Opinion
12235-20 12249-20
12-08-2023
JACKSON CROSSROADS LLC, GREENCONE INVESTMENTS LLC, TAX MATTERS PARTNER ET. AL., Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Christian N. Weiler Judge.
These consolidated cases are set for trial commencing on January 8, 2024, at a special trial session of the Court in Atlanta, Georgia.
On October 12, 2023, respondent filed a Motion for Partial Summary Judgment, moving pursuant to Rule 121 that this Court enter an order granting summary adjudication in each of these consolidated cases on the issue of whether he complied with the requirements of section 6751(b) with respect to the gross valuation misstatement penalty under section 6662(h), the negligence penalty under section 6662(c), the substantial understatement of income tax penalty under section 6662(d), the substantial valuation misstatement penalty under section 6662(e), and the reportable transaction understatement penalty under section 6662A (collectively, the Penalties).
Unless otherwise indicated, statutory references are to the Internal Revenue Code, Title 26 U.S.C. (I.R.C.), in effect at all relevant times, regulation references are to the Code of Federal Regulations, Title 26 (Treas. Reg.), in effect at all relevant times, and Rule references are to the Tax Court Rules of Practice and Procedure.
On November 21, 2023, petitioner filed its Response to Motion for Partial Summary Judgement in each of these consolidated cases stating that "[w]ithout acquiescing to the propriety or applicability of the penalties . . . [p]etitioner does not challenge [respondent's] compliance with section 6751(b)." Accordingly, petitioner requests that this Court deny respondent's Motion for Partial Summary Judgment as moot.
On October 13, 2023, petitioner, in Jackson Crossroads LLC (Jackson Crossroads), Docket No. 12235-20, filed a Motion for Partial Summary Judgment, moving pursuant to Rule 121 and directing this Court's attention to respondent's Responses to Petitioner's First Request for Admissions that this Court enter an order granting favorable summary adjudication on the following issues as a matter of law:
a. Jackson Crossroads made a noncash charitable contribution during the tax year ended December 31, 2016;
b. The Deed of Conservation Easement in Jackson Crossroads (Jackson Crossroads Deed) constitutes a "qualified real property interest" under section 170(h)(1)(A) and (h)(2)(C);
c. The Donee to the Jackson Crossroads Deed, Oconee River Land Trust (Oconee LT), constitutes a "qualified organization" under section 170(h)(1)(B);
d. The Jackson Crossroads Deed was made "exclusively for conservation purposes" under section 170(h)(1)(C);
e. The December 29, 2017, letter from Oconee LT to Jackson Crossroads satisfies the contemporaneous written acknowledgement requirements of section 170(f)(8).
f. The Form 8283, Noncash Charitable Contributions, filed by Jackson Crossroads satisfies the requirements of an appraisal summary under section 170(f)(11) and Treasury Regulation § 1.170A-13(c)(4);
g. Robert J. Fletcher, CCIM is a Qualified Appraiser under section 170(f)(11) and Treasury Regulation § 1.170A-13(c)(5); and
h. The Appraisal prepared by Mr. Fletcher is a Qualified Appraisal under section 170(f)(11) and Treasury Regulation § 1.170A-13(c)(3).
On November 21, 2023, respondent filed his Response to Motion for Partial Summary Judgment in Jackson Crossroads, opposing petitioner's relief sought in paragraphs a, b, d, g and h above. However, respondent does not oppose the relief sought by petitioner in paragraphs c, e, and f above.
On October 13, 2023, petitioner, in Long Branch Investments, LLC (Long Branch), Docket No. 12249-20, filed a Motion for Partial Summary Judgment, moving pursuant to Rule 121 and directing this Court's attention to respondent's Responses to Petitioner's First Request for Admissions filed in Docket No. 12335-20 that this Court enter an order granting favorable summary adjudication on the following issues as a matter of law:
a. Long Branch made a noncash charitable contribution during the tax year ended December 31, 2016;
b. The Deed of Conservation Easement in Long Branch (Long Branch Deed) constitutes a "qualified real property interest" under Section 170(h)(1)(A) and (h)(2)(C);
c. The Donee to the Long Branch Deed, Oconee LT, constitutes a "qualified organization" under Section 170(h)(1)(B);
d. The Long Branch Deed was made "exclusively for conservation purposes" under Section 170 (h)(1)(C);
e. The December 29, 2017, letter from Oconee LT to Long Branch satisfies the contemporaneous written acknowledgement requirements of Section 170(f)(8);
f. The Form 8283 filed by Long Branch satisfies the requirements of an appraisal summary under Section 170(f)(11) and Treasury Regulation § 1.170A-13(c)(4);
g. Robert J. Fletcher, CCIM is a Qualified Appraiser under Section 170(f)(11) and Treasury Regulation § 1.170(A)-13(c)(5); and
h. The Appraisal prepared by Mr. Fletcher is a Qualified Appraisal under Section 170(f)(11) and Treasury Regulation § 1.170A-13(c)(3).
Although petitioner's motion references Mr. Fletcher as the appraiser; the original appraiser who performed the Long Branch appraisal was Mr. Galphin.
See supra note 2.
On November 21, 2023, respondent filed his Response to Morion for Partial Summary Judgement in Long Branch opposing the relief sought in paragraphs a, b, d, g, and h above. However, respondent does not oppose the relief sought by petitioner in paragraphs c, e, and f above.
Background
By Deed of Conservation Easement, dated December 16, 2016, Jackson Crossroads contributed a conservation easement to Oconee LT, a qualified organization under section 170(h), of approximately 24 acres of land, consisting of a mix of pasture and pine and hardwood forest, and containing a stream and two ponds (Jackson Crossroads Property). Jackson Crossroads is organized as a Georgia limited liability company, and it had its principal place of business in Georgia when it timely filed its Petition. Jackson Crossroads recorded the Jackson Crossroads Deed with the Morgan and Walton County, Georgia, public records departments on December 19, 2016.
The Jackson Crossroads Property is a portion of a larger tract of land, some 228.61 acres owned by Jackson Crossroads.
One stated purpose of the Jackson Crossroads Deed, among others, is "to assure that the Property will be retained forever in its predominantly relatively natural, forested, open space, and relatively undeveloped condition, and to preserve and protect the Conservation Values of the [Jackson Crossroads] Property.". The Deed contains some 13 perpetual use restrictions, thereby limiting the Jackson Crossroads Property's use exclusively for conservation purposes, including perpetual portions of high priority habitat for wildlife and plant species and for a public benefit. To accomplish the Deed's stated purposes, Jackson Crossroads also retained the following rights: limited access to the Jackson Crossroads Property to maintain natural vegetation, forest management, agriculture on a portion of the Jackson Crossroads Property, maintenance of roads and construction of trails, some limited structures, and a single residential dwelling on a portion of the Jackson Crossroads Property, and educational and recreational use. Other than the foregoing rights, the Deed does not permit uses on the Jackson Crossroads Property inconsistent with conservation purposes. The purpose of the Jackson Crossroads Deed, also detailed in Jackson Crossroad's baseline documentation report of August 2, 2016, is to ensure that the Jackson Crossroads Property remains undisturbed and intact, and therefore will provide for the protection of a relatively natural habitat for fish, wildlife, plants or similar ecosystems. Oconee LT timely confirmed, in writing, receipt of the Jackson Crossroads Property, subject to the conservation purposes.
By Deed of Conservation Easement, dated December 16, 2016, Long Branch contributed a conservation easement to Oconee LT, a qualified organization under Section 170(h), of approximately 307 acres of land, consisting of a mixture of pasture and pine and hardwood forests, and containing two streams and three ponds (Long Branch Property). Long Branch is organized as a Georgia limited liability company and it had its principal place of business in Georgia when it timely filed its Petition. Long Branch recorded the Long Branch Deed with the Morgan and Walton County, Georgia, public records departments on December 19, 2016.
One stated purpose of the Long Branch Deed, among others, is "to assure that the Property will be retained forever in its predominantly relatively natural, forested, open space, and relatively undeveloped condition, and to preserve and protect the Conservation Values of the [Long Branch] Property." The Long Branch Deed contains some 13 perpetual use restrictions, thereby limiting the Long Branch Property's use exclusively for conservation purposes, including perpetual portions of high priority habitat for wildlife and plant species and for a public benefit. To accomplish the Deed's stated purposes, Long Branch also retained the following rights: limited access to the Long Branch Property to maintain natural vegetation, forest management, agriculture on a portion of the Long Branch Property, maintenance of roads and construction of trails, some limited structures, and a single residential dwelling on a portion of the Long Branch Property, and educational and recreational use. Other than the foregoing rights, the Long Branch Deed does not permit uses on the Long Branch Property inconsistent with conservation purposes. The purpose of the Long Branch Deed, also detailed in Long Branch's baseline documentation report of August 15, 2016, is to protect the Long Branch Property from encroachment of residential and commercial development, and therefore to provide a high-quality natural habitat for wildlife. Oconee LT timely confirmed, in writing, receipt of the Long Branch Property, subject to the conservation purposes.
Jackson Crossroads timely filed Form 1065, U.S. Return of Partnership Income, for tax year 2016 and claimed a noncash charitable contribution deduction. Long Branch timely filed Form 1065 for the tax year beginning December 2, 2016, and ending December 31, 2016, and claimed a noncash charitable contribution deduction. Revenue Agent Linda Freeman was assigned to conduct both an examination of Jackson Crossroad's Form 1065 for tax year 2016 and an examination of Long Branch's Form 1065 for the tax year beginning December 2, 2016, and ending December 31, 2016. As part of her audit, Ms. Freeman determined the Penalties applied in both of these consolidated cases. Catherine Brooks was Ms. Freeman's immediate supervisor at the time she approved both sets of Penalties, and Ms. Brooks personally approved, in writing, Ms. Freeman's initial determination of the Penalties in each case by signing two Civil Penalty Approval Forms, both dated January 27, 2020. On July 16, 2020, respondent issued a Notice of Final Partnership Administrative Adjustments (FPAA) to petitioner in Jackson Crossroads, which included these same Penalties and disallowed the claimed noncash charitable contribution deduction. On July 16, 2020, respondent also issued a separate FPAA to petitioner in Long Branch, which included the Penalties and disallowed the claimed noncash charitable contribution deduction.
Discussion
I. Summary Judgment
The purpose of summary judgment is to expedite litigation and avoid unnecessary and time-consuming trials. FPL Grp., Inc. & Subs. v. Commissioner, 116 T.C. 73, 74 (2001); Fla. Peach Corp. v. Commissioner, 90 T.C. 678, 681 (1988). We may grant summary judgment when there is no genuine dispute of material fact, and a decision may be rendered as a matter of law. Rule 121(a)(2); Elec. Arts, Inc. v. Commissioner, 118 T.C. 226, 238 (2002). However, it is not a substitute for trial; it should not be used to resolve genuine disputes over material factual issues. Elec. Arts, Inc., 118 T.C. at 238. When determining whether to grant summary judgment, we must view factual materials and inferences drawn therefrom in the light most favorable to the nonmoving party. See FPL Grp., Inc. & Subs., 116 T.C. at 75; Bond v. Commissioner, 100 T.C. 32, 36 (1993). The nonmoving party may not rest upon the mere allegations or denials of his pleadings but must set forth specific facts showing that there is a genuine dispute for trial. Rule 121(d); Sundstrand Corp. v. Commissioner, 98 T.C. 518, 520 (1992), aff'd, 17 F.3d 965 (7th Cir. 1994).
II. Supervisory Approval
Section 6751(b)(1) provides that "[n]o penalty under this title shall be assessed unless the initial determination of such assessment is personally approved (in writing) by the immediate supervisor of the individual making such determination."
This Court has found: "[T]he 'initial determination' of a penalty assessment . . . is embodied in the document by which the Examination Division formally notifies the taxpayer, in writing, that it has completed its work and made an unequivocal decision to assert penalties." Belair Woods, LLC v. Commissioner, 154 T.C. 1, 15 (2020) (citation omitted); see Belanger v. Commissioner, T.C. Memo. 2020-130, at *27-28; accord Clay v. Commissioner, 152 T.C. 223, 248-49 (2019). We have explicitly distinguished such "a communication with a high degree of concreteness and formality," Belair Woods, LLC, 154 T.C. at 15, from the "subjective" decision of the IRS officer that is ultimately embodied in the notice issued to the taxpayer, id. at 14.
In Kroner v. Commissioner, 48 F. 4th 1272 (11th Cir. 2022), rev'g in part T.C. Memo. 2020-73, and in Laidlaw's Harley Davidson Sales, Inc. v. Commissioner, 29 F.4th 1066 (9th Cir. 2022), rev'g and remanding 154 T.C. 68 (2020), both the U.S. Courts of Appeals for the Eleventh and Ninth Circuits have overruled our interpretation of section 6751(b)(1), determining it "has no basis in the text of the statute," Kroner, 48 F.4th at 1278 (citing Laidlaw's Harley Davidson Sales, Inc., 29 F.4th at 1072), and ultimately held that section 6751(b)(1) does not require written supervisory approval at any particular time before the assessment of the penalty. Kroner, 48 F.4th at 1278-79. Absent stipulation to the contrary appeal of this case would lie to the Eleventh Circuit, and we thus follow its precedent. I.R.C. § 7482(b)(1)(A).
III. Summary of Respondent's Argument
In his Responses to petitioner's Motions for Partial Summary Judgment, respondent argues that there are factual disputes regarding whether the investors chose to place a conservation easement over the Jackson Crossroads and Long Branch Properties and whether Jackson Crossroads and Long Branch made a noncash charitable contribution in 2016. Respondent distinguishes these cases from our recent decision in Mill Road 36 Henry, LLC v. Commissioner, T.C. Memo. 2023-129. Next, respondent disputes that the granted easements are "qualified real property interest[s]" as required under section 170 since Jackson Crossroads could not grant a perpetual easement over the Properties as they were subject to 15-year Forest Land Protection Act Covenants. The Jackson Crossroads covenants were effective from January 1, 2011, through May 1, 2017. Long Branch was also subject to covenants effective from January 1, 2016, to December 31, 2030. In other words, respondent contends, on the basis of these preexisting covenants, the conservation easement restrictions were effectively already transferred and could not be effected until these preexisting covenants expired.
As to Jackson Crossroads, respondent contends summary judgment is inappropriate as to paragraphs g and h, since the appraiser and appraisal offered by petitioner, which was attached to the tax return in question, do not satisfy section 170(f)(11)(E) and Treasury Regulation § 1.170A-13(c)(3)-(5). Respondent also contends additional factual analysis is needed, including Jackson Crossroad's knowledge that the appraisal was overstated, thereby preventing the appraiser from being considered qualified. Respondent argues Jackson Crossroads and its appraiser, Mr. Fletcher, have not complied with the substantive requirements found in Treasury Regulation § 1.170A-13(c)(5)(ii). As to Long Branch, respondent makes the same arguments against the appraiser and the appraisal offered by petitioner. Respondent additionally notes that petitioner's motion mistakenly names Mr. Fletcher as the appraiser for Long Branch; however, Mr. Galphin is the appraiser who prepared the Long Branch appraisal.
III. Summary of Petitioner's Argument
In its Motions for Partial Summary Judgment, petitioner contends Jackson Crossroads and Long Branch conveyed real property interests under Georgia law, which contain some 13 perpetual restrictions found in the Deeds. Petitioner also contends Jackson Crossroads and Long Branch conveyed "qualified real property interest[s]" under section 170(h)(1)(A) and (2)(C). Next, petitioner contends that respondent's admissions dispose of the remaining section 170 elements, including whether the Deeds were made "exclusively for conservation purposes" under section 170(h)(1)(C). Finally, petitioner asserts Jackson Crossroads and Long Branch attached, to their filed Forms 1065, qualified appraisals prepared by qualified appraisers.
IV. Analysis
Section 170(a)(1) allows a deduction for any charitable contribution paid within the taxable year. "The sine qua non of a charitable contribution is a transfer of money or property without adequate consideration." United States v. Am. Bar Endowment, 477 U.S. 105, 118 (1986). If the taxpayer makes a charitable contribution of property other than money, the amount of the contribution is generally equal to the fair market value of the property at the time of the contribution. See Treas. Reg. § 1.170A-1(c)(1).
A charitable contribution deduction generally is not allowed for a gift of property consisting of less than the donor's entire interest in that property, but there is an exception for, among other things, a "qualified conservation contribution." I.R.C. § 170(f)(3)(A), (B)(iii). This exception applies where: (1) the taxpayer makes a charitable contribution of a "qualified real property interest," (2) the donee is a "qualified organization," and (3) the contribution is "exclusively for conservation purposes." I.R.C. § 170(h)(1).
Respondent does not dispute that Oconee LT is a qualified organization; accordingly, we accept this to be true.
A. Whether Jackson Crossroads and Long Branch made noncash charitable contributions during their respective years at issue
The Supreme Court in Hernandez v. Commissioner, 490 U.S. 680, 701-02 (1989), stated that "[t]he relevant inquiry in determining whether a payment is a 'contribution or gift' under § 170 is * * * whether the transaction in which the payment is involved is structured as a quid pro quo exchange." In examining whether a transfer was made with the expectation of a quid pro quo, we give most weight to the external features of the transaction, avoiding imprecise inquiries into taxpayers' subjective motivations. See id. at 690-691; Christiansen v. Commissioner, 843 F.2d 418, 420 (10th Cir.1988). If it is understood that the property will not pass to the charitable recipient unless the taxpayer receives a specific benefit, and if the taxpayer cannot garner that benefit unless he makes the required "contribution," the transfer does not qualify the taxpayer for a deduction under section 170. See Christiansen, 843 F.2d at 420-421; Graham v. Commissioner, 822 F.2d 844, 849 (9th Cir.1987), aff'g 83 T.C. 575, 1984 WL 15619 (1984), aff'd sub nom. Hernandez v. Commissioner, 490 U.S. 680.
In his Responses, respondent cites our decision in Costello v. Commissioner, T.C. Memo. 2015-87, and contends the petitioner has not established that Jackson Crossroads or Long Branch gave away more than the value of the benefits which it expected to receive. Id. at. *27. We disagree and find the cases before us to be distinguishable from Costello. Unlike Costello, there is no evidence of a "bargain sale" or any other type of consideration received from the County or Oconee LT, in exchange for the granting of the Deeds. In sum, it is a stretch to assume that petitioner's financial gain would otherwise invalidate an undisputed noncash charitable contribution made by Jackson Crossroads or Long Branch.
Like in Mill Road 36 Henry, LLC, respondent contends Jackson Crossroads and Long Branch lacked donative intent since the gifts were primarily motivated by federal income tax deduction for their investors. We have previously considered and rejected this same argument. See Mill Road 36 Henry, LLC, T.C. Memo. 2023-129, at *28. We have said a donor's subjective intent is irrelevant since Congress has decided to incentivize charitable contributions by allowing a deduction for those contributions. Id, (citing Cross Refined Coal, LLC v. Commissioner, 45 F.4th 150, 158 (D.C. Cir. 2022)).
Accordingly, we reject respondent's arguments and find summary judgment in favor of petitioner on this issue in each of these consolidated cases to be appropriate here.
This ruling does not mean Jackson Crossroad or Long Branch are entitled to charitable deductions as claimed on their Forms 1065, rather the amounts of the charitable deductions remain an issue for trial.
B. Whether the Conservation Deeds constitute a "qualified real property interest"
Under section 170(h)(2)(C), a "qualified real property interest" includes "a restriction (granted in perpetuity) on the use which may be made of the real property." As discussed above, Jackson Crossroads and Long Branch granted perpetual easements on their respective Properties in question which expressly restrict use of the Properties as specified in the Deeds. This issue does not appear to be in dispute by respondent. Rather, respondent contends that the easements are not exclusively for a conservation purpose under section 170 since the Properties were already subject to 15-year covenants. Respondent contends, viewing the facts in the light least favorable to petitioner, that these covenants preclude summary judgment of this issue. We disagree; and conclude the issue is ripe for partial summary adjudication.
Accordingly, we find the Deeds meet the definition of a qualified real property interests found in section 170(h)(2)(C) and will grant summary adjudication on this issue in each of these consolidated cases. See Pine Mountain Preserve, LLP v. Commissioner, 978 F.3d 1200, 1208 (11th Cir. 2020)
C. Whether the Conservation Deeds were made "exclusively for conservation purposes" under Section 170(h)(1)(C)
Respondent does not dispute that the Deeds convey real property interests to Oconee LT for conservation purposes. Rather, respondent again contends that the easements are not exclusively for a conservation purpose under section 170 since the Properties were subject to the 15-year covenants.
Congress did not determine to incentivize only the preservation of "natural" or "high-quality" areas but rather to allow a charitable contribution deduction for the donation of an easement that has, as its "conservation purpose," "the protection of a relatively natural habitat of fish, wildlife, or plants, or similar ecosystem." I.R.C. § 170(h)(4)(A)(ii) (emphasis added). See Mill Road 36 Henry, LLC, T.C. Memo. 2023-129 at *32; Murphy v. Commissioner, T.C. Memo. 2023-72, at *48-52.
First, we find these covenants to be merely temporary and expiring. Second, we find the covenants not inconsistent with the stated conservation purposes of the Deeds. Consequently, our determination under section 170(h)(1)(C) is not impacted by these covenants; rather, the task is to determine if the Deeds satisfy the stated conservation purpose enumerated in subsection 170(h)(4)(A)(i), (ii) and (iii). On the basis of the undisputed facts, we hold that the Conservation Deeds are made exclusively for the conservation purposes in the foregoing subsection and, therefore, the Deeds have met the "exclusively for conservation purposes" requirement under Section 170(h)(1)(C).
C. Is Robert J. Fletcher, CCIM a "Qualified Appraiser" under Section 170(f)(11) and Treasury Regulation § 1.170A-13(c)(5)
Treasury Regulation § 1.170A-13(c)(5)(ii) provides that an appraiser is not qualified if "the donor [here, Jackson Crossroads] had knowledge of facts that would cause a reasonable person to expect the appraiser [here, Mr. Fletcher] falsely to overstate the value of the donated property". Reading this regulation carefully, we observe that it is not the appraisal that may become disqualified, but rather the appraiser. See Mill Road, T.C. Memo. 2023-129 at *42. We furthermore observe this disqualification occurs when the donor knows facts that do or should cause him to expect the appraiser to falsely overstate the value. Id. When such facts about the appraiser are present, the resulting expectation is not just an incorrectly overstated value but a "falsely" overstated value. See Id.
As to Jackson Crossroads, we find respondent has raised material issues of fact as to whether petitioner, Jackson Crossroads, and Mr. Fletcher have satisfied Treasury Regulation § 1.170A-13(c)(5). Accordingly, we refrain from ruling on this issue until trial.
As to Long Branch, petitioner's request for summary judgment on the issue that "Robert J. Fletcher, CCIM is a Qualified Appraiser" is irrelevant because Mr. Fletcher did not provide an appraisal for Long Branch. If petitioner's motion had instead asked us to find that Mr. Galphin, the appraiser for Long Branch, was qualified, we would find respondent has likewise raised material issues of fact as to whether petitioner, Long Branch, and Mr. Galphin have satisfied Treasury Regulation § 1.170A-13(c)(5). Accordingly, we refrain from ruling on this issue until trial.
D. Are the Appraisals "Qualified Appraisals" under Section 170(f)(11) and Treasury Regulation § 1.170A-13(c)(3).
Section 170(f)(11) imposes, for charitable contribution deductions, heightened substantiation requirements on taxpayers, depending on the value of the contribution. Section 170(f)(11)(A)(i) provides that for deductions greater than $500 a taxpayer must attach "a description of such property, obtain "a qualified appraisal of such property," and "attach[] to the return for the taxable year a qualified appraisal of such property," Treas. Reg. § 170(f)(11)(B)-(D).
Treasury Regulation § 1.170A-13(c)(3)(ii) provides that a "qualified appraisal" must contain, inter alia, the following information: (1) a description of the property; (2) the date(s) on which the property was appraised; (3) the property's fair market value; (4) the method used to value the property; and (5) the specific basis for the valuation and a justification of that basis.
Treasury Regulation § 1.170A-13(c)(3)(i)(B) provides that a qualified appraisal must be "prepared, signed, and dated by a qualified appraiser". A "qualified appraiser" must (1) hold himself out to the public as an appraiser; (2) be qualified to make appraisals of the type of property being valued; and (3) acknowledge that aiding and abetting an understatement of tax liability may subject them to a penalty pursuant to section 6701. Treas. Reg. § 1.170A-13(c)(5)(i).
Respondent takes exception to both appraisals, for many of the same reasons he objects to the appraisers being qualified appraisers. Respondent contends that the subject appraisals do not comport with the Uniform Standards of Appraisal Practice (USPAP) and therefore fail to satisfy the substantive requirements of Treasury Regulation § 1.170A-13(c)(3).
The Court notes section 170(f)(E)(i)(II) does require an appraisal to abide by generally accepted appraisal standards, which we have generally interpreted to include (or at least be analogous to) USPAP.
Many of respondent's same arguments were considered and rejected by this Court in Mill Road 36 Henry, LLC, T.C. Memo. 2023-129, at *42-45. However, we refrain from ruling on the issue since there are material facts in dispute precluding summary judgment as to this issue in these consolidated cases.
Considering the foregoing, it is
ORDERED that respondent's Motion for Partial Summary Judgment filed on October 12, 2023, in these consolidated cases, is granted. It is further
ORDERED that petitioner's Motion for Partial Summary Judgment filed on October 13, 2023, in Jackson Crossroads at Docket No. 12235-20, is granted in part, as to paragraphs a, b, c, d, e, and f, and denied in part, as to paragraphs g and h. It is further
ORDERED that petitioner's Motion for Partial Summary Judgment filed on October 13, 2023, in Long Branch at Docket No. 12249-20, is granted in part, as to paragraphs a, b, c, d, e, and f, and denied in part, as to paragraphs g and h.