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Issue  193  Article  327
Published:  12/1/2011

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Conservation Easements - Enhanced Tax Incentives Set to Expire
Hap Roberts CPA, President, Statewide Title, Inc.

When landowners donate a conservation easement to a qualified land trust, they are able to retain ownership and management of their land. They can sell or pass the land on to their heirs; all while restricting and limiting development in the future. Conservation easements are voluntary legal agreements between a private landowner and a land trust or government agency that permanently limits uses of the land in order to protect is conservation values. When a landowner grants a conservation easement to a qualified land trust, they are giving away some of the rights inherent in the ownership of the land. Conservation easements typically restrict the amount and kind of future development of the land in order to preserve it for agriculture, timber production, open space, wildlife habitat or to create riparian and watershed buffers.

A conservation easement has the potential to reduce federal estate taxes if the value of the land is sufficiently reduced. There can be significant estate tax benefits if the grant of the conservation is donative. Landowners who donate a conservation easement may deduct the value of the donation as a charitable gift on their income taxes. Thus, property owners can protect their land from over development and qualify for a federal tax deduction. There are some special tax incentives for easement donations that make this type of charitable gift even more attractive.

In 2006, Congress approved an expansion of the federal tax incentive for conservation easement donations. The law, extended in 2010, enables landowners who protect their land using voluntary conservation easements to earn increased tax deductions and a longer time to recover the donation of their conservation easements. The law increased the tax deduction for conservation easement donations from 30 to 50 percent of a qualified donor's yearly income. The incentive allows qualified working farmers and ranchers to deduct up to 100 percent of their income. For all landowners taking advantage of the enhancements, the law extended the deduction carry-forward period from 5 years to 15 years.

The enhanced tax incentive applies only to transactions made after 2006 and completed before December 31, 2011, when eligibility for the enhanced incentive expires. The Land Trust Alliance and other groups are encouraging Congress to make the enhanced tax incentive permanent, but there's no guarantee they will be successful.

Set to expire at the end of 2009, Congress renewed the enhanced tax incentive for conservation easement donations retroactively in December 2010; it currently expires December 31, 2011 if not extended again by Congress. The potential expiration of these enhanced tax incentives makes 2011 an extra good time to donate a conservation easement.

Without the enhanced easement incentive, a landowner earning $50,000 a year who donated a $1,000,000 conservation easement could take a $15,000 charitable deduction for the year of the donation and for the subsequent 5 years, totaling of $90,000 in tax deductions. The enhanced easement deduction allows that same landowner to deduct $25,000 for the year of the donation and for the subsequent 15 years totaling $400,000 in deductions. If the landowner is a qualified farmer or rancher, they can zero out their taxes for 16 years taking $800,000 in deductions for their million dollar gift and if their income increases up to a maximum of $1,000,000.

The applicable 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 an estate tax provision [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.

The qualified farmer or rancher provision also applies to farmers who are organized as C corporations. For an easement to qualify for the special treatment, it must contain a restriction requiring that the land remain "available for agriculture."

In summary, by donating conservation easements to qualified land trusts and taking timely advantage of the enhanced federal tax incentive before it expires, qualified landowners, ranchers and farmers can keep their land in ranching and farming, retain family control of the land if they desire, and receive greater credit for these very valuable donations while still retaining title to their land.

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