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Conservation Easements: Defending IRS Challenges, Overcoming Audits, Structuring Deed Language for Perpetuity

Note: CPE credit is not offered on this program

Recording of a 90-minute CLE video webinar with Q&A

This program is included with the Strafford CLE Pass. Click for more information.
This program is included with the Strafford All-Access Pass. Click for more information.

Conducted on Tuesday, March 8, 2022

Recorded event now available

or call 1-800-926-7926

This CLE course will address how to approach conservation easement donations going forward and offer practical guidance on overcoming IRS challenges once presented.


Conservation easements are as varied in purpose as the land they protect. The easements are tailored to specific conservation objectives and the needs of the landowner. The conservation objective can be as narrow as protecting a particular water or animal habitat or structured broadly to more generalized preservation efforts, like safeguarding farmland or ensuring unobstructed views.

In the case of donated conservation easements, the benefit to donor-landowners can be myriad, not the least of which are the considerable tax advantages available. Until recently, IRS attacks on those benefits have been rooted firmly in challenging the issue of perpetuity, particularly proceeds upon extinguishment.

The Eleventh Circuit Court of Appeals recently rejected an IRS interpretation of the proceeds clause, while a dispute over the allocation formula of that clause is awaiting decision in the Sixth Circuit Court of Appeals. Despite the setback, the IRS continues to challenge deductions based on the perpetuity of the gift.

Other IRS assertions challenging perpetuity include merger of title and deemed consent to exercise reserved rights. The IRS is also now more carefully scrutinizing conservation purposes and valuation as more cases are headed to litigation.

Practitioners structuring conservation easements must be wary of the IRS' most common challenges and the still uncertain drafting landscape. Meanwhile, Congress has yet to approve proposed legislation to change the terms of previously executed conservation easements retroactively.

Listen as our panel of attorneys discusses how to approach conservation easement donations going forward and offers practical guidance on overcoming IRS challenges once presented.



  1. Conservation easements overview
  2. Preserving the deduction through careful drafting
    1. Guidance for donor-landowners
    2. Guidance for donees
  3. Troublesome clauses
    1. Deemed consent provisions
    2. Proceeds clause
      1. Proceeds allocation formula
      2. Proceeds attributable to post-easement improvements
      3. Proceeds from third-party contracts
    3. Amendment clause
    4. Merger clause
    5. Reserve development sites
    6. Form 8283
  4. Case law developments


The panel will review these and other key issues:

  • What are the most common methods of attack on easement deductions?
  • How can counsel reconcile the apparent discrepancy in how tax courts and the IRS address perpetuity issues in conservation easement deeds?
  • What are the more troublesome agreement provisions for counsel preparing a sturdy conservation easement?


Asbury, Anson
Anson H. Asbury, J.D., LL.M.

Founder and Principal
Asbury Law Firm

Mr. Asbury has represented clients in federal and state tax controversies, tax litigation, business tax planning and...  |  Read More

Gardner, Brian
Brian Gardner, J.D., LL.M.

Asbury Law Firm

Mr. Gardner focuses his practice on tax controversy and litigation matters. He represents taxpayers in all phases of...  |  Read More

Rhodes, Gregory
Gregory P. Rhodes

Dentons Sirote

Mr. Rhodes is a shareholder in Dentons Sirote’s Birmingham, Alabama office, where he is a member of the Tax...  |  Read More

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