Pointers for Drafting the Proceeds Clause in Conservation Easements

For more than three decades, many land trusts have used certain proceeds allocation language in conservation easement deeds. This allocation excludes the value of permitted improvements the landowner makes after the donation. In the last few years, the Internal Revenue Service began disallowing easements with long-used language in the proceeds clause—and courts have backed the IRS.

Please evaluate your easement template and review all relevant clauses with counsel in light of these newly developing tax controversies.

May 2024 Update: Updated to reflect important Tax Court case law invalidating the proceeds regulation.