basis for the valuations reached .
Although the appraisals did not contain an explici t
statement that they were prepared for income tax purposes, the
appraisals did contain statements that the owner of the parcel s
(petitioner) was contemplating donating conservation . easements to
L'Enfant . The appraisals also include discussions of IRS
practice and cases of this Court concerning facade easements .
The dates of contribution were likewise included on petitioner's
tax returns . The Forms 8283 that petitioner included with her
returns required an acknowledgment by the donee, L'Enfant . That
acknowledgment required the donee to acknowledge the date tha t
the contributed property : was received .
Petitioner included all of the required information in the
appraisals attached to her returns or on the face of the returns .
Accordingly, petitioner has complied with the substantiation
requirements of section 170 .
IV .
Valuation of Conservation Easement s
As we have stated previously, no established market exists
for determining the fair market value of an easement . Se e
Hilborn v . Commissioner , 85 T .C . . 677, 688 (1985) . The "before
and after" approach has been used on numerous occasions t o
determine the fair market values of restrictive easements wit h
respect to which charitable contribution deductions are claimed .
19 See, e .g .,
Hilborn v . Commissioner ,
supra ;
Griffin v .
Commissioner , T .C . Memo .-1989-130, affd .' 911 F .2d 1124 (5th Cir .
1990) ;
Stotler v . Commissioner , T .C . Memo . 1987-275 . ,
The "before" value of the property generally reflects the
highest and best use of the property in its condition just before
the donation of the easement .
Hilborn v . Commissioner ,
supra at
689 . The highest and best use-of-the property in its "before"
condition takes into account the manner by which the property
likely would have been developed absent the easement, . The
evaluation of that likelihood also takes into account'the effect
of existing zoning or historic preservation laws that already
restrict the property's development regardless of the existence
of the restrictive easement .
Respondent argues that petitioner has failed to meet her
burden of establishing the fair market values of the contributed
properties . As discussed above, petitioner bears the,burden of
proving her entitlement to .deduct`ions .
Respondent argues that petitioner's reliance on the Donnelly
& Son appraisals is not sufficient to meet%her burden .
Respondent argues that the appraisals,do not set forth in detail
the reasons for their conclusions, do not state the data relied
upon by the appraisers, and'do not explain the basis for the
decision . Respondent further contends that Donnelly & Son did
not use reliable principles or methods in determining the value
- 20 -
of the properties donated and does not explain how the easements
differ from .Distri.ct of Columbia rules.. and 'regulations governin g
the facades before donation .
Both . petitioner and respondentsubmitted,appraisalsin
support of their valuations . Respondent produced experts reports
prepared by .Peter A . Wolman . .~(Mr . Wolman) a District ofy ;Columbia
certified . general real estate appraiser . . Mr . Wolman iscurrently
an IRS employee and has a . degree in business administration from
American University . Mr . Wolman has been,a real estate,, appraiser
since 1985 and,has worked-at the . IRS .sincew2007 . Respondent,
also presented testimony by David Maloney,(Mr . Maloney),, an
i
employee with the District, of Columbia Historic Preservation
Office . Mr . Maloney is, the manager of the ;.Distric-t of -Columbia's
historical-preservation program :
Both the-Donnelly & Son appraisals and .Mr . Wolman's,expert ,
reports valued the easements by applying the "before and after"
sales test . The parties' reached-similar "before" valuations .
Petitioner-valued the Logan Circle and .v Vermont Avenue, parcels at
$1,250,000 and $845,0,00, respectively . Respondent valued the
Logan Circle and Vermont Avenue-parcels at $1,175,000 at d
$860,000, respectively .
The difference in the "before" valuations of the Loga n
Circle parcel stems mainly from Mr . Donnelly',s putting a .premium
on the .Logan Circle parcel's . .view, . The Logan Circle parcel
d
f
i
21 borders Logan Circle Park . Because the view from the Logan
Circle parcel is of Logan Circle Park, Mr . Donnelly increased his
valuation by $50,000 to account for the view . Respondent's
expert reports indicate that Mr . Wolman's decision not to make an
upward adjustment in value was based on conversations with real
estate agents in the Logan Circle neighborhood to the effect that
the view of Logan Circle Park would not affect the value of the
Logan Circle parcel .
We find petitioner's "before" valuations to be reasonable
and adopt them . Petitioner's appraisals were completed closer to
when the easements were granted . Further, we found Mr .
Donnelly's testimony credible that the Logan Circle parcel's view
would be taken into account when determining the fair market
value of the property . Before petitioner granted the easements,
the Logan Circle and Vermont Avenue parcels had fair market
values of $1,250,000 and $845,000, respectively .
The parties' disagreement concerns how the easements affect
the fair market values of the properties . Petitioner's
appraisals apply a 13-percent decline in value to the Logan
Circle parcel and an 11-percent decline to the Vermont Avenue
parcel . .
Respondent's expert reports did not find any change in the
fair market value of either property as a result of the granting
of the easements . Mr . Wolman's report came to the conclusion
LI
- 22 -
that the properties' zoning, site, and improvements would no t
change as a result of the easements because the deeds prevented
material alteration of the facades . Mr . Wolman also determined
I
that the highest and best use of the parcels remained unchanged
by the granting of the easements because before petitioner's
grants, the parcels were already subject to Washington,,D .C .,
:!
historic preservation laws . Because the historic preservation
laws already prevented any material changes to the facades or
improvements on the properties, Mr . Wolman reasoned that the
easements were superfluous and did, not prevent anything not
already covered by District of Columbia preservation laws .
We note, however, that respondent's expert reports als o
indicate that easements granted to L'Enfant did affect the sal e
prices of some of the "after" comparable properties .
discussed above, Mr . Wolman used comparable properties subject to
easements granted to L'Enfant to calculate the "after" values of
petitioner's properties . These properties all .sold subject t o
easements . In researching the sales of one Logan Circlecomparable property and one Vermont Avenue-comparable property ,
respondent's expert learned that the sellers of those comparabl e
properties had not disclosed the easements to the respectiv e
buyers . After disclosure of the
easements , the sellers' of th e
two comparable properties later agreed to credit the respective
'I!~I
buyers $10,000 to make up for the nondisclosure of the easements .
S
- 23 After researching the comparable "after" properties, Mr .
Wolman contacted the buying and selling agents who had taken part
in the sales of those comparables . Mr . Wolman's report indicates
that these agents informed him that the
easements granted t o
L'Enfant did not affect the negotiated selling prices of the
comparable properties and that the $10,000 credits were simply to
expedite the sales closings . Respondent points to this
information in his expert reports as evidence that the easements
did not affect the fair market values of petitioner's properties .
Respondent lastly argues that petitioner is not entitled to any
deductions because the easements simply duplicate requirements
imposed by District of Columbia rules and regulations .
Respondent points to testimony of Mr . Maloney that his office
would have to issue permits before any changes could be made to
petitioner's buildings' facades .
,Petitioner disputes this contention Sand argues that L'Enfant
does in fact impose certain financial obligations on donors that
the District of Columbia does not ., Petitioner points to
testimony .by Carol Goldman (Ms : Goldman), president of L'Enfant,
for support . Ms . Goldman testified that L'Enfant regulates paint
color, which the District of Columbia does not . Ms . Goldman also
24 .testified that the District of Columbia allows certain repairs to
covered homes that L'Enfant does not . 4
Petitioner also focuses on the heightened enforcement of itseasements by L'Enfant . Petitioner contends that because the
District of Columbia lacks funding to enforce its own rules and
regulations and because L'Enfant continually monitors its
easements, the L'Enfant .easements increase petitioner's! burdens
even though the restrictions are similar .
.We agree with petitioner that the easements granted do
affect the fair market values of the subject properties .
However, we do not agree with'the amounts of the charitable
P
- ,
contribution deductions petitioner claimed . While we are
inclined generally, to accept the more persuasive expert valuation
amongst those proffered, we are not required to accept that
valuation in its entirety . See Symington v . Commissioner , 8 7
T .C . 892, 90 .2 (1986) ;
Buffalo Tool & Die Manufacturing Co .
Commissioner , 74 T .C . 441,
.452 (1980) .
V.
.Although we adopt
petitioner's "before" valuations, we have considered the expert
reports and testimony and find that the easements resulted i n
4Ms . Goldman provided as an example a brick-exterior home
for which L'Enfant holds an easement . A common problem with
older brick homes is degradation in the exterior . The District
of Columbia often allows a homeowner to simply patch the masonry
as problems develop . However, too much patching can ultimately
lead to a need to paint the house . Ms . Goldman testified that
L'Enfant does not allow patching but instead requires the entire
home to be ."re-tucked", a more expensive process .
25
only a 5-percent reduction in the values of the subject
properties .
This decrease stems from the heightened financial
burdens of an eased facade and L'Enfant ' s affirmative enforcement
of its easements .
Because the restrictions imposed by th e
easements are the same for both the Logan Circle and Vermont
Avenue . parcels, the subject properties are entitledto the same
reductions .
Although respondent argues that the properties were already
subject to District of Columbia preservation laws, this does not
prevent any charitable contribution deductions . We hav e
previously allowed charitable, contribution deductions even if the
property was subject to local preservation laws before . the
granting of an easement . See ; e .g .,
T .C . Memo . 1989-130 ;
Griffin v . Commissioner ,
Nicoladis v . Commissioner , T .C . Memo . 1988-
163 . Although the easements were duplicative in some respects,
it is important to note that granted easements to L'Enfant meant
that petitioner would be subject to a higher level of enforcement
than that provided by the District of Columbia . L'Enfant
actively enforces its easements in a way that the District of
Columbia does not . Ms . Goldman credibly testified that in
previous situations the District of Columbia had consented to
changes to a historic building only to have L'Enfant later
intervene and prevent those changes . L'Enfant could also dictate
26 what types of supplies and materials had to be used when work was
being done on a,donated easement .
Even if we were to accept respondent ' s contention
that the
easements did not impose any restrictions on petitioner over and
above those imposed by the District of . Columbia, the easements
still added an additional level of approval before any changes
could be made to the properties .
su ra . Petitioner is
See Nicoladis v . Commissioner ,
required to obtain L'Enfant ' s consent t o
make any changes to the facades, even if those changes are
allowable under District of Columbia preservation laws .
Further, respondent's expert reports acknowledge instances
where an easement affected the final sale price of a comparable
parcel of, real estate . We do not find respondent's expert
reports credible insofar as they maintain that an easement would
have absolutely no effect on the fair market value of valuable
real estate .
As discussed above, we have adopted petitioner's "before"
valuations of the Logan Circle and Vermont Avenue parcels of
$1,250,000 and $845,000, respectively . Applying a 5-percent
reduction in fair market value, we value the easements at $56,25 0
and $42,250, respectively . Accordingly, petitioner is entitled
to charitable contribution deductions of $56,250 for 2003 and
$42,250 for 2004 .
- 27
To reflect the foregoing,
Decisions will be entere d
under Rule 155 .
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.