David Forst, Jim Fuller
The Treasury and the IRS have proposed far-reaching new § 385 regulations. They were issued in the context of inversions, but their ramifications extend well beyond inversion-related earnings
Proposed Treas. Reg. § 1.385-2 sets forth important new documentation requirements. Contemporaneous documentation supporting the debt nature of a related-party instrument must be timely prepared and maintained for related-party debt to be treated as indebtedness for federal tax purposes. Without it, a taxpayer that is subject to the documentation requirements (below) cannot even argue that its debt instrument constitutes debt.
The documentation and financial analysis must support four central characteristics of indebtedness. Those characteristics are: a legally binding obligation to pay, creditor's rights to enforce the terms of the obligation, a reasonable expectation of repayment at the time the instrument is created and an ongoing debtor-creditor relationship during the life of the instrument.
The "binding obligation to repay" documentation evidence must be in the form of timely prepared written documentation executed by the parties.
The "creditor's rights to enforce terms" means that the taxpayer must establish that the creditor/holder has the legal rights to enforce the terms of the instrument. The proposed regulations provide examples of these rights, including the right to trigger a default and the right to accelerate payments. The creditor/holder must have superior rights to shareholders to share in the assets of the issuer in the event that the issuer is dissolved or liquidated.
The "reasonable expectation of repayment" means that the taxpayer must timely prepare documents evidencing a reasonable expectation that the issuer could in fact repay the amount of the purported loan. The proposed regulations provide examples of applicable documents, including cash flow projections, financial statements, business forecasts, asset appraisals, determination of debt-to-equity and other relevant financial ratios of the issuer (compared to industry averages). If a disregarded entity is the issuer and its owner has limited liability, only the assets and financial position of the disregarded entity are relevant.
The "genuine debtor-creditor relationship" requires taxpayers to prepare timely evidence of an ongoing debtor-creditor relationship. The documentation can take two forms. Issuers that complied with the terms of the instrument must include timely prepared documentation of any payments on which the taxpayer relies to establish debt treatment under general federal tax principles.
Issuers which failed to comply with the terms of the instrument, either by failing to make required payments or by otherwise suffering an event of default under the terms of the instrument, the documentation must include evidence of the holder's reasonable exercise of the diligence and judgment of a creditor.
The documentation must be prepared no later than 30 days after the date of the relevant event, which is either the date that the instrument becomes a related-party debt instrument or the date that an expanded group member becomes an issuer with respect to the instrument – generally the latter.
The proposed regulations authorise the IRS to treat an instrument issued in the form of debt between related parties (for this purpose, 50% of vote or value) as part debt and part equity, depending on the facts and taking into account general federal tax principles. For example, if the IRS's analysis supports a reasonable expectation that, as of the issuance of the instrument, only a portion of the principal amount will be repaid. The IRS determines that the instrument should be treated as debt only in part, the instrument may be treated as part debt and part equity.
Prop. Treas. Reg. §§ 1.385-3 and 1.385-4 provide rules that treat as stock certain instruments that otherwise would be treated as indebtedness for federal income tax purposes. The general rule treats an expanded group debt instrument (80% vote or value) as stock to the extent that it is issued by a corporation to a member of the corporation's expanded group (1) in a distribution; (2) an exchange for expanded group stock, other than an exempt exchange (as defined); or (3) in exchange for property in an asset reorganisation, but only to the extent that, pursuant to the plan of reorganisation, a shareholder that is a member of the issuer's expanded group immediately before the reorganisation receives the debt instrument with respect to its stock in the transferor corporation.
The term "distribution" is broadly defined as any distribution by a corporation to a member of the corporation's expanded group. Thus, a debt instrument issued in exchange for stock of the issuer of the debt instrument (that is, in a redemption) is a distribution.
The second provision, addressing debt instruments issued in exchange for expanded group stock, applies regardless of whether the expanded group stock is acquired from a shareholder of the issuer of the expanded group stock, or directly from the issuer. For purposes of this second provision, the term "exempt exchange" means an acquisition of expanded group stock in which a transferor and transferee of the stock are parties to a reorganisation that is an asset reorganisation in certain cases.
The third rule applies to asset reorganisations among corporations that are members of the same expanded group. Specifically, the third rule applies to a debt instrument issued in exchange for property but only to the extent that the shareholder that is a member of the issuer's expanded group receives the debt instrument with respect to its stock in the transferor corporation. This second step could be in the form of a distribution of the debt instrument to shareholders of the distributing corporation in a divisive asset reorganisation, or in redemption of the shareholder's stock in the transferor corporation in an acquisitive asset reorganisation. Because this rule only applies to a debt instrument that is received by a shareholder with respect to its stock in the transferor corporation, that debt instrument would, absent the application in Prop. Treas. Reg. § 1.385-3, be treated as "other property" within the meaning of § 356.
The funding rule treats as stock an expanded group debt instrument that is issued with a principal purpose of funding a transaction described in the general rule. Specifically, a principal purpose debt instrument is a debt instrument issued by a corporation (funded member) to another member of the funded member's expanded group in exchange for property with a principal purpose of funding:
1) a distribution of property by the funded member to a member of the funded member's expanded group, other than a distribution of stock pursuant to an asset reorganisation that is permitted to be received without the recognition of gain or income under § 354 or 355 or, when § 356 applies, that is not treated as "other property" or money described in § 356;
2) an acquisition of expanded group stock, other than in an exempt exchange, by the funded member from a member of the funded member's expanded group in exchange for property other than expanded group stock; or
3) the acquisition of property by the funded member in an asset reorganisation but only to the extent that, pursuant to the plan of reorganisation, a shareholder that is a member of the funded member's expanded group immediately before the reorganisation receives "other property" or money within the meaning of § 356 with respect to its stock in the transferor corporation.
The regulations are proposed to apply to any debt instrument issued on or after April 4, 2016 and to any debt instrument issued before that date but treated as issued after that date as a result of an entity classification election that is filed on or after that date. However, when provisions of the proposed regulations otherwise would treat a debt instrument as stock prior to the date of publication in the Federal Register of the Treasury Decision adopting these rules as final regulations, the debt instrument will be treated as indebtedness until the date that is 90 days after the date of publication in the Federal Register of the decision adopting the rule as final.
Guidant involves a group of US corporations that filed consolidated federal income tax returns (collectively, the "taxpayer"). During the years in issue, the taxpayer consummated transactions with its foreign affiliates including the licensing of intangibles, the purchase and sale of manufactured property, and the provision of services.
The IRS utilised § 482 to adjust the reported prices of the different transactions. The IRS asserted an adjustment to the taxpayer's income without making specific adjustments to any of the subsidiaries' separate taxable incomes. The IRS also did not make specific adjustments for each separate transaction, but rather asserted an aggregated transfer pricing adjustment.
The taxpayer filed a motion for partial summary judgment asserting that the IRS adjustments were arbitrary, capricious, and unreasonable as a matter of law since the IRS did not determine "true taxable income" of each controlled taxpayer as required under Treas. Reg. § 1.482-1(f)(iv) and did not make specific adjustments with respect to each transaction.
The court denied the taxpayer's motion stating that neither § 482 nor the regulations thereunder requires the IRS to determine the true taxable income of each separate controlled taxpayer within a consolidated group contemporaneously with the making of a § 482 adjustment. The court also held that the IRS is permitted to aggregate one or more related transactions instead of making specific adjustments with respect to each type of transaction.
While the court stated that Treas. Reg. § 1.482-1(f)(1)(iv) requires the IRS to determine both consolidated taxable income and separate taxable income when making a § 482 adjustment with respect to income reported on a consolidated return, the court held that as a matter of law the IRS can assert a § 482 adjustment before it determines the separate taxable income. The court stated that the regulation does not preclude the IRS from deferring making the separate taxable income determinations for each member until the time when such a determination is actually required.
The court stated that whether the IRS's decision to delay the separate-company taxable income computations constitutes an abuse of discretion under these circumstances is still in dispute and remains to be determined on the basis of the full record as developed at trial. Thus, the court did not conclusively hold that the IRS's § 482 adjustments were not arbitrary, capricious or unreasonable as a matter of fact. It only held that the IRS's § 482 adjustments were not arbitrary, capricious, or unreasonable as a matter of law.
The taxpayer also argued that the IRS's § 482 adjustments were arbitrary, capricious and unreasonable because the Service did not make separate adjustments for each transfer of intangible property, transfer of tangible property and provision of services. The applicable regulations in determining the arm's-length consideration aggregation is permitted if it serves as the most reliable means of determining the arm's length consideration for the transactions.
In a significant victory for the taxpayer, the Tax Court in Medtronic, Inc. v. Commissioner, T.C. Memo 2016-112, held that the IRS's transfer pricing adjustments (which amounted to almost $1.4 billion for the 2005 and 2006 tax years) were arbitrary, capricious, or unreasonable. The Tax Court's decision in Medtronic follows significant taxpayer victories in other § 482 cases, including Veritas v. Commissioner, 133 T.C. 297 (2009), nonacq., and Altera Corporation v. Commissioner, 145 T.C. 91 (2015).
The primary issue in Medtronic was whether income, related to certain inter-company licenses for intangible property required to manufacture medical devices and leads, should be reallocated under § 482 from Medtronic US to its Puerto Rican subsidiary (MPROC). Interestingly, the taxpayer and the IRS had reached an agreement on the royalty rates in a previous audit cycle, which resulted in a memorandum of understanding (MOU) between the parties regarding the royalties. However, after completing its examination of Medtronic's 2005 and 2006 returns, the IRS departed from the approach in the MOU and asserted a large royalty adjustment, which prompted Medtronic to then assert a refund based on its pre-MOU pricing.
Whereas the taxpayer in Medtronic applied the comparable uncontrolled transaction (CUT) method to determine the arm's length royalty rate on the intercompany sales, the IRS asserted that the comparable profits method (CPM) was the best method to determine the arm's-length royalty rates on intercompany sales. The IRS's position was based largely on its contention that MPROC performed only assembly of finished products, with Medtronic US performing all other economically significant functions.
The Tax Court rejected the IRS's use of the CPM method, as well as the IRS's characterisation of MPROC as providing only minimal contributions and functions. The Court stated that the commensurate-with-income standard under § 482 does not replace the arm's length standard, and that the IRS's use of CPM was therefore not required under the commensurate-with-income standard.
The Court ultimately found that the royalty rates charged for inter-company sales of devices and leads were not arm's length because certain adjustments were required to account for variations in profit potential. However, the Tax Court also appeared to criticise the IRS for adopting an 'all-or-nothing' approach by advocating a result based on the CPM using a value chain methodology, while refusing to suggest adjustments to Medtronic's CUT method for the devices and leads. Ultimately, the royalty rates determined by the Court appeared to generally fall in line with the royalty rates previously agreed to in the MOU.
Significantly, the Tax Court rejected the IRS's proposed aggregation of the transactions at issue, which would have treated MPROC as an ordinary contract manufacturer. Noting that the functions at issue in the covered transactions are able to exist independently, the Court determined that aggregation was not the most reliable means of determining arm's-length consideration for the controlled transactions.
The Tax Court also rejected the IRS's alternative argument that if a § 482 adjustment was not warranted, then Medtronic should be required to recognise a deemed royalty under § 367(d) for the transfer of intangible property by Medtronic US to MPROC. The Tax Court rejected this IRS alternative argument, stating that the IRS did not identify specific intangibles that were purportedly transferred from Medtronic US to MPROC.
Treasury and the IRS issued final regulations regarding country-by-country (CbC) reporting under BEPS Action 13. Treas. Reg. § 1.6038-4 generally incorporates the CbC report template proposed in BEPS Action 13. As such, the new reporting requirement would include reporting by a multinational group on income earned, headcount, taxes paid, and certain other economic indicators along with the location of the relevant economic activity. CbC reports would be required of U.S. parented multinational groups with $850 million or more in annual revenue.
The regulations take effect in the first tax year beginning on or after the date they were finalised. Thus, for calendar year taxpayers, they are effective beginning January 1 2017. The preamble states that the Treasury and the IRS have determined that the information required under the regulations will assist in better enforcement of the federal income tax laws by providing the IRS with greater transparency regarding operations and tax positions taken by US multinational groups. In addition to this direct benefit expected from collecting US CbC reports, pursuant to income tax conventions and other conventions and bilateral agreements relating to the exchange of tax information, a US CbC report filed with the IRS may be exchanged by the US with other tax jurisdictions in which the US multinational group operates that have agreed to provide the IRS with foreign CbC reports filed in their jurisdiction by foreign multinational corporate groups that have operations in the US.
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Alston & Bird's New York federal and international tax group is predominantly a cross-border tax practice and consists largely of the representation of foreign multinationals and high net-worth individuals and families. The state and local tax group advises on major constitutional law issues, and handles dispute resolution matters at all levels of the government and the courts, and is involved in all areas of multi-jurisdictional tax planning and structuring. Its clients include some of the largest Fortune 500 companies operating across multi-state lines. Tax department leader Edward Tanenbaum has three partners and three other tax professionals in his team.
Tanenbaum and senior associate Heather Ripley recently gave tax advice with respect to an offshore foundation and the effect on US beneficiaries, including entity classification analysis, grantor and non-grantor trust issues, as well as income and estate tax considerations. The firm also provided tax analysis for a multi-jurisdictional internal restructuring in a $50 million deal.
The firm advises companies from sectors including computers, software, online and digital, financial services, manufacturing, healthcare, and TMT.
Alvarez & Marsal, Taxand USA provides a range of transactional and advisory tax services to its clients. The New York office's practitioners' expertise includes cross-border income tax, state and local tax, and representation before the IRS and state tax authorities in tax disputes. Albert Liguori is the managing director of the firm's international tax team. He helps his multinational clients define and execute successful global tax strategies.
Global law firm Baker & McKenzie is chaired by Thomas May in New York, and provides advice on state and local tax, corporate tax and tax disputes. The practice has 16 partners, one of counsel, 13 associates, four economists, two analysts, one international tax director and three paralegals. The New York practice has tripled in size since 2012. Seven new tax professionals have joined the team over the past year, including key partners Maria Eberle and Lindsay LaCava.
The firm divides its practice into areas such as private wealth and tax controversy as well as significantly expanding its practices in M&A, international tax planning (including inbound expertise) and TP.
A client said: "Our experience with Baker & McKenzie was excellent, and I have already recommended them to others."
The firm has specific expertise in advising companies in the pharmaceutical and consumer goods areas, but also advises companies working in most other sectors. The New York office provided tax and legal support to Coach, an American luxury fashion company, on the post-acquisition integration of the Stuart Weitzman business, following Coach's $530 million acquisition of Stuart Weitzman in May 2015. The team also provided tax and legal support to McCormick & Company on the acquisition of Botanical Food Company (Gourmet Garden) for $114m.
Linda Swartz leads the tax department at Cadwalader, Wickersham & Taft, which has five partners and 10 other professionals. The firm offers advice on tax-free and tax-efficient M&A structures, spin-offs, inversions, Reverse Morris Trusts, and divestitures and joint ventures. The firm also regularly counsel clients on sophisticated corporate transactions. The firm has special expertise in advising financial services clients, including commercial and investment banks, insurance companies, funds, thrifts and financial intermediaries.
In 2015, the firm advised Salix Pharmaceuticals in connection with its $15.6 billion sale to Valeant Pharmaceuticals, including with respect to activist defence matters, and a competing bid made by Endo International plc. The transaction was the culmination of a multi-party sale process and followed a terminated inversion transaction on which Cadwalader also advised the company.
"I love Cadwalader – they are absolutely the best around. In particular Linda Swartz, who we have been using for years," said a client, while another said: "Swartz is the authority in the area of tax favoured transactions."
Chadbourne & Parke works with the tax aspects of clients' international and domestic transactions, such as tax sensitive domestic and cross-border M&A transactions and international reorganisations. The firm also advises private businesses and high net-worth individuals, as well as handling tax controversies and IRS rulings, tax legislative and regulatory issues. Lawrence Rosenberg is experienced in corporate transactions such as M&A, structured debt and lease financings, corporate restructurings and private business planning, as well as in representing clients in tax controversies and in obtaining IRS rulings. Bill Cavanagh, another partner in the firm, focuses on corporate, partnership, private equity and international tax matters. He regularly advises multinational and US clients on US and cross-border tax issues.
Cleary Gottlieb Steen & Hamilton is internationally known for having a solid tax practice. The tax group does innovative work on cross-border matters, tax planning and design of financial products, as well as global financial business structures and tax controversies.
The firm also provides sophisticated tax strategies for transactions, real estate transactions and financings, including work for REITs, and also works with M&A, restructurings, investment funds and international capital market transactions. Many of the firm's clients are multinational enterprises. The firm's partnership has grown over the past year, and there are now nine partners in the firm's New York office.
James Duncan works with the US and international tax aspects of public and private acquisitions, restructurings and joint ventures, tax planning for financial services companies and other multinational businesses. He also covers securities offerings, derivatives and new financial products.
James Peaslee, who has been with the firm since 1976 and became a partner in 1984, is an author and expert on the tax aspects of major transactions. Jason Factor has been a partner since 2005 and has significant experience with private equity and hedge funds, partnership and compensation issues, joint venture arrangements, acquisitions and divestitures and financing transactions. Erica Nijenhuis is an expert on US income tax and inbound and outbound business operations. Diana Wollman, a former director of international strategy for the IRS, joined the practice in 2015. Her practice focuses on a wide range of US and international tax matters, including tax controversy issues. Other partners are Meyer Fedida, Corey Goodman, William McRae and Yaron Reich.
The tax team at Clifford Chance provides services within M&A, joint venture, stamp duty, VAT and international tax as well as domestic tax. Its litigation team assists clients with tax-related disputes and on matters of tax compliance. Donald Carden advises multinational corporations, financial institutions, insurance companies and funds on federal and New York state income tax issues, while Richard Catalano is a general tax law specialist, with an emphasis on partnership and corporate tax planning and the taxation of real estate collective investment vehicles. Philip Wagman advises on domestic and international tax matters, including M&A, restructurings, joint ventures and LBOs, and David Moldenhauer provides tax and structuring advice on international financial and business transactions. Avrohom Gelber specialises in US tax law, with a focus on cross-border finance and capital market transactions.
Cooley's tax practitioners help clients with structuring their business transactions and resolving tax controversies. The team works with US federal, state, local and international tax law. Clients of the firm include Adobe Systems, HSBC Bank, MetLife, Shell Oil Company, Starwood Hotels and Verizon Communications.
Kathleen Pakenham, a resident in the firm's New York office, is co-chair of the tax practice group and a member of the litigation department. She gives advice on matters involving federal tax law and procedure, advises clients at the pre-litigation assessment phase, and represents clients involved in all types of internal and governmental investigations.
Well respected by their peers, Cravath, Swaine & Moore is a full-service law firm known for its expertise in tax. The firm advises its clients on US and international transactions and designs tax-efficient structures for M&A, spin-offs and joint ventures. The firm is also experienced in securities offerings, commercial lending transactions, tax planning, tax controversies and litigation.
Cravath's practitioners include Stephen Gordon, Lauren Angelilli, Christopher Fargo, David Finkelstein, Andrew Needham and Leonard Teti. Gordon and Angelilli have extensive experience in advising clients on the tax aspects of major transactions, and Gordon recently represented KION Group in its pending $2.1 billion acquisition of Dematic from funds managed by AEA Investors and Ontario Teachers' Pension Plan.
Fargo's practice focuses on the tax aspects of M&A, securities offerings, joint ventures and private equity fund structuring, while Finkelstein provides estate planning, tax and other advice to high net-worth individuals and families. Needham helps with advisory work on M&A, spin-offs, private equity and hedge funds, partnership taxation and general tax planning. Teti focuses on advising clients on the tax aspects of complex M&As, spin-offs, private equity transactions and bank financings. His client list includes AmerisouceBergen, Associated Partners, Barnes & Noble and Time Warner.
Davies Ward Phillips & Vineberg has offices in Canada and the US. The New York office's practitioners are experts on cross-border matters, and the department focuses on corporate M&A tax, and corporate finance as well as securities and commercial real estate transactions. The tax departments in New York, Montreal and Toronto have over 30 members altogether. The team works with corporate and international tax planning, REITs, M&A, commercial real estate, financings and derivatives, investment funds, transfer pricing, personal tax planning and executive-compensation arrangements, sales tax, and dispute resolution and litigation.
Peter Glicklich is the managing partner of the New York office. For over 25 years, Glicklich has counselled American and international firms on their international and corporate tax concerns.
International law firm Davis Polk & Wardwell has offices in Brazil, China, France, Japan, Spain, the UK and the US. The firm is known for design and execution of financial products, and also offers services in domestic, cross-border and international tax law. Other topics covered include investments funds, tax controversy, tax insolvency and restructuring. The firm's practitioners also have experience in the tax aspects of M&A and other transactions. The New York office works on the full spectrum of domestic and international transactions and has been part of many of the most significant business and legal developments of the past 160 years.
Neil Barr and Avishai Shachar lead the tax practice. Barr frequently advises clients on federal income tax matters and his expertise covers M&A, joint ventures, spin-offs and split-offs. Shachar works with M&A, spin-offs and financial products. His recent work includes the spin-off of YUM! Brands from PepsiCo, Visteon from Ford, and Discover from Morgan Stanley. Barr has advised Citigroup in connection with numerous matters, including its $306 billion loss protection agreement with the US government in 2008 and its joint venture of the Smith Barney business with Morgan Stanley in 2009. Mario Verdolini heads the firm's tax litigation practice and regularly represents clients in litigation and other tax controversies.
Burt Rosen is the leader of the tax group at Debevoise & Plimpton, which consists of nine partners including Rosen, and 27 other tax professionals. The firm is well spoken of by its peers, and provides innovative tax advice in domestic and cross-border transactions. The team works closely with its clients on matters concerning M&A, international transactions, private equity and hedge fund formations, joint ventures, bankruptcies and restructurings, public and private financings, and real estate transactions. Tax chair Rosen's practice focuses on the tax aspects of sophisticated financing transactions, as well as M&A.
In early 2016, Debevoise & Plimpton advised Activision Blizzard in its $5.9 billion acquisition of King Digital Entertainment, a gaming company headquartered in Ireland. Activision Blizzard, a member of the S&P 500, is the world's most successful stand-alone interactive entertainment company. The transaction involved complex international tax structuring and financing issues.
"Debevoise is a top-tier valued long-term partner for our legal needs. I would in particular recommend Peter Furci," said a client. Another client said: "Michael Bolotin is our primary tax relationship lawyer. The lawyers we work with at Debevoise & Plimpton work very hard to deliver excellent legal advice. We could not be happier with their innovative approaches to complex issues."
Deloitte is one of the largest tax service firms in the US, and has 1,182 partners and 9,118 associates. The firm is full-service and advises on all types of tax issues, including US inbound and outbound tax issues. Tom Driscoll, US leader for international tax and TP, specialises in international tax and financial services taxation. Kevin Ruane heads the New York office, which comprises 116 tax professionals who work in international tax, and 14 who work with indirect tax. Key partners include Jo Ann Catalano and David Warco. Catalano has been with the firm for more than 27 years, while Warco has more than 34 years of public accounting experience.
EY's professionals offer services in the areas of tax planning, international and corporate tax, state and local tax, M&A, TP planning, transactions and compliance services. Jonathan Lindroos is the tax leader in the Northeast and Scott Shell leads the Southeast, while Mark Mukhtar heads the Midwest, Amy Ritchie leads the Southeast and Beth Carr is the leader for the West.
DLA Piper's tax practice is chaired by David Colker, Sang Kim, Gerald Rokoff and New York-based Kathy Keneally. The New York office has 10 partners and 26 other tax professionals, who work with indirect tax, corporate tax, tax disputes and tax compliance and accounting.
In April 2016, the firm advised a company on its acquisition of a 49% interest in another company, an office building. The project was innovative because of the complex structure that the building is held in, which required an analysis from both a joint venture and real estate investment trust perspective. The project also required complex tax analysis.
The New York tax practice of DLA Piper has a varied list of clients in the United States and across the globe. The group provides tax and business planning advice and dispute resolution representation on all federal, state and local matters. Other areas of experience include real estate taxation, M&A, and divisions, tax disputes, tax policy and legislation, complex international tax, emerging growth and venture capital, investment funds, state and local taxation, partnerships, LLCs and syndications, executive compensation, closely held businesses, leverage lease and other financing transactions, financial products and estate planning.
New York-based Robert Scarborough and D.C.-based Claude Stansbury are co-heads of the tax department at Freshfields Bruckhaus Deringer. The firm recently hired two new associates in Adam Kobler and David Mitchell, and now have three associates, two senior associates and two partners. The firm's practitioners are experts on inbound M&A transactions. Transactions performed by the team include public and private M&A and de-mergers, joint ventures and partnerships, flotations and privatisations, reorganisations, private equity, investments and fund structuring, equity and debt capital markets, securitisations and banking, finance and derivatives. The firm's practitioners advise on structured finance, asset finance and leasing, and restructuring and insolvency. Clients also go to Freshfields for advice on corporate tax, dispute resolution and tax policy, risk management, international corporate structuring, TP, tax-efficient IP structuring, employee benefits and executive compensation, and regulatory and capital solution.
Scarborough currently teaches the international tax course at Columbia Law School and has previously taught at NYU Law School. Stansbury's clients include organisations with global interests or operations.
Fried, Frank, Harris, Shriver & Jacobson represents some of the leading corporations and financial institutions in the world and advises on a broad range of tax law. Robert Cassanos is the chair of the tax department in New York, and is seasoned in cross-border taxation and counsels on various transactions such as public and private M&A, leveraged buyouts, cross-border acquisitions, joint ventures, fund formations, financings and REITs. The practice is focused on corporate transactions, including M&A and dispositions, spin-offs and joint ventures. The tax department also practises in the areas of asset management tax issues, tax issues associated with financing and capital market representations. Clients also seek the firm's advice on real estate transactions, bankruptcy and restructuring, international tax planning and tax controversy.
The practitioners at Jones Day offer a full range of legal services to local, national, and global clients in the areas of bankruptcy tax, international tax, M&A, private equity and real estate, state and local tax, structured finance, tax audits and controversies and tax credit transactions. Edward Kennedy is the practice leader. He works with strategic investors, private equity groups, and hedge funds on all aspects of federal and international taxation. This includes M&A, debt instruments and derivatives, foreign currency and cross-border structured finance.
The tax department at Kirkland & Ellis comprises 44 partners and 31 other tax professionals. The firm provides its clients with creative tax planning for complex transactions. The group has a strong international reputation for providing sophisticated tax counselling on US and foreign tax issues and effectively representing its clients in tax disputes worldwide.
The tax group can be divided into two areas: tax planning in connection with domestic and foreign M&A, buyouts, fund formations, restructurings, bankruptcy reorganisations, financings, executive compensation arrangements and other sophisticated transactions, and contested tax matters in connection with challenges by the IRS and by foreign and state tax authorities. Clients of the firm work in sectors like computers, software, online and digital, transport, manufacturing, healthcare, hospitality, and energy and utilities.
Dean Shulman is a senior partner in the firm's New York office. He represents clients on a wide range of US and international tax matters, including M&A, divestitures, tax-free spin-offs, leveraged buyouts, initial public offerings and the formation of funds.
KPMG's New York office offers a broad range of tax services and employs around 3,500 tax, audit and advisory professionals in total. Its tax professionals handle federal, state and local taxes, indirect taxes, inbound investments, international tax, M&A and restructurings, tax department performance, tax dispute resolution, trade and customs, transfer pricing and valuation services.
Jeffrey LeSage is the US vice chairman of KPMG. He oversees the team across all tax disciplines and specialty practices. Joe Hargrove is the principal and partner in charge of KPMG's New York financial services tax. Brian Trauman leads the national TP practice for the firm.
Clients from a wide range of industries seek tax advice from the practitioners at Latham & Watkins. Lisa Watts and Bradd Williamson are co-chairs of the tax department in New York. Watts's practice concentrates on corporate and partnership taxation, while Williamson regularly advises private equity funds and publicly held corporations on various tax matters. The practice counsels corporations, partnerships, REITs, banks, venture capital and financial advisory firms on US federal income tax and employee benefits issues. The practitioners practice in the areas of transactional tax, international tax, tax controversy, tax-exempt organisations and benefits, compensation and employment. On the controversy side, the practitioners have strong experience dealing with the IRS in administrative proceedings, and in courts, as well as before the IRS.
Gordon Warnke is the global head of Linklaters's tax practice, as well as head of the US tax practice. Linklaters provides advice on cross-border and transactional tax matters to corporates and financial institutions. The firm focuses on M&A and joint ventures, capital raising, tax-based and structured finance, and real estate and investment funds. The firm also has a contentious tax team that assists with disputes. Warnke's expertise includes the US federal income taxation of domestic and international M&A, spin-offs, divestitures and restructurings.
The tax department at Mayer Brown's New York office is made up of 11 partners and eight other tax professionals. The firm represents clients in a variety of situations, such as counselling corporations during tax audits, pursuing administrative appeals of audit results, litigating tax matters at the trial court or appellate court level, and providing clients with advice and representation involving international tax matters such as TP. The firm's transactional and tax planning practice covers every aspect of corporate, partnership and individual taxation. Two of Mayer Brown's tax leaders, Brian Kittle and Jason Bazar, are residents in the New York office.
One client said: "Mark Leeds in the New York office is an excellent tax adviser", while another said: "I was very pleased with their responsiveness and the quality of their advice. They are also very thorough and have frequently followed up with me to make sure I am apprised of any new developments that might impact my company."
The firm represented Tyco International and related companies in the US Tax Court with respect to the deductibility of interest paid by Tyco International entities in the US to a related finance company in Switzerland. Mayer Brown filed 15 US Tax Court petitions involving $3 billion in disallowed interest expense incurred from 1998 through 2000. The cases potentially implicated nearly $10 billion in interest expense incurred over a period of 10 years, according to the companies' public statements. This was a significant case because cross-border intercompany debt is an area of particular interest to the IRS. The case settled in early 2016 and was favourable to the firm's client, according to media.
Tom Giegerich leads the tax practice in McDermott Will & Emery's New York office, which employs seven additional partners and three other fee earners including Kathleen Quinn, who joined as an associate in June 2015.
The New York office has been practicing tax for more than 25 years, and offers complex tax structuring services to large companies and financial organisations. The firm also offers strong advice in international and US-focused tax matters, moving beyond the corporate transactional work which many New York practices focus on. Indeed, other firms often refer work to McDermott Will & Emery.
In one deal, Giegerich, Michael Wilder and Patrick McCurry acted as tax counsel to an investment advisory company in connection with a potential acquisition of a competitor. The advice covered the use of corporate stock of publicly-traded parent company and LLC interests in operating business in connection with structuring possible 'rollover' scenarios.
In another deal, the firm demonstrated its cross-border capabilities by working on a German VAT dispute that involved, in part, retroactive rectification issues which were under review by the European Court of Justice.
Key industries for McDermott Will & Emery include financial services, food and fast-moving consumer goods, healthcare and pharmaceuticals and manufacturing. The firm operates across all industries, but other areas where the firm is particularly strong are TMT, hospitality and tourism, computers, digital and online and energy and utilities.
Other key partners include John Lutz, Peter Faber and Arthur Rosen.
Milbank, Tweed, Hadley & McCloy's tax practice focuses on financial products, executive compensation and employee benefits, tax controversy, international tax, investments funds tax, M&A tax, private equity, financial restructurings, project finance tax and renewable energy, and transportation and telecommunications. Led by Russell Kestenbaum, the firm represents clients in matters of audit assistance, administrative appeals, claims for refunds and litigation at all levels. Kestenbaum's practice focuses on the tax issues that are related to bankruptcies and out-of-court debt restructurings, as well as initial public offerings, domestic and cross-border M&A, structuring for private-equity funds, and debt issuances.
Morrison & Foerster offers services within state, local and federal tax. The team provides advice on capital market transactions, M&A, private equity and real estate transactions. The firm also represents domestic and international corporations in structuring and implementing both taxable and tax-free acquisitions and dispositions of stock and assets of public and private companies. Craig Fields and Thomas Humphreys co-chair the tax department. Fields focuses on state and local tax litigation and planning and has been involved in controversies before the administrative and judicial systems, while Humphreys is experienced in capital markets transactions, financial instruments, real estate investment trusts, M&A, bankruptcy and reorganisation, tax reporting and withholding and international transactions.
Osler, Hoskin & Harcourt has around 60 practitioners, and operates in offices in Toronto, Montreal, Calgary, Ottawa and New York and advises on a broad range of tax matters. The firm offers expertise in M&A, corporate reorganisations and restructurings, general tax advisory, tax litigation and dispute resolution, transfer pricing and Canada/US cross-border tax planning. David Hardy focuses his practice on corporate and international tax, including the tax issues affecting corporations in the energy industry, while Paul Seraganian handles cross-border M&A, financings and restructurings. Kevin Colan focuses on the US federal income treatment of cross-border transactions and multinational corporations.
The tax team at Paul Hastings advises and represents companies across a broad range of transactional, business planning and tax litigation issues. The practice offers services within international and national capital markets, cross-border M&A, real estate and real estate funds, private equity, business restructurings, international treaty planning, investment management, aircraft finance, project finance and renewable energy, executive compensation and tax-exempt entities. Andrew Short is a partner in the New York office. He represents a broad range of domestic and international clients with respect to the tax aspects involved in planning, structuring, and negotiating business operations, transactions, and financings.
The tax team at Paul, Weiss, Rifkind, Wharton & Garrison is involved at every stage of the deals it takes on, from structuring through to implementation.
The firm offers services such as domestic and cross-border acquisitions, divestitures and spin-offs, multinational investment and venture capital funds, financings including public and private securities offerings, securitisations, project financings and leveraged leases, bankruptcy and insolvency reorganisations and restructurings, partnerships and joint ventures and real estate and entertainment transactions and matters.
Richard Bronstein and Jeffrey Samuels are co-chairs of the tax department. Bronstein focuses primarily on the representation of private investment funds and their portfolio companies, while Samuels' representative clients include Citigroup, Discovery Channel, Time Warner Cable, Burger King, MacAndrews & Forbes and Virgin Group.
The tax department at Pillsbury Winthrop Shaw Pittman provides services in a wide range of domestic, international, state and local tax matters. Clients of the firm are multinational corporations, financial institutions, international and domestic joint ventures and project developments, new business ventures, non-profit organisations and individuals. Leader of the tax department in New York is James Chudy. His practice is focused on the tax related aspects of M&A, restructurings, spin-offs, joint ventures and securities offerings. His clients are both domestic and international, and work across a broad spectrum of industries.
Proskauer Rose has a tax department that advises a broad range of clients, including Fortune 500 corporations, investment funds, institutional investors, tax-exempt organisations and executives. The practice focuses on bankruptcy and restructuring, business transactions and M&A, capital markets, cross-border transactions and international taxation, financial products and investment management investment funds, real estate funds, REITs and real estate transactions, securitisations, structured finance, tax controversy and audits and tax-exempt issues. Ira Bogner is the chair of the tax department. He counsels clients like financial services companies, entertainment industry clients and tax-exempt organisations.
PwC's US tax services department advises on international tax matters, state and local tax, tax accounting, tax controversy and regulatory processes, tax credits, deductions and studies, tax reporting and strategy, transfer pricing and US inbound tax. Mark Mendola is the US managing partner and vice chairman. Having previously served as the US tax leader, Mendola is responsible for the US advisory, assurance, and tax practices and has been a partner in the firm since 1998. Michael Shehab serves as leader for the US tax technology, compliance and sourcing for the firm and has worked with leading companies for over 18 years.
The tax law firm of Roberts & Holland is one of the largest in the US. The firm provides services in corporate and international tax, real estate tax, tax controversy and litigation, state and local tax, employee benefits, executive compensation, estate and personal tax planning, workouts and debt restructurings, and tax-exempt organisations. Lary Wolf has more than 35 years of experience working with US and foreign clients. He designs tax sensitive structures for the ownership, operation and disposition of real property.
The tax practitioners at Ropes & Gray focus on domestic and cross-border tax planning, structuring M&A, spinoffs, joint ventures, financings, reorganisations, recapitalisations, and debt and equity financing techniques. On the controversy side, they advise on IRS examination issues, appeals, tax litigation and state tax controversy matters. Clients can be found in public and private companies, private equity funds, public and private mutual funds, hedge funds, institutional investors, and other institutions in the capital markets. Partner Lee Allison has experience in the US federal income tax aspects of domestic and international M&A, while Robert Fischer leads the firm's litigation department and often litigates large transactional, contract and partnership disputes. Daniel Kolb practices in the areas of transactional tax matters and represents large investors in their transactions.
The team at Shearman & Sterling provides its clients with strategic tax planning advice and representation on complex corporate and finance transactions. The firm also handles tax controversy matters such as audits in the US and Europe, litigation, tax rulings, competent authority proceedings and APAs.
The tax group also represents multinational companies in cross-border M&A transactions and financial offerings in multiple jurisdictions. Clients include companies in banking and financial services, insurance, technology, real estate, hospitality and private equity.
Laurence Bambino co-heads the firm's global tax group and works in a variety of areas of tax law, with emphasis on the tax treatment (domestic and international) of corporate restructurings, spin-offs, dispositions and acquisitions and transactions involving cross-border tax planning and tax rulings.
The practitioners at Sidley Austin have special experience in advising on the tax aspects of private equity and M&A transactions. The firm also represents clients in issues with the IRS and in litigation in various courts. Another area of expertise is tax matters related to capital markets, especially in the areas of securitisation, structured finance, derivatives and debt and equity offerings. Laura Barzilai and Robert Kreitman co-head the firm's tax department. Barzilai is a transactional and tax controversy practitioner with more than 25 years of experience. She focuses on federal income tax matters, domestic and cross-border M&A, tax-free reorganisations, joint ventures, restructurings and other transactions. Kreitman focuses on structured finance, securitisation, financial products and credit derivatives.
Simpson Thacher & Bartlett advises multinationals, banks, investment funds and other sophisticated businesses on tax matters. The firm's work includes advising principals on M&A and private equity deals, and structuring and implementing real estate investments by fund sponsors and handling M&A deals, IPOs, financings and restructuring. The firm also advises on innovative capital markets offerings. John Hart is the head of the tax department and advises on IPOs, formation of private investment funds, REITs and real estate transactions, asset management, M&A and publicly traded partnerships. Some of Hart's clients include Hilton, Oaktree, La Quinta and Blackstone.
Skadden, Arps, Slate, Meagher & Flom offers a variety of transaction, litigation and regulatory services to local, national and international clients. Stuart Finkelstein is head of the global tax group. He represents clients in a wide range of tax matters and has particular expertise in M&A, divestitures, including spin-offs, debt and equity offerings, corporate and partnership restructurings and joint ventures.
Finkelstein represented BankUnited in its acquisition of Herald National Bank and various equity offerings. He also represented Citigroup in a number of acquisitions and divestitures, including the sales of its life insurance and annuities businesses to MetLife and its acquisition of Grupo Cuscatlán and Bank of Overseas Chinese. The New York tax practice has 11 partners, including Pamela Lawrence Endreny, Edward Gonzalez and Victor Hollender.
The tax practitioners at Sullivan & Cromwell offer services within tax controversy and litigation, corporate law, M&A, restructuring and project development. Clients of the firm come from sectors like commercial real estate, consumer and retail, consumer financial services, corporate governance, cybersecurity, environmental, financial services, healthcare and life sciences, infrastructure, natural resources and sports and entertainment.
The tax group is well known for its innovative tax planning and resolution of important tax controversies. New York office resident Ronald Creamer is the head of Sullivan & Cromwell's tax group, and also leads the group's M&A practice. Creamer's practice has focused on distressed acquisitions and dispositions in the financial sector of late, as well as the maintenance and value optimisation of beneficial tax attributes. He is also an expert on cross-border transactions, and has represented clients like Barclays, Dr Pepper Snapple Group, Cablevision Systems Corporation and Zurich Financial Services.
Torys's New York team is a leader in Canada/US cross-border work. It is well known for its transactional work for international and domestic clients. The firm's expertise includes international tax, tax controversy and litigation, tax structuring and planning and transfer pricing. James Guadiana advises a number of public corporations listed on the London, Hong Kong and Toronto stock exchanges. Peter Keenan is experienced in US and cross-border corporate M&A and the tax aspects of equity and debt offerings. David Mattingly's practice focuses on the tax aspects of cross-border transactions and business operations. Scott Semer advises pension plans and sovereign wealth funds on investments in the US and around the world.
Vinson & Elkins's tax practice has 24 partners and 29 other professionals. The firm has hired eight new tax professional in the last years. George Gerachis is head of the tax department and based in Houston. He is recognised by a competing firm as a leading practitioner within tax controversy and litigation.
The firm's clients are engaged in many different industries including energy, technology, healthcare, private equity, financial services, real estate, medical devices, airlines, chemicals, insurance, entertainment and retail. The firm offers advice across a broad spectrum of transactions, including corporate finance, spin-offs, acquisitions and dispositions of businesses and assets, cross-border acquisitions and divestitures, partnerships and joint ventures and REITs. The firm also offers services in the areas of tax controversy, tax litigation, transfer pricing and controversy planning.
The tax practice at Wachtell, Lipton, Rosen & Katz is experienced in the fields of M&A, strategic investments, takeovers and takeover defence, corporate and securities law, and corporate governance. Other areas covered by the team are corporate tax, litigation, restructuring and finance and tax. The litigation group represents clients in mediation, arbitration and at trial in the country's state and federal courts.
The tax group has four partners, two of counsels and seven associates. Joshua Holmes, Deborah Paul, Jodi Schwartz and Eiko Stange are partners in the firm. Holmes has been a partner since 2007 and focuses on the tax aspects of corporate transactions, primarily M&A, joint ventures, spin-offs and financial instruments. Paul has been the principal tax practitioner on various domestic and cross-border transactions, while Schwartz works with the tax aspects of corporate transactions. Stange has served clients in industries like media and entertainment, real estate, retail and banking and financial services. His practice focuses on the tax aspects of US and cross-border M&A, spin-offs and other dispositions, leveraged buyouts, joint ventures and financing transactions.
The 72 tax practitioners at Weil, Gotshal & Manges assist their clients on all types of tax matters. The team consists of 26 partners and 46 other professionals, and is led by co-heads Kenneth Heitner and Martin Pollack. The team has expertise delivering innovative and tax-efficient solutions on nearly every type of domestic and cross-border transaction presenting significant tax issues, including complex M&A, private equity and private funds matters, restructurings and recapitalisations, securitisations, real estate, capital markets and other financing matters. Co-head Pollack has experience in structuring complex private equity and M&A transactions, while Heitner covers the full range of tax issues affecting corporations transacting their business in the US and abroad.
The firm is advising the Dow Chemical Company, a diversified provider of chemical, plastic, and agricultural products and services, on the tax aspects of its $130 billion all-stock merger of equals with E. I. du Pont de Nemours and Company, an industrial conglomerate with operations in agriculture, electronics, biosciences, chemicals, materials and safety and protection. Upon completion, the combined company will be the world's largest chemical company. Heitner and Chayim Neubort are lead tax partners in the case.
Weil also advised Luxembourg-based JAB Holding Company, as leader of an investment group, on the tax aspects of that group's $13.9 billion acquisition of Keurig Green Mountain, a provider of specialty coffees and of single-cup brewing system coffee makers. Many of the firm's clients work in sectors such as education, manufacturing, healthcare and telecommunications, but the firm also advises companies in numerous other sectors.
William Dantzler serves as the head of White & Case's tax department in the Americas, and is based in New York. The practice is mostly transactional, and its tax practitioners have expertise in tax structuring, capital markets and securities transactions, alternative investment funds, project and asset finance, tax planning, joint ventures and partnerships, and financial products. The firm works with companies in healthcare, energy, industrial machinery, aviation and technology.
Dantzler works on domestic and international corporate tax matters, structuring for public and private equity M&A, and other international transactions.
Willkie Farr & Gallagher has an international, multi-disciplinary tax group that provides tax planning and structuring advice to its clients. Led by Richard Reinhold, the tax practitioners work with its M&A, transactional, private equity, insurance transactional, real estate, asset management and business reorganisation and restructuring practitioners on complex domestic and cross-border transactions. They also handle tax controversy matters. Reinhold's practice includes domestic and international business tax matters relative to M&A, joint ventures, investment funds, corporate restructurings and financing transactions.
The tax practice of Winston & Strawn handles all areas of tax law. The firm's around 40 practitioners have represented some of the US's largest public companies on matters of federal tax planning, state and local tax and controversy. Clients of the firm include Cisco Systems and JPMorgan Chase.
Edmund Cohen, a partner in the New York office's tax department, has been with the firm since 2005. He has advised clients like Morgan Stanley, Barclays and Hunter-Douglas. His experience includes tax planning for international corporate businesses, investment funds, high net-worth families, structuring foreign investment in US real estate, tax-advantaged financings and derivative transactions and corporate transactions.
|Tier 1 - US: New York|
|Cleary Gottlieb Steen & Hamilton|
|Cravath, Swaine & Moore|
|Davis Polk & Wardwell|
|Skadden, Arps, Slate, Meagher & Flom|
|Sullivan & Cromwell|
|Wachtell, Lipton, Rosen & Katz|
|Weil, Gotshal & Manges|
|Tier 2 - US: New York|
|Baker & McKenzie|
|Debevoise & Plimpton|
|Paul, Weiss, Rifkind, Wharton & Garrison|
|Shearman & Sterling|
|Simpson Thacher & Bartlett|
|Tier 3 - US: New York|
|Cadwalader, Wickersham & Taft|
|Freshfields Bruckhaus Deringer|
|Fried, Frank, Harris, Shriver & Jacobson|
|Kirkland & Ellis|
|McDermott Will & Emery|
|Milbank, Tweed, Hadley & McCloy|
|Tier 4 - US: New York|
|Alvarez & Marsal, Taxand USA|
|Latham & Watkins|
|Morrison & Foerster|
|Pillsbury Winthrop Shaw Pittman|
|Roberts & Holland|
|Vinson & Elkins|
|White & Case|
|Willkie Farr & Gallagher|
|Winston & Strawn|
|Tier 5 - US: New York|
|Alston & Bird|
|Chadbourne & Parke|
|Davies Ward Phillips & Vineberg|
|Osler, Hoskin & Harcourt|
|Ropes & Gray|