future-focused

Texas Supreme Court Issues Its First Opinion Finding Rebuttal of the Van Dyke Presumption

5 minute read

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On March 13, 2026, the Texas Supreme Court issued its opinion in Clifton v. Johnson, marking the first instance in which the Court found sufficient indicia in the text of an instrument to rebut the Van Dyke presumption.  Nearly three years before the Court issued its opinion in Clifton, it issued its landmark opinion in Van Dyke v. Navigator Group, 668 S.W.3d 353 (Tex. 2023), holding that, in the context of antiquated oil and gas conveyances containing one-eighth within a double fraction, such language gives rise to a rebuttable presumption that “one-eighth” refers to the entire mineral estate. Following Van Dyke, numerous title disputes arose and made their way through courts across the state. When adjudicating these disputes, courts of appeal have been reluctant to hold that royalty clauses containing a 1/8 within a double fraction rebutted the Van Dyke presumption, leaving industry stakeholders and practitioners wondering whether the Van Dyke presumption is, in fact, rebuttable and, if so, what circumstances are sufficient to rebut the presumption. The Texas Supreme Court has now confirmed in Clifton that the Van Dyke presumption is, in fact, rebuttable, and it shed light on what is sufficient to do so.

At issue in Clifton was a 1951 royalty deed that conveyed “an undivided one-one hundred and twenty-eighth (1/128) interest in and to all of the oil, gas and other minerals in and under” several tracts of land in Reeves County. The deed also specified that the “land is under oil and gas leases providing for a royalty of 1/8 of the oil….” The 1951 royalty deed further conveyed a “1/128 (1/16 of the usual 1/8 royalty) part of all of the oil, gas and other minerals taken and saved under” future leases. For nearly three quarters of a century, the grantees and their successors received a fixed 1/128 royalty without dispute. However, in 2020, Johnson, a successor-in-interest to the grantee, claimed that the 1951 royalty deed conveyed a floating 1/16 royalty interest.  In its opinion, the Texas Supreme Court revisited the two issues explored in Van Dyke: the rebuttable presumption and the presumed-grant doctrine. 

The Van Dyke Rebuttable Presumption

The Texas Supreme Court reversed the decision of the El Paso Court of Appeals and reinstated the trial court’s summary judgment ruling, holding that the plain language of the 1951 royalty deed rebutted the Van Dyke presumption by showing that the parties to the deed did not use 1/8 as a term of art—rather, they used 1/8 for its ordinary numerical value. While the court of appeals began its analysis with the Van Dyke presumption, it did not follow the analysis to the end. Had it done so, it would have considered the “textual indicia” in the 1951 royalty deed that was sufficient to rebut the presumption. 

Here, unlike Van Dyke (and Hysaw v. Dawkins), both the granting clause and the future-lease clause expressly used the product of two fractions: 1/128. While the 1/128 stood alone in the granting clause, it was followed by double-fraction parenthetical in the future-lease clause—(1/16 of the usual 1/8 royalty)—which, when multiplied, amounted to 1/128. The Court interpreted the double-fraction parenthetical as being used to show how the parties reached the 1/128 royalty interest. Without the double-fraction parenthetical, the future-lease clause would still have contained the stand-alone fraction 1/128. The Court stated that explanatory parentheticals should not hold greater weight than single fractions—particularly when the same figure is expressed as single fraction alone in the granting clause. To do otherwise would have resulted in the 1/128 figure not reading consistently throughout the instrument. As such, the Court interpreted the 1951 royalty deed as conveying a fixed 1/128 royalty interest on future leases, thereby resolving any apparent contradictions and reading the instrument as a cohesive whole. 

Presumed Grant Doctrine 

Additionally, the Texas Supreme Court concluded that the Cliftons’ alternative argument that the court of appeals should have remanded for the trial court to consider the presumed-grant doctrine was meritorious because, in Van Dyke, the Texas Supreme Court made clear that the rebuttable presumption “sits alongside the presumed-grant doctrine” and remains relevant to the analysis when interpreting double fractions. Unlike the rebuttable presumption, which concerns textual meaning, the presumed-grant doctrine concerns “real-world developments.” To prevail under the presumed-grant doctrine, a party must establish “(1) a long-asserted and open claim, adverse to that of the apparent owner; (2) a nonclaim by the apparent owner; and (3) acquiescence by the apparent owner in the adverse claims.” 

As was the case in Van Dyke, application of the two distinct inquiries—the rebuttable presumption and the presumed-grant doctrine—here pointed in the same direction of the parties’ 70-year shared understanding: the 1951 royalty deed conveyed a fixed 1/128 royalty interest. While oftentimes the parties’ view of their respective rights and their corresponding conduct is consistent with the text of the instrument, the Court noted that in “rare circumstances” the presumed-grant doctrine may obviate the plain meaning of the text. Ultimately, the Court concluded that it need not decide whether the Cliftons satisfied all three elements of the presumed-grant doctrine because it would lead to the same result as the textual analysis of the deed. 

Notably, Chief Justice Blacklock questioned counsel in oral arguments on whether it would be better, when there has been a consistent course of conduct among parties to an instrument containing one-eighth within a double fraction, to “[cut] through the whole thing” and interpret conveyances consistently with the parties’ course of conduct without regard to “presumptions and rebuttals.” In response to this line of questioning, the Court received three amicus curiae letters urging the Court not to adopt such an approach as doing so would contradict established precedent that course of conduct may not inform the text of an unambiguous deed and would contribute to title uncertainty.

The Court, however, likened the presumed-grant doctrine to adverse possession in that adverse possession asserts ownership that is contrary to a recorded deed. It then noted that, while courts will not find the presumed-grant doctrine to be easily satisfied, when its requirements are met, “parsing a complicated text may end up being unnecessary.” For example, “suppose that, under a textual analysis, the presumption is (or is not) rebutted. If the parties have nonetheless acted as if the opposite were true for such an extended time, then the court will still apply the presumed-grant doctrine when its requirements are satisfied.” Thus, as the Court “explained in Van Dyke, when the presumed-grant doctrine clearly applies, ‘a court could dispense with the deed-construction analysis’ altogether.”

From this language, it appears to be clear that the Court disagreed with the amicus curiae letters submitted in response to Chief Justice Blacklock’s line of questioning and held that course of conduct can override the plain meaning of an instrument’s text when the requirements of the presumed-grant doctrine are satisfied. At the same time, because application of the presumed-grant doctrine was consistent with the Court’s interpretation of the instruments in Van Dyke and Clifton, it is yet to be seen what quantum of evidence is necessary before a court will disregard an instrument’s text.

It seems, then, that following this opinion, parties who find themselves in a dispute concerning how a double fraction containing one-eighth should be interpreted will find themselves unable to rely solely on the language of the instrument to resolve the dispute. Instead, until the Court provides guidance otherwise, it may be inevitable that each dispute concerning a double fraction containing one-eighth will necessitate a careful analysis of the history of payments from the inception of the instrument to the present to determine whether a fixed or floating royalty interest was reserved. After all, such a history “could dispense with the deed-construction analysis altogether.”

For more information, contact Liskow attorneys Jana Grauberger, J.T. Kittrell, Sam Allen, and Margaret Chavez, and visit Liskow’s Royalty Litigation practice page. 

Liskow Secures Summary Judgment Win Affirming Statutory Employer Status

3 minute read

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Liskow secured a complete summary judgment for Methanex in a personal injury suit, Knight v. Turner Industries Group, L.L.C., et al., No. 23-469 (M.D. La.).  Despite opposing the motion for summary judgment by seeking discovery under Rule 56(d), the court denied the plaintiff’s request, holding that plaintiff (1) failed to explain how the evidence he sought would affect the statutory employer status of Methanex, and (2) failed to diligently pursue discovery. The court’s ruling confirms that statutory employers are entitled to tort immunity under the Louisiana Workers’ Compensation Act (“LWCA”) for non-intentional torts, and that plaintiffs cannot rely on vague discovery requests to avoid summary judgment.   

Matter Background

Plaintiff  filed this personal injury action in the 19th Judicial District Court for East Baton Rouge Parish, Louisiana, against Methanex USA, LLC, Methanex Louisiana, LLC (collectively “Methanex”), Turner Industries Group LLC (“Turner”), ScaffSource, LLC, and Brock Services, LLC.  Plaintiff alleged that he sustained injuries while working for Turner at the Methanex plant in Geismar, Louisiana, when a valve that was being installed slipped from a crane due to the flagger and rigger not being qualified, among other safety concerns.  Plaintiff asserted claims against all defendants for negligence, gross negligence, and intentional tort.

Methanex removed the matter to the United States District Court for the Middle District of Louisiana, asserting that Turner, the only non-diverse defendant, was improperly joined, and thus, diversity jurisdiction existed.  Methanex asserted that the LWCA is the exclusive remedy against an employer like Turner, and Plaintiff’s conclusive allegations of intentional tort failed to state a cognizable exception to that exclusive remedy.  Methanex also moved to dismiss the intentional tort claim against it for failure to meet the pleading standards under Rule 12(b)(6).  The court agreed with Methanex in both regards, leaving only Plaintiff’s negligence claims against Methanex.

Methanex then filed a motion for summary judgment, seeking dismissal of Plaintiff’s claims in their entirety based on the tort immunity afforded to statutory employers under the LWCA.  Plaintiff opposed the motion for summary judgment, asserting that “crucial” evidence was allegedly within Methanex’s control and discovery was needed under Rule 56(d) to adequately oppose the motion for summary judgment. The court disagreed with the Plaintiff granting Methanex’s motion.

Results

First, the court found that Plaintiff only “vaguely” asserted the types of evidence he wished to gain through discovery and failed to indicate what specific facts he expects to uncover from the evidence that was related to the statutory employer defense.   The court further noted that even if discovery could affect the defense, a question the court left up for debate, Plaintiff failed to diligently pursue discovery in the case. Because Plaintiff failed to carry his burden that discovery was needed, the court denied his Rule 56(d) discovery request.

Second, the court found that under the plain language of Methanex’s contract with Turner, Methanex was entitled to a rebuttable presumption that it was the statutory employer of Plaintiff when he was allegedly injured at the Geismar plant. Additionally, the court recognized that turnaround work, like the work Plaintiff was performing during the incident, is historically recognized as part of the plant operator’s trade, business, or occupation.  Based on these undisputed facts, the court found that Plaintiff was unable to rebut the presumption in favor of Methanex.  The court therefore held that Methanex was entitled to tort immunity under the LWCA and dismissed the entirety of Plaintiff’s claims with prejudice.  A copy of the court’s opinion can be found here. 

Kathryn Gonski and Melanie Derefinko handled this matter for Methanex. For further information about Liskow’s experience, visit the firm’s Energy Litigation and Personal Injury practice pages. 

IRS Proposes Updated Regulations for Tax-Advantaged Bonds

2 minute read

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The U.S. Department of the Treasury and the Internal Revenue Service recently issued proposed regulations addressing technical provisions applicable to tax-advantaged bonds, including tax-exempt municipal bonds and other federally subsidized bond programs. The proposed rules (REG-117298-21) are intended to update and clarify existing Treasury Regulations governing the issuance and administration of these bonds by state and local governments. Tax-advantaged bonds allow governmental issuers to borrow at lower interest rates because the interest paid to bondholders receives favorable federal tax treatment.

Among other things, the proposed regulations address remedial action rules applicable when bond-financed property is later used in a manner that would otherwise violate the federal tax requirements for tax-advantaged bonds. Current regulations permit issuers to preserve the tax-advantaged status of bonds in certain circumstances by taking corrective actions, such as redeeming or nullifying outstanding bonds, when a deliberate action causes bond-financed property to become used for private business purposes. The proposed regulations refine and expand these remedial action provisions, including circumstances involving changes in use resulting from modifications to management contracts or other arrangements that could create impermissible private business use.

The proposal also clarifies the treatment of certain transfers or modifications involving bond-financed property, including circumstances in which the property is sold, leased, or otherwise transferred after the bonds are issued. The regulations provide additional guidance regarding when such actions constitute a “deliberate action” that could jeopardize the tax-advantaged status of the bonds and describe the conditions under which issuers may take remedial actions to maintain compliance with federal tax rules.

In addition, the proposed regulations update several technical definitions and cross-references within the tax-advantaged bond regulatory framework to improve consistency with statutory provisions enacted since the original regulations were issued. 

Treasury and the IRS indicated that the revisions are intended to “modernize the regulatory regime and provide greater clarity to issuers, conduit borrowers, and market participants that rely on tax-advantaged bonds to finance public infrastructure, educational facilities, health care facilities, and other qualified projects.” 

For more information, contact Liskow attorneys Leon Rittenberg III, Caroline Lafourcade, and Kevin Naccari, and visit Liskow’s Tax Practice page. 

BOEM Proposed Rule Includes Significant Changes to 2024 Financial Assurance Regulations

3 minute read

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On Monday, March 9, 2026, the U.S. Department of the Interior (“DOI”), acting through the Bureau of Ocean Energy Management’s (“BOEM”), published in the Federal Register a proposed Risk Management and Financial Assurance for OCS Lease and Grant Obligations rule (the “2026 Proposed Rule”) that would substantially revise certain provisions of the current Risk Management and Financial Assurance of OCS Lease and Grant Obligations rule implemented in 2024 (the “2024 Final Rule”). The 2026 Proposed Rule, among other proposed revisions to the 2024 Final Rule, would impact when federal offshore oil and gas lessees and grant holders must post supplemental financial assurance to backstop decommissioning obligations, the amount of security that must be posted, and the types of financial assurance acceptable to BOEM. According to DOI, in comparison to the 2024 Final Rule, the 2026 Proposed Rule, if finalized, is expected to save oil and gas lessees operating on the Outer Continental Shelf (“OCS”) around $484 million each year in financial assurance compliance costs, thereby increasing the amount of capital for oil and gas production on the OCS. 

The 2026 Proposed Rule is not the first attempt by President Trump to revise BOEM’s financial assurance regulations. In October 2020, near the end of President Trump’s first administration, BOEM published the 2020 Proposed Rule in the Federal Register, which was never finalized. Instead, under the Biden administration, DOI undertook a new rulemaking, resulting in the finalization of President Biden’s 2024 Final Rule, containing the current financial assurance regulations, which became effective on June 29, 2024.  The 2024 Final Rule, however, was never fully implemented, as in May 2025, shortly after President Trump’s inauguration and issuance of Executive Order 14154, Unleashing American Energy, DOI announced its intent to review and revise the 2024 Final Rule, stating that it would develop a new rule consistent with President’s Trump’s 2020 Proposed Rule. 

The 2026 Proposed Rule includes provisions that were first contemplated in the 2020 Proposed Rule, such as continuing the prior BOEM practice of considering the financial strength of jointly and severally liable predecessors when evaluating the amount of supplemental financial assurance that must be provided to backstop decommissioning obligations. In addition, the 2026 Proposed Rule, like the 2020 Proposed Rule, contemplates BOEM using a revised credit rating threshold when evaluating grantees and lessees’ financial health. 

The most salient provisions of the 2026 Proposed Rule, in comparison to the current 2024 Final Rule, are as follows:

  • When determining whether supplemental financial assurance is required, as previously noted, BOEM will consider the financial strength of the jointly and severally liable predecessors;
  • The credit rating threshold used for evaluating grantees and lessees’ financial health will be revised from BBB to BB and from S&P Global Ratings or Baa3 to Ba3 from Moody’s Investor Service Inc.—or other equivalent credit rating from a Nationally Recognized Statistical Rating Organization;
  • The level of the Bureau of Safety and Environmental Enforcement’s probabilistic estimates of decommissioning costs used for determining the amount of supplemental financial assurance will be revised from P70 to P50;
  • The list of acceptable supplemental financial assurance instruments for leases will be revised to explicitly include dual-obligee financial assurance instruments;
  • When determining supplemental financial assurance requirements for grant holders, the Regional Director will now have the option to consider the use of the 3-to-1 proved reserves to decommissioning liabilities ratio for ROW for grant holders (that also have the associated lease rights) to the proved reserves;
  • An alternative option, for circumstances where decommissioning activities will be performed within 1 year of issuance of a supplemental financial assurance demand, would allow the BOEM Regional Director discretion to accept third-party decommissioning contracts and decommissioning schedules in lieu of supplemental financial assurance;
  • A 3-year phase in period for existing leaseholders would be allowed beginning with the effective date of the new supplemental financial assurance requirements; and
  • Lessees would no longer be required to provide an appeal bond in the amount of the demand as a condition of staying the demand during the IBLA appeal process.

What comes next? Publication of the 2026 Proposed Rule in the Federal Register has opened a 60-day public comment period. Between now and May 8, 2026, BOEM is accepting comments from the public and stakeholders on the proposed final rule. Notably, the 2026 Proposed Rule acknowledges that, while the total amount of supplemental financial assurance that may be required by oil and gas lessees and grantees operating on the OCS would decrease, certain companies may still face a financial impact because BOEM never fully implemented the 2024 Final Rule. 

For more information, contact Liskow attorneys Jana Grauberger, Kathleen Doody, and Margaret Chavez, and visit Liskow’s Federal Offshore Regulatory practice page. 

The proposal would roll back requirements from a 2024 rule that forced companies to set aside about $6.9 billion in supplemental financial assurance. Roughly $6 billion of that burden would have fallen on small businesses, which make up most of the operators on the Outer Continental Shelf. The change is expected to save industry about $484 million each year in compliance costs.

www.doi.gov/…

Louisiana Supreme Court Clarifies Scope of Delinquent Property Taxes in Tax Sale Redemption

3 minute read

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On March 6, 2026, the Louisiana Supreme Court issued a decision addressing the treatment of delinquent property taxes in tax sales and redemption calculations in Esplanade Mall Realty Holdings, LLC v. Lopinto. The Court reversed a trial court ruling that had declared a state tax statute unconstitutional and instead resolved the dispute based on statutory interpretation. The decision provides guidance for property owners, tax collectors, and investors regarding the scope of amounts that may be included in a tax sale price and the resulting redemption amount.

The case arose from unpaid 1992 ad valorem taxes assessed on property located at the former Macy’s parcel at Esplanade Mall in Kenner, Louisiana. The property owner argued that those taxes could no longer be collected through a later tax sale because Louisiana law prohibits conducting a tax sale for taxes more than three years old under La. R.S. 47:2131. After the property later became subject to a 2020 tax sale for unpaid 2019 taxes, the Jefferson Parish Sheriff included the earlier 1992 taxes, interest, and costs as part of the tax sale price. The owner sought a declaration that those decades-old charges could not be included in the tax sale or redemption price.

The trial court agreed with the taxpayer’s position and held that the statutory three-year limitation conflicted with provisions of the Louisiana Constitution governing property taxes. Because the trial court declared the statute unconstitutional, the case came directly before the Louisiana Supreme Court on appeal. The Supreme Court reversed the lower court and declined to reach the constitutional question. Applying the doctrine of constitutional avoidance, the Court held that the dispute could be resolved through interpretation of the governing tax statutes.

The Court concluded that the sheriff properly included the earlier tax obligations in the tax sale price. Under the statutory scheme in effect at the time of the sale, the “price” of a tax sale was required to include all “statutory impositions,” defined broadly to include ad valorem taxes and related charges appearing on the tax bill. Because the statutes did not exclude older delinquent taxes from that definition, the Court held that the earlier taxes, interest, and costs could be included in the tax sale price even though a tax sale could not be conducted solely to collect those older taxes.

The Court also rejected the taxpayer’s argument that the redemption price should exclude the older tax obligations. Under the statutory language governing redemption at the time of the sale, the payment required to redeem the property likewise included all statutory impositions. As a result, the Court denied the requested declaratory relief and remanded the matter to the trial court to calculate the proper redemption amount.

While ruling in favor of the tax collector under the prior statutory regime, the Court noted that the Louisiana Legislature has since addressed the issue. Amendments effective January 1, 2026 now expressly prohibit including delinquent charges more than three years old in the sale price of a tax lien auction. The Court observed that these changes demonstrate the legislature’s ability to address perceived inequities in the earlier statutory scheme.

The decision clarifies that under the pre-2026 tax sale framework, older delinquent taxes could still be incorporated into the price and redemption amount of a tax sale triggered by more recent unpaid taxes. Property owners therefore faced the risk that failure to pay current taxes could effectively revive decades-old obligations tied to the property.

Although the Legislature has modified the law going forward, the ruling remains important for disputes arising under the prior tax sale system and for understanding the interaction between statutory tax collection mechanisms and constitutional provisions governing property taxes. For more information, contact Liskow attorneys Bob Angelico, Leon Rittenberg III, Caroline Lafourcade, and Kevin Naccari, and visit Liskow’s Tax Practice page. 

Implementation Update: Louisiana Announces Selection of 19 FastSites

2 minute read

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On March 3, 2026, Louisiana Economic Development (LED) announced its selection of 19 sites across 16 parishes in the inaugural round of the FastSites Program. LED’s FastSites initiative is “designed to support land development and existing infrastructure into project-ready sites that position Louisiana to attract new opportunities and strengthen the state’s long-term competitiveness.” The 19 sites selected for the first round of funding include:

  • Acadiana Regional Airport, Iberia Parish
  • ARQ Red River, Red River Parish
  • Avondale Global Gateway, Jefferson Parish
  • Beaver Lake Industrial Park, Rapides Parish
  • England Airpark, Rapides Parish
  • Esperanza, St. Charles Parish
  • Franklinton Industrial Park, Washington Parish
  • Gulf South Commerce Park, St. Tammany Parish
  • Lake Charles Regional Airport, Calcasieu Parish
  • McLeod Business Park, Lafourche Parish
  • Natchitoches Parish Port Warehouse, Natchitoches Parish
  • Naval Support Activity Site, Orleans Parish
  • Port Distran, Rapides Parish
  • Port of Caddo Bossier, Caddo Parish
  • Port of Columbia, Caldwell Parish
  • Port Vinton, Calcasieu Parish
  • Proof Works, East Baton Rouge Parish
  • Riverplex MegaPark Port, Ascension Parish
  • South Monroe Industrial Park, Ouachita Parish

LED selected the sites following a review process that assessed “market viability, infrastructure gaps, execution timelines and return of capital to the state.” The sites can support a variety of uses and expand the state’s inventory of “development-ready assets capable of supporting advanced manufacturing, logistics and distribution, energy innovation and other priority industry sectors.” The selected sites receive funding for site investment and infrastructure improvements, which may include enhancements like access roads, drainage improvements, remediation, setting up utilities, or creating rail access.

Additional site-specific announcements and funding amounts will follow as Cooperative Endeavor Agreements are completed over the next six months. Stay tuned for further updates.

For more information on this and other state economic development initiatives, contact Liskow attorneys Neil Abramson, Greg Johnson, Caroline Lafourcade, Clare Bienvenu, and Colin North, and visit Liskow’s The Louisiana Industrial Insights Hub for the latest updates. 

 

Through FastSites, Louisiana is investing capital through a first-of-its-kind, state-led framework designed to strengthen site and infrastructure readiness before companies come calling.

www.opportunitylouisiana.gov/…

Orleans Parish Assessor Makes Announcements Regarding LAT 5 Business Personal Property Self-Reporting Forms

2 minute read

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The Orleans Parish Assessor’s Office has announced that all businesses operating in Orleans Parish should have received their annual LAT-5 Business Personal Property Self-Reporting Form. Business owners are required by law to report all business personal property, including inventory, furniture, fixtures, machinery, equipment, and other assets, used in their operations for ad valorem tax purposes. Completed forms must be filed by April 1 or within 45 days of receipt, whichever is later.

To streamline compliance, the Assessor’s Office has enhanced its online filing system. Businesses that file electronically can now take advantage of a carry-over feature that pre-populates prior-year asset listings, allowing taxpayers to update only assets that were acquired or disposed of since the previous year. These improvements are intended to reduce administrative burdens and minimize reporting errors for business owners.

To further assist taxpayers, the Assessor’s Office will host two informational sessions on completing the LAT-5 form and using the e-filing system. The first session will be held in person on Wednesday, March 11, at 9:00 a.m. at City Hall, 1300 Perdido Street, 4th Floor. A second session will be conducted virtually via Zoom on Wednesday, March 18, at 9:00 a.m. Attendance requires advance RSVP by emailing [email protected].

LAT-5 forms are available for download on the Assessor’s website, but businesses are strongly encouraged to file electronically through the online portal. With the filing deadline approaching, business owners should review their asset records and consult with their tax advisors regarding Orleans Parish personal property tax requirements. For more information, contact Liskow attorneys Bob Angelico, Leon Rittenberg III, Caroline Lafourcade, and Kevin Naccari, and visit Liskow’s Tax Practice page. 

These improvements are intended to reduce administrative burdens and minimize reporting errors for business owners.

Residential Real Estate Rule – FinCen Reporting Starting March 1st

6 minute read

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In 2024, the U.S. Department of the Treasury’s Financial Crimes Enforcement Network (“FinCEN”) issued the Anti-Money Laundering Regulations for Residential Real Estate Transfers (the “RRE Rule”) requiring the reporting of non-financed transfers of residential real property to certain legal entity and trust transferees. The RRE Rule seeks to “curtail the ability of illicit actors to anonymously launder illicit proceeds through transfers of residential real property, which threatens U.S. economic and national security.” Reporting under the RRE Rule began on March 1, 2026.

What Transfers Are Affected?

The RRE Rule applies if all the following conditions are met and an exception does not apply:

  • the property is Residential Real Property

  • the transaction is a non-financed transfer (i.e., the transfer does not involve an extension of credit to all transferees secured by the transferred Residential Real Property and extended by a financial institution having both an obligation to maintain an anti-money laundering program and an obligation to report suspicious transactions under the RRE Rule)

  • the property is transferred to a qualifying legal entity (such as an association, corporation, estate, limited liability company, or partnership) or qualifying trust

“Residential Real Property” means property located in the United States and is (1) real property containing a structure designed principally for occupancy by one to four families; (2) land on which the transferee intends to build a structure designed principally for occupancy by one to four families; (3) a unit designed principally for occupancy by one to four families within a structure on land; or (4) shares in a cooperative housing corporation.  In certain instances, apartments, condominiums, timeshares, undeveloped land, and vacant lots may be considered Residential Real Property.

Who Must Report?

Real estate professionals involved in the transaction of the Residential Real Property are required to file the reports, home buyers are not required to file unless they are involved in the functions listed below. There is only one reporting person for a transaction of Residential Real Property, the first person performing one of the following functions is required to report:

  1. the person listed as the closing or settlement agent on the closing or settlement statement for the transfer;

  2. if no person described above is involved in the transfer, then the person that prepares the closing or settlement statement for the transfer;

  3. if no person described above is involved in the transfer, then the person that files with the recordation office the deed or other instrument that transfers ownership of the Residential Real Property;

  4. if no person described above is involved in the transfer, then the person that underwrites an owner’s title insurance policy for the transferee with respect to the transferred Residential Real Property;

  5. if no person described above is involved in the transfer, then the person that disburses in any form, including from an escrow account, trust account, or lawyers’ trust account, the greatest amount of funds in connection with the Residential Real Property transfer;

  6. if no person described above is involved in the transfer, then the person that provides an evaluation of the status of the title; or

  7. if no person described above is involved in the transfer, then the person that prepares the deed or, if no deed is involved, any other legal instrument that transfers ownership of the Residential Real Property, including, with respect to shares in a cooperative housing corporation, the person who prepares the stock certificate.

The persons described above may enter into an agreement to designate which person will be the reporting person with respect to the reportable transfer. The person designated by such agreement shall be treated as the reporting person with respect to only a specific reportable transfer. If the above persons decide to use designation agreements, a separate agreement is required for each reportable transfer.

When is the Deadline for the Real Estate Report?

The Real Estate Report must be filed by the later date of either the final day of the month following the month in which closing occurred or thirty calendar days after the date of closing.

What Is Reported?

FinCEN requires the submittal of the Real Estate Report. The Real Estate Report includes the following information (as applicable):

  • reporting person – full legal name, category of reporting person (items no. 1 through 7 above), and street address of principal place of business in the United States

  • transferee entity – full legal name, trade name or “doing business as” name, if any, street address of principal place of business, and Internal Revenue Service (“IRS”) tax identification number (if none, foreign jurisdiction tax identification number or, if none, foreign jurisdiction entity registration number)

    • beneficial owner (if any) – full legal name, date of birth, residential street address, citizenship, and IRS tax identification number (if none, foreign jurisdiction tax identification number or non-expired passport number)

  • transferee trust – full legal name (full title of the agreement establishing the trust), date trust instrument was executed, IRS tax identification number (or, if none, foreign jurisdiction tax identification number), and whether the trust is revocable

    • trustee – full legal name, trade name or “doing business as” name, if any, street address of principal place of business, and IRS tax identification number (if none, foreign jurisdiction tax identification number or, if none, foreign jurisdiction entity registration number)

      • A trustee will be treated as a beneficial owner of a trust and must also report the information below

    • beneficial owner (if any) – full legal name, date of birth, residential street address, citizenship, and IRS tax identification number (if none, foreign jurisdiction tax identification number or non-expired passport number), and the category of beneficial owner

  • transferor individual – full legal name, date of birth, residential street address, and IRS tax identification number (if none, foreign jurisdiction tax identification number or non-expired passport number)

  • transferor entity – full legal name, trade name or “doing business as” name, if any, street address of principal place of business, and IRS tax identification number (if none, foreign jurisdiction tax identification number or, if none, foreign jurisdiction entity registration number)

  • transferor trust – full legal name (full title of the agreement establishing the trust), date trust instrument was executed, and IRS tax identification number (or, if none, foreign jurisdiction tax identification number)

    • individual trustee – full legal name, residential address, and IRS tax identification number (if none, foreign jurisdiction tax identification number or non-expired passport number)

    • entity trustee – full legal name, trade name or “doing business as” name, if any, street address of principal place of business, and IRS tax identification number (if none, foreign jurisdiction tax identification number or, if none, foreign jurisdiction entity registration number)

  • individual executing on behalf of transferee entity or trustee and transferor trustee – full legal name, date of birth, residential street address, IRS tax identification number (if none, foreign jurisdiction tax identification number or non-expired passport number), capacity of authorization, and, if the individual is acting in such capacity as employee, agent, or partner, the name of the individual’s employer, principal, or partnership

  • Residential Real Property – street address, legal description (such as section, lot, and block), and date of closing

  • any payments made – amount (including total consideration), method, whether held at a financial institution (name of such institution and account number), and the name of payor

  • any credit extended by a person or entity that is not a financial institution with an obligation to maintain an anti-money laundering program and obligation to report suspicious transactions under the RRE Rule

The RRE Rule impacts a number of common transactions, such as donations of real estate, transfers to revocable trusts, formations of joint ventures where real estate is involved, subdivision planning by real estate developers, cash sales of real estate where banks are not involved, and many others.  Additionally, the RRE Rule captures many non-taxable transactions as well as taxable transactions which would already be reported to the IRS.  For example, if an individual, entity, or trust loans a family entity or trust money to buy a house, this transaction must now be reported to the government pursuant to the RRE Rule.  

As a result of the RRE Rule, the professionals handling Residential Real Property transactions are now required to report information to FinCEN or otherwise face penalties.  Despite concerns as to the privacy of information of United States citizens, the government did not repeal or limit the scope of the RRE Rule as it did with the Corporate Transparency Act. Any entity or trust entering into a transaction closing on or after March 1, 2026, for the transfer of Residential Real Property, and the individuals providing transactional services to them, such as lawyers, title underwriters, title examiners and other persons handling real estate transactions, should keep in mind the RRE Rule. 

For additional information, please visit FinCEN’s Residential Real Estate Reporting page. If you have questions about how the RRE Rule may affect your transactions or compliance obligations, please contact Liskow attorneys Leon Rittenberg III, Caroline Lafourcade, Marilyn Maloney, or Bradford Laperouse.

BOEM Takes Next Step Toward Federal Oil and Gas Leasing Offshore California

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On February 27, 2026, the Bureau of Ocean Energy (“BOEM”) published its Notice of Intent (the “NOI”) to prepare a programmatic environmental impact statement for the Northern, Central and Southern California Planning Areas of the Outer Continental Shelf (the “Programmatic EIS”) in furtherance of proposed oil and gas lease sales in the Pacific Region under the 11th National OCS Oil and Gas Leasing Program (the “11th OCS Program”). The NOI is not an announcement of an oil and gas lease sale, but rather, is the start of information gathering for identifying issues and considering potential alternatives for leasing in the California Planning Areas, none of which have been offered for lease since October 1984, more than 40 years ago. The NOI opens up a 30-day period for public comment on the potential issues, alternatives, and mitigation factors that should be considered under the Programmatic EIS. 

BOEM prepares programmatic environmental impact statements (“PEIS”) on a planning area basis in order to assess potential environmental impacts, and mitigation measures, which may result from the exploration, drilling, operating, and decommissioning of oil and gas leases on the outer continental shelf in the planning area under review. A PEIS is prepared pursuant to the National Environmental Policy Act and seeks to determine whether the environmental impacts from leasing on the blocks to be potentially offered are adequately mitigated. As a result of the findings in a PEIS, certain areas and/or blocks may be excluded by BOEM from oil and gas lease sales. 

As of early 2026, there were 30 active oil and gas leases in the Pacific Region, all in the Southern California Planning Area, representing approximately 152,578 acres out of 205 million acres of the Pacific Region. Only 8 entities hold record title interests in oil and gas leases located in the Southern California Planning Area, with 5 entities serving as operators covering 23 platforms. BOEM estimates that there are 10.20 billion barrels of oil (“Bbo”) and 16.07 trillion cubic feet of natural gas (“Tcf”) of undiscovered technically recoverable reserves in the Pacific Region (with 9.81 Bbo and 13.82 Tcf attributable to the California Planning Areas). 

Six oil and gas lease sales are planned for the Pacific Region under the 11th OCS Program (limited to the Northern, Central, and Southern California Planning Areas) beginning next year.  Two lease sales, covering the Central and Southern California Planning Areas, are planned under the 11th OCS Program to occur in 2027, with three additional sales to be held in 2029, covering the Central, Northern, and Southern California Planning areas, and one final lease sale to be held in 2030, covering the Southern California Planning Area. 

Prospective leaseholders should be aware that BOEM and the Bureau of Safety and Environmental Enforcement (“BSEE”) (acting on behalf of the Secretary of the Department of Interior) coordinate and consult with affected state and local governments in the administration of leasing and regulation of operations under the Outer Continental Shelf Lands Act. Further, under the Coastal Zone Management Act, each federal agency activity affecting the coastal zone is to be carried out in a manner which is consistent with policies of affected state management programs. In addition, state and local governments have jurisdiction over pipeline segments and other facilities in state waters and onshore necessary for offshore oil and gas production. 

Attorneys at Liskow have extensive knowledge and experience with OCS leasing in the Pacific Region, and have assisted clients with matters involving acquiring and transferring Pacific OCS lease interests, including related due diligence, and various regulatory, operational, and decommissioning issues and concerns. We are also familiar with the Pacific Region’s federal regulatory environment.    

For more information regarding this topic, please contact Liskow attorneys Jana Grauberger, Kathleen Doody, and Bradford Laperouse. 

"BOEM invites input from all interested parties, including Federal, State, and local governments, and the general public … on the scope of the California Oil and Gas PEIS, significant issues, reasonable alternatives, potential mitigation measures, and the types of oil and gas activities of interest in the proposed lease sale areas."

www.boem.gov/…

Tax Court Rejects § 743(b) Basis Adjustment in Excess of $700 Million

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In Otay Project LP, Oriole Management LLC v. Commissioner, T.C. Memo 2026-21, the United States Tax Court disallowed a more than $700 million deduction claimed by a partnership as a § 743(b) basis adjustment and reaffirmed the importance of economic substance in complex tax restructuring. The ruling highlights how rote application of the partnership tax rules cannot override fundamental tax principles, especially in transactions involving aggressive basis adjustment strategies.

Background and Deal Structure: The case involves Otay Project LP (OPLP), a California limited partnership formed to develop Otay Ranch, a 22,000-acre master-planned community in Southern California. Over several years, the partnership sold land tracts pursuant to contracts accompanied by promissory notes, deferring income under the completed contract method (CCM) of accounting, which recognized income only as construction obligations were satisfied. After extended development and internal disputes, the partners executed a series of complex restructuring transactions designed to divide interests and facilitate estate planning. As a result of these transactions and subsequent transfers of upper-tier partnership interests to family trusts, the partnership underwent a technical termination under IRC § 708(b)(1)(B) in 2007. Because OPLP had made a § 754 election, a significant § 743(b) basis adjustment was recorded that purportedly increased inside basis by over $867 million for the benefit of one partner’s successor.

When OPLP later liquidated in 2012 without having completed its construction obligations, the deferred CCM income of more than $716 million became currently taxable. The partnership used the § 743(b) basis adjustment to offset this income and reported a roughly $743 million deduction on its 2012 return. The IRS, in a Notice of Final Partnership Administrative Adjustment (FPAA), disallowed approximately $714 million of the claimed deduction, prompting the Tax Court proceeding.

Tax Court’s Ruling on Basis Adjustment: The Tax Court held that the § 743(b) basis adjustment was fundamentally flawed because the partnership failed to account for the negative capital account and corresponding liabilities that would realistically affect a hypothetical liquidation. The court explained that Treas. Reg. § 1.743-1(d) requires the transferee partner’s share of adjusted basis to be determined based on all relevant rights and obligations, including liabilities reflected in capital accounts. OPLLC’s massive negative capital position, which resulted from prior tax-deferred distributions, directly contradicted the taxpayers’ claimed positive basis adjustment, rendering it incorrect under the statute and regulations.

Economic Substance: The court also sustained the IRS’s alternative position that the restructuring transactions lacked economic substance and should be disregarded under the longstanding substance-over-form doctrine and, by extension, the codified economic substance rules. Although the partners argued that the transactions served valid business and estate planning purposes, the court agreed with the Commissioner that the dominant purpose of the reorganization was tax avoidance. The restructuring produced circular flows of assets with no meaningful change in economic positions other than the tax benefits, which the court found insufficient to satisfy the required nontax business purpose.

Penalties Analysis: Despite disallowing the basis adjustment, the Tax Court declined to impose accuracy-related penalties under IRC §§ 6662(b)(1) and (b)(3). The court found that the partnership and its principals had reasonably relied on extensive advice from highly reputable tax professionals, including leading tax law firms, in a highly complex area of tax law. That finding demonstrated ordinary and reasonable care and negated the Commissioner’s argument that the taxpayers lacked reasonable cause or exhibited negligence.

The decision in Otay Project LP reinforces that mechanical compliance with a regulation does not insulate aggressive tax positions from audit adjustments, particularly under the economic substance doctrine. For more information, contact Liskow attorneys Leon Rittenberg III, Caroline Lafourcade, and Kevin Naccari, and visit Liskow’s Tax Practice page.