IRS Pursues Promoters of Green Tax Breaks Worth Tens of Billions
(Bloomberg Businessweek) -- Jack Fisher has raised hundreds of millions of dollars pitching investors on real estate development projects that were never built.
Fisher, an accountant-turned-developer, promoted projects such as the Preserve at Venice Harbor, near Hilton Head, S.C., where marketing illustrations showed houses on canals that evoked the famous Italian city. Instead of developing the land, he recruited investors to elaborate deals that provided them charitable tax deductions in return for donating easements for conservation. The Internal Revenue Service, however, suspects the deals may amount to tax fraud.
Fisher is at the center of a criminal probe related to these syndicated conservation easements, according to people familiar with the details, who requested anonymity to discuss a confidential matter. The investigation has already led to tax conspiracy charges against three accountants who worked with him.
A syndicated conservation easement gives dozens of investors in partnerships three choices: to build a specific development project; to hold on to the land and build later; or to donate an easement to a land trust or government, promising to forgo development. The third option entitles investors to charitable tax deductions, based on the appraised value of the land, that can be worth four or five times their investment.
Easements have been used—legitimately, and mostly by family partnerships and individuals like farmers—for decades as part of a federal push to preserve more than 30 million acres of land. Those aren’t the focus of an IRS crackdown. Instead, it’s going after promoters like Fisher who sell deals through brokers, accountants, lawyers, and tax preparers, and who market the projects that generate large tax deductions. The IRS has made these an enforcement priority, suing some promoters to shut them down and criminally investigating others.
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California conservation lawyer Misti Schmidt says a typical syndicated easement used by wealthy investors is an “ugly tax-shelter scheme” that relies on grossly overvalued appraisals. “There’s so much money to be made, they just keep doing it,” says Schmidt, a partner at Conservation Partners.
Those appraisals are at the center of the legal fight around syndicated easements. Before an easement donation is made, an appraiser assigns it a value based on its highest and best use. That number is then used to calculate the tax deductions. The IRS often argues that those appraisals vastly inflate the development potential of a property, and that promoters use those valuations to market lucrative tax deductions.
Two of Fisher’s associates, the brothers Stein and Corey Agee, pleaded guilty in December to conspiring to promote fraudulent tax breaks and are cooperating with prosecutors. Although Fisher wasn’t charged or named in the Agee cases, he’s referred to as Promoter A in court documents, the people familiar with the details say. Documents reviewed by Bloomberg confirm Fisher’s role in the deals. Lawyers for Fisher didn’t respond to emails and phone calls seeking comment.
In the Stein Agee case, prosecutors say the deals were “illegal tax shelters that allowed taxpayers to buy tax deductions,” according to the charges. Appraisals were “falsely inflated,” while the conservation option was “always a foregone conclusion.” Many investors signed up after the tax year in which easements were donated, prosecutors say, even though the IRS allows deductions only in the same year a donation is made. Promoter A and others had investors backdate checks and agreements, according to the charges.
“Promoter A’s tax shelters resulted in a massive evasion of taxes,” the charges state. In all, more than 1,500 investors received $1.2 billion in fraudulent tax deductions, prosecutors said. At one point, Promoter A told Stein Agee that he met with several co-conspirators to make sure they were on the “same page” about late investments, according to the charges. Promoter A proposed that Agee could falsely suggest that backdated checks weren’t deposited because they were “lost” on someone’s desk. Lawyers for the Agees declined to comment.
Nationwide, the IRS has challenged $21 billion in tax deductions claimed for syndicated easements from 2016 to 2018, saying it’s auditing 28,000 taxpayers. Former President Donald Trump has donated several easements, including two under scrutiny by New York state authorities.
“The IRS fully supports the benefit of legitimate conservation easements around this country,” IRS Commissioner Charles Rettig told Congress in March. “It has done tremendous things for farmers and others. Our problem is with the abusive syndicated easements.”
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The IRS crackdown comes amid a battle in Congress that pits conservation groups and national appraisal organizations against promoters of syndicated easements. Conservation groups want legislation that would bar investors from claiming deductions worth more than two and a half times their initial investment. Promoters have been blocking that fix for years.
“The IRS’s current take-no-prisoners litigation strategy is also going after minor technical flaws that arise in all easements, not just syndications,” says Schmidt, the conservation lawyer. “Legitimate easements are now getting disallowed.”
Fisher, who’s in his late 60s, grew up on a small-town farm in Marshall, N.C., and still speaks in a soft Southern drawl. The son of a truck driver and homemaker, he graduated with a degree in accounting from nearby Mars Hill College in 1974 before joining the IRS. Fisher then became a certified public accountant, worked for Price Waterhouse, and joined a firm that moved him to Atlanta to work with the National Football League’s Falcons. Later, he took a job at an accounting firm with the Agee brothers’ father, Edward Agee. “I got a lot of good experience,” Fisher testified at a trial after a real estate broker sued him, claiming the developer owed him a commission. Fisher said he met people who “could refer you to business: bankers and things like that.”
He got into development by auditing construction companies, and later began assembling his own investment deals, founding Preserve Communities about two decades ago.
Fisher was adept at raising money, says Anthony Antonino, a real estate consultant who helped with the sale of 800 acres in North Carolina for $14.75 million to entities controlled by Fisher and a wealthy investor. “Jack knows where the money’s at, and he knows how to get it,” Antonino says.
Some of Fisher’s wealthy investors were involved in equestrian events, say people familiar with the matter.
His family owned a 40-acre show stable in Alpharetta, Ga., according to a 2013 story in the Atlanta Journal-Constitution. His then-wife, Libba, and two of their children won several titles competing in elite hunter and jumper events, according to records maintained by the U.S. Equestrian Federation.
He was a hands-on developer, says Mark Brooks, a civil engineer who helped Fisher build projects. “He was out there walking the roads and figuring out site lots,” Brooks says. “He was real proud when he did the developments. He felt he was doing things to help out Madison County, which was a pretty poor county.”
He also branched out to the Western U.S., buying a 1,088-acre ranch near Reno, Nev. In late 2018 a Georgia corporation Fisher formed donated an easement covering 812 acres to the North American Land Trust.
Investors got $51.2 million in deductions, according to court filings. They put up $10 million, his partner told planners in Nevada’s Washoe County.
Months later, Fisher pursued permission to develop 38 homes on land not covered by the easement. He showed up at a rural advisory board meeting in July 2019 wearing a cowboy hat and flanked by ranch hands, according to a resident. When pressed, Fisher backed down.
“We have no plans to do anything with that property other than to make it part of the ranch,” Fisher said at the recorded meeting. In the face of stated opposition by planners, he withdrew his application.
The Agee brothers, whose father died in 2009, helped promote some of Fisher’s deals. At the proposed Preserve at Venice Harbor development, $179.8 million in tax deductions were claimed by the 390 investors who chose a conservation easement instead of building homes, court documents show. That was more than four times what they put in.
By 2018, less than two years after the IRS began targeting syndicated easements as tax shelters, Fisher was under investigation, the people with knowledge of the matter say. “You have to be very, very careful that these look like real estate investments as compared to, you know, basically a tax shelter,” Promoter A told an agent posing as an investor, according to the charges against Stein Agee.
Fisher continued to work with the Agees through last year, the people say. In November, Promoter A left a handwritten note for Stein Agee saying he’d been “cleaning up the books,” the charges state.
About the same time, a video was uploaded to the Preserve Communities Vimeo account. Fisher talks about his career while viewers see images of forests, mountains, and rivers, and of Fisher himself sitting on a deck, and then feeding a horse. “I hope the people who live in our communities gain a greater connection to nature, to slow down in life, to realize what’s really important,” he says. “We only have so many years here on the planet, and feeling good about what you’ve done with your life.”
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