Im a flat tax guy like Steve Forbes, Chairman & Editor-In-Chief, Forbes Media and author of “Flat Tax Revolution,” so in an ideal world, we wouldnt stuff the IRS tax code with special tax breaks and instead would have one simple, low rate of 18% for everyone.
But if Congress passes tax laws steering people and businesses into certain activities, it cant just snatch those incentives away indiscriminately. This is called a “bait-and-switch” trap, and heres a perfect example of such a misdeed.
More than 60 years ago, the IRS created a program called a conservation easement through a revenue ruling. Its goal was to protect nature, stop development, and save working lands. Landowners received a tax incentive for voluntarily setting aside a portion of their land from development. The law has been in effect since 1976 â nearly 50 years. The tax break was made permanent in 1980 and has been part of the tax code ever since.
To further encourage this land preservation policy, individuals, business partnerships, and corporations were permitted to donate to these land easements in exchange for a tax write-off. The result? Tens of millions of acres have been conserved.
Then, in late 2016, IRS officials who disapproved of these syndicated conservation-easement transactions unilaterally changed the rules of the game. Notice 2017-10 did not formally abolish the conservation-easement deduction, but it branded a broad category of transactions as “listed transactions,” imposed burdensome disclosure requirements, and opened the door to an aggressive campaign challenging taxpayers who used them.
They retroactively labeled partnerships participating in the program “presumptively abusive.” Â This aggressive IRS enforcement campaign has swept more than 1,100 syndicated conservation-easement disputes into audits and litigation, including roughly 740 cases docketed in U.S. Tax Court and about 400 transactions still under examination as of May 2026.
The IRS improperly issued Notice 2017-10, branding an entire category of these legal, decades-old transactions presumptively abusive, retroactive to 2010.
No proposed rule. No public comment. No vote by anyone accountable to voters.
Just an IRS notice â followed by an increase to a 100% audit rate for all transactions of this kind. The result was an abusive enforcement campaign that has now clogged the U.S. Tax Court with more than a thousand cases.
If there are bad actors, of course, they should be punished. A bipartisan Senate Finance Committee investigation identified serious abuses in some syndicated conservation-easement transactions, particularly deals involving inflated land valuations and outsized deductions. But evidence that some promoters abused the deduction does not give the IRS license to presume that every transaction was fraudulent or that every investor knowingly participated in a tax shelter.
By using cookie-cutter metrics and conducting desk audits, the IRS has harassed law-abiding taxpayers, pressured them to pay tens of millions of dollars in unfair “settlement agreements,” forced some to file for bankruptcy, and treated them like common criminals despite their having followed the law.
Clearly, the IRS changed tax law after the fact, which is only legal “with respect to criminal and penal cases, but not civil revenue measures.” On top of that, the IRS does not make the laws. Congress does. Sadly, the IRS continued this aggressive approach during the , when the agency received a major infusion of funding and personnel that expanded its enforcement capacity. Rather than correcting the campaigns procedural and fairness problems, the administration allowed it to continue against taxpayers caught in these long-running conservation-eas
