The practice of tax law involves providing advice on the structure of a variety of commercial transactions, negotiating their terms, and assisting clients with tax-related controversies, including any that may arise out of those transactions. The types of transactions covered can vary widely, from the formation of new enterprises, funds, and joint ventures to mergers and acquisitions, securities offerings, and bank financings and even to internal restructurings and bankruptcies.
The structure of a transaction can significantly affect its tax consequences, and very small changes in structure or in the underlying facts can have enormous tax significance. Tax lawyers design structures with those consequences in mind, while also taking into account the parties’ commercial goals, timing issues, and any other legal or accounting considerations. The tax treatment of some transactions — such as a “spin-off,” where a company distributes subsidiary stock to its shareholders — is highly complex, and tax lawyers may assist clients in obtaining confirmation of their transactions’ tax consequences from the IRS in the form of a private letter ruling.
Tax lawyers also review and negotiate the terms of the transaction, ensuring that the legal agreements implement the deal in a manner consistent with its intended structure. The agreements also govern the relationship between the parties. They may help the parties understand the intended tax treatment, identify certain tax exposures, and allocate responsibility between the parties for any taxes that may apply.
Tax lawyers also work with clients to determine the most tax efficient manner of carrying on ongoing business operations, taking into account federal, state, local, and international tax considerations.
On occasion, tax-related disputes arise between the parties to a transaction or with the IRS or another taxing authority. Tax lawyers may represent clients in administrative proceedings, private settlement negotiations, or litigation related to these controversies.
Tax lawyers are responsible for providing technical advice and analysis, but must fully understand the overall business transaction in order to do so. The best lawyers give advice in a way that is clear, thoughtful, and business-minded. Tax lawyers need to be closely involved in a transaction from the very beginning and throughout the transaction, in order to be able to give the best advice on an ongoing basis and to be able to modify the structure, if necessary, in response to any changes to the business terms of the transaction.
Stephen L. Gordon, Partner Andrew W. Needham, Partner Lauren Angelilli, Partner