Current through Register Vol. 35, No. 18, September 24, 2024
A. An applicant who submitted an assessment
application to the energy, minerals and natural resources department and
received a finding from the secretary the donation or proposed donation is for
a conservation or preservation purpose and will protect that conservation or
preservation purpose in perpetuity and the resources or areas contained in the
donation or proposed donation are significant or important may apply for
certification of eligibility for a land conservation incentives tax credit. An
applicant may not apply for certification of eligibility for a land
conservation incentives tax credit without first submitting an assessment
application pursuant to
3.13.20.9 NMAC and receiving a
favorable finding from the secretary. The applicant shall certify in writing
the applicant has not changed the donation or proposed donation, donation
assessment report or the public or private conservation agency to which the
applicant conveyed or planned to convey the donation since the applicant
submitted the assessment application; or, if the applicant has made changes,
the applicant shall describe the changes and provide a redline copy showing the
changes or provide a letter describing the specific changes made. If the
applicant has not made changes or the changes consist solely of increasing the
acreage of the donation or decreasing the size of or removing a building
envelope, the secretary shall review the application for certification of
eligibility. If the applicant has made changes other than increasing the
acreage of the donation or decreasing the size of or removing a building
envelope the applicant shall submit a new assessment pursuant to
3.13.20.9 NMAC application or a
letter describing the specific changes made and receive a favorable finding
from the secretary before applying for certification of eligibility.
B. The applicant may obtain a land
conservation incentives tax credit certification of eligibility application
form from the energy, minerals and natural resources department.
C. An applicant shall submit the
certification of eligibility application package, which shall include one
signed, completed paper original and one paper copy and one electronic copy of
the application package, to the energy, minerals and natural resources
department. For the electronic copy the applicant shall submit a PDF of the
certification application package on a USB flash drive or by other method the
energy, minerals and natural resources department approves. Any photographs
shall be provided in color. The applicant shall certify the information and
documents included in the application for certification of eligibility are true
and correct.
D. The completed
application for certification of eligibility shall contain the applicant's
name, address, telephone number, e-mail address if available, signature,
federal employer identification number or social security number, and, if
available, the New Mexico business tax identification number (BTIN) as well as
the certifications, information and attachments required by Subsections E
through I of
3.13.20.10 NMAC, as applicable. If
more than one taxpayer owns the donated land or interest in land, the
application shall include each taxpayer's federal employer identification
number or social security number and, if available, New Mexico BTIN. The
applicant shall indicate on the application whether the applicant is a United
States citizen or resident, a United States domestic partnership, a limited
liability company, a United States domestic corporation, an estate or a trust.
If more than one taxpayer owns the donated land or interest in land, the
application shall include each taxpayer's status.
E. The application shall state whether the
applicant made the donation as part of a bargain sale. If the applicant made
the donation as part of a bargain sale, the application shall include the
amount the applicant received from the sale of the land or interest in
land.
F. The applicant shall
certify on the certification of eligibility application none of the taxpayers
listed on the certification of eligibility application is or was a subsidiary,
partner, manager, member, shareholder or beneficiary of a domestic partnership,
limited liability company, domestic corporation or pass-through entity that
owns or has owned the land or interest in land in the five years preceding the
date the applicant conveyed the land or interest in land. If an individual and
a domestic partnership, limited liability company, domestic corporation or
pass-through entity are listed as owners on the deed conveying the land or
interest in land, the applicant shall certify on the certification of
eligibility application the individual is not a partner, manager, member,
shareholder or beneficiary of the domestic partnership, limited liability
company, domestic corporation or pass-through-entity. If more than one domestic
partnership, limited liability company, domestic corporation or pass-through
entity are listed as an owner on the deed conveying the land or interest in
land, the applicant shall certify on the certification of eligibility
application none of the named entities is a subsidiary, partner, manager,
member, shareholder or beneficiary of any of the other entities listed on the
deed.
G. The certification of
eligibility application package shall consist of a land conservation incentives
tax credit application form, with the following required attachments as well as
any attachments required in Subsection H of
3.13.20.10 NMAC for fee donations
or Subsection I of
3.13.20.10 NMAC for less-than-fee
donations:
(1) a copy of the letter from the
secretary stating after reviewing the applicant's assessment application the
donation or proposed donation is for a conservation or preservation purpose and
will protect the conservation or preservation purpose in perpetuity and the
resources or areas contained in the donation or proposed donation are
significant or important;
(2)
written certification signed by the applicant since the applicant submitted the
assessment application and received approval of the assessment application or
pursuant to Subsection F of
3.13.20.9 NMAC changes to the
assessment application the applicant has not changed the
(a) donation or proposed donation or donation
assessment report, or if the applicant has made changes, the changes consist
solely of increasing the acreage of the donation or decreasing the size of or
removing a building envelope, or
(b) public or private conservation agency to
which the applicant conveyed or planned to convey the donation;
(3) a copy of the conservation
easement or deed recorded with the county clerk of the county or counties where
the land is located, which reflects the ownership interest of each individual
or entity conveying the land or interest in land;
(4) a qualified appraisal of the land or
interest in land donated a qualified appraiser prepared showing the fair market
value of the land or interest in land with a statement from the appraiser who
prepared the appraisal certifying the appraisal is a qualified appraisal and
the appraiser is a qualified appraiser; the appraisal shall not be made more
than 60 days prior to the date of the donation; the appraisal shall be a fully
documented appraisal report commensurate with the complexity of the
assignment;
(5) if the donation is
to a private conservation agency, a copy of that agency's 501(c)(3)
certification from the United States internal revenue service;
(6) a signed statement from the applicant
certifying the applicant did not donate the land or interest in land for open
space for the purpose of fulfilling density requirements to obtain subdivision
or building permits;
(7) if the
applicant owns other properties within a 10 mile radius of the donated land or
interest in land, a legal description of those properties;
(8) signed authorization from the applicant
authorizing personnel from the appraisal bureau to contact the appraiser that
prepared the appraisal for the donation;
(9) a title opinion certifying the applicant
owned the donated land or interest in land as of the date of the donation or a
title insurance policy for the land or interest in land showing the applicant
owned the donated land or interest in land as of the date of the
donation;
(10) if the applicant
owns the mineral interest under the land or the interest in land, a title
opinion certifying such ownership, other documentation establishing such
ownership or a report from a professional geologist finding the probability of
surface mining occurring on such property is so remote as to be negligible, and
a provision in the conservation easement or deed prohibiting any extraction or
removal of minerals by any surface mining method; methods of mining that have
limited, localized negative effects on the land and are not irremediably
destructive of significant conservation interests may be allowed if the
secretary finds the methods will have limited, localized negative effects and
are not irremediably destructive of significant conservation interests;
and
(11) if the ownership of the
surface estate and mineral interest has been separate and remains separate, a
report, satisfactory to the secretary, from a professional geologist finding
the probability of surface mining occurring on such property is so remote as to
be negligible; the secretary may have a geologist the state employs review the
report; if the secretary finds the report unsatisfactory the secretary's letter
denying certification of eligibility shall state the reasons the report is
unsatisfactory.
H. If the
applicant donated the land in fee, the applicant shall also include the
following attachments with the application package:
(1) a statement from the public or private
conservation agency to which the applicant donated the land the applicant
donated the land for conservation or preservation purposes and the public or
private conservation agency will hold the land for such purposes;
(2) a copy of United States internal revenue
service form 8283 for the donation signed by the public or private conservation
agency and the appraiser who prepared the appraisal for the donation;
and
(3) to ensure the land will be
used in perpetuity for the purposes of the donation, documentation in the form
of a conservation easement complying with
26 U.S.C. section
170(h) and its implementing
regulations placed on the land containing a provision the conservation
restrictions run with the land in perpetuity and any reserved use shall be
consistent with the conservation or preservation purpose (separate donees must
hold the fee and conservation easement).
I. If the applicant donated a less-than-fee
interest in land, the applicant shall also include the following attachments
with the application package:
(1) a copy of
United States internal revenue service form 8283 for the donation signed by the
public or private conservation agency and the appraiser who prepared the
appraisal for the donation;
(2) a
provision in the conservation easement identifying the donation's conservation
or preservation purpose or purposes;
(3) a provision in the conservation easement
providing the conveyance of the less-than-fee interest does not and will not
adversely affect contiguous landowners' existing property rights;
(4) if a conservation or preservation purpose
is for the conservation or preservation of land areas for outdoor recreation by
or for the education of the general public, a provision in the conservation
easement providing for the general public's substantial and regular
use;
(5) if a conservation or
preservation purpose is for the protection of a relatively natural habitat, a
provision in the conservation easement describing the habitat;
(6) if a conservation or preservation purpose
is for the preservation of open space pursuant to a clearly delineated federal,
state or local government policy, a provision in the conservation easement
identifying such policy and identifying the significant public
benefit;
(7) if a conservation or
preservation purpose is for the preservation of open space that is not pursuant
to a clearly delineated federal, state or local government policy, a provision
in the conservation easement stating how the easement or restriction provides
for the general public's scenic enjoyment and identifying the significant
public benefit;
(8) if a
conservation or preservation purpose is for the property's continued use for
irrigated agriculture, a provision providing sufficient water rights will
remain with the property;
(9) a
provision in the conservation easement the conservation restrictions run with
the land in perpetuity;
(10) a
provision in the conservation easement any reserved use shall be consistent
with the conservation or preservation purpose;
(11) a provision in the conservation easement
prohibiting the donee from subsequently transferring the interest in land
unless the transfer is to another public or private conservation agency and the
donee, as a condition of the transfer, requiring the conservation or
preservation purposes for which the donation was originally intended continue
to be carried out;
(12) a provision
in the conservation easement providing the donation of the less-than-fee
interest is a property right, immediately vested in the donee, and providing
the less-than-fee interest has a fair market value at least equal to the
proportionate value the conservation restriction at the time of the donation
bears to the property as a whole at that time; the provision shall further
provide if subsequent unexpected changes in the conditions surrounding the
property make impossible or impractical the property's continued use for
conservation or preservation purposes and judicial proceedings extinguish the
easement or restrictions then the donee is entitled to a portion of the
proceeds from the property's subsequent sale, exchange or involuntary
conversion at least equal to the perpetual conservation restriction's
proportionate value;
(13) if the
applicant reserves rights if exercised may impair the conservation interests
associated with the property, documentation sufficient to establish the
property's condition at the time of the donation and a provision in the
conservation easement whereby the applicant agrees to notify the public or
private conservation agency receiving the donation before exercising any
reserved right that may adversely impact the conservation or preservation
purposes; and
(14) if the interest
in land is subject to a mortgage, a subordination agreement, recorded with the
county clerk of the county or counties where the land that is located, from the
mortgage holder subordinating the mortgage holder's rights in the interest in
land to the right of the public or private conservation agency to enforce the
conservation or preservation purposes of the donation in perpetuity.
