[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 21-11251

____________________

GLADE CREEK PARTNER, LLC, 

c/o Sequatchie Holdings, LLC Tax Matters Partner, 

Petitioner-Appellant,

versus

COMMISSIONER OF INTERNAL REVENUE, 

Respondent-Appellee.

____________________

Petition for Review of a Decision of the

U.S. Tax Court

Agency No. 22272-17

____________________

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2 Opinion of the Court 21-11251

Before NEWSOM, TJOFLAT, and ED CARNES, Circuit Judges.

PER CURIAM:

This case involves a tax dispute over a conservation easement. The tax court determined that Glade Creek Partners, LLC,

improperly claimed a charitable contribution tax deduction because it failed to ensure that the conservation purposes of an easement it had donated to a charitable organization were protected in 

perpetuity. The court also found that Glade Creek owes a penalty 

for substantially misstating the value of the easement. Glade Creek 

appeals.

I. 

International Land Co. (ILC) purchased almost 2,000 acres 

of undeveloped land in Tennessee for just over $9 million in 2006.

After initial residential development plans didn’t entirely pan out, 

ILC sold what remained of the property to Hawks Bluff Investment 

Group, Inc., a corporation formed by two ILC members and James 

Vincent, a local real estate investor. Hawks Bluff obtained ownership of the property along with all of ILC’s debts. Efforts to develop 

the land continued but still didn’t pan out, and Vincent became 

worried about paying the debts the company had incurred. 

Vincent heard that a conservation easement might help. He 

spoke with Matthew Campbell, who was managing several companies that had donated conservation easements and was experienced in marketing companies to investors as tax savings 

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opportunities. After talking to Campbell, Vincent decided that his 

financial problems would be solved by donating a conservation 

easement on part of the Hawks Bluff property to a charitable organization. 

Campbell understood the purpose of the easement was to 

generate enough money to repay the Hawks Bluff debt. He

formed two new entities, Glade Creek Partners, LLC, and Sequatchie Holdings, LLC. The plan was for Glade Creek to take control 

of the Hawks Bluff property and debt, and for Sequatchie to promote the conservation easement as an investment opportunity. 

Campbell would act as Glade Creek’s manager, and he would sell 

Sequatchie in a private offering. Once the sale of it had raised 

enough money from investors to cover the Hawks Bluff debt, Sequatchie would purchase a majority membership interest in Glade 

Creek and grant the conservation easement on the land. The investors would receive a significant charitable contribution tax deduction in return. See I.R.C. § 170. 

Campbell set the offering price for shares of Sequatchie 

without considering the property’s fair market value, because he 

wanted to raise enough money to repay the Hawks Bluff debt, regardless of what the property was actually worth. Campbell hired 

the professionals needed to complete the transaction, including 

lawyers, a brokerage firm, and two appraisers. He told potential 

investors that the conservation easement would generate a total 

estimated charitable contribution deduction of $17.7 million, and 

that the more an investor invested, the larger portion of that 

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deduction the investor could claim. The plan raised enough 

money to cover the Hawks Bluff debt, and Glade Creek donated 

the conservation easement to Atlantic Coast Conservancy, Inc. 

When executing a deed of easement, Glade Creek included 

a provision addressing what would happen if it became impossible 

to use the property for conservation purposes. The deed provided 

in that situation a court could terminate — or, in tax terms, “extinguish” — the easement, and the Conservancy would be entitled to 

a portion of the proceeds from any “subsequent sale or exchange 

of the property.” See Treas. Reg. § 1.170A-14(g)(6). According to 

the deed, the Conservancy’s portion of any extinguishment proceeds would be calculated using the easement’s fair market value

at the time of the sale “minus any increase in value” that was “attributable to improvements” made afterthe easement was granted. 

That amount attributed to improvements would not go to the 

Conservancy but back to Glade Creek. 

Glade Creek claimed a $17,504,000 charitable contribution 

deduction on its 2012 tax year return. In 2017, the IRS issued Glade 

Creek a Final Partnership Administrative Adjustment (FPAA)

based on that 2012 return.1 The IRS asserted that Glade Creek was 

not entitled to a charitable contribution deduction because of the 

1 An FPAA “is the functional equivalent of a Statutory Notice of Deficiency 

for individual taxpayers” and is issued when the IRS determines that a change 

— or, in tax terms, an “adjustment” — to a partnership tax return is required. 

See United States v. Clarke, 816 F.3d 1310, 1313 n.2 (11th Cir. 2016).

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way that the conservation easement deed handled the possibility of 

any future extinguishment proceeds. The IRS also assessed a penalty against Glade Creek for misstating the value of the easement. 

Glade Creek petitioned the tax court for review — or, in tax terms, 

“readjustment” — of the FPAA. See I.R.C. §§ 6226, 6234. 

After a three-day trial, the tax court concluded that Glade 

Creek had not properly taken the charitable contribution deduction. It also concluded that Glade Creek was subject to a penalty 

for substantially overstating the value of the easement. Glade 

Creek challenges both conclusions.2

II. 

Glade Creek challenges the tax court’s conclusion that it improperly took the charitable contribution deduction. In reaching 

that conclusion, the court noted that to qualify for a charitable contribution deduction, the taxpayer must donate the easement “exclusively for conservation purposes” and those purposes must be 

“protected in perpetuity.” I.R.C. § 170(h)(5)(A). The court explained that, to meet the in-perpetuity requirement, the regulation 

interpreting that part of the tax code requires the deed of easement 

to “account for the possibility of unexpected changes to the property that would undermine the continued use of the property for 

conservation purposes.” TOT Prop. Holdings, LLC v. Comm’r, 1 

2 In addition, the tax court also addressed a cash donation deduction that 

Glade Creek claimed, but it ruled in favor of Glade Creek on that, and the IRS 

did not appeal that decision. 

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F.4th 1354, 1362 (11th Cir. 2021). The regulation requires a deed 

to account for that possibility because, if it were to occur, “judicial 

extinguishment” of the easement would be “required,” and the donee of the easement “must receive a share of the proceeds determined by” a formula provided in the regulation. Id.; see also Treas. 

Reg. § 1.170A-14(g)(6)(ii). 

The tax court noted that the formula “does not permit the 

value of any posteasement improvements to be subtracted out before determining the donee’s share” of the proceeds. Because 

Glade Creek’s deed did provide for subtracting the improvement 

value from the Conservancy’s share of any future extinguishment 

proceeds, the tax court found that Glade Creek’s donation violated 

the in-perpetuity requirement, which meant the charitable contribution deduction had been improperly claimed on its tax filing. 

Glade Creek contends that the tax court erred when it disallowed the deduction for failure to satisfy I.R.C. § 170(h)(5)(A)’s inperpetuity requirement. After Glade Creek filed its notice of appeal, we issued Hewitt v. Comm’r, 21 F.4th 1336 (11th Cir. 2021). 

In Hewitt, “we conclude[d] that the Commissioner’s interpretation 

of [Treas. Reg.] § 1.1740A-14(g)(6)(ii) is arbitrary and capricious 

and violates the APA’s procedural requirements.” Id. at 1339. So 

Hewitt invalidated the regulation on which the tax court relied in

disallowing Glade Creek’s charitable contribution deduction. See

id. We must follow Hewitt. See, e.g., United States v. Bazantes, 

978 F.3d 1227, 1243–44 (11th Cir. 2020) (“Under the well-established prior panel precedent rule of this Circuit, the holding of the 

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first panel to address an issue is the law of this Circuit, thereby binding all subsequent panels unless and until the first panel’s holding 

is overruled by the Court sitting en banc or by the Supreme 

Court.”) (quotation marks omitted). Accordingly, we will vacate 

that part of the tax court’s judgment for reconsideration without 

reliance on the regulation.

The IRS advanced several other arguments before the tax 

court for why Glade Creek should not be allowed to claim a deduction for the conservation easement. In light of our decision to vacate and remand because of our Hewitt decision, we need not address those other arguments and will leave them for decision by 

the tax court in the first instance.

 III. 

Glade Creek also challenges the tax court’s conclusion that

it is subject to a penalty for substantially overstating the value of 

the easement. That issue exists regardless of whether it properly 

claimed a deduction for the easement. That’s because the IRS imposes an “accuracy-related penalty” if “any portion of an underpayment of tax” in excess of $5,000 is “attributable to . . . [a]ny substantial valuation misstatement.” I.R.C. § 6662(a), (b)(3), and (e)(2); cf. 

Gustashaw v. Comm’r, 696 F.3d 1124, 1136 (11th Cir. 2012) (holding that an overvaluation penalty should apply even when the 

value of the deduction is determined to be zero because the underlying transaction lacks any economic substance).

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In reaching its conclusion that Glade Creek had substantially 

overstated the value of the claimed easement deduction, the tax 

court used what’s called the “before-and-after” valuation method. 

That method calculates the fair market value of the easement by: 

(1) determining the fair market value of the property if put to its 

highest and best use (the “before” value); (2) determining the fair 

market value of the property once it is encumbered by the easement (the “after” value); and (3) subtracting the after value from 

the before value. See Treas. Reg. § 1.170A-14(h)(3)(ii). 

To establish the before value, the court relied on Glade 

Creek’s land-use expert, Richard Norton, and its valuation expert, 

Claud Clark III, who was also one of its appraisers. Norton testified 

that the property’s highest and best use was for residential development, and he created a hypothetical housing development to illustrate that use. Norton’s hypothetical housing development was 

a subdivision of single-family homes. 

Clark determined that the value of the property’s highest 

and best use was $17,314,049. To reach that number, Clark used

Norton’s hypothetical development and applied a “discounted cash 

flow” analysis to estimate the before value of the land. A discounted cash flow analysis is a method of estimating the present 

value of an investment. See John A. Bogdanski, Federal Tax Valuation ¶ 3.05(1)(a) (Thompson Reuters 2022); see also Kuebler v. 

Vectren Corp., 13 F.4th 631, 639 (7th Cir. 2021) (“A discounted cash 

flow analysis estimates the present value of an investment based on 

future cash flows.”). The analysis uses an interest rate — which is 

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sometimes called a discount rate — to reduce the value of the investment to its present value. Bogdanksi, supra, at ¶ 3.05(1)(a). 

That’s necessary because the present value of an investment is less 

than the value the investor will eventually receive. Id. 

As part of his analysis, Clark projected the gross revenues 

from Norton’s hypothetical housing development. He also projected expenses for the development’s sales period, and he increased those expense amounts by 15% to account for the developer’s profit. He then subtracted the increased projected expenses

from the projected gross revenue, producing a projected net revenue. Finally, he discounted the projected net revenue by 11.25%

to “convert the future dollars to present day values.” 

The tax court accepted Norton’s finding about what was the 

property’s highest and best use. And the court largely agreed with 

Clark’s valuation approach. But the court found an “error” in one 

“aspect” of Clark’s “cost analysis”: he had “deviated from industry 

practice by including profit as a line-item expense” instead of using 

a discount rate that already included “profit risk.” That is, Clark 

had treated the theoretical developer’s profit as a separate 15% expense and then applied an overall 11.25% discount rate when he 

should have applied an overall 26.25% discount rate without considering the developer’s profit separately. 

According to Clark’s valuation report, his method applied a 

“combined” discount rate of 26.25% that he took from an industryrecognized quarterly survey of developers. But Clark’s report also 

noted that, in the quarterly survey, discount rates for single-family 

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subdivisions like the one in Norton’s hypothetical development already “include . . . developer’s profit.” Which means that for those 

kinds of developments, “profit is not treated as a line item expense”

as it is in discount rates for other kinds of developments like condominiums. By separating profit into a line item expense, Clark 

had used the industry practice for condominium developments instead of the industry practice for single-family subdivisions. 

As a result, the tax court concluded that Clark had not followed the correct industry practice — the one acknowledged in his 

own report — and that he had not satisfactorily explained his failure to follow that practice. The court then undertook its own calculation of the property’s “before” value and, applying “a discount 

rate of 26.25%” to its own “computation of net revenues,” found 

that value to be $9,353,171. (Far less than Clark’s $17,314,049 before value.) 

Moving on to the second step of the “before-and-after” 

method, the court relied on the IRS’s concession to find that the 

property’s “after” value was $476,400. The court then completed 

the method’s third step by subtracting the after value ($476,400) 

from the before value ($9,353,171), resulting in the conclusion that 

the “easement’s fair market value [was] $8,876,771.”3 Because

3 The tax court initially concluded that the before value of the property was 

$9,354,171. But it later stated that the before value was $9,353,171. The court

used the second number to calculate the fair market value of the property, 

which it found was $8,876,771. According to the court’s calculations, the after 

value should be $8,877,771: ($9,354,171 - $476,400 = 8,877,771). The IRS 

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Glade Creek had claimed a deduction of $17,504,000, the court determined Glade Creek had overvalued the easement by more than 

150% (which would have been $13,315,157) but less than 200%

(which would have been $17,753,542). That amount of overvaluing, the court concluded, meant that Glade Creek owed a substantial valuation misstatement penalty. See I.R.C. § 6662. 

The court also concluded that Glade Creek did not qualify 

for the “reasonable cause” exception to that penalty, which applies 

if “the claimed value of the property was based on a qualified appraisal made by a qualified appraiser” and the “taxpayer made a 

good faith investigation of the value of the contributed property.”

See I.R.C. § 6664(b)(3). The court found that the appraisers Glade 

Creek hired “determined the before value to achieve the tax savings goals of the easement transaction and did not attempt to accurately ascertain the easement’s fair market value.” It also found

that Campbell, Glade Creek’s manager, “did not make a good faith 

investigation into the easement’s fair market value or rely on the 

appraisers in good faith to ascertain the easement’s fair market 

value” because “Campbell knew that the easement was substantially overvalued” and “wanted an appraisal that accomplished his 

tax objectives for the easement transaction.” On those findings, 

the court rested its determination that Glade Creek had not “acted 

concedes that this “case should be remanded for the limited purpose” of correcting that error. The miscalculation does not impact the substantive issues 

before us, and we will REMAND this case with instructions to fix that scrivener’s error. 

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with reasonable cause and in good faith in its valuation of the easement.” 

A.

Glade Creek contends that the tax court erred by sustaining

the substantial valuation misstatement penalty the IRS had imposed. It does not dispute that “[t]axpayers who underpay their 

taxes due to a ‘valuation misstatement’ may incur an accuracy-related penalty.” TOT Prop. Holdings, 1 F.4th at 1368 (quotation 

marks omitted). Nor does Glade Creek contest that “[t]he degree 

of a misstatement determines the severity of the penalty.” Id. at 

1369. The applicable statute provides that if a taxpayer has misstated the value of its donated property by between 150% and 200% 

of the property’s fair market value, “the IRS will assess a 20% penalty for a substantial valuation misstatement.” Id. (quotation marks 

omitted).

As we’ve mentioned, “[t]he correct value of a conservation 

easement is the fair market value of it at the time of the contribution,” which is “generally calculated based on sales prices of comparable easements.” Id. (alteration adopted and quotation marks 

omitted). When comparable easements are not readily available, 

courts can apply the “before-and-after” method to determine the 

easement’s fair market value. Id.; see also Treas. Reg. § 1.170A14(h)(3)(i). “A determination of fair market value is a mixed question of fact and law: the factual premises are subject to a clearly 

erroneous standard while the legal conclusions are subject to de 

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novo review.” TOT Prop. Holdings, 1 F.4th at 1368 (quotation 

marks omitted).

To calculate the before value of the property, courts must

first determine the property’s highest and best use. Palmer Ranch 

Holdings Ltd. v. Comm’r, 812 F.3d 982, 987 (11th Cir. 2016). The

highest and best use of the property is one that is “reasonable and 

probable” and “supports the highest present value.” Id. (quotation 

marks omitted); see also Treas. Reg. § 1.170A-14(h)(3)(ii). 

Glade Creek’s land-use expert testified that the property’s 

highest and best use was for a residential development of singlefamily homes, and the tax court agreed. The court calculated the 

before value of the property if put to that use by applying a discount rate of 26.25%. It concluded that the property’s before value 

was $9,354,171. 

Glade Creek argues the court reached that value in error because it “sua sponte devised its own appraisal method.” We disagree. The tax court and Clark (Glade Creek’s valuation expert)

both used the before-and-after method, which is the standard 

method for determining the value of an easement like the one here. 

See TOT Prop. Holdings, 1 F.4th at 1369; Treas. Reg. § 1.170A14(h)(3). And they both applied a “discounted cashflow analysis,” 

which included using a discount rate to reduce future dollars to 

present day values, to determine the before value of the property. 

What Glade Creek characterizes as a legal challenge to the 

court’s valuation method is actually a factual challenge to the tax 

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court’s computation of the easement’s fair market value. See Est. 

of Jelke v. Comm’r, 507 F.3d 1317, 1321 (11th Cir. 2007) (“The 

mathematical computation of fair market value is an issue of fact, 

but determination of the appropriate valuation method is an issue 

of law . . . .”) (quotation marks omitted). Reframed in its proper 

light, we review Glade Creek’s challenge only for clear error. 

Palmer Ranch Holdings, 812 F.3d at 993 (“We review the tax 

court’s legal conclusions de novo and its findings of fact for clear 

error.”).

Glade Creek asserts that the IRS had the burden to produce 

evidence that Glade Creek substantially overstated the easement’s 

value, which the IRS did not meet, and that “there is nothing in the 

record to support” the tax court’s “adjustments” to Clark’s valuation. But there is plenty of evidence to support the determination 

that the easement’s value was less than Clark said it was, including

Clark’s own report. That report expressly provided for the use of 

profit-inclusive discount rates when assessing single-family subdivisions, like Glade Creek’s land-use expert used in his hypothetical 

housing development. And according to Clark’s characterization 

in that report, his own method applied a combined discount rate of 

26.25% that he took from an industry-recognized publication 

(though the tax court ultimately concluded that the “broken 

down” version Clark used — a 15% profit on expenses rate and an 

11.25% discount rate — wasn’t equivalent to an overall 26.25% discount rate). The tax court’s valuation was based on that same data, 

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and it was not clear error for the court to apply a 26.25% discount 

rate in its calculation. 

Glade Creek points out that the tax court did not rely on the 

IRS’s expert, and the IRS later disclaimed its expert’s testimony. 

But the tax court stated that it had determined the accuracy-related 

penalty issue “on the basis of the record and the preponderance of 

the evidence.” Regardless of who initially bore the burden of production or who introduced the evidence in the record, that record 

evidence supports the tax court’s findings. 

That is why Glade Creek’s reliance on Estate of Elkins v. 

Commissioner, 767 F.3d 443 (5th Cir. 2014), is unpersuasive. In 

that case, the tax court considered whether to apply a fractionalownership discount when determining the taxable values of several 

works of art. Id. at 445. The court rejected the IRS’s position that 

no discount applied but also rejected the petitioners’ proposed discount amount. Id. The Fifth Circuit held that it was error for the 

tax court to “adopt and apply” its own discount amount “without 

any supporting evidence.” Id. The only evidence in the Elkins record supported the petitioners’ claimed discount amount, and there 

was “no viable factual or legal support” for the discount amount 

that the tax court applied. Id. at 450.

That is not so here. The record, including Clark’s report,

supports the tax court’s valuation of the easement. And the court 

applied the before-and-after valuation method, which is the standard method used in these circumstances. The tax court is not required to accept Glade Creek’s proposed before value or ignore 

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relevant evidence that undermines Glade Creek’s valuation of the 

easement. We will not disturb the court’s calculation of the easement’s value unless “on the entire evidence [we are] left with the 

definite and firm conviction that a mistake has been committed.” 

Morrissette-Brown v. Mobile Infirmary Med. Ctr., 506 F.3d 1317, 

1319 (11th Cir. 2007) (quotation marks omitted). After reviewing 

the entire record, we are not left with that conviction.4

B. 

Finally, Glade Creek contends that, even if it misstated the 

easement’s value, no penalty should be imposed because of the reasonable cause exception in I.R.C. § 6664. A taxpayer can avoid a 

substantial valuation misstatement penalty by showing that “the 

claimed value of the property was based on a qualified appraisal 

made by a qualified appraiser” and that “in addition to obtaining 

such appraisal, the taxpayer made a good faith investigation of the 

value of the contributed property.” I.R.C. § 6664(c)(3). Courts determine whether a company has exercised due diligence by looking 

at the actions of the company’s manager. See Stobie Creek Invs. 

LLC v. United States, 608 F.3d 1366, 1380–83 (Fed. Cir. 2010). 

4 Glade Creek’s brief lists several other tax court findings it says were wrong,

but it makes only “passing references to those [findings], without advancing 

any arguments or citing any authorities to establish that they were error.” 

Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681 (11th Cir. 2014). As a 

result, Glade Creek has abandoned those issues. Id. at 681–83.

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The tax court found that the appraisal was not done in good 

faith and that Campbell, Glade Creek’s manager, did not make a 

good faith investigation of the easement’s fair market value. Glade 

Creek argues that the tax court’s finding is “unsupported and is 

contradicted by the record.” 

As Glade Creek admits in its brief to us, Campbell understood that the goal of creating the conservation easement “was to 

raise enough money to repay the outstanding debt and preserve 

the property.” And as the tax court found, Campbell “wanted an 

appraisal that accomplished his tax objectives for the easement 

transaction.” By pursuing that goal single-mindedly, he did not obtain the appraisal in good faith. The court did not clearly err in 

finding an absence of good faith. 

Even assuming Campbell had obtained the appraisal in good 

faith, he was required to do more before Glade Creek could qualify 

for the reasonable cause exception. The exception also requires the 

taxpayer to make “a good faith investigation” into the property’s 

value. I.R.C. § 6664(c)(3)(B); see also Blau v. Comm’r, 924 F.3d 

1261, 1280 (D.C. Cir. 2019) (holding that the taxpayer had “failed 

to produce evidence that it conducted any investigation beyond the 

appraisal, let alone one that qualifies as a good faith investigation 

within the meaning of the statute”) (quotation marks omitted); 

Kaufman v. Comm’r, 784 F.3d 56, 70 (1st Cir. 2015) (reasoning that 

if obtaining an appraisal were enough, it would “render the second 

requirement meaningless”). Glade Creek points to no evidence in 

the record that Campbell “made a good faith investigation” into 

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the property’s value beyond obtaining the appraisals. For this additional reason, the tax court did not clearly err in finding that 

Glade Creek failed to meet the requirements of the reasonable 

cause exception in § 6664.

IV. 

For the reasons discussed, we VACATE the tax court’s ruling denying Glade Creek’s claimed tax deduction and REMAND 

for further consideration of that issue consistent with this opinion. 

We AFFIRM the tax court’s rulings on the substantial valuation 

misstatement penalty, except we VACATE the part of that ruling 

reflecting the scrivener’s error discussed in footnote 3 of this opinion and REMAND it for the limited purpose of allowing the court 

to correct that scrivener’s error. 

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