This subchapter shall be known
as the "
72 Del. Laws,
c. 254, § 1; 73 Del. Laws,
c. 6, § 1.;
(a) The General Assembly
finds:
(1) That the State of
Delaware's unique natural resources, wildlife habitats, historic resources and
resources of outdoor recreation are a significant benefit to the State and the
public;
(2) That the State of
Delaware's unique natural resources and distinctive natural heritage, including
habitat for plants, animals and natural communities and historic resources, are
being lost at an alarming rate; and
(3) That much of the State's
unique natural resources and habitats and historic resources are found on lands
that are privately owned.
(b) The General Assembly
desires:
(1) To encourage private
landowners to be stewards of lands that are important habitats or designated
natural areas, or that contain significant historic
resources;
(2) To complement existing
land conservation acquisition programs under the Delaware Land Protection Act,
as set forth in Chapter 75 of Title 7, and historic preservation programs, and
not duplicate them and thereby preserve public financial resources and leverage
public expenditures; and
(3) To provide private
landowners with incentives to encourage protection of private lands for open
space, natural resources, biodiversity conservation, outdoor recreation and
historic preservation purposes.
72 Del. Laws,
1st Sp. Sess., c. 254, § 1.;
The following definitions
shall apply to this subchapter:
(1) "Delaware Heritage
program" means the program within the Department of Natural Resources and
Environmental Control, Division of Fish and Wildlife, that is responsible for
inventory, research, data collection, information management and consultation
about Delaware's unique or rare plant and animal species and natural
communities and for the maintenance of computerized and manual records of the
status and trends of such species and natural communities and habitat location
information.
(2) "Department" means
the Department of Natural Resources and Environmental Control.
(3) "Historic
resources" means those structures, improvements, sites or lands that are
listed as significant in or eligible for listing in the National Register of
Historic Places, either as individual listings or as contribution elements in
listed or eligible historic districts.
(4) "Interest in real
property" means any perpetual right in real property, or improvements
thereto, or water, including but not limited to a fee simple, easement, partial
interest, mineral right, remainder, future interest, or other interest or right
concerning the use of property.
(5) "Land" or
"lands" means real property, with or without improvements thereon;
right-of-way, water and riparian rights; easements; privileges and all other
rights or interests of any kind or description in, relating to or connected
with real property.
(6) "Natural
habitat" means those land areas in
(7) "Open space"
means any open lands characterized by (i) natural and/or scenic beauty, or (ii)
whose existing openness, natural condition or present state of use, if
retained, would maintain important outdoor recreational areas and wildlife
habitat, or would maintain or enhance the conservation of Delaware's natural,
historic, or scenic resources.
(8) "Public or private
conservation agency" means any Delaware governmental body or any private
not-for-profit charitable corporation or trust authorized to do business in the
State and organized and operated for natural resources, land conservation or
historic preservation purposes, and having tax-exempt status as a public
charity under the U.S. Internal Revenue Code of 1986, as amended, and having
the power to acquire, hold and maintain land and/or interests in land for such
purposes.
72 Del. Laws,
1st Sp. Sess., c. 254, § 1; 73 Del. Laws,
c. 6, § 1.;
§ 1804. Tax credit available; land
conveyed for conservation and preservation purposes.
(a) There shall be allowed as
a credit against the tax imposed by Chapters 11 and 19 of this title, an amount
equal to 40% of the fair market value of any land or interest in land located
in Delaware that is conveyed for the purpose of open space, natural resource
and/or biodiversity conservation or historic preservation as an unconditional
donation in perpetuity by the landowner/taxpayer to a public or private conservation
agency eligible to hold such land and interests therein for conservation or
preservation purposes. The fair market value of qualified donations made under
this chapter shall be substantiated by a "qualified appraisal"
prepared by a "qualified appraiser," as those terms are defined under
applicable federal law and regulations governing charitable contributions.
(b) The amount of the credit
that may be claimed by a taxpayer shall not exceed $50,000. In addition, in any
1 tax year the credit used may not exceed the amount of individual or corporate
income tax otherwise due. Any portion of the credit that is unused in any 1 tax
year may be carried over for a maximum of 5 consecutive tax years following the
tax year in which the credit originated, subject to the limitations provided
herein, until fully expended.
(c) Qualified donations shall
include the conveyance in perpetuity of a fee interest in real property or a
less-than-fee interest in real property, such as a conservation easement,
pursuant to Chapter 69 of Title 7. Dedications of land for open space for the
purpose of fulfilling density requirements to obtain subdivision or building
permits shall not be considered as qualified donations under this chapter.
(d) Qualified donations shall
be eligible for the tax credit herein described if such donations are made to
the State, an instrumentality thereof or a charitable organization described in
§ 501(c) of the U.S. Internal Revenue Code of 1986 [26 U.S.C. § 501] and meet
the requirements of 26 U.S.C. § 170(h)(3)(A) or (B).
(e) To be eligible for
treatment as qualified donations under this section, land or interests in lands
must meet the requirements for land protection of the Delaware Land Protection
Act as set forth in § 7503 of Title 7; or consist of lands that are natural
habitat for the protection of Delaware's unique and rare biological and natural
features as determined by the Department, relying on information supplied and
maintained by the Delaware Natural Heritage Program; or meet the requirements
for Delaware's important historic resources as determined by the Delaware
Department of State, Division of Historical and Cultural Affairs. The use and
protection of such lands or interests therein for open space, natural area
protection, biodiversity habitat conservation, historic preservation or similar
use and purpose shall be assured in perpetuity.
(f) Any qualified donation
made in a tax year for which the tax credit herein described is claimed by a
taxpayer shall not also be eligible for treatment in the same tax year as a
charitable contribution for state income tax deduction purposes in calculating
72 Del. Laws,
1st Sp. Sess., c. 254, § 1.;
(a) The Department, in
consultation with the Department of State, Division of Historical and Cultural
Affairs, shall promulgate such rules and regulations as may be deemed necessary
to certify eligible projects for treatment in fulfillment of the purposes of
this subchapter within 6 months of the date of enactment. The Department and
the Division of Historical and Cultural Affairs, in cooperation with the Open
Space Council, upon each 5-year anniversary of the enactment of this subchapter
or of any renewals thereof, shall prepare a report to the General Assembly
showing the lands protected during such period pursuant to this subchapter.
(b) The Division of Revenue of
the Department of Finance for the State of Delaware, in consultation with the
Department, shall promulgate such rules and regulations within 6 months of the
date of enactment as may be necessary to administer the tax incentives provided
for in this act and shall coordinate with the agencies referenced in subsection
(a) of this section in the preparation of the report or reports to the General
Assembly showing the fiscal impact on the Delaware Treasury of the credits
claimed pursuant to this act.
72 Del. Laws,
1st Sp. Sess., c. 254, § 1; 73 Del. Laws,
c. 6, § 1.;
§ 1806. Applicability,
fiscal limitation and renewal.
(a) The tax credits provided
by this subchapter shall apply to transfers of land or interests therein in
taxable years beginning on or after
(b) Any taxpayer claiming a
tax credit under this subchapter may not claim a credit under any similar
(c) Any tax credits which
arise under this subchapter from the donation of land or an interest in land
made by a pass-through tax entity such as a trust, estate, partnership, limited
liability corporation or partnership, limited partnership, Subchapter S
corporation or other fiduciary shall be used either by such entity, in the
event it is the taxpayer, on behalf of such entity, or by the member, manager,
partner, shareholder and/or beneficiary, as the case may be, in proportion to
their interest in such entity in the event that income, deductions and tax
liability passes through such entity to such member, manager, partner,
shareholder and/or beneficiary. Such tax credits may not be claimed by both the entity and the member, manager, partner,
shareholder and/or beneficiary for the same donation.
(d) The total amount of tax
credits to be made available under this subchapter shall not exceed
$10,000,000. The aggregate amount of such tax credits available in any 1 tax
year shall not exceed $1,000,000 and shall be allocated to taxpayers for
eligible projects in accordance with the rules and regulations to be
established as set forth in § 1805 of this title.
(e) [Repealed.]
72 Del. Laws, 1st Sp. Sess., c. 254, § 1; 73 Del. Laws,
c. 6, § 1; 77 Del. Laws,
c. 135, §§ 1-3.;
No part or segment of this
subchapter shall be interpreted to in any way alter or amend any permit
requirements, reporting requirements, allocation procedures or other
requirements set forth in any other provision of state law.
72 Del. Laws,
1st Sp. Sess., c. 254, § 1; 73 Del. Laws,
c. 6, § 1.;
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