2015 TAX COURT JUDICIAL CONFERENCE CONFLICTS AND CHAOS: THE IMPORTANCE OF TIMELY RECOGNIZING AND MANAGING CONFLICTS OF INTEREST AND RELATED PROBLEMS IN TAX LITIGATION Discussion Hypotheticals May 22, 2015
DISCUSSION HYPOTHETICALS Hypothetical No. 1: Trial Counsel s Role in Structuring the Transaction Taxpayers, who owned an option that effectively restricted the right of a landowner to sell certain valuable and environmentally sensitive land, entered into a complicated set of negotiations designed to eliminate a dispute between themselves and the landowner. The negotiations, which also involved a well known environmental organization, resulted in an agreement: (1) to eliminate the restrictive option, (2) to permit the landowner to sell parts of the land unrestricted by the option, (3) to convey parts of the land to the taxpayers; (4) to impose a conservation easement in favor of the environmental organization on portions of the land; and (5) to generate a charitable contribution deduction for the taxpayers for the bargain sale/gift equal to the difference between the value of the option the taxpayers conveyed and the consideration received under the agreement. Attorneys representing the environmental organization and the taxpayers structured the various transactions, negotiated the consideration that the taxpayers and the environmental organization would receive, arranged for an appraisal of the land and the restrictive option, determined the value of the consideration received, and negotiated and finalized a bargain sale/gift letter that was then used to calculate the charitable contribution deduction reported on taxpayers Federal income tax return. The IRS ultimately audited the return and issued a notice of deficiency that, among other things, disallowed the charitable contribution deduction. The taxpayers were represented during the audit by attorneys hired by the environmental organization, which had a contractual obligation to pay any tax liability resulting from an IRS audit of the transactions (subject to a limitation on amount). The taxpayers filed a timely petition in Tax Court contesting the notice of deficiency. Because of the complexity of the litigation, the case was scheduled for a special trial session well in advance of the scheduled trial date. Approximately one month before the scheduled start of the trial, the parties informed the judge in a conference call that there may be a problem with the continued representation of the taxpayers by one of their attorneys, who had provided advice regarding the tax aspects of the negotiated transactions, including the bargain sale/gift, and who was the taxpayers lead trial counsel. Two weeks before the scheduled start of the trial, respondent filed a motion to disqualify the taxpayers lead counsel, alleging 1
violations of Tax Court Rule 24(g) and various provisions of the Model Rules, and asserting that the counsel was a necessary witness regarding key issues in the case. When did it become clear that the lead counsel might be a necessary witness in the Tax Court case? What obligations did lead counsel have before that time? To the taxpayers? To respondent s counsel? To the Court? What obligations does respondent s counsel have and when do those obligations arise? What role can an attorney play in a case if there is a possibility that the attorney might be a necessary witness? Are the considerations any different on audit? 2
Hypothetical No. 2: Joint Returns Representation of Both Spouses Taxpayers have been married for 20 years. They have been clients of Attorney Edward and his law firm for at least 15 years. Attorney Edward has represented the husband s unincorporated Schedule C construction business in a variety of matters over the years, including tax matters. Attorney Edward s firm has worked with both taxpayers on estate planning matters, and prepared the taxpayers will and other estate planning documents. In 2013, the IRS started an audit of the taxpayers 2012 joint Federal income tax return. Although the taxpayers do not know it, the audit resulted from a tip supplied by a disgruntled employee who alleged that the construction business was not reporting all of its gross receipts. The employee alleged that certain jobs were paid in cash and that the cash was never deposited in the business bank accounts or included in the information given to the accountant who prepared the taxpayers return. The IRS considered a possible criminal investigation but for a variety of reasons decided to pursue the matter civilly. Following an audit, the IRS issued a notice of deficiency in which the IRS determined, among other things, that the construction business gross receipts were understated and the deductions were overstated. The IRS also determined that losses from a real estate activity conducted by the wife and certain itemized deductions should be disallowed. Both taxpayers contacted Attorney Edward and asked him to represent them. After reviewing the notice of deficiency, he agreed to do so. The husband explained that the adjustments related to his construction business were not warranted and any disallowed deductions could be substantiated, and the wife agreed that they both needed representation, which Attorney Edward could provide on a cost-efficient basis as he knew them and their business activities so well. The husband did not tell either Attorney Edward or his wife that he had intentionally underreported his business gross receipts and had been doing so for several years. Attorney Edward prepared and filed a petition in the Tax Court. He did not include a claim for relief from joint and several liability under section 6015 in the petition. Subsequently, he realized that he should probably assert such a claim if one is warranted and arranges a meeting to discuss the possibility of amending the petition. About the same time, he receives a phone call from respondent s counsel suggesting that there may be a problem (which respondent s counsel would not specify) with Attorney Edward continuing to represent both the husband and the wife. 3
What obligation does respondent s counsel have to be more specific about the potential conflict? How does Attorney Edward explain the call from respondent s counsel to his clients? What obligations does Attorney Edward have to the wife if he learns of the unreported business income issue during the course of the audit? 4
Hypothetical No. 3: Estate Planning and Related Tax Litigation Taxpayers, a married couple, have successfully operated a variety of businesses over the years but are now retired. They have accumulated an impressive net worth by working hard, investing aggressively, and spending with caution. They continue to manage their investments and they have begun to think about their estate plan. On the advice of a friend, they contact an estate planning specialist (attorney), who had established a family limited partnership ( FLP ) and implemented a comprehensive estate plan for the friend. The taxpayers met with the attorney and ultimately decided to retain him to prepare an estate plan and the documents to implement it. One of the attorney s recommendations was to establish a FLP. The taxpayers accepted the recommendation, established a FLP, and contributed a significant percentage of their assets to the partnership. Once their estate plan was fully implemented, the taxpayers began making annual gifts of limited FLP partnership interests to their children and grandchildren. Three years after the FLP was formed, one of the taxpayers died. Following the filing of an estate tax return, which reported the value of decedent s interest in the FLP at a substantial discount to the value of the underlying assets, the IRS selected the return for audit, proposed adjustments to the valuation of the FLP interest, and issued a notice of deficiency in which a valuation understatement penalty was asserted. The surviving spouse has asked the attorney who handled the estate planning if his firm will represent the estate in challenging the proposed estate tax deficiency. How should the attorney explain the situation to the surviving spouse? What considerations come into play if the surviving spouse is the executor of the estate, but not the sole beneficiary of the estate? Would the considerations be different if the IRS had not asserted penalties in the notice of deficiency? Does it matter if the valuation understatement penalty is linked to problems with the work of an appraiser, rather than the attorney? 5
Hypothetical No. 4: Proving the Record in a CDP Case Taxpayer has unpaid income tax liabilities for three years that are attributable to financial difficulties the taxpayer experienced due to the economic downturn and some serious family health issues that drained the taxpayer s resources and made it impossible for him to pay the tax liabilities that he reported on his tax returns for those years. Recently, the taxpayer received notices of intention to levy and notices that the IRS had filed Federal tax liens. He immediately contacted his lawyer who had represented him in various business and tax matters over many years. The lawyer submitted a timely request for a CDP hearing and represented the taxpayer throughout the administrative hearing process, which included a face-to-face meeting with a settlement officer, and multiple phone calls and exchanges of correspondence. During the face-to-face meeting and in various telephone calls, the lawyer raised various issues including the fact that the tax liens would severely damage taxpayer s business and particularly his line of credit, and the taxpayer s financial hardship resulting from continuing serious health problems. The lawyer produced some documentation to support these positions but, as the settlement officer did not request copies, he did not provide copies or reduce his arguments and factual assertions to writing. The Appeals Office subsequently issued a notice of determination that sustained the collection actions. The notice did not discuss the taxpayer s financial hardship claim, did not refer to the documentation that was presented and reviewed during the hearing process, and did not address some of the arguments that the lawyer had made on behalf of the taxpayer. In a timely filed petition to the Tax Court, the taxpayer, through his attorney who has entered an appearance in the case, contested the conclusions reached in the notice of determination and asserted financial hardship. Trial is now approaching and the attorney for respondent wants the taxpayer to stipulate to the administrative record, which contains no reference to the positions and arguments that the taxpayer is asserting, and refuses to stipulate to the documents that were shown to the settlement officer because the documents are not in the administrative record. The attorney realizes that he may have to be a witness in the case. May the attorney continue to represent the taxpayer? How does the attorney explain the situation to the taxpayer? 6
Does the attorney have an obligation to bring this issue to the attention of respondent s counsel and the Court, and if so, how does he do it and when? 7
Hypothetical No. 5 Firm Representation of Counter Parties Taxpayer asks his long-time attorney to provide advice regarding the proper reporting of a historic development credit on taxpayer s Federal income tax return. Another attorney in the same firm previously advised a redevelopment agency in connection with a tax-exempt bond issue for the same project that the taxpayer s credit arises from. Attorney obtains informed consent from both the taxpayer and the redevelopment agency to advise taxpayer on the reporting position. A credit is claimed on the taxpayer s return, which is subsequently audited by the IRS and disallowed in a notice of deficiency. Taxpayer asks attorney to represent him in filing a Tax Court petition challenging the notice of deficiency. What needs to be done to secure informed consent for the original representation? What are the potential consequences if consent for the representation is secured but that consent is later deemed to be less than fully informed? As the audit and litigation progress, does the attorney have any obligation to renew or revisit the original informed consent? Does attorney have an obligation to disclose the conflict and informed consent to respondent s counsel in the Tax Court case? To disclose to the Court? Even if informed consent from both the taxpayer and the redevelopment agency is obtained, are there other considerations that should be taken into account? 8
Hypothetical No. 6 Partnership Representation Attorney has given advice to her long-time corporate client (taxpayer) on the structuring of a partnership. The advice culminated in the issuance of a formal opinion concluding that taxpayer should be able to claim tax benefits from the partnership on taxpayer s corporate income tax return. The opinion addresses a number of arguments the IRS might raise in connection with the structuring of the partnership, including an argument that that partnership is a sham in substance and that certain contributions to and distributions from the partnership should be treated as a disguised sale of property. Attorney s advice is not shared with other partners in the partnership. The partnership files a return reporting the transaction; taxpayer and the other partners file their income tax returns consistent with the partnership s return. The IRS selects taxpayer s corporate income tax return for audit. That audit is later expanded to include an audit of the partnership and a notice of beginning of partnership audit ( NBAP ) is sent to the taxpayer and to the other unrelated partners. Taxpayer s corporate audit is closed with a no change letter. At the same time, the partnership audit is closed by issuance of a notice of final partnership administrative adjustment ( FPAA ), a copy of which is sent to taxpayer in its capacity as the tax matters partner ( TMP ). The FPAA includes adjustments to a number of items reported on the partnership s return including treatment of contributions and distributions as a disguised sale. The FPAA also asserts accuracy-related penalties. Taxpayer asks attorney s firm to represent it as TMP in filing a petition in Tax Court challenging the FPAA. What obligations do taxpayer and attorney have to disclose attorney s advice to other partners in the partnership? Does attorney s role in providing advice to taxpayer regarding the partnership raise any issues for attorney in representing taxpayer in its capacity as TMP on audit? Can attorney (or attorney s firm) represent taxpayer as TMP in challenging the FPAA in the Tax Court? If so, what information needs to be disclosed to respondent s counsel and the Court about attorney s role in providing advice to taxpayer regarding structuring the transaction? 9
Are the considerations different if the IRS does not assert penalties in the FPAA? What if penalties are not asserted in the FPAA but are affirmatively raised by respondent in its answer to the petition filed in the Tax Court? Other Conflict Scenarios Hypothetical No. 7: Former Client Attorney Able represents a financial institution in connection with the IRS s investigation into whether the financial institution might be liable for promoter penalties under section 6700 and other provisions of the Code. The investigation is resolved through a closing agreement in which the financial institution agrees to pay a penalty. Attorney Able s representation of financial institution is closed. Two years later, another attorney in Attorney Able s firm is approached to represent taxpayer in challenging a notice of deficiency issued by the IRS, the focus of which is the disallowance of tax benefits from a transaction that the financial institution was involved in and that was the subject (among others) of the promoter penalty investigation. The notice of deficiency includes an assertion of accuracy-related penalties. Hypothetical No. 8: Issue Conflict Attorney Edward is hired by Client A to handle an IRS audit of Client A s personal income tax return. The audit focuses on whether certain property Client A received from his Employer as compensation for services was subject to a substantial risk of forfeiture, and whether the fair market value of that property was properly includable in income in the year under audit. On similar facts, but with no transactional connection, Attorney Edward had previously advised Client B that receipt of the property was not subject to a substantial risk of forfeiture and advised Client B that it could deduct the fair market value of the property as compensation. Hypothetical No. 9: Issue Conflict. Same facts as Hypothetical No. 8 except that the IRS is now auditing both Client A and Client B. Although there is no transactional connection, the IRS is taking opposite positions in the audits, asserting that the property is included in income for Client A because there is no substantial risk of forfeiture and asserting that Client B is not entitled to a compensation deduction because there is a substantial risk of forfeiture. 10
Hypothetical No. 10: Alternative, Inconsistent Positions. Attorney Francine is hired to advise Client, a partner in Partnership, as to whether Client might have a whistleblower claim under Code section 7623 with respect to foreign tax credits reported by the Partnership. Attorney Francine assists Client in preparing and filing an IRS Form 211 whistleblower submission taking the position that the tax credits were improper and providing facts as to why. Two years later, with no response from the IRS regarding the Form 211 submission, the IRS issues Client a statutory notice of deficiency (the small partnership exception to TEFRA applied) disallowing the foreign tax credit reported by the partnership. 11