Opinion
11814-19
09-19-2022
OCONEE LANDING PROPERTY, LLC, OCONEE LANDING INVESTORS, LLC, TAX MATTERS PARTNER, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Albert G. Lauber Judge
This case is calendared for trial at a two-week special session in Atlanta, Georgia, beginning November 14, 2022. On September 15, 2022, petitioner filed two Motions for Partial Summary Judgment. We will deny the Motions at this time without prejudice.
Petitioner is the tax matters partner of Oconee Landing Property, LLC (Oconee), which claimed a charitable contribution deduction for a conservation easement. The Internal Revenue Service (IRS or respondent) disallowed the deduction and determined (in the alternative) various penalties, including penalties for substantial and gross valuation misstatement, substantial understatement of income tax, negligence, and reportable transaction understatement. See §§ 6662(b)(1)-(3), (c)-(e); 6662A(a). Among the questions presented by the case is whether the appraisal included with Oconee's tax return was a "qualified appraisal" prepared by a "qualified appraiser." See § 170(f)(11)(A), (C), (D) & (E); Treas. Reg. § 1.170A-17.
Unless otherwise indicated, all statutory references are to the Internal Revenue Code, Title 26 U.S.C., in effect at all relevant times, and all regulation references are to the Code of Federal Regulations, Title 26 (Treas. Reg.), in effect at all relevant times.
In the Motion filed at docket entry #223, petitioner contends that IRS Notice 2017-10, which designated certain conservation easement transactions as "listed transactions" penalizable under section 6662A, is invalid because it was not properly promulgated under the Administrative Procedure Act (APA). Questions concerning the validity of Notice 2017-10 are currently pending before other Judges of this Court. In the Motion filed at docket entry #224, petitioner contends that Treasury Regulation § 1.170A-17 is invalid on procedural grounds because it was promulgated without compliance with APA requirements, and on substantive grounds, because it allegedly exceeds the scope of the Treasury Department's expertise.
We decline to address these questions now. Depending on how various other issues are decided after trial, the Court may have no need to decide either of the questions presented by petitioner's Motions. And because questions concerning the validity of Notice 2017-10 are pending before other Judges of this Court, prudence counsels deferring decision of this issue in order to ensure consistent resolution. This denial is without prejudice to petitioner's right to advance, at trial and in post-trial briefs, the arguments set forth in its two Motions for Partial Summary Judgment. It is accordingly
ORDERED that petitioner's Motions for Partial Summary Judgment, filed September 15, 2022, at docket entries ##223 and 224, are denied at this time without prejudice.