WV Farm Bureau Magazine May 2016 | Page 21

Can I Buy More Land Tax-free When I Sell a Conservation Easement? David A. DeJarnett In a previous article, I discussed the basic income tax consequences of the grant of a conservation easement. I mentioned that a conservation easement could be donated to the grantee, or sold for fair value, or sold for less than fair value (known as a bargain sale). If you sell an easement for its fair value, you will recognize taxable gain if your basis in the easement is less than the sale price. If the easement is entirely donated, you will be entitled to a charitable deduction (subject to applicable limits such as AGI) if many requirements are met. If you sell the easement for less than its fair value, then you will have taxable gain and will be entitled to a charitable deduction if many requirements are met. The requirements for a charitable deduction will be the subject of a later article. For now, let me just say that not every donated easement entitles the landowner to a deduction, and the landowner must carefully plan. I certainly understand that many landowners sell conservation easements to raise cash for many reasons. If you are selling a conservation easement to raise cash to buy more land, and you plan carefully, no income taxes will be due on gain from the sale of the conservation easement. No income taxes are due on gain from a sale of a conservation easement as long as all of the requirements of a like-kind exchange are satisfied, so careful planning is necessary to be sure all of the requirements are met. If you want to avoid income taxes on the sale by investing in more land, you should engage a competent tax attorney for assistance. A key to qualifying a sale of a conservation easement as part of a like-kind exchange is to sign an agreement with a qualified intermediary before the closing on the sale of the easement, and be sure the closing attorney makes the net proceeds check payable to the intermediary, not to you. If the net proceeds check is payable to you, the sale will not qualify as part of a like-kind exchange. A competent tax attorney experienced with like-kind exchanges should be able to help you meet the requirements on short notice. Another key to qualifying a sale of a conservation easement as part of a like-kind exchange is to identify the new property you want to buy in writing to the intermediary within 45 days after the closing on the sale of the easement. That is not a lot of time. Therefore, you should begin to consider which property you would buy long before the closing on the sale of the easement. The last key I will mention to qualifying a sale of a conservation easement as part of a like-kind exchange is to close on the purchase of the new property within 180 days after the closing on the sale of the conservation easement. If you look, you will find many qualified intermediary service providers on-line. While their services are necessary and many providers are very helpful, they are not a substitute for a tax attorney that you hire and who is responsible for assisting you to be sure the transactions qualify as a likekind exchange. David is a partner in the Martinsburg office of Bowles Rice LLP. He has over 25 years of experience in advising clients regarding income and estate taxes, estate planning and land succession planning. For more information, please contact David at (304) 263-0836. West Virginia Farm Bureau News 21