(1) For purposes of this section, "taxpayer" means a resident individual or a domestic or foreign corporation subject to the provisions of part 3 of this article, a partnership, S corporation, or other similar pass-through entity, estate, or trust that donates a conservation easement as an entity, and a partner, member, and subchapter S shareholder of such pass-through entity.
(2) (a) For income tax years commencing on or after January 1, 2000, but prior to January 1, 2014, and, with regard to any credit over the amount of one hundred thousand dollars, for income tax years commencing on or after January 1, 2003, subject to the provisions of subsections (4) and (6) of this section, there shall be allowed a credit with respect to the income taxes imposed by this article to each taxpayer who donates during the taxable year all or part of the value of a perpetual conservation easement in gross created pursuant to article 30.5 of title 38, C.R.S., upon real property the taxpayer owns to a governmental entity or a charitable organization described in section 38-30.5-104 (2), C.R.S. The credit shall only be allowed for a donation that is eligible to qualify as a qualified conservation contribution pursuant to section 170 (h) of the internal revenue code, as amended, and any federal regulations promulgated in connection with such section. The amount of the credit shall not include the value of any portion of an easement on real property located in another state.
(b) For income tax years commencing on or after January 1, 2014, and, with regard to any credit over the amount of one hundred thousand dollars, for income tax years commencing on or after January 1, 2003, subject to the provisions of subsections (4) and (6) of this section, there shall be allowed a credit with respect to the income taxes imposed by this article to each taxpayer who donates during the taxable year all or part of the value of a perpetual conservation easement in gross created pursuant to article 30.5 of title 38, C.R.S., upon real property the taxpayer owns to a governmental entity or a charitable organization described in section 38-30.5104 (2), C.R.S. The credit shall only be allowed for a donation that meets the requirements of section 170 of the federal "Internal Revenue Code of 1986", as amended, and any federal regulations promulgated in accordance with such section. The amount of the credit shall not include the value of any portion of an easement on real property located in another state.
(2.5) Notwithstanding any other provision of this section and the requirements of section 12-15-106, for income tax years commencing on or after January 1, 2011, a taxpayer conveying a conservation easement and claiming a credit pursuant to this section shall, in addition to any other requirements of this section and the requirements of section 12-15-106, submit a claim for the credit to the division of conservation in the department of regulatory agencies. The division shall issue a certificate for the claims received in the order submitted. After certificates have been issued for credits that exceed an aggregate of twenty-two million dollars for all taxpayers for the 2011 and 2012 calendar years, thirty-four million dollars for the 2013 calendar year, and forty-five million dollars for each calendar year thereafter, any claims that exceed the amount allowed for a specified calendar year shall be placed on a wait list in the order submitted and a certificate shall be issued for use of the credit in the next year for which the division has not issued credit certificates in excess of the amounts specified in this subsection (2.5); except that no more than fifteen million dollars in claims shall be placed on the wait list in any given calendar year. The division shall not issue credit certificates that exceed twenty-two million dollars in each of the 2011 and 2012 calendar years, thirty-four million dollars for the 2013 calendar year, and forty-five million dollars for each calendar year thereafter. No claim for a credit is allowed for any income tax year commencing on or after January 1, 2011, unless a certificate has been issued by the division. If all other requirements under section 12-15-106 and this section are met, the right to claim the credit is vested in the taxpayer at the time a credit certificate is issued.
(2.7) Notwithstanding any other provision, for income tax years commencing on or after January 1, 2014, no claim for a credit shall be allowed unless a tax credit certificate is issued by the division of real estate prior to May 30, 2018, or by the division of conservation on or after May 30, 2018, in accordance with sections 12-15-105 and 12-15-106 and the taxpayer files the tax credit certificate with the income tax return filed with the department of revenue.
(3) For conservation easements donated prior to January 1, 2014, in order for any taxpayer to qualify for the credit provided for in subsection (2) of this section, the taxpayer shall submit the following in a form approved by the executive director to the department of revenue at the same time as the taxpayer files a return for the taxable year in which the credit is claimed:
A statement indicating whether a deduction was claimed on the taxpayer's federalincome tax return for a conservation easement in gross;
A statement that reflects the information included in the noncash charitable contributions form used to claim a deduction for a conservation easement in gross on a federal income tax return and whether the donation was made in order to get a permit or other approval from a local or other governing authority;
A statement to be made available to the public by the department of revenue thatincludes a summary of the conservation purposes as defined in section 170 (h) of the internal revenue code that are protected by the easement; the county, township, and range where the easement is located; the number of acres subject to the easement; the amount of the tax credit claimed; and the name of the organization holding the easement;
A summary of a qualified appraisal that meets the requirements set forth in subsection (3.3) of this section; however, if requested by the department of revenue, the taxpayer shall submit the appraisal itself;
A copy of the appraisal and accompanying affidavit from the appraiser submitted tothe division of real estate in the department of regulatory agencies in accordance with the provisions of section 12-61-719, C.R.S., as said section existed prior to its repeal on July 1, 2013;
If the holder of the conservation easement is an organization to which the certification program in section 12-15-104 applies, a sworn affidavit from the holder of the conservation easement in gross that includes the following:
Repealed.
An acknowledgment of whether the transaction is part of a series of transactions bythe same donor; and
An acknowledgment that the holder has reviewed the completed Colorado grossconservation easement credit schedule to be filed by the taxpayer and that the property is accurately described in the schedule.
(3.3) The appraisal for a conservation easement in gross donated prior to January 1, 2014, and for which a credit is claimed shall be a qualified appraisal from a qualified appraiser, as those terms are defined in section 170 (f)(11) of the internal revenue code. The appraisal shall be in conformance with the uniform standards of professional appraisal practice promulgated by the appraisal standards board of the appraisal foundation and any other provision of law. The appraiser shall hold a valid license as a certified general appraiser in accordance with the provisions of part 6 of article 10 of title 12. If there is a final determination, other than by settlement of the taxpayer, that an appraisal submitted in connection with a claim for a credit pursuant to this section is a substantial or gross valuation misstatement as such misstatements are defined in section 1219 of the federal "Pension Protection Act of 2006", Pub.L. 109-280, the department shall submit a complaint regarding the misstatement to the board of real estate appraisers for disciplinary action in accordance with the provisions of part 6 of article 10 of title 12.
(a) For conservation easements donated prior to January 1, 2014:
The executive director shall have the authority, pursuant to subsection (8) of thissection, to require additional information from the taxpayer or transferee regarding the appraisal value of the easement, the amount of the credit, and the validity of the credit. In resolving disputes regarding the validity or the amount of a credit allowed pursuant to subsection (2) of this section, including the value of the conservation easement for which the credit is granted, the executive director shall have the authority, for good cause shown and in consultation with the division of conservation and the conservation easement oversight commission created in section 12-15-103 (1), to review and accept or reject, in whole or in part, the appraisal value of the easement, the amount of the credit, and the validity of the credit based upon the internal revenue code and federal regulations in effect at the time of the donation. If the executive director reasonably believes that the appraisal represents a gross valuation misstatement, receives notice of such a valuation misstatement from the division of real estate, or 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, the executive director shall have the authority to require the taxpayer to provide a second appraisal at the expense of the taxpayer. The second appraisal shall be conducted by a certified general appraiser in good standing and not affiliated with the first appraiser that meets qualifications established by the division of real estate. In the event the executive director rejects, in whole or in part, the appraisal value of the easement, the amount of the credit, or the validity of the credit, the procedures described in sections 39-21-103, 39-21104, 39-21-104.5, and 39-21-105 shall apply.
In consultation with the division of conservation and the conservation easement oversight commission created in section 12-15-103 (1), the executive director shall develop and implement a separate process for the review by the department of revenue of gross conservation easements. The review process shall be consistent with the statutory obligations of the division and the commission and shall address gross conservation easements for which the department of revenue has been informed that an audit is being performed by the internal revenue service. The executive director shall share information used in the review of gross conservation easements with the division. Notwithstanding part 2 of article 72 of title 24, in order to protect the confidential financial information of a taxpayer, the division and the commission shall deny the right to inspect any information provided by the executive director in accordance with this subsection (3.5)(a)(II).
(b) For conservation easements donated on or after January 1, 2014, and subject to the restrictions of section 12-15-106 (4), the executive director shall have the authority, pursuant to subsection (8) of this section, to require additional information from the taxpayer or transferee regarding the amount of the credit and the validity of the credit. In resolving disputes regarding the validity or the amount of a credit allowed pursuant to subsection (2) of this section, the executive director shall have the authority, for good cause shown, to review and accept or reject, in whole or in part, the amount of the credit and the validity of the credit based upon the internal revenue code and federal regulations in effect at the time of the donation, except those requirements for which authority is granted to the division of conservation, the director of the division of conservation, or the conservation easement oversight commission pursuant to section 12-15-106.
For conservation easements donated on or after January 1, 2014, in order for anytaxpayer to qualify for the credit provided for in subsection (2) of this section, the taxpayer must submit the following in a form, approved by the executive director, to the department of revenue at the same time as the taxpayer files a return for the taxable year in which the credit is claimed: (a) (I) A tax credit certificate issued under section 12-15-106; and
(II) The information required in subsections (3)(a), (3)(b), (3)(d), and (3)(f)(II) of this section.
Notwithstanding any other provisions of law, the executive director retains the authority to administer all issues related to the claim or use of a tax credit for the donation of a conservation easement that are not granted to the director of the division of conservation or the conservation easement oversight commission under section 12-15-106.
The information required in paragraph (f) of subsection (3) of this section will nolonger be required from the holder of the conservation easement.
If the gain on the sale of a conservation easement in gross for which a credit isclaimed pursuant to this section would not have been a long-term capital gain, as defined under the internal revenue code, if, at the time of the donation, the taxpayer had sold the conservation easement at its fair market value, then the value of the conservation easement in gross for the purpose of calculating the amount of the credit shall be reduced to the taxpayer's tax basis in the conservation easement in gross. The tax basis of a taxpayer in a conservation easement shall be determined and allocated pursuant to sections 170 (e) and 170 (h) of the internal revenue code, as amended, and any federal regulations promulgated in connection with such sections. This subsection (3.7) shall be applied in a manner that is consistent with the tax treatment of qualified conservation contributions under the internal revenue code and the federal regulations promulgated under the internal revenue code.
Repealed.
(a) (I) For a conservation easement in gross created in accordance with article 30.5 of title 38, C.R.S., that is donated prior to January 1, 2007, to a governmental entity or a charitable organization described in section 38-30.5-104 (2), C.R.S., the credit provided for in subsection (2) of this section shall be an amount equal to one hundred percent of the first one hundred thousand dollars of the fair market value of the donated portion of such conservation easement in gross when created, and forty percent of all amounts of the donation in excess of one hundred thousand dollars; except that in no case shall the credit exceed two hundred sixty thousand dollars per donation.
For a conservation easement in gross created in accordance with article 30.5 of title38, C.R.S., that is donated on or after January 1, 2007, and prior to January 1, 2015, to a governmental entity or a charitable organization described in section 38-30.5-104 (2), C.R.S., the credit provided for in subsection (2) of this section shall be an amount equal to fifty percent of the fair market value of the donated portion of such conservation easement in gross when created; except that, in no case shall the credit exceed three hundred seventy-five thousand dollars per donation.
(II.5) For a conservation easement in gross created in accordance with article 30.5 of title 38 that is donated on or after January 1, 2015, to a governmental entity or a charitable organization described in section 38-30.5-104 (2), the credit provided for in subsection (2) of this section shall be an amount equal to seventy-five percent of the first one hundred thousand dollars of the fair market value of the donated portion of such conservation easement in gross when created, and fifty percent of all amounts of the donation in excess of one hundred thousand dollars; except that in no case shall the credit exceed five million dollars per donation. Credits shall be issued in increments of no more than one million five hundred thousand dollars per year. Credits for easements donated in a prior year shall be eligible for tax credit certificates in subsequent years in order of application and before new applications and those credit applications, if any, on the wait list.
In no event shall a credit claimed by a taxpayer filing a joint federal return, or thesum of the credits claimed by taxpayers who may legally file a joint federal return but actually file separate federal returns, exceed the dollar limitations of this paragraph (a).
(b) For income tax years commencing on or after January 1, 2000, in the case of a joint tenancy, tenancy in common, partnership, S corporation, or other similar entity or ownership group that donates a conservation easement as an entity or group, the amount of the credit allowed pursuant to subsection (2) of this section shall be allocated to the entity's owners, partners, members, or shareholders in proportion to the owners', partners', members', or shareholders' distributive shares of income or ownership percentage from such entity or group. For income tax years commencing on or after January 1, 2000, but prior to January 1, 2003, the total aggregate amount of the credit allocated to such owners, partners, members, and shareholders shall not exceed one hundred thousand dollars, and, if any refund is claimed pursuant to subparagraph (I) of paragraph (b) of subsection (5) of this section, the aggregate amount of the refund and the credit claimed by such partners, members, and shareholders shall not exceed twenty thousand dollars for that income tax year. For income tax years commencing on or after January 1, 2003, but prior to January 1, 2007, the total aggregate amount of the credit allocated to such owners, partners, members, and shareholders shall not exceed two hundred sixty thousand dollars, and, if any refund is claimed pursuant to subparagraph (I) of paragraph (b) of subsection (5) of this section, the aggregate amount of the refund and the credit claimed by such owners, partners, members, and shareholders shall not exceed fifty thousand dollars for that income tax year. For income tax years commencing on or after January 1, 2007, the total aggregate amount of the credit allocated to such owners, partners, members, and shareholders shall not exceed three hundred seventy-five thousand dollars, and, if any refund is claimed pursuant to subparagraph (I) of paragraph (b) of subsection (5) of this section, the aggregate amount of the refund and the credit claimed by such owners, partners, members, and shareholders shall not exceed fifty thousand dollars for that income tax year.
(5) (a) If the tax credit provided in this section exceeds the amount of income tax due on the income of the taxpayer for the taxable year, the amount of the credit not used as an offset against income taxes in said income tax year and not refunded pursuant to paragraph (b) of this subsection (5) may be carried forward and applied against the income tax due in each of the twenty succeeding income tax years but shall be first applied against the income tax due for the earliest of the income tax years possible. Any amount of the credit that is not used after said period shall not be refundable.
(b) (I) Subject to the requirements specified in subparagraphs (II) and (III) of this paragraph (b), for income tax years commencing on or after January 1, 2000, if the amount of the tax credit allowed in or carried forward to any tax year pursuant to this section exceeds the amount of income tax due on the income of the taxpayer for the year, the taxpayer may elect to have the amount of the credit not used as an offset against income taxes in said income tax year refunded to the taxpayer.
A taxpayer may elect to claim a refund pursuant to subparagraph (I) of this paragraph (b) only if, based on the financial report prepared by the controller in accordance with section 24-77-106.5, C.R.S., the controller certifies that the amount of state revenues for the state fiscal year ending in the income tax year for which the refund is claimed exceeds the limitation on state fiscal year spending imposed by section 20 (7)(a) of article X of the state constitution and the voters statewide either have not authorized the state to retain and spend all of the excess state revenues or have authorized the state to retain and spend only a portion of the excess state revenues for that fiscal year.
If any refund is claimed pursuant to subparagraph (I) of this paragraph (b), then theaggregate amount of the refund and amount of the credit used as an offset against income taxes for that income tax year shall not exceed fifty thousand dollars for that income tax year. In the case of a partnership, S corporation, or other similar pass-through entity that donates a conservation easement as an entity, if any refund is claimed pursuant to subparagraph (I) of this paragraph (b), the aggregate amount of the refund and the credit claimed by the partners, members, or shareholders of the entity shall not exceed the dollar limitation set forth in this subparagraph (III) for that income tax year. Nothing in this subparagraph (III) shall limit a taxpayer's ability to claim a credit against taxes due in excess of fifty thousand dollars in accordance with subsection (4) of this section.
(6) (a) For conservation easements donated prior to January 1, 2014, a taxpayer may claim only one tax credit under this section per income tax year; except that a transferee of a tax credit under subsection (7) of this section may claim an unlimited number of credits. A taxpayer who has carried forward or elected to receive a refund of part of the tax credit in accordance with subsection (5) of this section shall not claim an additional tax credit under this section for any income tax year in which the taxpayer applies the amount carried forward against income tax due or receives a refund. A taxpayer who has transferred a credit to a transferee pursuant to subsection (7) of this section shall not claim an additional tax credit under this section for any income tax year in which the transferee uses such transferred credit.
(b) For conservation easements donated on or after January 1, 2014, a taxpayer may claim only one tax credit under this section per income tax year; except that a transferee of a tax credit under subsection (7) of this section may claim an unlimited number of credits.
(7) For income tax years commencing on or after January 1, 2000, a taxpayer may transfer all or a portion of a tax credit granted pursuant to subsection (2) of this section to another taxpayer for such other taxpayer, as transferee, to apply as a credit against the taxes imposed by this article subject to the following limitations:
The taxpayer may only transfer such portion of the tax credit as the taxpayer hasneither applied against the income taxes imposed by this article nor used to obtain a refund;
The taxpayer may transfer a pro-rated portion of the tax credit to more than onetransferee;
A transferee may not elect to have any transferred credit refunded pursuant to paragraph (b) of subsection (5) of this section;
For any tax year in which a tax credit is transferred pursuant to this subsection (7),both the taxpayer and the transferee shall file written statements with their income tax returns specifying the amount of the tax credit that has been transferred. A transferee may not claim a credit transferred pursuant to this subsection (7) unless the taxpayer's written statement verifies the amount of the tax credit claimed by the transferee.
To the extent that a transferee paid value for the transfer of a conservation easementtax credit to such transferee, the transferee shall be deemed to have used the credit to pay, in whole or in part, the income tax obligation imposed on the transferee under this article, and to such extent the transferee's use of a tax credit from a transferor under this section to pay taxes owed shall not be deemed a reduction in the amount of income taxes imposed by this article on the transferee;
The transferee shall submit to the department a form approved by the department.The transferee shall also file a copy of the form with the entity to whom the taxpayer donated the conservation easement.
A transferee of a tax credit shall purchase the credit prior to the due date imposed bythis article, including any extensions, for filing the transferee's income tax return;
A tax credit held by an individual either directly or as a result of a donation by apass-through entity, but not a tax credit held by a transferee unless used by the transferee's estate for taxes owed by the estate, shall survive the death of the individual and may be claimed or transferred by the decedent's estate. This paragraph (h) shall apply to any tax credit from a donation of a conservation easement made on or after January 1, 2000.
The donor of an easement for which a tax credit is claimed or the transferor of a taxcredit transferred pursuant to this subsection (7) shall be the tax matters representative in all matters with respect to the credit. The tax matters representative shall be responsible for representing and binding the transferees with respect to all issues affecting the credit, including, but not limited to, the charitable contribution deduction, the appraisal, notifications and correspondence from and with the department of revenue, audit examinations, assessments or refunds, settlement agreements, and the statute of limitations. The transferee shall be subject to the same statute of limitations with respect to the credit as the transferor of the credit.
Final resolution of disputes regarding the tax credit between the department of revenue and the tax matters representative, including final determinations, compromises, payment of additional taxes or refunds due, and administrative and judicial decisions, shall be binding on transferees.
The executive director of the department of revenue may promulgate rules for theimplementation of this section. Such rules shall be promulgated in accordance with article 4 of title 24, C.R.S.
Any taxpayer who claims a credit for the donation of a conservation easement contrary to the provisions of this section shall be liable for such deficiencies, interest, and penalties as may be specified in this article or otherwise provided by law.
On or before July 1, 2008, the department of revenue shall create a report, whichshall be made available to the public, on the credits claimed in the previous year in accordance with this section. For each credit claimed for a conservation easement in gross, the report shall summarize by county where the easement is located, the acres under easement, the appraised value of the easement, the donated value of the easement, and the name of any holders of the easement; except that the department shall combine such information for multiple counties where necessary to ensure that the information for no fewer than three easements is summarized for any county or combination of counties in the report. The report shall be updated annually to reflect the same information for any additional credits that have been granted since the previous report. This report shall not be required for conservation easements donated on or after January 1, 2014.
On or before December 31, 2007, the department of revenue shall create a report,which shall be made available to the public, with as much of the information specified in paragraph (c) of subsection (3) of this section as is available to the department, summarized by county, for each tax credit claimed for a conservation easement in gross for tax years commencing on or after January 1, 2000. This report shall not be required for conservation easements donated on or after January 1, 2014.
Source: L. 99: Entire section added, p. 976, § 1, effective August 4. L. 2000: (4), (5), and (6) amended and (7) and (8) added, p. 894, § 1, effective August 2. L. 2001: (1), (2), (3), (4), and (5)(b)(III) amended, p. 395, § 6, effective August 8; (1), (2), (3), (4), (5)(b)(III), (6), (7)(a), (7)(b) amended and (7)(e) and (7)(f) added, p. 901, § 1, effective January 1, 2003. L. 2002: (2) amended and (9) added, p. 510, § 1, effective August 7; (2) amended and (9) added, p. 511, § 2, effective January 1, 2003. L. 2005: (3.5), (7)(g), (7)(h), (7)(i), and (7)(j) added, pp. 1479, 1480, §§ 1, 2, effective June 7. L. 2006: (4) amended, p. 822, § 1, effective August 7. L. 2007: (3), (3.5), and (7)(i) amended and (3.3), (10), and (11) added, p. 1228, § 3, effective August 3. L. 2008: (3)(b), (3)(e), IP(3)(f), (3)(f)(I), (3.3), and (3.5) amended and (3.7) added, p. 2316, § 8, effective July 1. L. 2010: (2.5) added, (HB 10-1197), ch. 175, p. 635, § 4, effective August 11. L. 2011: (2.5) amended, (HB 11-1300), ch. 193, p. 753, § 4, effective May 19. L. 2013: (2), (2.5), IP(3), (3.3), (3.5), (6), (10), and (11) amended and (2.7) and (3.6) added, (SB 13-221), ch. 251, p. 1330, § 9, effective August 7; (2.5) amended, (HB 13-1183), ch. 252, p. 1338, § 2, effective August 7. L. 2014: (4)(a)(III) amended, (SB 14-019), ch. 10, p. 99, § 6, effective February 27; (2.5), (2.7), (3)(e), IP(3)(f), (3.3), (3.5), (3.6)(a)(I), and (3.6)(b) amended, (SB 14117), ch. 385, p. 1919, § 8, effective July 1. L. 2015: (4)(a)(II) amended and (4)(a)(II.5) added, (SB 15-206), ch. 272, p. 1086, § 1, effective June 4. L. 2017: IP(3)(f) amended and (3)(f)(I) repealed, (SB 17-294), ch. 264, p. 1414, § 108, effective May 25. L. 2018: (2.5), (2.7), IP(3)(f), (3.5), (3.6)(a)(I), (3.6)(b), and (7)(g) amended and (3.8) added, (HB 18-1291), ch. 273, p. 1689, § 6, effective May 29. L. 2019: (2.7), (3.3), and (4)(a)(II.5) amended and (3.8) repealed, (HB 191264), ch. 420, p. 3678, § 8, effective June 30; (2.5), (2.7), IP(3)(f), (3.3), (3.5), (3.6)(a)(I), and (3.6)(b) amended, (HB 19-1172), ch. 136, p. 1729, § 255, effective October 1.
Editor's note: (1) Subsections (2), (4), and (5)(b)(III) were amended in House Bill 011364. Those amendments were superseded by the amendments to said subsections in House Bill 01-1090, effective January 1, 2003.
Amendments to subsection (2.5) by House Bill 13-1183 and Senate Bill 13-221 wereharmonized.
Section 9 of chapter 10 (SB 14-019), Session Laws of Colorado 2014, provides thatchanges to this section by the act apply to income tax years commencing on or after January 1, 2013, and any other income tax years that are open under § 39-21-107 or 39-21-108.
Amendments to subsections (2.7) and (3.3) by HB 19-1172 and HB 19-1264 wereharmonized.
Cross references: (1) For the legislative declaration contained in the 2001 act amending subsections (1), (2), (3), (4), and (5)(b)(III), see section 1 of chapter 133, Session Laws of Colorado 2001.
For the legislative declaration contained in the 2008 act amending subsections (3)(b),(3)(e), the introductory portion to subsection (3)(f), subsections (3)(f)(I), (3.3), and (3.5) and enacting subsection (3.7), see section 1 of chapter 448, Session Laws of Colorado 2008.
For the legislative declaration in the 2013 act amending subsections (2), (2.5), theintroductory portion to subsection (3), and subsections (3.3), (6), (10), and (11) and adding subsections (2.7) and (3.6), see section 1 of chapter 251, Session Laws of Colorado 2013.