Tax Credit Crisis

Gov. Timothy M. Kaine may want to increase the amount of land under conservation easement, but his Department of Taxation isn’t making the job any easier for him.

In April, the tax department sent letters to investors who purchased land conservation tax credits from the Silver Cos., informing them that they could not take the credits. The credits are linked to the Silver Cos.’ Celebrate Virginia project, which set up conservation easements on more than 400 acres along the Rappahannock River. The Silver Cos. qualified for $28 million in credits and sold them at a discount — 50 cents on the dollar — which proved attractive to a lot of investors. The Department gave no explanation for its action.

Now, reports the Free Lance-Star, Craig Bell, a McGuireWoods attorney who represents 341 investors, has filed a formal protest with the Virginia Department of Taxation. There is no legitimate reason for denying the credits, he says.

Someone had better get this straightened out. If I were an investor, I sure wouldn’t invest in conservation easement tax credits — from the Silver Cos. or anyone else — if I thought there were any chance that the Department of Taxation wouldn’t recognize them. Before this is all over, someone is going to look really bad — either the Silver Cos. for selling credits they shouldn’t have, or the Department of Taxation for throwing the tax credit program into turmoil.


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35 responses to “Tax Credit Crisis”

  1. Anonymous Avatar

    Gee. 28 million in tax credits on 400 acres is $70,000 an acre.

    How much is the land worth, outright?

    At that rate, I could get over $8 million in credits for an easement on part of the farm. Unfortunately, I think the value of the easement depends on the number of development rights, and if the development rights are taken away through downzoning, well, there goes your conservation easement. The bright side is that downzoning is “free, no cost”, and tax credits are not required.

    Then again, you would have to have enough income to be able to USE $8million in tax credits. It’s easy to see how this benefits the “public”.

    RH

  2. Anonymous Avatar

    Tax credits aren’t the only way we pay. Check out today’s WAPO story on National Historic Districts, how they are run, and what they cost.

  3. Larry Gross Avatar
    Larry Gross

    Here is a VERY rough approximation of the easement land.. I’ll try to find a more authoratative copy.

    but for the purposes of this thread, the map will show land that has basically steep slopes leading down to some flat land that is, if not outright flood plain, darn close.

    http://tinyurl.com/3e3s6v

    This land is adjacent to on the south bank.. very high dollar commercial land.. and on the north bank.. backs up to a golf course.

    both sides are developable with restrictions… and would be costly to build on because of the terrain.

    Silver entered into this on good faith. He was not trying to game the system but on the other hand he was indeed taking advantage of what the law allowed.

    Silver is not in the business of ripping off investors – there are hundreds of folks in the area that have bought land or leased from Silver and that alone should speak for itself.

    My view is that the state did not know what the heck it was doing when it got into the business of easements.

    It left.. wide open.. really obvious things that have to do with what the existing developability of the land is or is not per local and state and Chesapeake Bay ordinances.

    Some land is just flat not developable – and it should not be allowed to benefit from dollar value conservation easements.

    To allow that is to allow a scam.

    With developable land, the devil is in the details as to the appraisal of .. raw, undeveloped land.. which is.. not by any stretch of the imagination – an exact science.

    The land that is truly tricky is land that is partially or marginally developable because it has steep slopes and/or flood prone areas – and that is what this land is.

    It is in the eyes of the beholder what the value of that land is because with the right developer, making the right proposal, at the right time – it likely IS developable.

    For instance, what Silver did, in fact, promise was to preserve the treeline buffer between the river and the intensive commercial retail on top.

    He, very easily could have sold land at the top for hotel and restaurant “views” of the river but instead, he has set back the development from the edge and preserved the treeline.

    The question now.. is.. what is that worth…

    I think the state is causing this problem by not being clear in the first place… they did a half-assed job of writing the law and the regs such that it inevitably became a matter involving one persons opinion over another.

    The State said it wanted to preserve important land – including viewsheds.

    Silver did exactly that.

    Now the state wants to renege.

    I fully admit this is my personal opinion and I’m not speaking for anyone else…

    I’m not an ardent supporter of developers in many cases but in this case, they did the right thing and now they’re getting hammered for doing – exactly what the state SAID they wanted them to do.

  4. Anonymous Avatar

    “Some land is just flat not developable – and it should not be allowed to benefit from dollar value conservation easements.”

    You mean like the swamp in Florida where the Vertical Assembly Building was built? We can build darn near anywhere, engineering wise.

    It really comes down to places where building is prohibited, like steep slopes and flood plains. Presumably we prohibit building in those places for some good and valuable public purpose. If that is the case then the owner should be compensated, one way or another.

    It just smells bad to let him take an easement on land where building is prohibited. It also smells bad to prohibit building for a public purpose and not provide some public compensation.

    As for the rest, the marginally developeable stuff, I think you are right. Silver apparently played by the rules, and now the state is changeing the rules.

    My position is that when the state/government changes the rules the state should be liable for the costs.

    However, Silver already sold the tax credits. If the new owners can’t use them, who are they going after? Silver. Silver probably already spent the money, so he won’t have it to give back.

    Unless Silver has enough income, the credits are worthless to him, as is the land the easments are on.

    I don’t see how this is any different from anyone else who played by the rules, and then got hammered by a rule change.

    For the public good, of course.

    RH

  5. Where’s Newt when you need him?

    Jim:

    Let me get this straight – you want the governemnt out of the public education business but in the land easement business?

    Let me try to guess the facts here:

    1. A developer bought a bunch of land.

    2. Some of the land could be developed and some could not (because it is in a flood plain, etc).

    3. The developer developed the developable land (got kind of a Dr. Seuss thing going here). He made plenty of money on this development.

    4. The developer took the undevelopable land and filed for a conservation easement on that land.

    5. The developer sold the tax credits on the tax easement to the undevelopable land at 50 cents per dollar because there is a limit on how much he can deduct personally.

    6. The state realized that it is paying for the non-development of undevelopable land. Even the state sees this as a waste of money.

    7. Now the state doesn’t want to give tax credits (same as writing a check by any reasonable standard) because the land could never have been developed anyway.

    8. The losers will be the people who bought the tax credits.

    Am I close?

  6. What’s the difference between a catfish and a land developer?

    One is a bottom feeding scum sucker.

    The other is a fish.

  7. Jim Bacon Avatar

    Groveton, I didn’t say I wanted government in the land easement business. I merely posted the facts of the case. My only editorial comment was to observe that someone had screwed up.

  8. Groveton Avatar

    Jim:

    You are right. You never said that government should be in the land easement business. My fault. You are right.

    Regards,

    Groveton

  9. Larry Gross Avatar
    Larry Gross

    The relevant point for me but possibly not for others commenting is that the treeline/viewshed WAS PRESERVED.

    At least some of the preserved land WAS DEVELOPABLE – certainly the treeline at the edge of the steep slopes and in all likelihood some of the flat land at the bottom – if for nothing else the kind of development that allows for flooding – open area parks and parking lots with buildings on the upslope portions which were not flood plain.

    A developer with adequate resources could develop this land for outdoor oriented tenants like Bass Pro Shops or Cabelas that would very much want such a river-view site right off of I-95 in the heart of the Balto-Wash-Rich corridor.

    Geeze.. give the developer credit for doing the right thing.

    re: wetlands that are “developable”. Acknowledged that the “definition” of some wetlands isolated from direct surface water drainage are at issue but most “classic” wetlands are no longer developable even if they are technically buildable despite the fervent desires of some property rights folks.

    By the way, there are no wetlands at issue on this property as far as I know, but this particular developer is not combative about property rights. The reputation is one of not going against the grain on the wishes of the State and Local regulators.

    This particular developer was among the first, if not the first, to use LID as a model for area development.

    I’m not a defender of this particular developer and there are lots of developers around who deserve to be whacked for putting greed over principles but I also believe that it is important to give credit to the development community when they try to do the right thing – and recognizing that we should not make perfect the enemy of good.

    Baby steps on changing the way we develop and “atta-boys” when they do something – that they don’t have to do.

    The way to make forward progress on development is to establish model Best Practices and recognize the developers who accomplish them.

  10. Groveton Avatar

    On this blog there is a lot of talk about “location specific costs”. Generally, this is code-talk for “soak Northern Virginia further” (economically speaking). This is a classic example (at least as I understand it). Some people in a place called Rappahannock want to preserve their view of a river. It is less likely that I will ever see that view than it is likely people from Rappahannock will drive on Northern Virginia’s streets. However, on this blog, the view should be preserved with tax credits (just the same as the state writing a check) but the streets in NoVA should be paid for with tolls. This site is full of shrill commentary asking why people should pay for Northern Virginia’s roads. Beyond the stunning ignorance of the actual economics in Virginia, this logically begs another question – Why should I pay for your treeline views?

    This two-faced, double-talk argument is emlematic of the issues in the Republican Party. With no core values the supposed Republicans (including those on this site) argue for location – based user pays funding in one case and location – based everybody pays in another. The simple fact is that the (location-specific) preservationists represent a special interest that the pseudo-Republicans like while the (location – specific) economic growth crowd represent a special interest that the pseudo-Republicans don’t like. So, taxes should be used to pay for some location – specific costs but not others. And the Republicans continue to wonder why fewer and fewer people are voting for them.

    Adding to the intellectual confusion of the pseudo-Republican argument is a fundamental misunderstanding (or willful ignorance of) state wide economics. Preserved land not only costs money in tax credits today it continues to have an opportunity cost in the taxes not collected in the future. Roads in NoVA not only ease congestion today but allow for continued economic expansion and a continuation of the subsidy from NoVA to the “economic basket case” localities so prevelant in Virginia.

    The pseudo-Republican argument spins on the axis of illogic, economic ignorance and a clingy love for soem special interests. Ted Kennedy would be proud.

  11. alohasteve Avatar
    alohasteve

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  12. Larry Gross Avatar
    Larry Gross

    whew! I guess I won’t ask Groveton to “sharpen” his commentary.. any.

    ๐Ÿ™‚

    I’ll tackle two of his points:

    1. – tax credits for land preservation.

    I actually agree with his overall sentiment and perhaps he’s on to something – and that would be something like a state match and a requirement of a local commitment.

    My other problem is that the state allows virtually any land to qualify as opposed to land determined to have significance in terms of history or natural resources.

    But I can’t totally agree with Groveton unless his position is consistent.. no State Parks, no Skyline Drive, no Leesylvania State Park or Prince William Forest…no state amenities .. period…

    That would be a consistent position and one that I would not agree with. There’s a middle ground I think.

    2. – NoVa TOLLs. I’m not sure exactly his point … folks who live outside of NoVa and travel to NoVa would be HELPING NoVa with their road expenses if TOLLs were instituted.

    Further, HOT lanes are planned to extend down to as far as Southern Spotsylvania such that virtually all NoVa commuters living along I-95 will be paying TOLLs or carpooling or taking VRE/METRO and at least some of the money dedicated to improving the infrastructure.

  13. Jim Bacon Avatar

    Groveton, Permit to add some conceptual clarity to your concerns that “location variable costs” are a code word for “soak Northern Virginia.”

    Unquestionably, the Virginia state budget is set up in such a way as to transfer wealth from the wealthy, urbanizing counties, particularly of Northern Virginia, to poorer, rural jurisdictions. This transfer of wealth is most evident in the Standards of Quality re-benchmarking that takes place each two years. Next year, Fairfax County will get soaked again, probably to the tune of tens of millions of dollars. This one funding mechanism accounts for the overwhelming majority of the inter-regional transfer of wealth in Virginia. I would advise you to focus on it.

    When people talk about “location variable costs,” they are NOT talking about the SOQs. We are not making any judgment whatsoever about SOQs, which belong to an entirely different cluster of issues unrelated to human settlement patterns.

    When people talk about location-variable costs within a Northern Virginia context, the goal is to optimize human settlement patterns to get more efficiency from the public expenditures on roads, transit, utilities and public services — regardless of whether the public funds come from the local government, the state or someone else.

    On the transportation front, your issue is not with “location variable cost” (at least, it shouldn’t be) but with the idea sometimes presented that transportation funding should be structured along the lines of a “user/beneficiary pays” system. If I understand you correctly, you believe that Northern Virginia would be even more short-changed under such a system than it already is. I would maintain that, if properly designed, such a system would be highly advantageous to Northern Virginia because it would take politicians (including those RoVa politicians and Richmond administrators) out of the loop, allowing the vast majority of money raised to stay in NoVa.

  14. Larry Gross Avatar
    Larry Gross

    re: NoVa get “soaked” by Rova…

    geeze .. you’d think with all this talk about them thar illegals “soaking” NoVa for services and crowding into their neighborhoods that those same pols would be also yammering about how NoVa is ALSO getting ripped off by RoVa.

    ๐Ÿ™‚

    seriously.. why is the SOQ deal not an issue with candidates in NoVa at election time?

    Are all the NoVa reps.. really working to help RoVa?

    hey.. at the least you’d expect those pachyderms to deal with this issue even if the tax&spend types won’t.

    what say you Groveton?

  15. Anonymous Avatar

    “When people talk about location-variable costs within a Northern Virginia context, the goal is to optimize human settlement patterns to get more efficiency from the public expenditures on roads, transit, utilities and public services — regardless of whether the public funds come from the local government, the state or someone else.”

    We know for a fact that the maximum efficiency for roads is at 35 MPH and three car lenghts apart. We can pretty easily figure out what housing density a given road network can support.

    We know what the transmission losses are for electricity. So we can pretty easily figure out what the best housing and commercial density should be surrounding each power plant.

    We know hat kind of housing and commercial density is required to support even modestly adequate transit, and we know that we will still have to support roads for the same housing and commerce.

    We know what kind of people need what kinds of public services.

    But NO ONE, has the foggiest idea of how to combine all those things efficiently, because they are at least partially mutually exclusive.

    AND, they are in continual flux. You not only would have to know what the best combinations of all those things are, you would have to be able to predict and average them over time.

    The goal to optimize human settlement patterns is a collossal joke, and a fraud. The Bolsheviks already tried it.

    RH

  16. Anonymous Avatar

    “What’s the difference between a catfish and a land developer?”

    Come on, Groveton. That is unworthy of you, and far below your usual standards.

    A guy owns some land. Some of the public wants to use that land and is willing to pay him to do so. Some of the public is unwilling to let him use the land, and unwilling to pay him for their preferred use. Some of the public is unwilling to allow other members of the public to buy the land, but they are not willing to compete on price. Some of the public is willing to allow the guy to sell to other members of the public IF they pay them off first.

    Who is the bad guy here?

    RH

  17. Anonymous Avatar

    “However, on this blog, the view should be preserved with tax credits (just the same as the state writing a check) but the streets in NoVA should be paid for with tolls.”

    Stunning.

    Now that is more like it.

    RH

  18. Anonymous Avatar

    “The way to make forward progress on development is to establish model Best Practices and recognize the developers who accomplish them.”

    Also more like it. How can we recognize them if a) we p[revent damn near everything, and b) think they are bottom dwelling scumsuckers.

    I happen to think we need these guys on our side. To get them on our side we need to recognize they have to have profits.

    We need profits too, because that is where our jobs come from. We need roads to get to and to supply the jobs that allow them their profits.

    RH

  19. Anonymous Avatar

    “NoVa TOLLs. I’m not sure exactly his point … folks who live outside of NoVa and travel to NoVa would be HELPING NoVa with their road expenses if TOLLs were instituted.”

    No they won’t. NOVA isn’t getting any more roads. Period. The biggest NOVA road expense is the expense of trying to use the roads: the congestion tax.

    If people outside of NOVA wanted to help NOVA with their road expense, they would make building in ROVA so cheap and painless that no one in their right mind would want to livew in, or travel to NOVA.

    The handful of people who do travel to NOVA (and pay the tolls) will be fully submerged among the people that live there and pay the tolls – in addition to what the send to ROVA.

    Your comment is completely and utterly cynical, not to mention mis-thought.

  20. Anonymous Avatar

    “The simple fact is that the (location-specific) preservationists represent a special interest that the pseudo-Republicans like while the (location – specific) economic growth crowd represent a special interest that the pseudo-Republicans don’t like.”

    I’ve been trying to say that for years, and you put it in one sentence.

    Well said.

    RH

  21. Groveton Avatar

    Not sure why I like opening cans of worms – must be the fisherman in me.

    Larry – The voters and politicans of NoVA are the biggest culprits in the mix. No doubt. The last election (November 2007) represented a slight awakening by NoVA voters. However, there is still much to do. My VIP offer remains on the table although I have gotten some very good advice from people on this site as to how best to implement the idea.

  22. Groveton Avatar

    RH – The catfish joke. I first heard this joke uttered about members of my profession. I thought it was funny then and I think it’s funny now.

    As for developers – they manipulate the political process in much the same way as the politcos of Tammany Hall manipulated the political process of New York City for over a hundred years. While Tammany Hall occasionally did some good (like getting LaGuardia elected mayor) they generally were a small group of people manipulating the process for their own economic gain. New York is better since their demise and NoVA will be better once the manipulative developer – cartel is removed as well.

  23. Groveton Avatar

    Jim –

    I understand teh context of “location variable costs” being applied only to transportation. I reject that context.

    Location variable costs should include:

    1. Preservation costs such as those bourne by the Journey Through Hallowed Ground and the treeline tax credit issue on the Rappahannock River.

    2. A willful refusal to encourage economic growth. People who choose “the slow lane” should understand that “the slow lane” provides little economic benefit and reduces tax receipts. People who decide to pursue this lifestyle should be prepared to live with the economic consequences of that decision.

    3. Unreasonably low real estate tax rates. People who lower their real estate tax rates during good economic times should accept the fact that this decision will cause them to have an even worse public school system than they already have. This is a “location variable cost” since the real estate (and the taxes on that real estate) are a local matter.

    I believe that most state costs are really “location variable”. However, the only one routinely referenced as “location variable” is transportation. I believe that’s because it’s another method of justifying further transfer payments from NoVA to elsewhere. If people who espouse this argument would change their terminology to be:

    “We want NoVA to pay for their own roads with new taxes so we can keep paying for our ‘location variable taxes’ with the existing transfer payments’” we’d be off to a better start.

    The first step in solving any problem is to express the problem in open and honest terms. I believe that the argument which holds that transportation costs are the only “location variable” cost is intellectually dishonest.

  24. Anonymous Avatar

    “We want NoVA to pay for their own roads with new taxes so we can keep paying for our ‘location variable taxes’ with the existing transfer payments’” we’d be off to a better start.”

    Groveton:

    I believe that is a fair characterization of the situation.

    The way I heard it is What’s the difference between a fairy tail and a (fishing, golfing, sailing, political) story?

    A fairy tale starts off “Once upon a time” and a fish story starts off
    “Now this is no S____,”

    RH

  25. Larry Gross Avatar
    Larry Gross

    Let’s enumerate the location-variable costs – and rank them in the order of their impacts.

    I’ll start – Transportation

    now, it’s your turns…

  26. Anonymous Avatar

    Why is transportation a location variable cost? It costs roughly the same to travel a mile in one location as another.

    Metro charges different amounts, depending on your jurisdiction, but that is mostly a matter of distance traveled, too.

    If you assume that travel is to and from the CBD, then maybe that is different, but commuter travel is only 25% of total travel.

    ???

    RH

  27. Groveton Avatar

    Larry –

    1. Economic and managerial neglect of the local education system to the point it has to be bailed out with billions of dollars of money from elsewhere to meet minimal quality levels.

    2. Money paid to preserve nature, woodlands, treelines, whatever.

    And … as has been oft repeated – “costs” is a very incomplete measure. It fails to recognize taxes (or revenues as the governor likes to say). We should be talking about “location variable shortfalls” not costs. So, under the correct “locations variable shortfalls” mantra:

    #1 – By a landslide – Absurdly low local tax rates (mostly real estate).

  28. so… someone who has always lived in a rural area their entire life – born there – and owns land but can barely pay the taxes on it

    is not paying the location variable share?

    come again.

    isn’t this blood from a turnip?

  29. Anonymous Avatar

    “so… someone who has always lived in a rural area their entire life – born there – and owns land but can barely pay the taxes on it

    is not paying the location variable share?

    come again.”

    Larry, I don’t understand your comment. Accoerding to the powers that be landowners are paying twice as much in taxes as they et in services. What Groveton says may also be true. The two are not mutually exclusive.

    What is your point? The standards cost more than we are willing to spend?

    RH

  30. Larry Gross Avatar
    Larry Gross

    define location-variable expense.

    They way that Groveton uses it, is not the way that I perceived it and I suspect not the way that others think of it either.

    NOT raising taxes high enough to pay for local services – in the eyes of someone who lives elsewhere does not strike me as a location-variable cost.

    The folks who have lived in that location most of their lives (as opposed to moving there and commuting elsewhere for work) – probably feel that they are paying as much in taxes as they can afford and if the State actually stepped in and said that they must employ SOQ staff positions via raising their local property taxes – what would happen?

    So RH, is basically saying that if Facquier is getting SOQ money from the state – that YOU are NOT paying your fair share of location-vairable costs…

    got it?

  31. Larry Gross Avatar
    Larry Gross

    A state mandate of a level of service at a local level is often characterized as an unfunded mandate.

    No?

    I know that I ain’t the sharpest knife in the drawer sometimes but I’m having a hard time understanding how this can be construed as a location-variable cost.

    enlighten me.

  32. Larry Gross Avatar
    Larry Gross

    By the way, we’ve gotten a bit off topic of this thread and I had something more to offer on the original thread topic.

    I agree with Groveton on taxing everyone in the state to .. provide a viewshed amenity for folks in Fredericksburg.

    It’s a bad plan tailor-made for mischief and misuse.

    The folks in Fredericksburg should decide either by referenda and/or a tax check-off idea.

    For instance, on the state form, it could say – “do you want a dollar of your refund to go for conservation easements in your locality?”

    I see this the same way I see local accountability for roads and that is unless the folks who live locally have a direct role in the decision AND the fiscal responsibility then to them – it’s “play money” to be obtained from the “State”… a fiscally irresponsible concept where money is not treated – as money.

    Also, it IS up to the folks in a locality to decide if they want to preserve and protect those things that are deemed important to that locality.

    It’s not up the folks in… say Norfolk to fork over money to protect land in Fredericksburg.

    I note a local issue called Crow’s Nest – where locals tried to convince the Feds and the State to pay 30 million for this parcel of privately-held land – and when the Feds and the State said no – quess what happened at the local level when the question was actually put to the people in the area?

    Well, of course, the most ardent supporters wanted the locality to buy the land – with local tax money – an idea that was not wildly popular with the same local folks who did not want their soccer field money “diverted” for a piece of land that would not be developed for soccer fields or any other public use except access for hiking.

    I’m not arguing the merit of preserving that land but rather the involvement of locals and THEIR determination to preserve or not.

    There ARE times when the Feds and the State need to play a role – but that role should be as an enabling partner – not the “decider”.

  33. Anonymous Avatar

    “For instance, on the state form, it could say – “do you want a dollar of your refund to go for conservation easements in your locality?””

    But why should that dollar come from your REFUND?

    Take it out of the taxes you pay, not the change you get back.

    And then add a similar question for everything else on the list. We ould then KNOW what people’s priorities are.

    As for the other part, I don’t know that I said anything, I was just asking quesations, because I sure don’t understand. The people who have lived in this house over the past two hundred years have worked not only all over the county and several counties, but all over the world.

    The house has been in the same location all that time. The jobs have changed, and even moved.

    How do you figure location variable transportation costs, looked at that way?

  34. Larry Gross Avatar
    Larry Gross

    you mean that you could vote on whether you want money spent on prisons… or medical care for indigent kids or the State Health Department.

    Are you informed enough about government to know what the agencies do or do not do?

    Would you vote to defund those agencies you do not know about or understand?

    What do you think most voters would do?

    What do you think the voters who are swayed by sound-bites would do?

    If you could get all of your money back by voting to not fund anything.. how many folks do you think would do that?

    What if the majority of voters defunded your local Sheriffs office but you did not agree…??

    would you then pay more than your normal share to KEEP the Sheriff?

  35. Larry Gross Avatar
    Larry Gross

    re location-variable costs.

    someone needs to define what the criteria is and is not for these costs.

    Right now.. they walk/talk a lot like “Smart Growth” in terms of specifics.

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