Kaufman v. Comr., 687 F.3d 21(5th Cir. 2012), vac'g., 136 T.C. 294 (2011)

(Tax Court's partial summary judgment to respondent affirmed on reconsideration- contribution of facade easement did not comply with the enforceability-in-perpetuity requirements of Treas. Reg. Sec. 1.170A-14(g)(6); cash payments to charity that accepted facade easement remained conditional at end of 2003 and are not deductible, but cash payments made in 2004 are deductible; facade easement not protected in perpetuity because donee organization not guaranteed proportionate share of proceeds in event of casualty or condemnation as required by Treas. Reg. Sec. 1.170A-14(g)(6)(ii); accuracy-related penalty applicable for deduction of cash payments in 2003; on appeal, appellate court vacated on basis that interpretation of regulation at issue by IRS and Tax Court was unreasonable and inconsistent with Congressional intent; while lender retained priority to insurance proceeds, petitioner had no power to make lender give up such protections; tax liens could potentially trump donee's right to funds upon extinguishment of easement and, thus, regulation's reference to "entitled" cannot be reasonable construed to give donor an absolute right to any proceeds; court's opinion now calls into question Tax Court opinions in Wall v. Comr., T.C. Memo. 2012-169 and 1982 East, LLC v. Comr., T.C. Memo. 2011-84).