Eleventh Circuit Urged to Follow Related Proceeds Reg Decision

Glade Creek Partners, LLC
v.
Commissioner of Internal Revenue

January 4, 2022

Mr. David J. Smith
United States Court of Appeals for the Eleventh Circuit
Clerk's Office — Appeal No. 21-11251
1^st Floor, U.S. Court of Appeals Bldg.
56 Forsyth St., N.W.
Atlanta, GA 30303

Re: Glade Creek Partners, LLC v. Commissioner of Internal Revenue, No. 21-11251 (11th Circuit filed Apr. 15, 2021) Appellant's Notice of Supplemental Authority

Dear Mr. Smith:

Pursuant to Federal Rule of Appellate Procedure 28(j), Glade Creek Partners, LLC (“Glade Creek”) directs the Court's attention to this Court's decision in Hewitt v. Commissioner, No. 20-13700 (11th Cir. 2021). In Hewitt, this Court held that Treasury Regulation § 1.170A-14(g)(6)(ii) (the “Proceeds Regulation”) is procedurally invalid under the Administrative Procedure Act (“APA”). The validity of the Proceeds Regulation is directly at issue in the instant case as well.

Glade Creek identified Hewitt in its Civil Appeal Statement as a related case impacting one of the issues that Glade Creek appealed. Like in Hewitt, Glade Creek's charitable deduction was disallowed in total by the Internal Revenue Service (“IRS”) based on the presence of a clause in the conservation easement deed that violated the IRS's interpretation of the Proceeds Regulation. This disallowance was upheld by the Tax Court based on the Tax Court's decision in Oakbrook Land Holdings, LLC v. Commissioner, 154 T.C. 180 (2020), the same decision that the Tax Court relied on to uphold the IRS's disallowance in Hewitt. Glade Creek Partners, LLC v. Comm'r, T.C. Memo. 2020-148, at *25 (2020).

Importantly, this Court in Hewitt held that the “Commissioner's interpretation of § 1.170A-14(g)(6)(ii) is arbitrary and capricious and violates the APA's procedural requirements.” Opinion (“Op.”) at 3. Specifically, this Court held that the Proceeds Regulation is invalid because “Treasury failed to respond to the relevant and significant comment from NYLC as to the post-donation improvements issue,” the same issue present in this case. Id. at 30.

Appellant respectfully requests that the holding in Hewitt be applied to this case.¹

Respectfully submitted,

Gregory P. Rhodes
AL Bar No. ASB-4351-G68R

Gregory P. Rhodes
Dentons Sirote PC
2311 Highland Avenue South
Birmingham, AL 35205
(205) 930-5445 (telephone)
(205) 212-2933 (facsimile)
gregory.rhodes@dentons.com

COUNSEL FOR APPELLANT

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