39-22-522 Conservation Easement Credit. Basis and Purpose. The bases for this rule are sections 39-21-112(1), 39-21-113, 39-

22-522, and 39-22-522.5, C.R.S. The purpose of this rule is to clarify the requirements and procedures for the conservation easement credit. (1) Qualified Taxpayers. (a) Taxpayers qualified to claim the gross conservation easement credit (including transferees of these credits) are: (i) Colorado residents, (ii) C corporations, (iii) Trusts, (iv) Estates, (v) Partners, shareholders or members of a pass-through entity donor who receive the credit from such entity, regardless of whether such individuals are Colorado residents. (b) Joint tenancies, tenancies in common, pass-through entities such as partnerships or S corporations, or other similar entities or groups that donate a conservation easement must allocate the credit to such entities’ owners, partners, shareholders or members in proportion to their distributive shares of income or ownership percentage. (c) (repealed) (d) Individuals who are not residents of Colorado cannot claim the credit for a donation they make, or receive a credit transfer. Part-year residents may claim the credit, but only if they make the donation while they are a Colorado resident. Only a credit allocated to nonresident partners, shareholders or members of a pass-through entity may be claimed by nonresidents. Nonresident owners included in a joint tenancy, tenancy in common, and similar ownership arrangements cannot claim the credit. (e) A nonprofit corporation, regardless of whether it has unrelated business taxable income, may claim a gross conservation easement credit for a conservation easement donation it makes to a qualified organization; except that a nonprofit corporation that has a state governmental entity as a shareholder cannot claim such a credit. (2) Donor Limitations. (a) A taxpayer may claim only one credit per tax year as a donor, including as a partner, shareholder, or member of a pass-through entity donor. A taxpayer cannot claim multiple credits in one year from multiple donations even if the donations are made by different pass-through entities. For the purpose of section 39-22-522(6), C.R.S., and this paragraph (2)(a): (i) a credit is considered to be claimed by a donor only in the earliest tax year designated on any certificate issued by the Department of Regulatory Agencies for the donation in accordance with section 39-22-522(2.5), C.R.S.; (ii) a credit is not considered to have been claimed by the donor in a tax year to which it is carried forward from a prior tax year pursuant to section 39-22-522(5)(a), C.R.S.; and (iii) multiple certificates issued by the Department or Regulatory Agencies for the same donation pursuant to section 39-22-522(2.5) or (4)(a)(II.5), C.R.S., shall be considered a single credit claim. (b) For conservation easements donated prior to January 1, 2014, a taxpayer cannot claim a credit from a new donation if: (i) In the year of the donation, the taxpayer has a carryforward credit from a prior tax year, or (ii) In the year of the donation, another taxpayer has a carryforward credit from the taxpayer’s prior donation. (c) Amount Per Donation. (i) For donations made on or after January 1, 2000 but prior to January 1, 2003, the credit cannot exceed $100,000 (100% of the first $100,000). (ii) For donations made on or after January 1, 2003 but prior to January 1, 2007, the credit cannot exceed $260,000 (100% of the first $100,000 plus 40% of the next $400,000). (iii) For donations made on or after January 1, 2007 but prior to January 1, 2015, the credit cannot exceed $375,000 (50% of the first $750,000). (iv) For donations made on or after January 1, 2015, the total credit cannot exceed $5,000,000 (75% of the first $100,000 plus 50% of the next $9,850,000) and the increments issued per year cannot exceed $1,500,000. (v) The limits in this paragraph (c) apply in aggregate to a married couple, regardless of whether they file jointly or separately, all partners, shareholders or members of a pass-through entity, and all tenants in common, joint tenants, and similar ownership arrangements that make a donation. (d) Tax Credit Certificate. Donors of conservation easements made on or after January 1, 2011 must obtain a Tax Credit Certificate from the Department of Regulatory Agencies. Each credit amount may not be claimed or used on a Colorado income tax return for a tax year commencing prior to the year designated in the certificate. (i) For donations made prior to January 1, 2014, the taxpayer must establish with the Department of Revenue that their credit claim complies with all requirements of section 39-22-522, C.R.S., including the federal statutory and regulatory requirements incorporated therein, and with this regulation. The determination of whether a claimed conservation easement tax credit complies with the statutory and regulatory requirements rests with the Department of Revenue and not with the Department of Regulatory Agencies. (ii) (repealed) (iii) See Rules 39-22-104(3)(g) and 39-22-304(2)(f). (iv) The twenty-year carryforward period will be based on the designated year of each certificate, not the year of the donation. (v) (repealed) (vi) The amount of the credit allowed on the Tax Credit Certificate may be further reduced if other limitations apply including, but not limited to, a reduction in the appraised or donated value of the easement made prior to January 1, 2014, a reduction of the donated value pursuant to section 39-22-522(3.7), C.R.S., and paragraph (2)(e) of this rule, or restrictions on multiple credit claims established by section 39-22-522(6), C.R.S., and paragraph (2) of this rule. (vii) See paragraph (2)(a). (e) If the easement property is held by the taxpayer for less than one year prior to the date of donation, the fair market value of the easement must be reduced by the gain the taxpayer would have realized had the easement been sold on the date of donation. (3) Transfer of Credit. (a) A taxpayer may transfer all or part of a credit to a transferee who is a qualified taxpayer as described in paragraph (1) of this regulation. The portion of the credit being transferred must not be utilized by the transferor to offset tax or to claim a refund on any income tax return. (i) A pass-through entity may not be the transferee of a credit. The partners, shareholders, or members must independently qualify as transferees. (ii) A pass-through entity may directly transfer a credit if: (A) Each partner, shareholder or member consents to the transfer, and (B) Each partner, shareholder or member could, under the restrictions of the law and this regulation, have claimed and transferred their pro rata share of the credit directly. (iii) Upon the death of a taxpayer, a gross conservation easement credit passes to the decedent’s estate. If the decedent is the donor of the easement, the estate may use the credit to offset income tax owed by the estate or may transfer some or all of the credit according to the transfer rules. If the decedent is a transferee of the credit, the estate may use the credit to offset income tax owed by the estate but cannot transfer the credit. (b) A credit may be transferred only once. A transferee cannot thereafter transfer the credit to another taxpayer. Thus, a transferee cannot transfer the credit back to the donor of the easement for the donor to utilize or transfer again to another taxpayer. (c) If a taxpayer transfers a credit to one or more taxpayers, and any part of that credit is later disallowed by the Department of Revenue, the transferee will be held liable for the disallowed credits to the extent utilized plus any applicable penalty and interest. (d) Number of Credits. (i) During tax years beginning on or after January 1, 2000, but prior to January 1, 2003, a transferee may receive and use one credit each tax year. (ii) During tax years beginning on or after January 1, 2003, a transferee may receive an unlimited number of credits. (e) Transfer Amount. (i) For donations made during tax years beginning prior to January 1, 2003, a minimum of $20,000 in credit may be transferred to any one taxpayer. Credits transferred after January 1, 2003 that arise from donations made prior to that date are subject to the $20,000 limit. (ii) For donations made during tax years beginning on or after January 1, 2003, the donor may transfer any portion of the credit. (f) Transfer Date. (i) From June 7, 2005 through May 28, 2018, a transfer must be completed by the due date, not including any extensions, of the transferee’s income tax return on which they use the credit. (ii) Beginning on or after May 29, 2018, a transfer must be completed by the extension date of the transferee’s income tax return on which they use the credit. (g) Limit Due to Prior Donations. (i) A taxpayer cannot receive a credit transfer during a tax year beginning on or after January 1, 2000, but prior to January 1, 2014, if, in the same year: (A) The taxpayer claimed a new or carryforward credit as a donor of a conservation easement for the tax year, including as a member of a pass-through entity, regardless of whether the credit is utilized on that taxpayer’s return or transferred to another taxpayer, or (B) Another taxpayer has a carryforward credit from a prior donation the taxpayer made. (ii) A taxpayer cannot receive a credit transfer during a tax year beginning on or after January 1, 2014 if the taxpayer claimed a new credit as a donor of conservation easement for the tax year, including as a member of a pass-through entity, regardless of whether the credit is utilized on that taxpayer’s return or transferred to another taxpayer. (h) Tax Matters Representative. The tax matters representative (TMR) is the person who donates the conservation easement and/or transfers the credit. A pass-through entity that donates the easement and passes the credit to, or sells the credit on behalf of, its partners, shareholders or members, is the TMR, unless the entity’s status as the TMR is otherwise revoked or changed in accordance with paragraphs (3)(h)(iv), (v), and (vi). (i) Representation. The value and validity of a gross conservation easement credit held by a transferee is derived from, and dependent on, the credit generated and/or transferred by the TMR. Therefore, an adjustment of a credit, to the extent such adjustment is based on the transfer of a gross conservation easement credit (“Transfer Item Adjustment”), made by the Department of Revenue against the TMR shall also be binding on the credit held by a transferee. Final resolution of disputes between the Department of Revenue and the TMR determines the Transfer Item Adjustments and such resolution is binding on transferees of the credit. (ii) The TMR represents a transferee for Transfer Item Adjustments in matters including, but are not limited to: (A) A donor’s failure to file all required documents; (B) A donor’s improper claim of more than one credit per tax year; (C) A donor’s improper transfer of credit above the allowable or available amounts; and (D) Any other such matters regarding the donation or credit that affect the value or validity of the credit, except those requirements for which the authority is granted to the Department of Regulatory Agencies or the Conservation Easement Oversight Commission for donations made on or after January 1, 2014 pursuant to section 12-61-727, C.R.S. (iii) The TMR does not represent a transferee in matters that are an inappropriate use of the credit by a donor or transferee, including, but not limited to: (A) An out-of-state resident attempting to use a credit in violation of section 39-22-522(1), C.R.S.; (B) A transferee using a transferred credit and generating his or her own credit as a donor in the same year in violation of section 39-22-522(6), C.R.S.; or, (C) A transferee claiming a refund of a credit in violation of sections 39-22-522(5) and (7)(c), C.R.S. (iv) Effective Date. The rights and responsibilities of the TMR and transferee, including the right to a hearing, appeal, notification, and limitations of action set forth in sections 39-22-522(7)(i) and (j), C.R.S., apply to Transfer Item Adjustments initiated by the Department of Revenue on or after June 7, 2005. (v) Changing the TMR Designation. Any person who has claimed a credit or who may be eligible to claim a credit in relation to a TMR’s conservation easement donation may petition the Department of Revenue to change the TMR’s designation if the TMR: (A) Is incarcerated; (B) Is residing outside the United States, its possessions, or territories; (C) Is deceased or, if the representative is an entity, is liquidated or dissolved; (D) Is under eighteen years of age at the time the Transfer Item Adjustment is initiated by the Department of Revenue, or a court determines the person to be legally incompetent; (E) Does not request a hearing for the Transfer Item Adjustment pursuant to section 39-21-103 or 104, C.R.S., provided that the petition to change the TMR’s designation is filed within 10 business days after the final date for requesting a hearing; (F) Does not appear at hearing or fails to adequately participate in such hearing, including by failing to file a required pleading or to appear at a scheduled conference; or (G) Does not file an appeal of a final determination pursuant to sections 39-21-105 and 39-22-522.5(6), C.R.S., provided that the petition to change the TMR’s designation is filed within 10 business days after the final date for filing an appeal. (vi) Petition to Change TMR’s Designation. (A) The petition to change the TMR’s designation must be in writing and filed with the Department of Revenue. (B) The petition must contain at least the following information: (I) The petitioner’s name, address, and tax account number; (II) A statement that the petitioner is a person who has claimed a credit or who may be eligible to claim a credit in relation to the TMR’s conservation easement donation, including the taxable period(s) and amount of tax in dispute; (III) A summary statement of the grounds upon which the petitioner relies for changing the TMR’s designation; and (IV) A proposed replacement TMR, including the replacement TMR’s qualifications to serve as TMR in accordance with the criteria for representation listed in paragraph (3)(h)(vii). (C) The Department of Revenue may provide the TMR and transferees with notice of the petition and an opportunity to respond. (D) The Executive Director of the Department of Revenue will issue an order regarding the petition as soon as practicably possible. (vii) Criteria for Representation. The Department of Revenue will determine whether a TMR is unavailable or unwilling to act as a TMR and whether a petition to change the TMR’s designation should be granted. The Department of Revenue will then determine the appropriate person to serve as the TMR. Criteria to be considered when determining who will serve as the TMR includes: (A) The general knowledge of the donor or transferor and any proposed replacement TMR regarding the gross conservation easement credit transfer items at issue. (B) The donor’s or transferor’s and any proposed replacement TMR’s access to the records of the conservation easement. (C) The views of the transferees involved in the transaction. (viii) Statute of Limitations. The statute of limitations of the transferor and any extension to the statute of limitations agreed to by the TMR will also apply to the transferees of the credit, but only to the extent that it applies to Transfer Item Adjustments. (4) Refundable Credit. (a) Taxpayers, but not transferees of such credits, may claim a refund of the conservation easement credit if state revenues are in excess of the limitation on state fiscal year spending imposed by Section 20(7)(a) of Article X of the Colorado Constitution. (b) For each donation made during tax years beginning on or after January 1, 2000, but before January 1, 2003, a maximum of $20,000 of the credit may be utilized by all taxpayers, including transferees, if any portion is to be refunded to a donor. This limit increases to $50,000 for credits arising from donations made in tax years beginning on or after January 1, 2003. (c) The limits in subparagraph (b) of this paragraph (4) apply in aggregate to a married couple, regardless of whether they file jointly or separately, and all partners, shareholders or members of a pass-through entity, tenants in common, joint tenants, or similar ownership arrangements that make a donation, if one or more such partners, shareholders, members or owners request a refund of the credit. (5) Qualifying Donation. For donations made prior to January 1, 2014, the Department of Revenue has the authority to review whether a donation qualifies for the credit as: (a) A perpetual conservation easement in gross on real property located in Colorado, (b) A donation to a governmental entity or a charitable organization that is exempt under section 501(c)(3) of the Internal Revenue Code of 1954, as amended, and (c) A charitable contribution for federal income tax purposes under the Internal Revenue Code. (6) Credit Carryforward. (a) Any excess credit not utilized or transferred may be carried forward by the taxpayer for up to twenty years from the tax year of the return on which the credit is first claimed. A credit must be utilized in the earliest tax year possible. (b) A taxpayer who moves to another state after receiving a credit remains eligible to carryforward the credit. (c) A taxpayer may elect to abandon and not carryforward a credit by stating the abandonment on their return, thereby avoiding the prohibition against claiming a new credit set forth in paragraph (2) of this regulation. (7) Documentation. (a) Every taxpayer who claims, transfers, passes through, carries forward, or utilizes a credit must file a return with all appropriate Colorado Gross Conservation Easement Credit Schedules for each tax year with such activity. This includes claiming a credit that has been transferred to another taxpayer, reporting that a credit will be carried forward to the following year, and reporting that a carryforward credit has been transferred for that year. (b) Every donor who claims a credit must attach the documents listed in this paragraph (7)(b) to their return, or submit them to the Department of Revenue at the same time the return is filed. The requirements of this paragraph (7)(b) apply without regard to whether the credit has been transferred to another taxpayer. The requirements of this paragraph (7)(b) also apply to returns filed by pass-through entities that donate a conservation easement, and the partners, shareholders or members of such entities. The Department of Revenue may waive the requirements of this paragraph (7)(b) for any taxpayer(s) in writing. The documents required are: (i) All Colorado Conservation Easement Schedules required for the relevant year, including all required attachments; (ii) A federal form 8283 with a summary of the qualified appraisal that meets the requirements set forth in section 39-22-522(3.3), C.R.S.; (iii) For donations made on or after January 1, 2011, a copy of the Tax Credit Certificate obtained from the Department of Regulatory Agencies. (8) Appraisals. Appraisals for donations made prior to January 1, 2014 are subject to review by the Department of Revenue. (a) The appraiser must hold a valid license as a certified general appraiser in accordance with the provisions of part 7 of article 61 of title 12, C.R.S. (b) The appraiser must meet all applicable education and experience requirements established by the Board of Real Estate Appraisers in accordance with section 12-61-704(1)(k), C.R.S. (c) A qualified appraisal for computing the gross conservation easement credit must meet requirements for claiming a federal charitable deduction for the donation of the easement. (d) The Department of Revenue may require a taxpayer to submit a copy of the complete appraisal upon request. (e) The Department of Revenue may require the taxpayer to provide a second appraisal at the taxpayer’s expense if the Executive Director: (i) Reasonably believes that the appraisal represents a gross valuation misstatement, (ii) Receives notice of such a valuation misstatement from the Division of Real Estate, or (iii) Receives notice from the Division of Real Estate that an enforcement action has been taken by the Board of Real Estate Appraisers against the appraiser. (f) Any second appraisal required pursuant to this paragraph (8) and section 39-22-522(3.5), C.R.S. must be prepared by a certified general appraiser who is not affiliated with the appraiser who prepared the first appraisal, is in good standing and has met qualifications established by the Division of Real Estate. (g) If, upon final determination, it is determined that an appraisal submitted in connection with a gross conservation easement credit claim is a substantial or gross valuation misstatement, the Department of Revenue must submit a complaint to the Board of Real Estate Appraisers and may pursue any other penalties or remedies authorized by law. (9) Requests for Documents. (a) If a taxpayer has not provided a document related to the gross conservation easement credit that was required to be provided as part of the taxpayer’s return, including the return itself—or, if requested by the Department of Revenue for conservation easements donated prior to January 1, 2014, a copy of the complete appraisal obtained at the time of donation—the Department may send a written request to the taxpayer or TMR for such document. Such request may be sent by certified mail. Failure to provide the requested document to the Department of Revenue within 60 days of the mailing of the Department’s request shall constitute grounds for the Executive Director of the Department of Revenue to issue a notice denying the credit. (b) Documents that may be requested by the Department of Revenue include, but are not limited to, all or any part of the taxpayer’s return, the Tax Credit Certificate from the Department of Regulatory Agencies, the Colorado Gross Conservation Easement Credit Schedule, the Colorado Conservation Easement Donor Schedule, the federal Form 8283, a summary of the appraisal, a copy of the complete appraisal, a copy of the appraiser’s affidavit submitted to the Department of Regulatory Agencies, and the recorded deed of conservation easement. (10) Disallowance of Conservation Easement Tax Credits. (a) Notice to TMR and Transferee. The Department of Revenue shall initiate a Transfer Item Adjustment to a credit by issuing to the TMR a notice setting forth the proposed adjustment, regardless of whether the state tax liability of the TMR is affected by the proposed adjustment. The Department of Revenue shall also send to each transferee a notice of the Department’s proposed Transfer Item Adjustment for such transferee’s credit. (b) Multiple Transferees. If there is more than one transferee of a credit, the Department of Revenue will generally allocate proportionally the Transfer Item Adjustment based on the percentage of the overall credit originally transferred to the transferees. However, the Department of Revenue may allocate the adjustment among and between the transferees in any manner appropriate to the circumstances. (c) Request for Hearing. A request pursuant to section 39-21-103 or 104, C.R.S. for hearing on a Transfer Item Adjustment, including a Transfer Item Adjustment that results in the denial or modification of the transferee’s credit, may be made only by the TMR. A transferee does not have a right to protest the Notice of Deficiency or refund change issued to the transferee (including the allocation of the adjustment between or among transferees) to the extent the adjustment is based on a Transfer Item Adjustment. If the TMR does not timely request a hearing pursuant to section 39-21-103 or 104, C.R.S., a transferee may petition the Department of Revenue to change the TMR’s designation within 10 business days after the final date for requesting a hearing in accordance with paragraphs (3)(h)(v), (3)(h)(vi), and (3)(h)(vii) of this regulation. If the Department of Revenue grants the petition, the new TMR may request a hearing pursuant to section 39-21-103 or 104, C.R.S., within 30 days of the Department’s order regarding the petition. (d) Notification and Request to be Admitted as Party. The Department of Revenue will issue a notice of the hearing to the TMR and each transferee of the credit. Such notice shall advise the transferee of the right to be admitted as a party to the hearing upon the filing of a written request setting forth a brief and plain statement of the facts that entitle the transferee to be admitted and the matters to be decided. The Executive Director of the Department of Revenue may admit parties for limited purposes. (e) Transfer of Jurisdiction. If the Executive Director of the Department of Revenue issues a final order pursuant to section 39-22-522.5(5)(b), C.R.S., finding that a case cannot reasonably be resolved through the administrative process and transferring jurisdiction of the case to the district court, the Department will not oppose waiver of surety bond or other deposit in connection with the case. (11) Hearing Process. To expedite the equitable resolution of requests for administrative hearings regarding conservation easement tax credits, avoid inconsistent determinations, and allow the Executive Director of the Department of Revenue to consider the full scope of applicable issues of law and fact, such hearings will be conducted in accordance with the following provisions: (a) The Executive Director of the Department of Revenue may invite the participation in the hearing of any person who has claimed a credit or who may be eligible to claim a credit in relation to the TMR’s conservation easement donation. Such participation shall include the right to be admitted as a party to the hearing upon the filing of a written request in accordance with paragraph (10)(d) of this regulation. (b) The Executive Director of the Department of Revenue may resolve the issues raised by the parties in phases: (i) The first phase will address issues regarding the validity of the credit and any other claims or defenses touching the regularity of the proceedings; (ii) The second phase will address the value of the easement; and (iii) The third phase will address determinations of the tax, interest, and penalties due and apportionment of such tax liability among persons who claimed a tax credit in relation to the TMR’s conservation easement donation. (c) Any request by a taxpayer to continue, stay, or otherwise postpone the hearing, including, but not limited to, a request for continuance to pursue mediation, shall be deemed consent by the taxpayer to enter into a written agreement with the Executive Director of the Department of Revenue to extend the time for the Executive Director to issue a final determination by a period of days equal to the requested period of postponement. (d) Nothing in this section shall be construed to abrogate or diminish the ability of the taxpayer to assert any facts, make any arguments, and file any briefs and affidavits the taxpayer believes pertinent to the case. (12) Final Determination and Appeal. The Department of Revenue will issue, pursuant to section 39-21-103, C.R.S., a notice of final determination regarding the Transfer Item Adjustment(s) to the TMR and transferee of the credit. The TMR, not the transferee, may appeal the determination in accordance with sections 39-21-105 and 39-22-522.5(6), C.R.S. If the TMR does not file an appeal pursuant to sections 39-21-105 and 39-22-522.5(6), C.R.S., a transferee may petition the Department of Revenue to change the TMR’s designation within 10 business days after the final date for filing an appeal, in accordance with section 39-22-522(6), C.R.S., and paragraphs (3)(h)(v), (3)(h)(vi), and (3)(h)(vii) of this regulation. (13) Confidentiality. Except as otherwise provided in section 39-21-113, C.R.S. and regulation thereunder, every tax return and all information contained therein is confidential. Section 39-21-113(17.5), C.R.S., provides an exception to the Department of Revenue’s confidentiality rule for tax information relating to conservation easement tax credits. For the purposes of this exception, “cases”, as used in statute, is not limited to cases in administrative hearing, in district court, or in further appellate courts, but also includes information pertinent to any disallowed conservation easement tax credit.