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USCA Case #10-1063 Document #1277702 Filed: 11/16/2010 Page 1 of 40


NOT YET SCHEDULED FOR ORAL ARGUMENT



No. 10-1063





In the



UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT





COMMISSIONER OF THE INTERNAL REVENUE SERVICE,



Appellant,


v.


DOROTHY JEAN SIMMONS,



Appellee.



ON APPEAL FROM THE UNITED STATES TAX COURT

(HON. JOSEPH R. GOEKE, JUDGE)





BRIEF OF AMICI CURIAE THE NATIONAL TRUST FOR HISTORIC
PRESERVATION, THE L’ENFANT TRUST, AND FOUNDATION FOR

THE PRESERVATION OF HISTORIC GEORGETOWN

IN SUPPORT OF APPELLEE DOROTHY JEAN SIMMONS

(SUPPORTING AFFIRMANCE)

November 16, 2010

Matthew A. Eisenstein
ARNOLD & PORTER LLP
555 Twelfth Street, N.W.
Washington, D.C. 20004
202-942-5000












USCA Case #10-1063 Document #1277702 Filed: 11/16/2010 Page 2 of 40


CERTIFICATE OF PARTIES, RULINGS AND RELATED CASES

A. Parties and Amici. All parties and amici curiae appearing in this Court are

listed in the Brief for Appellant.

B. Rulings under Review. References to the rulings at issue appear in the Brief

for Appellant.

C. Related Cases. Counsel for amici curiae is not aware of any previous or

pending related cases in this Court.

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TABLE OF CONTENTS

Page(s)

CERTIFICATE OF PARTIES, RULINGS AND RELATED CASES ...................... i

TABLE OF AUTHORITIES ................................................................................... iii

GLOSSARY OF ABBREVIATIONS ...................................................................... vi

IDENTITY OF AMICI CURIAE, THEIR INTERESTS IN THE CASE,

AND THE SOURCE OF THEIR AUTHORITY TO FILE .............................. 1

SUMMARY OF ARGUMENT ................................................................................. 5

ARGUMENT ........................................................................................................... 12

I. The Tax Court Correctly Found That The Easements Were

“Exclusively For Conservation Purposes.” ...................................................... 12

A. L?Enfant?s Retention of a Right To Approve Changes Cannot

Defeat The Deductions. ............................................................................ 12

B. L?Enfant?s Retention of a Right To Abandon Cannot Defeat The

Deductions. ............................................................................................... 16

C. The Easements Need Not Detail What Happens If L?Enfant Ceases

To Exist or Abandons Its Rights of Enforcement. ................................... 19

D. The Mortgagees Subordinated Their Interests To The Rights of

L?Enfant. ................................................................................................... 20

II. The Tax Court Correctly Concluded That The Easements Caused A

Diminution of Value For Both Properties. ....................................................... 21

CONCLUSION ........................................................................................................ 30

PERTINENT STATUTES AND REGULATIONS ................................................ 31

CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME

LIMITATION, TYPEFACE REQUIREMENTS, AND TYPE STYLE
REQUIREMENTS .............................................................................................. 32

CERTIFICATE OF SERVICE ................................................................................ 33

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TABLE OF AUTHORITIES

Page(s)

CASES

Evans v. Comm’r,

T.C.M. (RIA) 2010-207 (2010) .......................................................................... 22

Griffin v. Comm’r,

56 T.C.M. (CCH) 1560 (1989) ........................................................................... 24

Herman v. Comm’r,

98 T.C.M. (CCH) 197 (2009) ............................................................................. 23

Hilborn v. Comm’r,

85 T.C. 677 (1985) ........................................................................................ 15, 24

Hughes v. Comm’r,

T.C.M. (RIA) 2009-094 (2009) .......................................................................... 23

Nicoladis v. Comm’r,

55 T.C.M. (CCH) 624 (1988) ............................................................................. 24

Schwab v. Comm’r,

67 T.C.M. (CCH) 3004 (1994) ........................................................................... 23

Stotler v. Comm’r,

53 T.C.M. (CCH) 973 (1987) ............................................................................. 18

Whitehouse Hotel Ltd. Partnership v. Comm’r,

615 F.3d 321 (5th Cir. 2010) .............................................................................. 22

STATUTES

16 U.S.C. §§ 461-468................................................................................................. 1

Internal Revenue Code (26 U.S.C.)

*§ 501(c)(3) ................................................................................................ 1, 9, 14, 16

*§ 170(b)(1)(A)(vi) .................................................................................................. 20


Authorities on which we chiefly rely are marked with asterisks.

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TABLE OF AUTHORITIES (cont’d)

*§ 170(h) ....................................................................... 2, 3, 5, 6, 8, 9, 10, 12, 13, 25

Page(s)

D.C. Code

§ 6-1101 ................................................................................................................... 25

§ 29-301.48 .............................................................................................................. 19

§ 29-301.53 .............................................................................................................. 15

§ 29-301.56 .............................................................................................................. 19

§ 42-201 ..................................................................................................................... 5

§ 42-202 ............................................................................................................. 16, 23

Pension Protection Act of 2006, Pub. L. No. 109-280, § 1213(a)(1), 120

Stat. 780 .............................................................................................................. 12

Tax Reform Act of 1976, Pub. L. No. 94-455, § 2124, 90 Stat. 1520 ....................... 5

Tax Treatment Extension Act of 1980, Pub. L. 96-541, § 6(a), 94 Stat. 3206 .......... 6

RULES AND REGULATIONS

*26 C.F.R. § 1.170A-1(e) ............................................................................ 10, 15, 18

*26 C.F.R. § 1.170A-14 .................................................. 9, 10, 12, 14, 15, 16, 20, 21

*26 C.F.R. § 1.501(c)(3)-1(c) ............................................................................ 14, 19

36 C.F.R. Part 67 ...................................................................................................... 14

LEGISLATIVE MATERIALS

General Explanation of the Tax Reform Act of 1976 (H.R. 10612, 94th
Congress, Public Law 94-455), prepared by the Joint Committee on
Taxation, JCS-33-76, 94th Cong. (1976).......................................................... 5, 6

H.R. Rep. No. 96-1278, 96th Cong., 2d Sess. (1980) ................................................ 6

S. Rep. No. 96-1007, 96th Cong., 2d Sess. (1980) .............................................. 6, 20



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TABLE OF AUTHORITIES (cont’d)

Page(s)

MISCELLANEOUS

Ann E. Marimow, Standing Their Ground: Montgomery Proposal Divides
Preservationists, Land Owners, WASH. POST, June 5, 2009, available at
http://www.washingtonpost.com/wp-
dyn/content/article/2009/06/04/AR2009060404430.html ............................ 28, 29

CCH IRS Letter Rulings Reports No. 181, August 21, 1980; I.R.S. P.L.R.

8032013 (Apr. 14, 1980)..................................................................................... 15

Charter, Internal Revenue Service Advisory Council, available at

http://www.irs.gov/pub/irs-utl/irsac_2009_renewal_charter.pdf. .................. 3, 19

District of Columbia, Historic Preservation Office Enforcement Program,

available at http://planning.dc.gov/planning/frames.asp?doc=
/planning/lib/planning/preservation/enforcement/hp_enforcement_prioriti
es.03.09.pdf ......................................................................................................... 25

Marc Fisher, Chevy Chase DC Rejects Historic Status, WASH. POST, Oct. 20,

2008, available at
http://voices.washingtonpost.com/rawfisher/2008/10/chevy_chase_dc_rej
ects_histori.html .................................................................................................. 29

Mark Primoli, Façade Easement Contributions, FEDERAL HISTORIC

PRESERVATION TAX INCENTIVES, NATIONAL PARK SERVICE (Sept. 7,
2000) ................................................................................................................... 29

National Park Service, Sample Conservation Easement Agreement for a

Save America?s Treasures Grant (Historic Building), available at
http://www.nps.gov/history/hps/treasures/download/SAT_sample_ease
ment.pdf ................................................................................................................ 7

Report of Internal Revenue Service Advisory Council (IRSAC), November

2009, available at http://www.irs.gov/taxpros/article/0,id=
215543,00.html ............................................................................................... 3, 29

Stephen J. Small, THE FEDERAL TAX LAW OF CONSERVATION EASEMENTS

(2d ed. Land Trust Alliance 1990) ........................................................................ 7

THE CONSERVATION EASEMENT HANDBOOK (Elizabeth Byers & Karen M.

Ponte, Eds., 2d ed. Land Trust Alliance 2005) ............................................. 2, 5, 6

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GLOSSARY OF ABBREVIATIONS

HPO

District of Columbia Historic Preservation Office

IRS

Internal Revenue Service

IRC



Internal Revenue Code

L?Enfant

The L?Enfant Trust




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IDENTITY OF AMICI CURIAE, THEIR INTERESTS IN THE CASE, AND

THE SOURCE OF THEIR AUTHORITY TO FILE

A.

Identity of Amici Curiae

The National Trust for Historic Preservation in the United States is a non-

profit organization chartered by Congress in 1949 to further the historic

preservation policies of the United States and to “facilitate public participation” in

the preservation of our nation?s heritage. 16 U.S.C. §§ 461-468. The L?Enfant

Trust is a non-profit corporation chartered under the laws of the District of

Columbia in 1978 to protect and to promote the aesthetic integrity of Washington,

D.C.?s historic neighborhoods. The Foundation for the Preservation of Historic

Georgetown is a non-profit corporation chartered under the laws of the District of

Columbia in 1965 to preserve and protect the character of the historic area of the

District of Columbia known as Old Georgetown.

The IRS has determined that each of the three amici curiae is an exempt

organization pursuant to 26 U.S.C. § 501(c)(3). Pursuant to Fed. R. App. P. 26.1,

counsel for amici curiae has certified that no parent company or other corporation

owns any stock or other interest in the three organizations. The Attorney General

of the United States is a statutory ex officio member of the Board of Trustees of

the National Trust, as is the Secretary of the Interior. See 16 U.S.C. § 468b.



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B.

Interest of Amici Curiae In the Case

Amici curiae have a significant interest in the outcome of this matter. For

well over thirty years, they and other qualified organizations collectively have

accepted thousands of donations of preservation easements from owners of historic

properties.1 L?Enfant holds preservation easements on more than 1,100 buildings

in Washington, D.C., including the two easements donated by Appellee Dorothy

Jean Simmons at issue here. The Foundation for the Preservation of Historic

Georgetown holds preservation easements on more than 110 buildings in

Washington, D.C. The National Trust for Historic Preservation holds more than

100 easements on historic properties across the country, and, with over 190,000

members nationwide, it carries out a wide range of programs and activities in

support of historic preservation, as provided under its federal charter.

The arguments of the Commissioner in this case, if credited, would have far-

reaching and harmful consequences for amici curiae and historic preservation

efforts in this country. Congress created the charitable tax deduction in Section

170(h) of Title 26, United States Code (the Internal Revenue Code or IRC) to

encourage private landowners to donate preservation easements to nonprofit


1 Conservation easements have been used in the United States for more than a
century, although their use by nonprofit conservation and preservation
organizations did not become commonplace until the 1970s. See THE
CONSERVATION EASEMENT HANDBOOK (Elizabeth Byers & Karen M. Ponte, Eds.,
2d ed. Land Trust Alliance 2005), at 10-11.

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preservation organizations and government entities. To the extent the

Commissioner incorrectly concludes that a preservation easement is not donated

“exclusively for preservation purposes” or valueless, the Commissioner deprives

the taxpayer of that incentive and undermines the purpose of § 170(h). That is

what happened in this case.

The Commissioner?s arguments here are not isolated. In recent years, the

Commissioner has advanced similar positions to challenge charitable deductions

for donations of preservation easements throughout Washington, D.C. and the

country.2 Amici curiae agree that the Commissioner must actively guard against

abusive practices. But the Commissioner must apply § 170(h) consistent with its

language, in a manner that does not hinder the conduct that Congress meant to

encourage. As a result of the Commissioner?s arguments here and in similar cases,

donations of preservation easements have dwindled and in some communities have


2 As explained by the Internal Revenue Service Advisory Council—a
Committee authorized by the Federal Advisory Committee Act to provide a public
forum for IRS officials and representatives of the public to discuss relevant tax
administration issues—the Commissioner has undertaken a “wide-ranging
initiative” to audit charitable deductions claimed by donors of historic preservation
easements. See Report of Internal Revenue Service Advisory Council (IRSAC),
November 2009, available at http://www.irs.gov/taxpros/article/0,,id=
215543,00.html (hereafter “IRSAC Report”); Charter, Internal Revenue Service
Advisory Council, available at http://www.irs.gov/pub/irs-
utl/irsac_2009_renewal_charter.pdf. As that Council observed correctly: “[t]here
is concern that any donor will hesitate to make a donation, regardless of the quality
of the appraisal or the legitimacy of the donation, if the donor knows that he or she
is thereby „buying an audit.?” IRSAC Report, at 3.

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virtually ended,3 impeding the ability of historic preservation organizations like

amici curiae to fulfill their missions. Consequently, the issues in this case are

critically important to amici curiae.

C.

Source of Authority to File

The source of authority for filing this brief is Fed. R. App. P. 29 and D.C.

Cir. Rule 29(b), and the Notice of Intent to Participate as Amici Curiae timely filed

with the consent of all parties on April 30, 2010.


3 For example, between 2000 and 2005, L?Enfant received an average of 127
easement donations per year. L?Enfant received 36 donations in 2006; 32
donations in 2007; 11 donations in 2008; 5 donations in 2009; and 0 donations thus
far in 2010.

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SUMMARY OF ARGUMENT

Preservation easements represent a uniquely effective preservation tool to

protect historic and cultural treasures from demolition or inappropriate alteration.

When a nonprofit conservation organization accepts such a donation from an

owner of a historic building, the organization receives a property right to approve

or deny changes to the exterior appearance of the property.4 Nonprofit

conservation organizations and governmental agencies have used preservation

easements to protect thousands of architectural landmarks and historic places.

Congress recognized the benefits of preservation easements by creating an

important financial incentive—a charitable tax deduction—to encourage private

landowners to donate such easements to nonprofit preservation organizations and

government entities.5 Section 170(h) of the Internal Revenue Code authorizes the


4 Preservation easements are a subcategory of “conservation easements,” a term
used to describe restrictions on title that are created to protect conservation values,
including those relating to open space, agricultural lands, forests, scenic areas,
natural habitat, and historic or architecturally significant properties. See THE
CONSERVATION EASEMENT HANDBOOK, supra note 1, at 3. Conservation
easements are creatures of state law, running to the benefit of a nonprofit
conservation organization or governmental agency. See D.C. Code § 42-201 et
seq.
5 The Tax Reform Act of 1976, Pub. L. No. 94-455, § 2124, 90 Stat. 1520,
codified deductions for charitable contributions made “exclusively for
conservation purposes.” At the time, Congress explained that “the rehabilitation
and preservation of historic structures and neighborhoods is an important national
goal. Congress believes that the achievement of this goal is largely dependent
upon whether private funds can be enlisted in the preservation movement. Tax
considerations have an important bearing on whether private interests are willing to
maintain and rehabilitate historic structures rather than allow them to deteriorate or
replace them with new buildings.” General Explanation of the Tax Reform Act of

Footnote continued on next page

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treatment of such donations as “qualified conservation contributions.” The statute

defines a “qualified conservation contribution” to include a donation “of a

qualified real property interest” (IRC § 170(h)(1)(A)), “to a qualified organization”

(IRC § 170(h)(1)(B)), “exclusively for conservation purposes” (IRC §

170(h)(1)(C)).

As the Commissioner emphasizes in this case, to be treated as “exclusively

for conservation purposes,” a donated property right must be protected “in

perpetuity.” IRC § 170(h)(5). The “perpetuity” requirement does not mean that a

nonprofit conservation organization must forever preserve a historic property in a

frozen state, impervious to any change over time. Nor could it. As the expression

goes, “Perpetuity is a very, very long time.”6 Buildings must be adaptable to new

circumstances, and changing surroundings and economics. A historic property—

even a museum property—will not be sustainable on a long-term (much less


Footnote continued from previous page
1976 (H.R. 10612, 94th Congress, Public Law 94-455), p. 643, prepared by the
Joint Committee on Taxation, JCS-33-76, 94th Cong. (1976).

The Tax Treatment Extension Act of 1980, Pub. L. 96-541, § 6(a), 94 Stat.
3206, extended permanently the deductions allowed such contributions. In so
doing, Congress recognized “the increasingly important role that conservation
easements have come to place in the movement to conserve and protect the
country?s natural resources and its cultural heritage.” H.R. Rep. No. 96-1278, 96th
Cong., 2d Sess. 15 (1980); see also S. Rep. No. 96-1007, 96th Cong., 2d Sess. 9
(1980).
6 THE CONSERVATION EASEMENT HANDBOOK, supra note 1, at 143.

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perpetual) basis unless some degree of change can be accommodated to make a

building livable or usable for future generations.

Historic preservation easements therefore must anticipate, and

accommodate, change necessary to allow sustainable use by an evolving society—

as long as that change is consistent with conservation purposes.7 Indeed, a

preservation easement that lasts forever must provide sufficient flexibility to

ensure that a historic building can be used and enjoyed forever by future residents,

while protecting and respecting the past. This is precisely the reason that historic

preservation easements—including model easements promulgated by the federal

government itself 8—contemplate that change may be permitted by an easement-

holding organization within restrictions designed to ensure the satisfaction of

conservation purposes.

Consequently, a nonprofit charitable organization that holds a preservation

easement must have the ability to regulate change, to exercise its judgment to

allow or disallow change consistent with the purpose of the easement to protect the


7 Stephen J. Small, THE FEDERAL TAX LAW OF CONSERVATION EASEMENTS (2d
ed. Land Trust Alliance 1990), at 11-7, 11-8.
8 See, for example, the sample easement recommended by the National Park
Service for properties receiving funds under the Save America?s Treasures
program. National Park Service, Sample Conservation Easement Agreement for a
Save America?s Treasures Grant (Historic Building), available at
http://www.nps.gov/history/hps/treasures/download/SAT_sample_ease
ment.pdf.

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historic or architectural values or attributes of the property. No responsible

preservation organization would create or hold an easement that simply prevents

change.

In this case, the Commissioner challenges this critical function of a

preservation easement-holding organization. In doing so, the Commissioner

challenges decades of practice by nonprofit preservation organizations and

governmental institutions at the federal, state, and local levels. The Commissioner

complains that because the easements at issue gave L?Enfant the unfettered ability

to determine whether change is appropriate, that authority includes the power to

“consent to changes without regard to preservation purposes,” and to “abandon its

rights for any number of reasons.” (Brief of Appellant at 29.) The Commissioner

further asserts that the easements do not delineate the consequences if L?Enfant

“ceases to exist,” and that the mortgagees did not recognize that their interests

were subordinated to L?Enfant. (Id. at 30, 41-43.) Therefore, the Commissioner

posits, the easements are not “exclusively for preservation purposes” under

170(h)(1)(C).

These arguments ignore the essential responsibility of an easement-holding

organization to exercise its discretion to meet the preservation purposes of the

easement document and the purposes of the organization itself. In making the

argument, the Commissioner appears to call into question L?Enfant?s commitment

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to its IRC § 501(c)(3) exempt purpose and its charter, its 32 years of responsible

operations (affirmed by IRS audits), as well as the terms of the easement deeds.

There is no dispute here that, at the time of the donation, L?Enfant was a “qualified

organization” with “a commitment to protect the conservation purposes of the

donation” and the “resources to enforce the restrictions.”9 26 C.F.R. § 1.170A-

14(c)(1). And the easement deeds afford L?Enfant the discretion to control change,

while constraining L?Enfant?s power to act in a manner inconsistent with

conservation purposes. The Commissioner appears to suggest that, because of the

remote possibility that L?Enfant might abuse its discretion, the easement is invalid

as non-perpetual; this is akin to arguing that a contract is invalid ab initio because

of a remote possibility that one of the parties might not meet its obligations in the

future.

It is important to note that, if L?Enfant fails to fulfill its charitable purpose,

the Commissioner can revoke L?Enfant?s tax-exempt status and the District of

Columbia can revoke its charter. But a remote possibility—howsoever slight—that

L?Enfant might abuse its discretion or otherwise act inconsistent with its mission


9 The Commissioner does not challenge that L?Enfant is “a qualified
organization” under IRC § 170(h)(1)(B). (Brief of Appellant at 38-39.) Nor could
this be challenged. As L?Enfant?s president explained at trial, the IRS previously
audited L?Enfant in 2007 (for the Trust?s 2003 tax year) and confirmed L?Enfant?s
status as an organization exempt from federal income tax under IRC § 501(c)(3).
(Doc. 36 at 12-13.)

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cannot invalidate an otherwise deductible donation. See 26 C.F.R. §§ 1.170A-1(e),

1.170A-14(g)(3). Such a standard would invalidate the tax deduction for

practically any charitable contribution to any charitable organization.

The Commissioner also asserts that no deduction is allowed because the

easements duplicate requirements imposed by the District of Columbia?s Historic

Landmark and Historic District Protection Act of 1978, and the regulations

promulgated thereunder. (Brief of Appellant at 59.) However, the Commissioner

does not dispute that the properties at issue are “certified historic structure[s]”

under IRC § 170(h)(4)(A)(iv) that are “[l]ocated in a registered historic district,”

26 C.F.R. § 1.170A-14(d)(5)(iii). (Brief of Appellant at 39.) In a number of

jurisdictions, including the District of Columbia, all “registered historic districts”

as defined under IRC § 170(h) are also subject to local historic preservation

regulations. Assuming the Commissioner?s argument is right, within those

jurisdictions, no preservation easement on a property located in a registered

historic district could qualify for a deduction. The notion that Congress would

expressly authorize an unusable deduction is illogical.

The Commissioner?s argument also ignores the fact that there are significant

differences between the District of Columbia?s regulatory scheme and the

restrictions included in L?Enfant?s easement program, both in the scope of what

each protects and in the efforts and resources each devotes to enforcing such

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protections. The Commissioner?s argument also overlooks that Ms. Simmons and

future owners must obtain L?Enfant?s consent, which it may withhold in its sole

discretion, to make any changes to the appearance of the eased properties—thereby

facing a burden—even if those changes are allowable under District of Columbia

law. On this point, the Tax Court correctly found that the easements diminished

the value of both properties.

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ARGUMENT

I.

The Tax Court Correctly Found That The Easements Were
“Exclusively For Conservation Purposes.”

A. L’Enfant’s Retention of a Right To Approve Changes Cannot

Defeat The Deductions.

The Commissioner argues that the easements in this case10 do not satisfy the

requirements of IRC § 170(h)(4) and (5)(A) because L?Enfant may consent to “any

type of façade change, irrespective of its compatibility with historical

preservation.”11 (Brief of Appellant at 41.) A core part of the argument is that

those easements do not satisfy the perpetuity requirement of 26 C.F.R. § 1.170A-

14(g)(1), purportedly because they do not contain restrictions “that will prevent

uses of the retained interest inconsistent with the conservation purposes of the

donation.” (Id. at 40.) The easement deeds demonstrate otherwise. Each deed

makes clear that L?Enfant is “chartered to promote a public aesthetic in land use

10 On November 18, 2003, L?Enfant and Appellee Dorothy Jean Simmons
entered into a “Conservation Easement Deed of Gift” relating her property at 17
Logan Circle. (Ex. 7; A. __.) On January 26, 2004, L?Enfant and Ms. Simmons
entered into a “Conservation Easement Deed of Gift” relating her property at 1503
Vermont Avenue. (Ex. 8; A. __.) The two deeds are identical in pertinent part.
11 The Commissioner would require Ms. Simmons to prove under IRC §
170(h)(4) that each deed includes an express “prohibition on changes „inconsistent
with the historical character of such exterior.?” (Brief of Appellant at 19, 29, 40,
42 n.10, 72.) But Congress did not add that requirement to IRC § 170(h)(4) until
2006, as part of the reforms to contributions of conservation easements after Ms.
Simmons? donations in 2003 and 2004. See Pension Protection Act of 2006, Pub.
L. No. 109-280, § 1213(a)(1), 120 Stat. 780. Indeed, as part of the Pension
Protection Act, Congress created additional requirements that donors must meet to
claim a tax deduction for donating a conservation easement. In doing so, Congress
reaffirmed the policy of creating incentives for contributions of conservation
easements.

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planning, including the preservation of historically important properties,” and is

“authorized to accept and administer gifts of real and personal property, including

easements for conservation purposes, in furtherance of its public purposes.” (Ex. 7

at 1; A. __; Ex. 8 at 1; A. __.) Each deed specifies that it is granted “in

perpetuity”12 and recorded in D.C. public land records, and gives L?Enfant

authority to inspect the property and to institute proceedings to enjoin violations

and have the façade restored to its prior condition. (Ex. 7 at 1, 3; A. __; Ex. 8 at 1,

3; A. __.) And each deed establishes the purpose of the easement:

[Ms. Simmons] desires to grant to [L?Enfant], and
[L?Enfant] desires to accept a scenic, open space and
architectural façade easement on the Property, exclusively
for conservation purposes.

* * *

It is the intent of the parties that the Façade, Building and
Property (except for minor changes in the landscaping)
remain essentially unchanged, and in the case of
ambiguity, the photographs and descriptions constituting
Exhibit B shall control.


12 The Commissioner?s position on the term “perpetuity” is internally
inconsistent. On the one hand, the Commissioner does not dispute that each of Ms.
Simmons? donations constitutes “a qualified real property interest” under IRC §
170(h)(1)(A). (Brief of Appellant at 38-39.) The Commissioner thus concedes, by
virtue of the definition of that term in the IRC, that each interest Ms. Simmons
donated is “a restriction (granted in perpetuity) on the use which may be made of
the real property.” IRC § 170(h)(2)(C) (emphasis added). On the other hand, the
Commissioner disputes that each of Ms. Simmons? donations were granted “in
perpetuity” for purposes of IRC § 170(h)(5). There is no reason to believe that
Congress intended the term “perpetuity” to have a different meaning in IRC §
170(h)(2)(C) and IRC § 170(h)(5).

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(Ex. 7 at 1; A. __; Ex. 8 at 1; A. __ (emphasis added).) Further, as the Tax Court

correctly noted, the deeds require that any rehabilitative work or new construction

on the properties must comply with “appropriate local, state, or Federal standards

for construction or rehabilitation.”13 These provisions do not allow changes that

are inconsistent with conservation purposes.

More fundamentally, the right to allow or forbid change is a tool L?Enfant

needs to fulfill its job of assuring that historic preservation can co-exist with

changing times. The Commissioner here does not dispute that “The L?Enfant Trust

was „a qualified organization?” and exempt from federal income tax under IRC §

501(c)(3). (Brief of Appellant at 39.) Under the Treasury regulations, this means

that, at the time of the donation, L?Enfant had “a commitment to protect the

conservation purposes of the donation” and the “resources to enforce the

restrictions.” 26 C.F.R. § 1.170A-14(c)(1).

If L?Enfant fails to fulfill its charitable purpose, the Commissioner has the

power to revoke L?Enfant?s tax exempt status. See IRC § 501(c)(3); 26 C.F.R §

1.501(c)(3)-1(c)(1) (an organization will not be regarded as operating exclusively

13 This provision of the deeds adopts 26 C.F.R. § 1.170A-14(d)(5)(i), which
allows rehabilitative work or new construction to an historic building—i.e., a
“future development”—without defeating the tax deduction, as long as the change
is consistent with “appropriate local, state, or Federal standards for construction or
rehabilitation.” This regulation acknowledges the role of historical preservation in
accommodating change. An example of the “Federal standards” is the Secretary of
the Interior?s Standards for Rehabilitating Historic Buildings, codified at 36 C.F.R.
Part 67 and referenced in the deeds here. (Ex. 7 at 2; A. __.; Ex. 8 at 2; A. __.)

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USCA Case #10-1063 Document #1277702 Filed: 11/16/2010 Page 22 of 40


for exempt purposes if more than an insubstantial part of its activities does not

further an exempt purpose). The District of Columbia also has the power to revoke

L?Enfant?s articles of incorporation if L?Enfant acts inconsistently with its

nonprofit purpose. See D.C. Code § 29-301.53(a)(5) (permitting injunctive or

equitable relief in action brought by the District of Columbia Attorney General

where the “corporation has continued to act contrary to its nonprofit purposes”).

In these circumstances, the possibility that L?Enfant could abuse its

discretion in exercising the judgment that it requires to control change is too

remote to invalidate the deduction. See 26 C.F.R. §§ 1.170A-1(e), 1.170A-

14(g)(3) (deduction cannot be disallowed “merely because the interest which

passes to, or is vested in, the donee organization may be defeated by the

performance of some act or the happening of some event, if on the date of the gift

it appears that the possibility that such act or event will occur is so remote as to be

negligible”).14


14 It is perhaps for this reason that the Commissioner has not always asserted that
a preservation easement giving a charitable organization the sole discretion to
approve changes to the appearance of a historic building fails the “perpetuity”
requirement. See, e.g., CCH IRS Letter Rulings Reports No. 181, August 21,
1980; I.R.S. P.L.R. 8032013 (Apr. 14, 1980) (Commissioner found that easement
giving a nonprofit organization the sole discretion to prevent the donor “from
altering the color of the paint on the exterior of the house” was “in gross in
perpetuity in the manner and to the extent provided under section 170 of the Code
and regulations thereunder”); Hilborn v. Comm’r, 85 T.C. 677 (1985)
(Commissioner agreed that servitude “qualified as a real property easement in
perpetuity for conservation purposes” even though it gave a qualified charitable
organization “the sole right at Grantee?s own discretion to preserve or maintain in

Footnote continued on next page

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USCA Case #10-1063 Document #1277702 Filed: 11/16/2010 Page 23 of 40


B.

L’Enfant’s Retention of a Right To Abandon Cannot Defeat The
Deductions.

The Commissioner asserts that the easements do not satisfy the requirements

of IRC § 170(h)(5)(A) and 26 C.F.R. § 1.170A-14(g)(1) because L?Enfant retains

the right to “abandon” those easements or its enforcement rights. As with the right

to change the appearance of the façade, however, L?Enfant?s § 501(c)(3) status and

charter give L?Enfant the needed flexibility to control change but constrain

L?Enfant?s ability to abandon the easements in a manner contrary to conservation

purposes. Indeed, L?Enfant risks losing its tax-exempt status if the Commissioner

finds that the Trust is not carrying out its charitable purposes because it is

mismanaging the easements entrusted to it.

In addition, regardless of whether it is expressly stated in the easement deed,

the right to abandon an easement is a right that all conservation easements holders

in the District of Columbia have by virtue of local law. See D.C. Code § 42-

202(a)(1) (“a conservation easement may be created, conveyed, recorded, assigned,

released, modified, terminated, or otherwise altered or affected in the same manner

as other easements . . .”) (emphasis added). Affording a conservation easement-

holding organization the right to abandon an easement also is sound policy, if the

Footnote continued from previous page
its present condition . . . the appearance, composition and/or character of the said
exterior façade, front or roof of the above described property and the buildings and
improvements located thereon”).

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USCA Case #10-1063 Document #1277702 Filed: 11/16/2010 Page 24 of 40


circumstances of the abandonment would result in a significantly greater public

benefit. For example, the organization might decide to enter an agreement with a

developer that releases a single easement (e.g., on a single, modest building next to

a Metro stop) in exchange for easements on significant additional properties (e.g.,

an entire block of nearby buildings). The right to say yes or no in such a

circumstance—a right codified in D.C. law—allows a responsible easement-

holding organization to fulfill its mission and to ensure that historic preservation

can co-exist with changing times.

In any event, the deeds at issue here merely restate local law, making it

clearer for donors and donees alike. L?Enfant?s ability to abandon its rights under

the easements in this case thus would exist even if the deeds were silent on that

issue. Accepting the Commissioner?s argument that an expressly-stated right of an

easement-holding organization to abandon its rights renders the easement non-

perpetual as a matter of law would mean that no preservation easement granted in

the District of Columbia could be tax deductible under federal law, unless the

easement-holding organization were to waive those rights expressly conferred to

conservation easement holders by local law. Such a result would make no sense.

The Commissioner?s position also is inconsistent with Stotler v. Comm’r, 53

T.C.M. (CCH) 973 (1987). There, the taxpayers granted to a municipal

government a scenic easement over undeveloped land. Then as now, the Code

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USCA Case #10-1063 Document #1277702 Filed: 11/16/2010 Page 25 of 40


required that an “easement with respect to real property must be granted in

perpetuity in order to qualify for a charitable contribution deduction.” Id. at 978.

The Commissioner contended that the easement was not “granted in perpetuity,”

among other things, because a possibility existed that the easement could be

abandoned by the grantee. Id. at 980.

The taxpayers in Stotler relied on 26 C.F.R. § 1.170A-1(e), which provides

that if a vested interest passing to charity “would be defeated by the subsequent

performance of some act or the happening of some event, the possibility of

occurrence of which appears on the date of the gift to be so remote as to be

negligible, the [charitable] deduction is allowable.” Id. at 979. In ruling for the

taxpayers, the court found that the future events posited by the Commissioner—

such as the possibility that the municipality could find that no public purpose

would be served by keeping the land as open space—were “so remote as to be

negligible.” Id. at 980.

Similar logic applies here. Nothing in the record suggests that the possibility

that L?Enfant might abandon easements in a manner inconsistent with conservation

purposes is more than remote. The president of L?Enfant testified in this case that

“it might make sense” for L?Enfant to abandon easements “if an area was ruined”

by a terrorist strike in the District of Columbia. (Doc. 36 at 34-35; A. __.)

However, the Commissioner can point to nothing to suggest more than a remote

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USCA Case #10-1063 Document #1277702 Filed: 11/16/2010 Page 26 of 40


chance of that occurring, or of L?Enfant acting inconsistent with the conservation

purposes of the easements.

C. The Easements Need Not Detail What Happens If L’Enfant

Ceases To Exist or Abandons Its Rights of Enforcement.

The Commissioner faults the easements because “they do not contain any

provisions detailing what happens to the easements” if L?Enfant ceases to exist, or

should L?Enfant “abandon its rights of enforcement.” (Brief of Appellant at 42.)

Each deed makes clear that “[t]his easement shall survive any termination of

Grantor?s or Grantee?s existence.” (Ex. 7 at 3; A. __; Ex. 8 at 3; A. __.) In the

event that L?Enfant dissolved, its assets—including the easements at issue here—

would be transferred to another organization engaged in “activities substantially

similar to those of” L?Enfant. See D.C. Code. §§ 29-301.48 (voluntary

dissolution); 29-301.56 (involuntary dissolution). The Commissioner does not

dispute this point. The Commissioner also agrees that L?Enfant satisfies the

organizational test under 26 C.F.R. § 1.501(c)(3)-1(c). Indeed, it is clear that upon

dissolution of L?Enfant or the abandonment by L?Enfant of its assets, those assets

(or the proceeds from the sale of such assets), will be distributed for one or more

exempt purposes. In other words, the easements? conservation purposes would

continue to be protected in perpetuity if L?Enfant ceased to exist.

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USCA Case #10-1063 Document #1277702 Filed: 11/16/2010 Page 27 of 40


In addition, the Commissioner concedes that, at the time of the donation,

L?Enfant was a tax-exempt organization, IRC § 503(c)(3), such that it had “a

commitment to protect the conservation purposes of the donation” and the

“resource to enforce the restrictions.” IRC § 170(b)(1)(A)(vi); 26 C.F.R. §

1.170A-14(c)(1); S. Rep. No. 96-1007, 96th Cong., 2d Sess. 14 (1980) (expressing

congressional intent that contributions must be made to organizations which have

the commitment and resources to enforce perpetual restrictions). At the time of the

donation, the possibility that L?Enfant would cease to exist or abandon its rights of

enforcement was no more than a remote possibility. See 26 C.F.R. § 1.170A-

14(g)(3). Finally, and in all events, by this argument the Commissioner is

attempting to impose a new requirement for easement-holding organizations that is

not currently required in the applicable Treasury regulations.

D. The Mortgagees Subordinated Their Interests To The Rights of

L’Enfant.

The Commissioner complains that the “[a]cknowledgement” form executed

by each mortgagee “do[es] not expressly state that the mortgagee recognizes that

its interest is subordinated to the rights” of L?Enfant. (Brief of Appellant at 43.)

Page 4 of each deed makes clear that each mortgagee subordinated its interests to

L?Enfant:

The property is currently encumbered by Deeds of Trust
recorded in the land records of the District of Columbia

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USCA Case #10-1063 Document #1277702 Filed: 11/16/2010 Page 28 of 40


securing loans payable to National City Mortgage and
Countrywide Home Loans (“Lenders”). Lenders hereby
subordinates [sic] their rights in the Property to the right
of the Grantee, its successors or assigns, to enforce the
conservation purposes of this easement in perpetuity, and
join in the execution of this Conservation Deed for the
sole and limited purpose of so subordinating their
interests.

(Ex. 7 at 4; A. __; Ex. 8 at 4; A. __.) Page 5 of each deed is an executed form

entitled “Lender Acknowledgment—Conservation Easement,” which reflects that

each mortgagee signed a statement that “acknowledge[d] and deliver[d] these

presents as its act and deed.” (Ex. 7 at 5-6; A. __; Ex. 8 at 5-6; A. __.)

According to the Commissioner, because the mortgagees? signatures appear

on this “acknowledgement” form, “there is at least a possibility of future litigation

that could test [the] proposition” that “the lenders had agreed to subordinate their

interests.” (Brief of Appellant at 43.) However, there is no requirement in the law

or applicable Treasury regulations that the signature page of a subordination

agreement must expressly state that the signer agrees to be bound to requirements

found on preceding pages of the agreement. The Tax Court properly found that the

deeds satisfied the subordination requirements of 26 C.F.R. § 1.170A-14(g)(2).

II. The Tax Court Correctly Concluded That The Easements Caused A

Diminution of Value For Both Properties.

The Commissioner argues that the Tax Court erred in finding a common 5%

diminution of value for both properties based on the easements granted to

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USCA Case #10-1063 Document #1277702 Filed: 11/16/2010 Page 29 of 40


L?Enfant. (Brief of Appellant at 59.) According to the Commissioner, the

easements were superfluous and did not prevent anything not already covered by

District of Columbia preservation laws. (Id.) The Commissioner thus repeats the

arguments of its expert below, who did not find any change in the fair market value

of either property as a result of the granting of the easements. (Doc. 41 at 21; A.

__.)

The Tax Court appropriately rejected these arguments. Easement donations

may or may not have been overvalued in the past, and, in some circumstances, they

may sometimes have involved only small reductions in market value. However, it

is hard to imagine that a property free and clear of an encumbrance is not worth

something more than an identical property encumbered by an easement, as others

have found. See, e.g., Whitehouse Hotel Ltd. Partnership v. Comm’r, 615 F.3d

321, 327 (5th Cir. 2010) (noting that it was “rather extraordinar[y]” that the

Commissioner?s expert assigned a preservation easement a value of zero); Evans v.

Comm’r, T.C.M. (RIA) 2010-207, 1277 (2010) (“We note that ordinarily any

encumbrance on real property, howsoever slight, would tend to have some negative

effect on the property?s fair market value. Even a nominal encumbrance that is

placed by the current owner of the property would, at the very least, deprive a

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USCA Case #10-1063 Document #1277702 Filed: 11/16/2010 Page 30 of 40


subsequent owner of the opportunity of placing a similar encumbrance on that

property.”).15

The Commissioner relies on a footnote in Herman v. Comm’r, 98 T.C.M.

(CCH) 197, 203 n.5 (2009), stating that “it is difficult to justify a charitable

contribution deduction for an owner?s agreement to refrain from doing what he is

already legally forbidden to do.” (Brief of Appellant at 60.) But there, the Tax

Court was responding to the taxpayer?s argument that the easement effectively

authorized the easement-holding organization to enforce the local preservation law.

Herman, 98 T.C.M. at 203 n.5. Here, by contrast, the easements required the

donor to do significantly more than whatever the District of Columbia restrictions

imposed: to obtain L?Enfant?s consent to make changes to the façades, even if

those changes are allowable under the District of Columbia?s preservation law.

Moreover, under District of Columbia law, the donor must obtain the L?Enfant?s

written consent before the HPO can issue a permit allowing changes to the facades.

See D.C. Code § 42-202.01.

See also Schwab v. Comm’r, 67 T.C.M. (CCH) 3004, 3005-7 (1994) (“We


15
find it hard to imagine a prospective purchaser of a [tract of] land who would not
have considered the restrictions of the open-space easement in determining the
price.”), cited with approval in Hughes v. Comm’r, T.C.M. (RIA) 2009-094, 712
(2009) (“[W]e disagree with [Commissioner?s expert?s] conclusion that the
conservation easement may have had no, or only a nominal, impact on the fair
market values of the [encumbered land].”).

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USCA Case #10-1063 Document #1277702 Filed: 11/16/2010 Page 31 of 40


The Tax Court here properly relied on this “additional level of approval

before any changes could be made to the properties.” (Doc. 41 at 26; A. __.)

Other decisions of the Tax Court similarly have found a significant economic

diminution in value caused by the donation of a preservation easement, even where

the restrictions imposed by the easement and a local landmark law significantly

overlapped. See, e.g., Griffin v. Comm’r, 56 T.C.M. (CCH) 1560 (1989);

Nicoladis v. Comm’r, 55 T.C.M. (CCH) 624 (1988); Hilborn v. Comm’r, 85 T.C.

677 (1985).

The Commissioner nonetheless asserts that “if taxpayer conveyed to

L?Enfant nothing more than a promise not to do what she was already prohibited

from doing by local law, it is difficult to understand how what she donated had any

value at all.” (Brief of Appellant at 45.) But—as noted above—the premise of this

assertion is incorrect: the restrictions of the easement are not identical to the

restrictions under the local preservation law. Moreover, taken to its logical

conclusion, the Commissioner?s argument would deprive a tax deduction for any

donor of an easement on a property located in a registered historical district in a

jurisdiction such as the District of Columbia, where local law also regulates

registered historic districts. Indeed, there is no dispute here that the properties at

issue are “certified historic structures” under IRC § 170(h)(4)(A)(iv), in part

because they are located in a registered historic district. (Brief of Appellant at 39.)

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USCA Case #10-1063 Document #1277702 Filed: 11/16/2010 Page 32 of 40


In the District of Columbia, all such districts are regulated by a local preservation

law. See D.C. Code § 6-1101 et seq. Thus, under the Commissioner?s argument,

no easement donated on property located in a registered historic district in the

District of Columbia could have value recognizable under IRC § 170(h). That type

of sweeping invalidation of tax benefits for easement donations would disregard

the congressional purpose underlying IRC § 170(h).

In any case, the record establishes that each deed?s restrictions are more

onerous than those provided for by the District of Columbia?s preservation laws.

At trial, the president of L?Enfant explained that L?Enfant must approve changes to

paint colors, whereas the HPO does not impose the same requirement. (Doc. 36 at

39-41; A. __.) There is no evidence in the record refuting that point.16 The

president of L?Enfant further testified that, when mortar erodes on an eased

property, L?Enfant requires “retucking” (or scraping out eroded mortar and putting

new mortar in). However, the District of Columbia often allows a homeowner to

simply patch and paint the masonry as problems develop, a less expensive process.

(Doc. 36 at 39-41; A. __.) L?Enfant?s president also described an instance in


16 Publicly available information published by the HPO confirms that “[p]ainting
and caulking” are among items of “[w]ork not requiring a permit and not subject to
inspection.” District of Columbia, Historic Preservation Office Enforcement
Program, available at http://planning.dc.gov/planning/frames.asp?doc=
/planning/lib/planning/preservation/enforcement/hp_enforcement_priorities.03.09.
pdf.

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USCA Case #10-1063 Document #1277702 Filed: 11/16/2010 Page 33 of 40


which the District of Columbia issued a permit allowing vinyl replacement

windows prior to review and approval by L?Enfant. (Doc. 36 at 28-29; A. __.)

Because L?Enfant typically does not permit vinyl windows in historic buildings,

notwithstanding the District of Columbia?s permit, L?Enfant required the property

owner to use different replacement widows consistent with historical preservation.

(Doc. 36 at 29; A. __.) The owner thereafter had to apply for a new permit. (Id.)

The Commissioner also downplays testimony about L?Enfant?s enforcement

activities as “anecdotal,” but the record is clear that L?Enfant is more active in

enforcing its restrictions than the District of Columbia. L?Enfant?s president

summarized L?Enfant?s enforcement activities as follows:

The Trust routinely writes all property owners every
year, so we have written correspondence, and, that way,
if something gets returned, and we?re not made aware of
a sale, we?ll find the owner?s name. So we write all of
our donors.

We inspect every property every year. We photograph
every property every year. We plaque all of our
properties. We import all of the data into our office data
bank . . . and . . . the reviewing of city permits, is really
effective.

We see both the building permits from the D.C. Historic
Preservation Office, which they are good enough to send
us every month, and we also see Commission of Fine
Arts review in Georgetown for any permits of some of
our buildings that could be in Georgetown. So permit
review generates a lot of work as well.

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USCA Case #10-1063 Document #1277702 Filed: 11/16/2010 Page 34 of 40


You know, we don?t scold people as soon as we find
them on the building permit list because they have a right
to go forth, but they can?t proceed with their project until
they also have review from us. So we call them and
remind them that they are going to need a letter from the
[T]rust before they go forward. So that?s how that
works. Enforcement is pretty active in [T]he L?Enfant
Trust.

(Doc. 36 at 37-38; A. __.)

The president of L?Enfant further explained that the District of Columbia

previously “signed off” on changes to historic buildings, only to have L?Enfant

exercise its “right to intercede” and prevent those changes. (Doc. 36 at 27-28; A.

__.) Further, she described an instance where L?Enfant filed suit against a donor

who painted her property “strange colors” without L?Enfant?s permission, and

refused change it back. (Doc. 36 at 41-42; A. __.) L?Enfant hired outside counsel,

filed suit, won summary judgment, obtained over $80,000 in attorneys? fees (as

authorized by the deeds), and thereafter repainted the house “as it was when the

easement was given.” (Doc. 36 at 42; A. __.)



In contrast to these efforts, the manager of the District of Columbia?s

historical preservation program testified that, although his office maintains a list of

permit applications on which his office signed off, “[o]ur inspectors actually,

however, don?t have really the time to do routine sweeps of historic districts.”

(Doc. 36 at 91; A. __.) The manager explained that his office has never instituted

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USCA Case #10-1063 Document #1277702 Filed: 11/16/2010 Page 35 of 40


criminal proceedings to enforce violations, and cannot recover attorney?s fees.

(Doc. 36 at 92; A. __.) He further testified:

[W]e prefer not to have the burden of enforcing
easements. It?s something that we?re not really
administratively set up to do because we don?t really
have the time to go out annually, or however often, to
affirmatively inspect properties. As I?ve testified, our
enforcement response is really responsive; it?s not
affirmative.

(Doc. 36 at 94; A. __.)



The Commissioner would have the Court brush aside these differences,

pointing to the possibility that the District of Columbia might strengthen its laws,

or enforce them more rigorously, in the future. According to the Commissioner,

“[t]he issue is not what the parties to the easement currently are doing; the issue is

how the deeds bind L?Enfant and its successors in perpetuity.” (Brief of Appellant

at 61.) Nevertheless, just as there is a possibility that the District of Columbia

might make its laws stricter, it is equally (if not more) possible that preservation

laws will weaken over time. Those laws are only as strong as the political will that

keeps them in place, and a new generation might yield to the economic and

development pressures of the day.17 Unlike local preservation legislation, the


17 Recent legislative proposals in nearby jurisdictions would weaken local
preservation laws, including in Montgomery County, Maryland, where one
proposal would require “owner consent” limitations for historic designations. See
Ann E. Marimow, Standing Their Ground: Montgomery Proposal Divides

Footnote continued on next page

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USCA Case #10-1063 Document #1277702 Filed: 11/16/2010 Page 36 of 40


private property rights embodied in a conservation easement are insulated from

such pressures in perpetuity.

Valuation of preservation easements is a complicated and subjective issue.

As a result, at least some in the Commissioner?s office previously concluded that

“the proper valuation” of a preservation easement is approximately 10-15 percent

of the property.18 The IRS?s Advisory Council likewise has called upon the

Commissioner to “[a]dopt a safe-harbor audit policy that „qualified appraisals?

(original or revised) will be accepted (absent clear and convincing evidence to the

contrary) when the appraised value of the donated easement is equal to or less than

10 percent of the value of the underlying property.”19 Regardless of whether a safe

harbor is the right result for the future, the IRS?s finding that the easements in this

case had zero value is wrong.


Footnote continued from previous page
Preservationists, Land Owners, WASH. POST, June 5, 2009, available at
http://www.washingtonpost.com/wp-
dyn/content/article/2009/06/04/AR2009060404430.html. Indeed, a similar
proposal was considered in the District of Columbia following an unsuccessful
effort to establish a new historic district in Chevy Chase, D.C. See Marc Fisher,
Chevy Chase DC Rejects Historic Status, WASH. POST, Oct. 20, 2008, available at
http://voices.washingtonpost.com/rawfisher/2008/10/chevy_chase_dc_rejects_hist
ori.html.
18 As of the date of the preservation easement contributions in this case, IRS
engineers performed a study and concluded that “. . . proper valuation of a façade
easement should range from approximately 10% - 15% of the value o the
property.” Mark Primoli, Façade Easement Contributions, p. 2, FEDERAL
HISTORIC PRESERVATION TAX INCENTIVES, NATIONAL PARK SERVICE (Sept. 7,
2000).
19 IRSAC Report, supra note 2.

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USCA Case #10-1063 Document #1277702 Filed: 11/16/2010 Page 37 of 40


CONCLUSION

For the reasons stated above, the Tax Court?s decision should be affirmed.



Dated: November 16, 2010.























Respectfully submitted,




/s/ Matthew A. Eisenstein
Matthew A. Eisenstein
ARNOLD & PORTER LLP
555 Twelfth Street, N.W.
Washington, D.C. 20004-1206
Tel: (202) 942-5000
Fax: (202) 942-5999
[email protected]





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USCA Case #10-1063 Document #1277702 Filed: 11/16/2010 Page 38 of 40


PERTINENT STATUTES AND REGULATIONS

Pursuant to D.C. Circuit Rule 28(a)(5), Amici Curiae state that the pertinent


statutes are contained in the addendum to the Brief for Appellant, subject to the
points of clarification stated on page 3 of the Brief for Appellee.

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USCA Case #10-1063 Document #1277702 Filed: 11/16/2010 Page 39 of 40


CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME

LIMITATION, TYPEFACE REQUIREMENTS,

AND TYPE STYLE REQUIREMENTS

1. This brief complies with the type-volume limitation of Fed. R. App. P.

32(a)(7)(B) because the brief contains 6,952 words, excluding the parts of the brief
exempted by Fed. R. App. P. 32(a)(7)(B)(iii) and D.C. Circuit Rule 32. In making
this certification, the undersigned has relied upon the word count of the word-
processing system used to prepare this brief.

2. This brief complies with the typeface requirements of D.C. Circuit Rule

32(a)(1) and the type style requirements of Fed. R. App. P. 32(a)(6) because the
brief has been prepared in a proportionately spaced typeface using Microsoft
Office Word 2003 in 14 point, Times New Roman.



Dated: November 16, 2010.
Washington, D.C.
















/s/ Matthew A. Eisenstein
Matthew A. Eisenstein
ARNOLD & PORTER LLP
Counsel for Amici Curiae









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USCA Case #10-1063 Document #1277702 Filed: 11/16/2010 Page 40 of 40





CERTIFICATE OF SERVICE



I hereby certify that, on this 16th day of November, 2010, the foregoing

Brief of Amici Curiae National Trust for Historic Preservation, The L?Enfant Trust,

and Foundation for the Preservation of Historic Georgetown In Support of

Appellee Dorothy Jean Simmons (Supporting Affirmance) was filed with the Clerk

of the United States Court of Appeals for the D.C. Circuit by using the CM/ECF

system. Counsel for Appellee and Counsel for Appellant were served

electronically via the Notice of Docket Activity transmitted by the CM/ECF

system. Five paper copies have been submitted to the Court on the same date via

hand delivery.

Executed in Washington, D.C. on November 16, 2010.



/s/ Matthew A. Eisenstein
Matthew A. Eisenstein
ARNOLD & PORTER LLP



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