IRS Retroactive Reclassification of Conservation Easements Constitutes Unlawful Bait-and-Switch Requiring Congressional Action
Source: "STEVE MOORE: The IRS weaponized a legal tax break — Congress must shut it down now | Fox News." August 6, 2026. www.foxnews.com
The Gist
The author argues that the IRS broke its own rules by retroactively deciding that a decades-old, legal tax break for land conservation was fraudulent, then aggressively punishing everyone who used it—even honest taxpayers—without proper legal process. He says Congress, not the IRS, makes tax law, so lawmakers need to step in and ban this kind of retroactive rule-changing to protect people who followed the law as written.
Conclusion
Congress must pass legislation prohibiting the IRS from retroactively changing tax law, specifically to stop the agency's abusive enforcement campaign against conservation-easement taxpayers.
Premises
- The conservation easement tax break was legally created via IRS revenue ruling, made permanent by Congress in 1980, and remained part of the tax code for nearly 50 years, so taxpayers reasonably relied on it.
- In 2016, the IRS unilaterally issued Notice 2017-10, retroactively (to 2010) branding a broad category of these legal transactions as 'presumptively abusive' without a formal rule, public comment, or accountable vote.
- This action triggered a 100% audit rate for these transactions, resulting in over 1,100 disputes, roughly 740 Tax Court cases, and coercive settlement pressure that has bankrupted some taxpayers.
- While a bipartisan Senate investigation found some genuine abuses (e.g., inflated valuations), the IRS improperly extended a presumption of fraud to all participants rather than pursuing only bad actors.
- Retroactively changing civil tax rules is only legally permissible in criminal/penal contexts, not civil revenue measures, making the IRS's actions legally improper.
- The IRS does not have lawmaking authority—only Congress does—yet the agency effectively rewrote tax policy through enforcement notices.
- The IRS itself was found by the Treasury Inspector General to have engaged in illegal conduct (backdated penalty-approval documents), undermining its authority to police others so aggressively.
- This enforcement pattern continued and expanded under the Biden administration despite known procedural and fairness problems, rather than being corrected.
Assumptions
- Taxpayers who used conservation easements are entitled to rely on long-standing tax provisions without fear of retroactive reclassification.
- The IRS's issuance of Notice 2017-10 legally qualifies as an improper retroactive rule change rather than a legitimate anti-abuse enforcement mechanism.
- Individualized case-by-case enforcement (rather than blanket presumption of abuse) is both feasible and would be fairer.
- Congressional legislation is the appropriate and sufficient remedy to prevent similar future IRS overreach.
- The scale of legitimate use (tens of millions of acres conserved) outweighs the scale of abuse identified by the Senate investigation.