[MassHistPres] [MassLand] FW: Asser

Fri Apr 15 06:29:24 EDT 2011

Yup, and flies in face of recent Whitehouse decision.  Way off the mark!

SN

_______________________________

Stefan Nagel, Esq., Of Counsel

Law Office of Stephen J. Small, Esq., P.C.

One Gateway Center, Suite 801

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Phone:  617-357-4012

Fax:  617-357-1857

www.lawofficeofstephensmall.com

snagel at stevesmall.com

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-----Original Message-----
From: massland-bounces at massland.org [mailto:massland-bounces at massland.org]
On Behalf Of Del-Bono, Irene (EEA)
Sent: Thursday, April 14, 2011 8:19 PM
To: Massachusetts Land Trust Coalition maillist; masshistpres at cs.umb.edu
Cc: 'michael ehrmann'; 'Steve Small'; 'Leslie Ratley-Beach'
Subject: Re: [MassLand] FW: Asser

Stefan,

This is also troubling because an historic district can be extinguished, so
it is not necessarily "perpetual". This kind of reasoning could jeopardize
restrictions that protect regulated wetlands, vernal pools, endangered
species sites, riverfronts and coastal areas. 

Irene
________________________________________
From: massland-bounces at massland.org [massland-bounces at massland.org] On
Behalf Of Stefan Nagel [snagel at stevesmall.com]
Sent: Thursday, April 14, 2011 5:15 PM
To: 'Massachusetts Land Trust Coalition maillist'; masshistpres at cs.umb.edu
Cc: 'michael ehrmann'; 'Steve Small'; 'Leslie Ratley-Beach'
Subject: [MassLand] FW: Asser

The adverse rulings keep piling on.  The most recent one was publicly
released only yesterday, and involves a New York City easement donated to
the National Architectural Trust (now Trust for Architectural Easements).
The ruling makes two significant findings, the second of which is the most
bothersome:  (1) as in Kaufman, the court has determined that the
interaction of the mortgage subordination and percentage proceeds provisions
fails to satisfy the Code's "perpetuity" requirement.  Nonetheless, at page
29, the court recognizes that the two provisions as set out in the
regulations may not be "crystal clear" or unambiguous; and (2) the court has
found that, because the property is within a regulated historic district, it
is effectively protected by the New York Landmarks Preservation Commission
and not by the terms of the preservation easement.  In Judge Laro's view,
this fact therefore disqualifies the easement under the federal rules.  This
conclusion is of course very troublesome on a number of levels, including
the fact that the federal easement regulations require, in part, that - to
be qualified for the federal tax benefit - a property must either be located
within a National Register district or be individually listed on the
National Register.  In New York City, in most circumstances, this would
invoke the oversight and jurisdiction of the LPC.

This is a so-called "memo" ruling, therefore may not have been reviewed by
the entire Tax Court, and therefore doesn't have full precedential
consequence.  Also, as to the second finding, the ruling contradicts last
year's Simmons case out of Washington, DC.

Stefan Nagel

_______________________________
Stefan Nagel, Esq., Of Counsel
Law Office of Stephen J. Small, Esq., P.C.
One Gateway Center, Suite 801
Newton, MA  02458-2804
Phone:  617-357-4012
Fax:  617-357-1857
www.lawofficeofstephensmall.com<http://www.lawofficeofstephensmall.com/>
snagel at stevesmall.com<mailto:snagel at stevesmall.com>

IRS CIRCULAR 230 DISCLOSURE
To ensure compliance with requirements imposed by the IRS, we inform you
that any U.S. tax advice contained in this communication (including any
attachments) is not intended or written to be used, and cannot be used, for
the purpose of (i) avoiding penalties under the Internal Revenue Code or
(ii) promoting, marketing or recommending to another party any transaction
or matter addressed herein.

CONFIDENTIALITY DISCLOSURE
This message contains information that may be privileged and confidential.
The information is intended for the use of the addressee only.  Any
unauthorized disclosure, copy, distribution, or use of the contents of this
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________________________________
From: Julie Epperly [mailto:JEpperly at architecturaltrust.org]
Sent: Thursday, April 14, 2011 2:33 PM
To: Stefan Nagel
Subject: FW: Asser

Stefan - -here is the Asser decision.  Frank pointed out that its a TC memo
- not opinion - so full court may not have reviewed.  He also points out its
contrary to language in Simmons.  At any rate -- still extremely problematic
and shocking.

Regards,

Julie

Julie D. Epperly
General Counsel
Trust for Architectural Easements
1906 R Street, N.W.
Washington DC 20009
Direct: 202-797-5290 ext 151
jepperly at architecturaltrust.org<mailto:jepperly at architecturaltrust.org>

This communication is designed to provide general information and is
transmitted with the understanding that the sender is not engaged in
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purposes of (i) avoiding penalties imposed under the U. S. Internal Revenue
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