Eleventh Circuit Rejects Bullshit Conservation Easement Shelter (7/20/26; 7/27/26)

In Savannah Shoals, LLC v. Commissioner, ___ F.4th ___ (11th Cir. 2026), CA11 here and GS here, the Eleventh Circuit rejects the appeal of a bullshit conservation easement shelter. The result is foretold in the first paragraph of the opinion, noting that the shelter claimed a “$23 million” deduction for an easement found by the Tax Court to be worth $480,000. See Judge Goeke’s opinion Savannah Shoals LLC v. Commissioner, T.C. Memo. 2024-35, here.

I won’t discuss the opinion further because, although it is 34 pages long and is designated “FOR PUBLICATION,” I don’t think it adds anything material to previously developed law, factual conclusions, and appellate review. The bottom-line is for taxpayers and promoters to avoid bullshit claims, including bullshit claims on the Tax Court’s valuations. The Court does not say that or even, for most readers, fairly imply that. Still, that is my inference. And, of course, plenty of other opinions, including from this Court, can be read for that proposition.

One interesting point is that oral argument was 12/10/25 and the unanimous opinion was 7/16/26, for 218 days gestation period for a 34 page opinion of little precedential value. (See CL docket entries here).

However, I will make some comments which are even more picky.

JAT Comments:

 1. The Court discusses the shelter’s attack on the IRS expert. (See Slip Op. 10-16.) The Court spends some time discussing FRE 702 and the Daubert Standard. As it turns out, immediately before I read Savannah Shoals, I had just revised my Federal Tax Procedure Practitioner Edition to add a footnote on the text reference to FRE 702. I just copy and paste that footnote discussion because I don’t think the Court in Savannah Shoals picked up the nuance even though I don’t think the nuance would have changed the outcome.

The Supreme Court interpreted a prior version of this Rule in Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993) to create a gatekeeping test for the admission of expert testimony. This test is often called the Daubert Standard. The 2023 amendments to FRE 702 require for admissibility that the proponent “demonstrates to the court” (i.e., not the jury) that it is “more likely than not” that the expert’s testimony: (a) “will help the trier of fact understand the evidence or determine a fact in issue”; (b) is based on sufficient facts or data”; (c) is the product of reliable principles and methods; and (d) “the opinion reflects a reliable application of the principles and methods to the facts of the case.” This is not the Daubert Standard under the prior version of FRE 702. I think that, however, courts may still name or misname the current FRE 702 standard as the Daubert Standard even when applying the current Rule 702 requirements stated earlier in this footnote. See David Bernstein, The Second Circuit's Problematic Rule 702 Analysis in its Recent Tylenol Decision (The Volokh Conspiracy 7/20/26), here (discussing Rutledge v. Walgreen Co., ___ F.4th ___ (2d Cir. 2026)) and arguing, inter alia, against use of the Daubert Standard under current Rule 702).

2. The Savannah Shoals opinion was revised by amended opinion with the “errata sheet” (Doc. 54-2) indicating that two erroneous references to “district court” were corrected to read “tax court.” (The link I provide above is to the corrected opinion.) This is not a common error, but I have seen it in other cases. Other than to note the phenomenon and the correction, I make no comment. Except:

Picky (even snarky) comment: The Court’s reference to “tax court” (without caps) is patently wrong. Section 7441 creates the “United States Tax Court.” Perhaps the Tax Court should start referring to this Court as the “United States court of appeals for the eleventh circuit.”

Added 7/27/26 12:00pm. I asked ChatGPT Plus today about Courts using the small initial letter and received this response:

Prompt: Why do some courts refer to the U.S. Tax Court as "tax court" (small letters for initial letters rather than capital letters)?

Response:

Worked for 1m 29s

The difference is almost entirely editorial style, not a judgment about the Tax Court’s status or authority.

The tribunal’s statutory name is the “United States Tax Court.” Congress also repeatedly uses “Tax Court” as the shortened form. 26 U.S.C. § 7441 establishes “a court of record to be known as the United States Tax Court.” Thus, when referring to that specific federal tribunal, “the Tax Court” is best understood as a shortened proper name and ordinarily should be capitalized.

Some courts nevertheless apply the general capitalization rule used for other tribunals:

Capitalize the full official name, but lowercase an informal or descriptive reference.

Under that convention, a court might write:

• “the United States Tax Court” on first reference;
• “the tax court” thereafter,

just as it might write “the United States District Court for the District of Maryland” and later “the district court.” The Fourth and Seventh Circuits have issued opinions using lowercase “tax court” in precisely this fashion.

That convention is not universal—and arguably is not the preferable convention for this particular court. Several authoritative style sources treat Tax Court as a special, established short-form name:

• The Office of the Solicitor General’s style manual states expressly: “References to the ‘Tax Court’ are always capitalized.”
• The Government Publishing Office Style Manual gives the form “Tax Court; the court”—capitalizing Tax Court but lowercasing the still shorter reference court.
• The Tax Court’s own style manual consistently uses “Tax Court” and permits “the Court” when the Court refers to itself.

Accordingly, I would use the following distinctions:

• United States Tax Court — formal name.
• Tax Court — proper shortened name, ordinarily capitalized.
• the Court — permissible when the referent is unmistakably the Tax Court, particularly in its own opinions.
• tax court — appropriate when used generically, as in “a state may establish a specialized tax court,” but debatable when it specifically means the United States Tax Court.

So, when a federal appellate court writes “the tax court” while unquestionably referring to the United States Tax Court, it generally reflects that court’s house style—or occasionally simple editorial inconsistency. It does not imply that the Tax Court is merely an administrative agency, an inferior tribunal in some special sense, or something less than the Article I “court of record” established by Congress. In formal tax-law writing, “Tax Court” is the safer and more conventional choice.