                               PUBLISHED

                     UNITED STATES COURT OF APPEALS
                         FOR THE FOURTH CIRCUIT


                              No. 13-2161


B. V. BELK, JR.; HARRIET C. BELK,

                  Petitioners - Appellants,

           v.

COMMISSIONER OF INTERNAL REVENUE,

                  Respondent - Appellee.

-------------------------------------

THE LAND TRUST OF NAPA COUNTY; ANN TAYLOR SCHWING; ROGER
COLINVAUX; JOHN ECHEVERRIA; JOHN LESHY; NANCY MCLAUGHLIN;
JANET MILNE,

                  Amici Supporting Respondent.



                Appeal from the United States Tax Court.
                         (Tax Ct. No. 005437-10)


Argued:   October 29, 2014              Decided:   December 16, 2014


Before MOTZ, KING, and KEENAN, Circuit Judges.


Affirmed by published opinion. Judge Motz wrote the opinion, in
which Judge King and Judge Keenan joined.


ARGUED:   David  Mace  Wooldridge,  SIROTE  &  PERMUTT,  P.C.,
Birmingham, Alabama, for Appellants.   Patrick J. Urda, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.
ON BRIEF: Ronald A. Levitt, Gregory P. Rhodes, Michelle A.
Levin, SIROTE & PERMUTT, P.C., Birmingham, Alabama, for
Appellants.    Tamara W. Ashford, Acting Assistant Attorney
General, Gilbert S. Rothenberg, Jonathan S. Cohen, Tax Division,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Appellee.   Ann Taylor Schwing, BEST BEST & KRIEGER, L.L.P.,
Sacramento, California, for Amici Land Trust of Napa County and
Ann Taylor Schwing. Douglas A. Ruley, Environmental and Natural
Resources Law Clinic, VERMONT LAW SCHOOL, South Royalton,
Vermont, for Amici Roger Colinvaux, John Echeverria, John Leshy,
Nancy McLaughlin, and Janet Milne.




                               2
DIANA GRIBBON MOTZ, Circuit Judge:

     After taxpayers donated a conservation easement to a land

trust, they claimed a $10,524,000 charitable deduction for the

asserted value of the easement.                   The Tax Court held that the

easement did not qualify as a charitable contribution and so the

taxpayers were not entitled to the deduction.                        For the reasons

that follow, we affirm.



                                           I.

     The parties stipulated to the following facts before the

Tax Court.

     Between 1994 and 1996, B.V. and Harriet Belk accumulated

roughly    410     acres      of   land   straddling         Union   and   Mecklenburg

Counties    outside      of    Charlotte,        North    Carolina.        In   February

1996,     the    Belks     formed     a   limited        liability    company,     Olde

Sycamore, LLC, and transferred to it their newly acquired parcel

of land.        Olde Sycamore developed the land, building a golf

course and surrounding it with 402 residential lots, which were

later sold to builders.              Single-family homes now occupy those

lots, and Olde Sycamore continues to own the golf course.                           Old

Sycamore    remains        wholly    owned       by   the    Belks    --   ninety-nine

percent by B.V., and one percent by his wife, Harriet.

     In    2004,    Olde      Sycamore    executed       a    conservation      easement

(“the Easement”) covering roughly 184 acres of the land on which

                                             3
the golf course now sits.                The Easement was then transferred to

Smoky    Mountain       National        Land    Trust,      Inc.    (“the    Trust”)     and

recorded in both Union and Mecklenburg Counties.                             The Easement

imposes    on    the       184-acre     parcel      a    number    of     enforceable    use

restrictions, including a prohibition on further development and

a requirement that the parcel be used “for outdoor recreation.”

Olde Sycamore granted the Easement in perpetuity, subject to

certain “Reserved Rights.”

        One such reserved right, central to this appeal, permits

Olde Sycamore to “substitute an area of land owned by [it] which

is contiguous to the Conservation Area for an equal or lesser

area of land comprising a portion of the Conservation Area.”

Olde    Sycamore’s          substitution       right       is    conditioned      upon    the

Trust’s agreement that “the substitute property is of the same

or better ecological stability,” that “the substitution shall

have no adverse effect on the conservation purposes,” and that

the fair market value of the substituted property is at least

equal     to    that       of    the    property        originally      subject    to     the

Easement.            The     substitution          provision       thus     permits      Olde

Sycamore,       if    the       Trust   agrees      (and    it     cannot    unreasonably

withhold agreement), to swap land in and out of the Easement.

In doing so, Olde Sycamore can shift the use restriction from

one parcel to another, provided the Easement continues to cover

at   least     184     acres      and   to     advance      its    stated    conservation

                                               4
purpose.      Such a substitution becomes final when reflected in a

formal amendment to the Easement recorded in the relevant county

or counties.

     The Easement contains a savings clause, also of relevance

here, which circumscribes the Trust’s ability to agree to such

amendments.        This clause provides that the Trust “shall have no

right or power to agree to any amendments . . . that would

result in this Conservation Easement failing to qualify . . . as

a qualified conservation contribution under Section 170(h) of

the Internal Revenue Code and applicable regulations.”                           Section

170(h) details        the    circumstances       under    which       the    grant    of   a

conservation         easement        may   be        claimed     as     a     charitable

contribution deduction.          See 26 U.S.C. § 170(h) (2012).

     On      its   2004     income   tax   return,      Olde    Sycamore      claimed      a

deduction of $10,524,000 for the donation of the Easement to the

Trust.       The deduction passed through to the Belks as the sole

owners of Olde Sycamore, see 26 U.S.C. § 702(a)(4), and the

Belks claimed the deduction on their 2004, 2005, and 2006 income

tax returns.

     In      2009,    the    Commissioner       of    Internal    Revenue      sent    the

Belks    a   notice    of    deficiency,       informing       them   that    they    owed

substantial amounts in           back taxes for tax years 2004, 2005, and

2006.        The     Commissioner      reasoned        that    the    Belks     had    not

“established that all the requirements of IRC § 170 and the

                                           5
corresponding       Treasury    Regulations         ha[d]   been    satisfied    to

enable [them] to deduct the noncash charitable contribution of a

qualified conservation contribution.”

       The Belks filed a petition for redetermination with the Tax

Court.    The Tax Court upheld the Commissioner’s determination in

a published opinion, and upon motion for reconsideration by the

Belks,    issued     a    supplementary        opinion      reaching      the   same

conclusion.        The Belks timely appealed to this court, and we

have jurisdiction pursuant to 26 U.S.C. § 7482(a)(1).



                                         II.

       The Internal Revenue Code permits taxpayers to deduct from

their    taxable    income     the   value     of    a   qualifying       charitable

contribution.        26    U.S.C.    §   170(a)(1).         The    Code    generally

restricts a taxpayer’s ability to claim a charitable deduction

for the donation of “an interest in property which consists of

less than the taxpayer’s entire interest in such property.”                     Id.

§ 170(f)(3)(A).          But it provides an exception to the general

rule     for   “a    qualified       conservation        contribution.”         Id.

§ 170(f)(3)(B)(iii).

       The Code defines a “qualified conservation contribution” as

“a contribution (A) of a qualified real property interest, (B)

to a qualified organization, (C) exclusively for conservation

purposes.”     Id. § 170(h)(1).           It is the first requirement --

                                         6
that the donation be of “a qualified real property interest” --

that the Tax Court concluded the Belks had not satisfied here,

and which is now the focus of this appeal. 1

       A        “qualified       real      property    interest”         includes      “a

restriction (granted in perpetuity) on the use which may be made

of the real property.”               Id. § 170(h)(2)(C).      Because an easement

is, by definition, a “restriction . . . on the use which may be

made       of    .    .   .   real      property,”    id.,   the    donation      of    a

conservation           easement      can   properly   provide      the    basis   of    a

deduction under the Code -- if the restriction is granted in

perpetuity.

       The Treasury Regulations offer a single -- and exceedingly

narrow      --       exception    to    the   requirement    that    a   conservation

easement impose a perpetual use restriction.                        The regulations

provide that in the event that a

       subsequent   unexpected  change   in    the   conditions
       surrounding the property . . . make[s] impossible or
       impractical the continued use of the property for
       conservation purposes, the conservation purpose can
       nonetheless be treated as protected in perpetuity if
       the   restrictions   are   extinguished    by   judicial
       proceeding and all of the donee’s proceeds . . . from
       a subsequent sale or exchange of the property are used

       1
        The parties agree that the Trust is a “qualified
organization.”  In addition to the ground relied on by the Tax
Court, the Commissioner also contended that the donation
furthers no valid “conservation purpose,” and that, in any
event, its value did not approach the $10,524,000 the Belks
claimed.   The Tax Court did not reach these arguments; nor do
we.


                                              7
        by the donee organization in a manner consistent with
        the    conservation   purposes   of   the    original
        contribution.

Treas. Reg. § 1.170A-14(g)(6)(i) (emphasis added).                   Thus, absent

these     “unexpected”        and   extraordinary         circumstances,       real

property placed under easement must remain there in perpetuity

in order for the donor of the easement to claim a charitable

deduction.

        Where, as here, the parties have proceeded on stipulated

facts before the Tax Court, we “review the Tax Court’s legal

decisions de novo.”           Pfister v. Commissioner, 359 F.3d 352, 353

(4th Cir. 2004).         In doing so, we keep in mind that deductions

are a matter of legislative grace and the taxpayers bear the

burden of proving their entitlement to a claimed deduction.                     See

INDOPCO,    Inc.   v.    Commissioner,       503   U.S.   79,   84   (1992);    New

Colonial Ice Co. v. Helvering, 292 U.S. 435, 440 (1934).



                                        III.

        The Tax Court concluded that the Belks were not entitled to

claim a deduction for the donation of the easement because Olde

Sycamore had not donated “a qualified real property interest.”

26 U.S.C. § 170(h)(1).          The Tax Court reasoned that “because the

conservation easement agreement permits [the Belks] to change

what property is subject to the conservation easement, the use

restriction    was      not   granted   in     perpetuity,”     as   required    by

                                         8
§ 170(h)(2)(C).        The Belks maintain that the Code requires only

a restriction in perpetuity on some real property, rather than

the   real      property      governed       by     the     original   easement.

Appellants’      Br.    26.      The     Easement         here   satisfies   this

requirement, they argue, because any property removed from the

Easement must be replaced with property of equal value that is

then subject to the same use restrictions.

      The plain language of the Code belies this contention.                  For

the Code expressly provides that a “qualified property interest”

includes “a restriction (granted in perpetuity) on the use which

may be made of the real property.”                  26 U.S.C. § 170(h)(2)(C)

(emphasis added).         The placement of the article “the” before

“real property” makes clear that a perpetual use restriction

must attach to a defined parcel of real property rather than

simply   some     or    any   (or   interchangeable          parcels   of)   real

property.      For “the” is a definite article, which lends to the

noun that follows it a specific rather than general identity.

See American Bus Ass’n v. Slater, 231 F.3d 1, 4-5 (D.C. Cir.

2000);   see    also   Webster’s    Third     New    International     Dictionary

2368 (1993) (providing the primary definition of “the” as “a

function word [used] to indicate that a following noun . . .

refers to someone or something previously mentioned or clearly

understood from the context or the situation”).



                                         9
       Reading § 170(h)(1) and (2) together further makes clear

that the defined parcel of land identified by the phrase “the

real   property”    is   the    real   property   to   which     the   donated

conservation easement initially attached.              These provisions of

the Code provide:

       (h) Qualified conservation contribution.
            (1) In general.       For purposes of subsection
            (f)(3)(B)(iii), the term “qualified conservation
            contribution” means a contribution (A) of a
            qualified real property interest, (B) to a
            qualified   organization,   (C)  exclusively  for
            conservation purposes.
            (2) Qualified real property interest.         For
            purposes of this subsection, the term “qualified
            real   property   interest”  means  any   of  the
            following interests in real property:     (A) the
            entire interest of the donor other than a
            qualified mineral interest, (B) a remainder
            interest, and (C) a restriction (granted in
            perpetuity) on the use which may be made of the
            real property.

26 U.S.C. § 170(h)(1)-(2) (2012).           Section 170(h)(2) defines the

term     “qualified      real    property     interest”     as     used     in

§ 170(h)(1)(A), providing that “the term qualified real property

interest means . . . a restriction (granted in perpetuity) on

the use . . . of the real property.”           Thus, in order to qualify

as a qualified conservation contribution, the parcel in which

use must be restricted in perpetuity is “the parcel” that must

be contributed “to a qualified organization . . . exclusively

for conservation purposes.”




                                       10
      The Easement at issue here fails to meet this requirement

because    the       real        property          contributed         to    the    Trust    is     not

subject    to       a     use       restriction          in    perpetuity.           The    Easement

purports       to    restrict          development            rights    in    perpetuity         for    a

defined parcel of land, but upon satisfying the conditions in

the substitution provision, the taxpayers may remove land from

that defined parcel and substitute other land.                                     Thus, while the

restriction          may       be     perpetual,         the    restriction         on    “the     real

property”       is       not.         For    this       reason,       the    Easement      does     not

constitute           a     “qualified           conservation            contribution”            under

§ 170(h) and the Belks were not entitled to claim a deduction

for the contribution.

      Moreover, permitting the Belks to claim a deduction for the

Easement       would           enable       them     to       bypass    several       requirements

critical       to        the    statutory          and    regulatory         schemes       governing

deductions          for    charitable           contributions.               For     instance,         26

U.S.C.     §    170(f)(11)(D)                requires          that     “[i]n       the     case       of

contributions of property for which a deduction of more than

$500,000       is        claimed        . . .       a     qualified         appraisal       of     such

property” must accompany the tax return.                                Permitting the Belks

to change the boundaries of the Easement renders the appraisal

meaningless; it is no longer an accurate reflection of the value

of the donation, for parts of the donation may be clawed back.

It   matters        not        that    the    Easement         requires       that    the    removed

                                                    11
property be replaced with property of “equal or greater value,”

because the purpose of the appraisal requirement is to enable

the Commissioner, not the donee or donor, to verify the value of

a donation.      The Easement’s substitution provision places the

Belks beyond the reach of the Commissioner in this regard.

      The requirement in the Treasury Regulations that a donor of

a     conservation     easement        make    available         to     the      donee

“documentation      sufficient    to    establish    the    condition         of   the

property” would also be skirted if the borders of an easement

could shift.        Treas. Reg. § 1.170A-14(g)(5)(i); see also id.

§ 1.170A-14(g)(5)(i)(A)-(D) (listing maps and photographs of the

property as potential sources of this documentation).                      Not only

does this regulation confirm that a conservation easement must

govern a defined and static parcel, it also makes clear that

holding otherwise would deprive donees of the ability to ensure

protection     of    conservation        interests       by,      for     instance,

examination of maps and photographs of “the protected property.”

Id.

      The regulations do provide that the use restrictions on a

donated   easement    can   be   extinguished       without      sacrificing       the

donor’s tax benefit in one limited instance.                   That is, when “a

subsequent unexpected change in the conditions surrounding the

property that is the subject of a donation . . . make impossible

or    impractical     the   continued         use   of     the        property     for

                                        12
conservation purposes” and “the restrictions are extinguished by

judicial proceeding.”         Id. § 170A-14(g)(6).           The Belks maintain

that this limited exception to the perpetuity requirement “would

be invalid” if the Tax Court’s reasoning is upheld.                      Reply Br.

5.   That argument fails.          This regulation permits a donor to

retain   a   tax    benefit    when     a    conservation     easement,     though

“granted     in    perpetuity,”       subsequently       cannot       further   its

conservation purpose and is extinguished by court order.                        The

regulation does nothing to undercut the correctness of the Tax

Court’s holding here that the Code requires a donor to grant an

easement to a single, immutable parcel at the outset to qualify

for a charitable deduction. 2

     In short, the Code and Treasury Regulations together make

clear that § 170(h)(2)(C) means what it says:                         a charitable

deduction    may   be   claimed   for       the   donation   of   a   conservation

     2
       The Belks raise a similar argument with respect to Treas.
Reg. § 1.170A-14(c)(2), which permits a donee to “exchange[]”
property subject to a conservation easement in the same limited
circumstance, i.e., “[w]hen a later unexpected change . . .
makes impossible or impractical the continued use of the
property for conservation purposes.”         This provision is
similarly invalid, they argue, if § 170(h)(2)(C) categorically
prohibits property from being swapped in and out of a
conservation easement.   Appellants’ Br. 20-21.     This argument
also fails. That the regulations permit the donee organization
to exchange restricted property under conditions both strict and
rare fails to undercut the requirement that the donor grant an
easement to a single, defined parcel.          Indeed, that the
regulations narrowly limit the ability of an easement to change
after donation counsels against permitting a donor to contract
for the right to make such changes in advance of the donation.


                                        13
easement     only    when      that     easement   restricts       the    use    of    the

donated property in perpetuity.                 Because the Easement here fails

to meet this requirement, it is ineligible to form the basis for

a charitable deduction under § 170(h)(2)(C).



                                           IV.

       The   Belks     offer     two    reasons    why    we    should    reject      this

straightforward application of statutory text.

       First, they maintain that out-of-circuit cases support the

notion that § 170(h)(2)(C) does not require that restrictions

attach to a single, defined parcel.                   See Appellants’ Br. 21-23

(citing      Kaufman      v.   Shulman,     687    F.3d    21    (1st     Cir.    2012);

Commissioner v. Simmons, 646 F.3d 6 (D.C. Cir. 2011)).                          In those

cases, the courts found that preservation easements covering the

facades of historic buildings, which reserved to the donee the

right to abandon the easement, did not violate § 170(h)(5)(A)

given the negligible possibility that the donee would actually

abandon its rights under the easement.

       According     to    the    Belks,    Simmons      and    Kaufman    demonstrate

that courts have approved deductions for easements that “put the

perpetuity of the conservation easement at far greater risk than

the clause at issue in this case.”                    Appellants’ Br. 23.              But

this   argument      misses       the   critical    distinction         between    those

cases and this one.              The Simmons and Kaufman courts considered

                                           14
whether the easements before them satisfied the requirement in

§ 170(h)(5)(A) that the conservation purpose be protected “in

perpetuity.”      See Simmons, 646 F.3d at 9-10; Kaufman, 687 F.3d

at 27-28.     Here, the question is whether the Easement satisfies

the requirement in § 170(h)(2)(C) that the use restrictions on

the parcel be granted “in perpetuity.”                 Though both requirements

speak in terms of “perpetuity,” they are not one and the same.

The provision at issue here, § 170(h)(2)(C), governs the grant

of the easement itself, while the provision at issue in Simmons

and Kaufman, § 170(h)(5)(A), governs its subsequent enforcement.

Thus,   Simmons       and    Kaufman      plausibly         stand    only    for    the

proposition    that    a    donation      will   not    be    rendered      ineligible

simply because the donee reserves its right not to enforce the

easement.     They do not support the Belks’ view that the grant of

a   conservation     easement      qualifies     for    a    charitable      deduction

even if the easement may be relocated.                        Indeed, as we have

explained, such a holding would violate the plain meaning of

§ 170(h)(2)(C).

      The second reason the Belks offer for ignoring the clear

statutory    language       of   § 170(h)(2)(C)     is      equally    unpersuasive.

They contend that because North Carolina law permits parties to

amend   an   easement,       the   Tax    Court’s      logic    would    render     all

conservation     easements         in    North    Carolina      ineligible         under

§ 170(h).      See     Appellants’        Br.    32-37.        But    whether      state

                                          15
property and contract law permits a substitution in an easement

is irrelevant to the question of whether federal tax law permits

a charitable deduction for the donation of such an easement.

Contrary to the Belks’ suggestion, accepting this fact does not

require    a     conclusion       that    “no       conservation           easement         could

qualify    for      a    deduction       unless         the    applicable         state       law

prohibited amendments to make a substitution of property.”                                    Id.

at   36.     Rather,       § 170(h)(2)(C)       requires         that      the    gift      of   a

conservation easement on a specific parcel of land be granted in

perpetuity     to       qualify   for     a     federal        charitable          deduction,

notwithstanding the fact that state law may permit an easement

to govern for some shorter period of time.                            Thus, an easement

that, like the one at hand, grants a restriction for less than a

perpetual term, may be a valid conveyance under state law, but

is still ineligible for a charitable deduction under federal

law.



                                           V.

       Finally,      the    Belks    argue          that      even    if    we     find       the

substitution        provision       in    the       Easement         prevents          it   from

satisfying     the      requirements       of       §   170(h)(2)(C),            the    savings

clause     nonetheless        renders         the       Easement      eligible          for      a

deduction.       The savings clause provides in pertinent part that

the Trust:

                                           16
        shall have no right or power to agree to any
        amendments   .   .  .   that   would   result   in   this
        Conservation Easement failing to qualify . . . as a
        qualified   conservation   contribution   under   Section
        170(h) of the Internal Revenue Code and applicable
        regulations.

The    Belks    contend       that    if    we    should   “determine        that     Section

170(h)(2)(C) precludes substitutions of property,” as we have,

this savings clause “operates to ‘save’ [their] deduction by

precluding the parties from executing an amendment allowing such

a substitution of property.”                  Reply Br. 20.          In other words, the

Belks    argue    that       the    savings      clause    negates     a    right     clearly

articulated       in    the        Easement      --   their     right       to   substitute

property -- but only if triggered by an adverse determination by

this court.       We decline to give the savings clause such effect.

       The Belks properly acknowledge that “the IRS and the courts

have     rejected      ‘condition          subsequent’      savings        clauses,    which

revoke or alter a gift following an adverse determination by the

IRS or a court.”              Appellants’ Br. 39 (citing Commissioner v.

Procter, 142 F.2d 824, 827-28 (4th Cir. 1944)).                             They maintain,

however,       that    the    savings       clause    here      is    not    a   “condition

subsequent” savings clause, but simply “an interpretive clause

meant    to    insure    that       [the    Trust]    makes     no    amendment       to   the

Conservation Easement . . . that would be inconsistent with the

overriding intention of the parties.”                     Id.   The Belks are wrong.




                                                 17
      A    condition       subsequent       rests         on    a    future     event,       “the

occurrence        of     which    terminates         or    discharges          an     otherwise

absolute contractual duty.”                 30 Williston on Contracts § 77:5

(4th ed.).         When a savings clause provides that a future event

alters the tax consequences of a conveyance, the savings clause

imposes a condition subsequent and will not be enforced.                                     See

Procter,      142        F.2d     at     827;        Estate         of    Christiansen        v.

Commissioner, 130 T.C. 1, 13 (2008), aff’d, 586 F.3d 1061 (8th

Cir. 2009).            As the IRS has explained, clauses that seek to

“recharacterize the nature of the transaction in the event of a

future”      occurrence          “will    be        disregarded          for   federal       tax

purposes.”        I.R.S. Tech. Adv. Mem. 2002-45-053 (Nov. 8, 2002).

      In Procter, which the Belks do not suggest was incorrectly

decided, the taxpayer sought to avoid the federal gift tax by

including a savings clause within the trust conveying the gift.

That clause provided that “[t]he settlor is . . . satisfied that

the present transfer is not subject to Federal gift tax,” but

added      that    if    “a     competent       federal        court     of    last    resort”

determined “that any part of the transfer . . . is subject to

gift tax,” that part “shall automatically be deemed not to be

included in the conveyance” and so not subject to gift tax.

Procter, 142 F.2d at 827.                 We rejected the taxpayer’s argument

out of hand, holding that tax consequences could not “be avoided

by   any    such       device    as    this.”        Id.       We    explained        that   the

                                               18
taxpayer’s attempt to avoid tax, by providing the gift “shall be

void”   as   to    property      later    held   “subject      to    the    tax,”    was

“clearly     a   condition      subsequent,”     and     involved     the    “sort    of

trifling with the judicial process [that] cannot be sustained.”

Id.

      So it is here.           The Belks’ Easement, by its terms, conveys

an interest in real property to the Trust.                    The savings clause

attempts to alter that interest in the future if the Easement

should “fail[] to qualify as a . . . qualified conservation

contribution under Section 170(h).”                In seeking to invoke the

savings clause, the Belks, like the taxpayer in Procter, ask us

to “void” the offending substitution provision to rescue their

tax benefit.

      The Belks’ attempt to distinguish Procter fails.                      They find

significant the fact that the savings clause there altered the

conveyance       “following     an   adverse     IRS    determination        or   court

judgment,”       while   the    savings   clause       here   does    not    expressly

invoke the IRS or a court.                Appellants’ Br. 39.               This is a

distinction without a difference.                Though not couched in terms

of an “adverse determination” by the IRS or a court, the Belks’

savings clause operates in precisely the same manner as that in

Procter.     The Easement plainly permits substitutions unless and

until   those      substitutions      “would     result”      in     the    Easement’s

“failing to qualify . . . under Section 170(h) of the Internal

                                          19
Revenue Code,” a determination that can only be made by either

the IRS or a court.              Indeed, relying on Procter, the IRS has

found a clause void as a condition subsequent notwithstanding

its failure to reference determination by a court.                                    See Rev.

Rul. 65-144, 1965-1 C.B. 442, 1965 WL 12880.                                The Belks do not

suggest that the IRS erred in so concluding, nor do they attempt

to distinguish that clause from their own.

     They    do    contend,      however,         that    their        savings       clause       is

simply “an interpretive clause” meant to ensure the “overriding

intention”    of    the    parties        that      the      Easement         qualify       as    a

charitable    deduction.              Appellants’         Br.         39.       We    are     not

persuaded.         When      a    clause          has     been        recognized        as        an

“interpretive”       tool,       it     is     because           it     simply       “help[ed]

illustrate the decedent’s intent” and was not “dependent for

[its]   operation     upon       some    subsequent          adverse         action     by       the

Internal Revenue Service.”                I.R.S. Tech. Adv. Mem. 79-16-006

(1979) (distinguishing Procter); see also Estate of Cline v.

Commissioner, 43 T.C.M. (CCH) 607 (T.C. 1982) (clause valid to

interpret “ambiguous . . . language in a poorly drafted . . .

agreement,” but not to “change the property interests otherwise

created”); Rev. Rul. 75-440, 1975-2 C.B. 372, 1975 WL 34994 at

*2 (clause “relevant . . . only because it helps indicate the

testator’s   intent       not    to     give   .    .    .   a    disqualifying         power”

(emphasis added)).

                                             20
      In    contrast    to   those     situations,        the    Belks’     intent     to

retain “a disqualifying power” is clear from the face of the

Easement.       There   is     no    open    interpretive        question     for      the

savings clause to “help” clarify.                      If the Belks’ “overriding

intent[]” had been, as they suggest, merely for the Easement to

qualify for a tax deduction under § 170(h), they would not have

included a provision so clearly at odds with the language of

§ 170(h)(2)(C).         In   fact,     the       Easement   reflects        the   Belks’

“overriding     intent[]”      to     create      an    easement     that    permitted

substitution of the parcel -- in violation of § 170(h)(2)(C) --

and   to     jettison    the        substitution         provision     only       if    it

subsequently caused the donation to “fail[] to qualify . . . as

a   qualified   conservation         contribution        under     Section    170(h).”

Thus, the Belks ask us to employ their savings clause not to

“aid in determining [their] intent,” Rev. Rul. 75-440, but to

rewrite their Easement in response to our holding.                     This we will

not do. 3


      3
       In a last-ditch effort, the Belks further argue that the
savings clause is designed “to accommodate evolving . . .
interpretation   of   Section  170(h)”  so   that  the  Easement
“continue[s] to be consistent” with their intent to comply with
that provision.    Reply Br. 20.   But the statutory language of
§ 170(h)(2)(C) has not “evolved” since the provision was enacted
in 1980.   See Pub. L. 96-541, 94 Stat. 3204 (Dec. 17, 1980).
The simple truth is this: the Easement was never consistent with
§ 170(h), a fact that brings with it adverse tax consequences.
The Belks cannot now simply reform the Easement because they do
not wish to suffer those consequences.


                                            21
     Indeed, we note that were we to apply the savings clause as

the Belks suggest, we would be providing an opinion sanctioning

the very same “trifling with the judicial process” we condemned

in Procter.   142 F.2d at 827.       Moreover, providing such an

opinion would dramatically hamper the Commissioner’s enforcement

power.   If every taxpayer could rely on a savings clause to

void, after the fact, a disqualifying deduction (or credit),

enforcement of the Internal Revenue Code would grind to a halt.



                               VI.

     For the foregoing reasons, the judgment of the Tax Court is

                                                        AFFIRMED.




                               22
