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(TRA 1969), Pub. L. 91-172, sec. 201(a), 83 Stat. 549. Congress
generally provided in section 170(f)(3)(A), as then enacted, that
an individual may not deduct a charitable contribution for
contributed property in which he or she retained an interest.
See TRA 1969 sec. 201(a)(1). However, Congress provided in
section 170(f)(3)(B)(ii), as then enacted, that this general rule
of nondeductibility would not apply if the contribution was of an
undivided portion of the taxpayer’s entire interest in the
property. See TRA 1969 sec. 201(a). The conferees stated in
their report on section 170(f)(3)(B)(ii) that they intended that
such an undivided interest include an open space easement in
gross where the easement was in perpetuity.15 H. Conf. Rept.
91-782, at 294 (1969), 1969-3 C.B. 644, 654. In light of this
statement, the regulations interpreting section 170(f)(3)(B)(ii),
as enacted in 1969, allowed a charitable deduction for the fair
market value of an easement contributed to a charitable
organization in perpetuity where the easement restricts the use
of the taxpayer’s property; e.g., by limiting the type and height
of buildings that may be erected, the removal of trees, the
15 Sec. 1.170A-7(b)(1)(ii), Income Tax Regs., defines an
“easement in gross” as “a mere personal interest in, or right to
use, the land of another; it is not supported by a dominant
estate but is attached to, and vested in, the person to whom it
is granted.” See also Black’s Law Dictionary 527 (7th ed. 1999)
(the term “easement in gross” denotes “An easement benefitting a
particular person and not a particular piece of land”).
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