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USING THE CONSERVATION TAX INCENTIVE In December of 2015 Congress made permanent a federal tax incentive for conservation easement donations that can help thousands of landowners conserve their land. If you own land with important natural or historic resources, donating a voluntary conservation easement (also called conservation agreement) can be one of the smartest ways to conserve the land you love, while maintaining your private property rights and possibly realizing significant federal tax benefits. This brochure summarizes the conservation easement tax incentive and provides answers to some frequently asked questions. The incentive: Raises the deduction a donor can take for donating a conservation easement from 30 percent of his or her income in any year to 50 percent; Allows qualifying farmers and ranchers to deduct up to 100 percent of their income; and Extends the carry-forward period for a donor to take tax deductions for a voluntary conservation agreement from 5 to 15 years. This is a powerful tool for allowing modest-income donors to receive greater credit for donating a very valuable conservation easement on property they own. For land trusts, this translates to the possibility of protecting much more land through the use of conservation easements. The changes apply to donations made at any time in 2015 and to all donations made after that. For the latest information, visit www.lta.org/tax-incentives. LAND TRUST ALLIANCE USING THE CONSERVATION TAX INCENTIVE 1

FREQUENTLY ASKED QUESTIONS A. WHAT IS A CONSERVATION EASEMENT? A conservation easement is a legal agreement between a landowner and a land trust or government agency, that permanently limits uses of the land in order to protect its conservation values. It allows landowners to continue to own and use their land, and they can also sell it or pass it on to heirs. When you donate a conservation easement to a land trust, you give up some of the rights associated with the land. For example, you might give up the right to build additional structures, while retaining the right to grow crops. Future owners will also be bound by the easement s terms. The land trust is responsible for making sure the easement s terms are followed. Conservation easements offer great flexibility. An easement on property containing rare wildlife habitat might prohibit any development, for example, while an easement on a farm might allow continued farming and the addition of agricultural structures. An easement may apply to all or a portion of the property, and need not require public access. Qualifying For A Tax Deduction A landowner sometimes sells a conservation easement, but often easements are donated to a land trust. If the donation benefits the public by permanently protecting important conservation resources, and meets other federal tax code requirements, it can qualify as a tax-deductible charitable donation. Easement values vary greatly; in general, the highest easement values result from tracts of developable open space under intense development pressure. In some jurisdictions, placing an easement on your property may also result in property tax savings. To find a land trust near you to discuss your options, please visit www.findalandtrust.org. B. HOW DOES THE EXPANDED TAX INCENTIVE WORK? 1. Can you give me an example of the difference the tax incentive makes? Under the previous rules, a landowner earning $50,000 a year who donated a $1 million conservation easement could take a $15,000 deduction for the year of the donation and for an additional 5 years a total of $90,000 in tax deductions. The 2015 rules allow that landowner to deduct $25,000 for the year of the donation and then for an additional 15 years. That s a total of $400,000 in deductions. If the landowner qualifies as a farmer or rancher, he or she could take a maximum of $800,000 in deductions for the million dollar gift. 2. Can anyone deduct more than the value of his or her gift? One can never deduct more than the fair market value of the gift. This change simply allows landowners who previously could not deduct the full value of their gift to deduct more of that value. 3. Who qualifies as a farmer or rancher? The 2015 law defines a farmer or rancher as someone who receives more than 50 percent of his or her gross income from the trade or business of farming. The law references Internal Revenue Code (IRC) 2032A(e)(5) to define activities that count as farming. Specifically, those activities include: cultivating the soil or raising or harvesting any agricultural or horticultural commodity (including the raising, shearing, feeding, caring for, training, and management of animals) on a farm; handling, drying, packing, grading, or storing on a farm any agricultural or horticultural commodity in its unmanufactured state, but only if the owner, tenant, or operator of the farm regularly produces more than one-half of the commodity so treated; and the planting, cultivating, caring for, or cutting of trees, or the preparation (other than milling) of trees for market. For an easement to qualify for this special treatment, it must contain a restriction requiring that the land remain available for agriculture. The qualified farmer or rancher provision also applies to farmers who are organized as C corporations. Additionally, Alaska Native Corporations are eligible under the same terms as farmers or ranchers. IRS guidance on these parts of the law is available at www.lta.org/tax-incentives. 4. Do these changes apply to gifts of land? This expanded incentive does not apply to gifts of land in fee; it only applies to gifts that qualify under IRC 170(h)(2), LAND TRUST ALLIANCE USING THE CONSERVATION TAX INCENTIVE 2

such as conservation easements. A landowner considering donating their land should consult with an attorney to determine whether they should consider changing the structure of their gift to take advantage of this 2015 incentive. 5. Does this incentive only apply to conservation easements? The expanded incentive applies to all donations covered in IRC section 170(h)(2), which includes donations of the entire interest of the donor other than a qualified mineral interest; a remainder interest; or a permanent conservation or historic preservation easement. 6. What is the timeline for this expanded incentive? The incentive applies to all easements donated after December 31, 2014. 7. What other restrictions apply? Conservation easement donations are subject to the same restrictions as they were before. For example, easements must meet the conservation purposes test defined in the existing law; they cannot be donated as part of a quid pro quo agreement where the easement was given in exchange for something else, such as a building permit; and they must be donated to a qualified organization a governmental unit or a publicly supported charity that has a commitment to protect the conservation purposes of the donation, and the resources to enforce the restrictions. See www.lta.org/tax-incentives for the Treasury Regulations on conservation easement donations. appraisal of conservation easements; and to donate to a well-established, reputable land trust that has adopted and implemented Land Trust Standards and Practices. C. OTHER RULES AFFECTING EASEMENT DONORS A 2006 law (PL109-280) redefines who is a qualified appraiser, so appraisers need to show donors that they are qualified under the law, which states that a qualified appraiser must demonstrate verifiable education and experience in valuing the type of property subject to the appraisal. The 2006 law also tightened the rules for easements on certified historic structures. If you are protecting a property that includes such a structure, a filing fee and specific appraisal requirements may apply to you. D. WHAT IS THE LAND TRUST S ROLE? Potential easement donors should know that donating a permanent conservation easement is a big commitment requiring careful consideration and independent legal advice. Donating a conservation easement requires a working partnership with a land trust and time for careful drafting of documents and maps, baseline documentation and a professional appraisal. Landowners should understand that a land trust may decline to accept a donation that does not meet both the legal requirements and the land trust s own specific charitable mission and strategic plan. In addition, land trusts will want to see the appraisal before accepting your gift. 8. Will donors who use this provision be audited? Taking advantage of this 2015 law will not necessarily affect one s likelihood of being audited. All donors should note, however, that the IRS does pay attention to high value donations of property including donations of conservation easements. That makes it particularly important for donors and their advisors to know and follow the law; to utilize a reputable professional appraiser who has experience in the LAND TRUST ALLIANCE USING THE CONSERVATION TAX INCENTIVE 3

ACKNOWLEDGEMENTS There are so many people to thank who were involved in this conservation tax incentive victory: One grand thank you from the Alliance goes out to all of you. We could not have done it without you. The Alliance has been leading a team effort to achieve this since 2000, when we convened land trust leaders from across the country to build a consensus on what tax policies would best address the need to expand our conservation work. This legislation would not have happened without the leadership of Senators Debbie Stabenow (MI) and Dean Heller (NV) and Representatives Mike Kelly (PA) and Mike Thompson (CA) and many of their colleagues. Land trusts worked hard to show these leaders that the conservation work of land trusts was important to their communities and broadly supported by their constituents. That work provided the foundation for this conservation tool. For the latest information visit www.lta.org/policy. The content in this document is for informational purposes only and should not be construed as legal advice. ABOUT THE ALLIANCE Founded in 1982, the Land Trust Alliance is a national conservation organization representing over 1,100 land trusts, and works to save the places people need and love by strengthening land conservation throughout America. Please visit our website at www.landtrustalliance.org for more information on: Finding a local or regional land trust The latest federal tax laws concerning conservation easement donations Examples of how private landowners work with land trusts to protect their land Publications and resources for landowners Cover photo: Harlen Persinger, photographer; page three, from left: Scott Bauer, USDA/ARS; Keith Weller, USDA/ARS; page four, from left: Teresa McCaffrey, courtesy of Montana Land Reliance; Tim McCabe, USDA/NRCS. 1660 L St. NW, Suite 1100 Washington, DC 20036 202.638.4725 www.landtrustalliance.org www.facebook.com/landtrustalliance www.twitter.com/ltalliance LAND TRUST ALLIANCE USING THE CONSERVATION TAX INCENTIVE 4

The Enhanced Tax Incentive for Conservation Easement Donations Is Permanent In a great victory for landowners interested in conservation the enhanced tax incentive for conservation easement donations has been made permanent. In strong bipartisan action, the House voted 318-109 and the Senate voted 65-33 to pass the bills that included the incentive, and, the president signed it into law on December 18, 2015, and it applies retroactively to January 1, 2015. An earlier version of the incentive expired December 31, 2014. The incentive, considered by many to be the most important conservation legislation in 20 years, encourages landowners to place conservation easement on their land to protect important natural, scenic and historic resources. The Land Trust Alliance led its more than 1,100 member land trusts and five million supporters through a collaborative, multi-year campaign to secure the incentive s permanency. First enacted in 2006, the incentive is directly responsible for conserving more than two million acres of America s natural outdoor heritage. Lands placed into conservation easements continue to be farmed, grazed, hunted or used for outdoor recreation and wildlife conservation, and these lands remain on county tax rolls, strengthening local economies. Saying Thank You Thank you CT for saying thank you in grand style! It had an additional impact with the letter that your congressional delegation sent to the IRS. See the materials for a copy. Summary This summarizes the conservation easement tax incentive and provides answers to some frequently asked questions. The incentive: Raises the deduction a donor can take for donating a conservation easement from 30 percent of his or her income in any year to 50 percent; Allows qualifying farmers and ranchers to deduct up to 100 percent of their income; and Extends the carry-forward period for a donor to take tax deductions for a voluntary conservation agreement from 5 to 15 years. These changes apply to donations made at any time in 2015 and to all donations made after that. Applies to any partial interest but not to a full land donation

View the exact language that Congress passed(link is external) and learn how it has changed existing statutory law and read a memo from the Internal Revenue Service(link is external) offering guidance regarding deductions by individuals for qualified conservation contributions. How Does the Expanded Tax Incentive Work? Can you give me an example of the difference the new change makes? Under the previous rules, a landowner earning $50,000 a year who donated a $1 million conservation easement could take a $15,000 deduction for the year of the donation and for an additional 5 years a total of $90,000 in tax deductions.the new rules allow that landowner to deduct $25,000 for the year of the donation and then for an additional 15 years. That s a total of $400,000 in deductions. If the landowner qualifies as a farmer or rancher, he or she could take a maximum of $800,000 in deductions for the million dollar gift. Can anyone deduct more than the value of his or her gift? One can never deduct more than the fair market value of the gift. This change simply allows landowners who previously could not deduct the full value of their gift to deduct more of that value. Who qualifies as a farmer or rancher? The new law defines a farmer or rancher as someone who receives more than 50 percent of his or her gross income from the trade or business of farming. The law references Internal Revenue Code (IRC) 2032A(e)(5) to define activities that count as farming. Specifically, those activities include: cultivating the soil or raising or harvesting any agricultural or horticultural commodity (including the raising, shearing, feeding, caring for, training and management of animals) on a farm; handling, drying, packing, grading, or storing on a farm any agricultural or horticultural commodity in its unmanufactured state, but only if the owner, tenant, or operator of the farm regularly produces more than one-half of the commodity so treated; and planting, cultivating, caring for or cutting of trees, or the preparation (other than milling) of trees for market. For an easement to qualify for the special treatment, it must contain a restriction requiring that the land remain available for agriculture. The qualified farmer or rancher provision also applies to farmers who are organized as C corporations. Additionally, Alaska Native Corporations are eligible under the same terms as farmers or ranchers. Do these changes apply to gifts of land? This expanded incentive does not apply to gifts of land in fee; it only applies to gifts that qualify under IRC 170(h)(2), such as conservation easements. Landowners considering donating their land should consult with an attorney to determine whether they should consider changing the structure of their gift to take advantage of this new incentive.

Does this incentive only apply to conservation easements? The expanded incentive applies to all donations covered in IRC section 170(h)(2), which includes donations of the entire interest of the donor other than a qualified mineral interest; a remainder interest; or a permanent conservation or historic preservation easement. What is the timeline for this expanded incentive? The incentive applies to all easements donated after December 31, 2014. State Income Tax Credits for Conservation In addition to the federal tax deduction, 16 states offer some form of tax credit for conservation easement donations. Many state incentives apply to fee-simple donation of land as well as conservation easements. The most powerful state tax incentives for conservation are the transferable tax credits available in Colorado, Georgia, New Mexico, South Carolina and Virginia. In these states, if a landowner donates an easement but doesn t owe enough tax to use the full credit, he or she can sell the remaining credit to another taxpayer, generating immediate income. Nine states offer some form of non-transferable income tax credit Arkansas, California, Connecticut, Delaware, Iowa, Maryland, Massachusetts, Mississippi and New York. The New York tax credit is unique, offered not at the time of donation, but every year in an amount equivalent to 25% of the property taxes paid on land under easement.

We look forward to working with you to find a mutually constructive solution and urge you to consider modifying your approach to finding potential abuses with the donation of conservation easements. Sincerely, CHRISTOPHER S. MURPHY United States Senate RICHARD BLUMENTHAL United States Senate CC: FOR IMMEDIATE RELEASE February 22, 2016 CONTACT Laura Maloney (Murphy) 202-228-1056 Elizabeth Benton (Blumenthal) 860-729-3589 MURPHY, BLUMENTHAL CALL ON IRS TO MODIFY ADVERSARIAL & EXPENSIVE APPROACH TO PROCESSING CONSERVATION EASEMENT LAND DONATIONS Senators urge the IRS to honor Congressional intent & support land conservation after Senate passed permanent extension of conservation easement WASHINGTON Today, after hearing from concerned Connecticut landowners that the Internal Revenue Service s (IRS) audit process for making charitable land contributions is antagonistic, lengthy and expensive, U.S. Senator Chris Murphy (D-Conn.) and U.S. Senator Richard Blumenthal (D-Conn.) called on the IRS to explore alternative ways to audit the charitable donations of property made through the conservation easement tax incentive. In a letter to IRS Commissioner John Koskinen, Murphy and Blumenthal emphasized that despite Congress support and passage of a permanent extension of the conservation easement tax incentive last

year, the IRS has continued to conduct an unnecessarily lengthy, confrontational, and expensive audit process. The senators specifically suggested that the IRS handle conservation easement donations similar to the way it previously processed major donations of art by using the opinions of third-party, outside experts on the value of donations. On December 18, 2015, the Senate passed, and we supported, a permanent extension of the deduction for charitable contributions of conservation easements. This deduction was enacted into law the same day, wrote the senators. While fully recognizing the value of these donations and the IRS s role in ensuring their proper use, we are deeply troubled by a trend recounted by a number of constituents who have chosen to conserve their properties, especially given Congress s strong and unambiguous support of the charitable deduction. In light of the jarring juxtaposition between Congressional intent regarding the deduction for charitable contributions of conservation easements and the Service s treatment of those who donate easements, we implore the Service to explore some way other than the current audit system to find potential abuses in the area of conservation easements. The full text of the letter is available online and below: The Honorable John Koskinen Commissioner Internal Revenue Service 1111 Constitution Avenue, NW Washington, DC 20224 Dear Commissioner Koskinen: On December 18, 2015, the Senate passed, and we supported, a permanent extension of the deduction for charitable contributions of conservation easements. This deduction was enacted into law the same day. The stand-alone bill introduced in the Senate to permanently extend the deduction had fifty-three Senate sponsors including us and its House companion passed with a two-thirds majority early last year. The record is clear: Congress values the conservation of land protection by private landowners through the charitable contribution of conservation easements. The IRS s interest in these charitable donations is understandable, as the donations are very valuable. The Service s Statistics of Income reports show that conservation easement donations have the highest average dollar value of any class of charitable donations of property ten or more times as valuable as the average donation of appreciated securities and up to fifty times as valuable as the average donation of a work of art. While fully recognizing the value of these donations and the IRS s role in ensuring their proper use, we are deeply troubled by a trend recounted by a number of constituents who have chosen to conserve their properties, especially given Congress s strong and unambiguous support of the charitable deduction. These constituents describe audits focused on their

donation of a conservation easement as antagonistic, aggressively adversarial, lengthy, and expensive even when the final result is a no change letter from the Service. In light of the jarring juxtaposition between Congressional intent regarding the deduction for charitable contributions of conservation easements and the Service s treatment of those who donate easements, we implore the Service to explore some way other than the current audit system to find potential abuses in the area of conservation easements. Based on the experiences of our constituents, the Service would do well to handle these particular donations just as it handled major donations of art decades ago through the creation of the Art Advisory Panel. By using the opinions of outside experts on the value of art donations, the Art Advisory Panel allowed donors and Commissioners to agree on value in more than ninety-five percent of cases handled without an audit process that is lengthy and expensive for the Service, taxpayer, and donor. We believe an analogous panel for the donation of conservation easements would be beneficial both the IRS and to many of our constituents, whose actions Congress wholeheartedly endorses. We look forward to working with you to find a mutually constructive solution and urge you to consider modifying your approach to finding potential abuses with the donation of conservation easements. Sincerely, CHRISTOPHER S. MURPHY United States Senate RICHARD BLUMENTHAL United States Senate CC: