Tax

Tax-Exempt/Nonprofit Matters

Advising clients in the formation of nonprofit corporations including organizing nonprofit entities, securing recognition of tax exemption from the IRS and the State of Tennessee, and submitting required annual filings.

GKN Westland Aerospace, Inc. v. State Department of Revenue, Admin. Law Div. Dkt. No. BIT. 10-988 (July 25, 2011)

Voiding final assessments entered against the taxpayer and upholding its calculation of the IRC section 199, Domestic Production Activities Deduction, on a separate company basis for Alabama corporate income tax purposes.

HealthSouth Corporation et al. v. State Dep’t of Revenue, Case No. CV 09-902941 (Jefferson County Cir. Ct. Nov. 24, 2010)

Affirming ruling by Administrative Law Division that granted the taxpayer’s corporate income tax refund and related net operating loss adjustments attributable to federal audit changes.

Representation of General Partner of Low Income Housing Tax Credit Partnerships and Sale of Interests to a Third Party

Represented the general partner of tax credit partnerships which have completed compliance period in sale of those general partner interests to third parties. Analyzed tax implication on seller based on capital accounts and other factors. Provided detailed transitional provisions regarding management and reporting.

Secondary market sale of low income housing tax credit portfolio

Sale of substantial participating interest in a pool of limited partnership interests in various low income housing tax credit supported projects to a financial institution investor.

Working group member regarding issuance of Alabama Insurance Department Regulation No. 117 (Credit Life insurance)

Participation in regulatory and industry working group preparing a draft of a regulation concerning credit life and disability insurance.

Jim Walter Resources, Inc. v. Tuscaloosa County Probate Judge, Case No. 1110067 (Ala. S. Ct. Jan. 6, 2012)

Landmark decision by the Alabama Supreme Court regarding whether a mortgage to secure the guaranty of an affiliate’s debt to a third party lender is a fixed indebtedness subject to Alabama mortgage recording tax. The Court agreed with our client, the taxpayer, ruling that no taxable indebtedness existed until the guaranty was called by the lender.

Hoover, Inc. v. State Department of Revenue, 833 So. 2d 32 (Ala. 2002)

Obtained reversal of a judgment against a corporate taxpayer subject to an unconstitutional sales tax.

Ace American Ins. Co. v. State (Tennessee Supreme Court 2015)

Co-Counsel in appeal of Tennessee retaliatory tax dispute involving Pennsylvania Worker’s Compensation insurers doing business in Tennessee. Case pending before Tennessee Supreme Court.

DirectTV, Inc. v. Roberts 2015 WL 899025 (Tenn. Ct. App. 2015)

Represented interests of Tennessee Cable Telecommunication Association in case filed by satellite companies involving the constitutionality of the exemption for cable services.

Level 3 Communications, LLC v. Roberts, 2013WL5373143 (Tenn. Ct. App 2013)

Lead Counsel in a successful appeal of refund case involving the taxation of internet access services.

Nextel South Corp. v. State of Alabama Dep't of Rev., Admin. Law Div., Dkt. No. BIT 13-136 (Aug. 15, 2013)

Successfully represented Nextel South in the appeal challenging the Department's calculation of so-called "hot interest" applicable to large corporate underpayments.

Pacific Rim Capital, Inc. v. Tuscaloosa County Special Tax Bd., Montgomery County Cir. Ct., Dkt. No. CV-2012-901336-TSM (Apr. 15, 2013)

Obtained summary judgment granting refund claim and voiding the final assessment of use tax on rental property.

Business Related Transactions

Assisted client with holding company reorganization to facilitate employee ownership involving multiple revenue streams and correspondingly multiple tiers of distributions and allocations.

Advised client with respect to the spinoff of lines of business to position the company to raise additional equity for the dominant line of business or a sale of the business.

Insurance, Banking and Tax

• Secured judgment in a federal bench trial in favor of a tire manufacturer in a case brought by the U.S. government alleging underpayment of federal excise taxes
• Secured jury verdict in favor of bank in lender liability case where guarantor claimed he was defrauded into guaranteeing a bank loan
• Obtained judgment on behalf of a bank against parties who had attempted to defraud the bank in connection with a counterfeit cashier’s check scheme
• Served as "severity counsel" for a large insurance company, providing advice for the handling of high-exposure matters and oversight for the work of counsel hired by the insurer to defend such cases
• Served as counsel to large, multi-state insurance company with respect to agent issues in Tennessee
• Defended insurance company in litigation with bank arising from a large flood loss sustained by a hotel (bank alleged that insurance company violated bank’s security interest due to distribution of insurance proceeds to the hotel owners)
• Represented insurance company in coverage dispute with guitar manufacturer arising from major flood damage to manufacturing facility

Real Estate Related Transactions

Advised client in the formation of a publicly-traded REIT, including the preparing the tax discussion in the prospectus, the tax indemnity agreements, the liability retention agreements, the tax provisions first tier limited partnership as well as the tax issues relating to bringing all of the investor owned properties into the REIT structure.

Advised and structured the disposition of multi-family residential property and a deferred like-kind exchange into multiple Delaware statutory trusts.

Structured a combination of a like-kind exchange, raising of additional capital and redemption of all or a part of the interest of limited liability company members that did not desire to participate in the exchange.

Advised clients with respect to the structuring of partnership tax allocation provisions with respect to property contributed by existing partnership, equity to be contributed by incoming partners and a refinancing of the debt secured by the property with a value in excess of $100MM.

Advised multiple clients with respect to structuring partnership allocations in partnerships between real estate development companies and institutional investors both as counsel to development companies and institutional investors.

Advised multiple clients with respect to structuring the acquisition, ownership and disposition of real property to achieve the most tax-efficient structure for Tennessee franchise and excise tax purposes.

Tax Controversy Related Representation

Representation of taxpayer before the Internal Revenue Service Appeals Office resulting in a federal corporate income tax refund in excess of $4 million involving a determination that an exchange of property by the taxpayer was not a like-kind exchange, and therefore the taxpayer was entitled to recognize a loss for federal income tax purposes.

Successful appeal to the Internal Revenue Service Appeals Office resulting in a determination that a transaction entered into by a foreign corporation was not a deemed dividend for U.S. tax purposes involving a payment of in excess of $18MM.

Successful appeal to the Internal Revenue Service Appeals Office upholding the valuation of a covenant not to compete valued by the taxpayer of approximately $13MM and valued by the Internal Revenue Service at approximately one-half of the taxpayer’s valuation.

Successful state court trial and appellate court litigation holding that gain from the sale of real estate held too be nonbusiness earnings allocable to the state in which the property is located and not apportionable for purposes of the Tennessee corporate excise (income) tax.