and we will move to our nd case which is nineteen national levon seventy nine thousand five hundred mountain preserve versus the commissioner of internal revenue i show mr and nd the manner in which the tax court determines the value of the two thousand and seventy address the statutory interpretation st congress revamped that adoption for conservation easements and here indicates that this was merely an expansion of an existing category i can i wish i knew some can i ask you a question before we head down into the rabbit hole of legislative history can i just ask you a couple of questions about vague recollections of my st year of law school and i guess i took that to mean that it was an interesting property that didn't refer to the grant tore sort of by operation of the deed itself but it  restrictions and so on and so on and so the nd question i have about the language it simply refers to a restriction singular a restriction on the u which may be made of the real property i guess i took the real property to mean the entire parcel the easement itself in gross and a restriction to mean a single restriction that that doesn't sound like it requires much for something to be a conservation easement but is there something more stringent that the language requires than that no your honor and you've opinion on the definite article the and it said the real property means the real property of the property that originally done and it has to be the property on which the property enters without differentiation or just simply a category of things called restrictions on use property the quality of the restrictions and they are affected in creation in one hundred and eighty of the role of the land trust in forcing the same time that congress adopted this phrase it also created this role of the land for us  according to you according to me your honor to say does not inform you to look at any particular prescription it is merely a category of real property interest something like an  creating in the same statute a separate section that requires the restrictions and the enforcement to protect the conservation purposes in perpet and if it's given adequate in force and required to not do anything that materially adversely affects the conservation purposes then then congress intended it to be trusted to do its job all for the i r s to come back and take issue with the land trust recognizing that these things go forward in perpetuity three hundred years from now whatever the the the the whole easement consists of the various restrictions exceptions restrictions and exceptions to the sections and that entire package and may have please the court jacob christiansen for the commissioner i would like to address again this issue of statutory interpretation with respect to paragraph h two c and some of the court's questions it's important not to ignore the the full statutory language spoken for a moment what is the meaning of a restriction granted in perpetuity but we have to the statutory language goes on it's a restriction granted in perpetuity on a use which may be made as a real property and it's important not to ignore that language or  who is in any interpretation that we give to this paragraph so prior to this statute being an acted i mean it addressed the meaning of a restriction which was one of the court's questions you know prior to this statu being and and acted there was different caddick category there were different categories that were covered by the statute which included a lease on an option to purchase or an easement on real property and congress modified that language and replaced it with a general category covering a restriction granted in perpetuity on the use which may be made of the real property and in the legislative history the senate report explains that this new language would cover easements and other interests in real property of the under state law state property laws have similar attributes like a restrictive covenant and so when the statute refers to a restriction it's referring to an easement or a restrictive covenant and not net not not something finer like simply a restriction on a use that may be made of the real property and so not use or any use it's it's again the definite article it's a restriction on the use which may be made of the real property and so the use which may be made of the real property is defined at the outset when the eas granted in this case the use that is originally granted in the easement precludes for example residential development but it later allows through a modification provision the easement holder and the owners to remove and lift that restriction therefore the use which may be made of the real property as originally granted has changed ordinarily would have would have been able to the to be made real property it would be and what i'm what i'm saying is a value is it collectively includes all of the prohibitions granted by that isn't so let's say the easement prevents residential development and it prevents the dumping of trash well the use which may be made of the real property under the terms of the statute would include  prohibit the owner from dumping trash and from residential construction both of those collective points if you remove one of those later through an amendment to the easement will now you've changed the use that may be made of the real property and again i think that it's significant that the statute refers to the use and it uses the definite article rather than this i'm sorry now you know there is a restriction on dumping trash and on residential construction but if it's if that use is subject to change and you could remove the restriction on residential construction then the it was granted and that's the reason that it violates the granted in perpetuity requirement the easements in this case originally they restricted residential development and a numerous other uses of the decision i can challenge that point i mean i understand your point that there may be property that was subject to one of these lines that was restricted that might become unrestricted at least as it relates to home s simply has no way at the time that the easement is granted of determining compliance with the perpetuity requirements because it doesn't know where on the property this residential construction is  going to be made and so one of the purposes of to see it has to have two purposes st it defines the real property that is subject to that isn't the specific tract of land but it defines the use that may be made of that property perpetually well let me let me let me follow up with that point i mean the commissioner seems to the minimize the fact that all of the property is going to even the even the homeowner home site parcels are going to be subject to restrictive covenants no matter what isn't that right i mean you don't you don't believe that the home sites hav same argument that the commissioner might says well they were never going to happen to start with but i mean we don't know that i mean things change i live in a part of atlanta when i moved here in thirty years ago it was eighty court pointed out is that by permitting the home site parcels to be relocated to other sections of the conservation area the deed allows a developer to subject to residential development land that was supposed to be protected in perpetuity from any form of development and it's that change in the us i mean at the beginning there were initially there were robust restrictions on the use and that use was defined in the easement at the time it was granted so i understood i understand i understand the four circles decision bell where you had a completely new property to be swapped out but this case is more like the th circuit case in that where it was just parcels within the overall property that were the most changed in some regards it does resemble the circuit in that in that case yes and you know we've explained in our brief sites the original protection that was granted has been has been changed and so by definition that original restriction on the use which may be made of the property was not granted in perpetuity because it's it so so your honor you're exactly right we are referring to all the restrictions and we think that is the effect that is the effect that the language values which may be made of the real property has the effect of that language very use with the nd perpetuity requirement does not even reference the use which may be made of a real property and so to say that you know the use that may be made of the real property is governed by age five a doesn't make any sense based on the statutory language it's to see that defines the use which may be made of the real property and and that includes all of the collective restrictions granted at the outset by that human which must be granted isso so if some of those restrictions are the prohibitions on the use which may be made of the real property or later lifted even though perhaps leaving some intact then use has changed and i didn't mean to convey that i'm again the statute refers to the use which may be made of the real property and so i'm specifically referring to an amendment of the restrictions on the use which may be made of the real property damage of the water tower trifles and that principle i think would apply here so your baseline position is that any amendment to the uses to which the property can be made  you know if it's lifting the restrictions on the use of an amendment that enhances the protection by adding restrictions would not violate the perpetuity requirement and so last question for me is this if you have to be able to determine contemplating a donation of a conservation easement can always request a prior administrate of ruling from the i r s whether their contemplated donation will qualify and pine mountain for whatever reason chose not to do that here and instead it has explains that congress contemplated the taxpayers would be able to see prior administrative rulings and again you know it's not the commissioner does not take the position that any amendment to the easement will disqualify it say that going back to this notion of a change in use that the commissioner is trying to divide up this  separate discrete little parts and pick the ones they want to or the restriction the entire document creates for scription with exceptions with exceptions to the exception s i think it would be accurate to say that that well st these must do not say anything about development what they restrict is any structures on the property s more accurate to say that the easement restricts building structures listen except the ten structures permitted and that use never changes have over simplified the example a bit but essentially by stopping at the no structures and saying that's what was restricted and everything else is somehow surplus or poor an afterthought is simply a very strange way to look at a document that was intended for a particular result and contains all of these various clauses i think there is no change in the use allowed by the easement all of the uses that we're talking about are allowed it's like a date that says i give you this forty acres lesson except the southeast corner bank or the dade conveys forty nighters it doesn't convey fifty acres and then you say well you took back the other acre there was no taking back there was no change it was what it was to begin with the idea that the i r s has to determine where on the property the home sites are is simply not true nor does it make any sense the the appraisal does not need to know where the property is the at the sites are soon to be in their highest and best most bagnall place the baseline covers the entire property the entire property would be reviewed and inspected on this one has thank you so much mr christiansen as well that case is submitted and we are in recess until nine am tomorrow morning thank you thank you everyone