[MassHistPres] FW: Asser

[Stefan Nagel]

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

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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

 

 

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