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Circuit Split Could Have Substantial Implications on ’Proceeds’ Regulations

By Leo Unzeitig, JD, CPA-San Antonio

The Sixth Circuit denied a taxpayer’s rehearing in Oakbrook Land Holdings LLC v. Commissioner earlier this month. The result is that there is now a split between the Sixth and Eleventh Circuits on the validity of certain conservation easement regulations. See Hewitt v. Commissioner, 21 F.4th 1336 (11th Cir. 2021). The more important result is the extent to which Treasury is required to consider comments by the public in drafting rules that have the force of law. If you are a taxpayer in the Sixth Circuit, Treasury regulations are more likely to have the force of law even though they ignore comments. In the Eleventh Circuit, the same regulations may not be enforceable if they ignore material comments made by the public. Until the Supreme Court addresses the issue, it is unclear where taxpayers in the rest of the country fall and whether comments made to Treasury are significant and require consideration.

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