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Tax Consulting, Structuring, and Controversy: Federal, International, and State & Local

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The tax group works together with our transactional attorneys in advising private equity funds, hedge funds, and other investment funds on fund formation and acquisitions of portfolio companies. Our tax group provides clients with a wide range of tax services.

Practices > Tax Consulting, Structuring, and Controversy: Federal, International, and State & Local
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These include tax structuring and planning in connection with mergers and acquisitions; joint ventures; transfer pricing; business formation and organization; capital markets; real estate investment/financing; derivatives and financial instruments; and dispute resolution and litigation in various courts, including the United States Tax Court and various state tribunals.

In this regard, the group offers clients extensive experience on the tax aspects of U.S. and international transactions. Our tax attorneys have advised a variety of clients, including multinational enterprises (both public and private corporations), sovereign wealth funds, and other tax-exempt entities with respect to major M&A transactions and IPOs (both pre-IPO reorganization as well as the offering itself) across an array of industries, including commodities, energy, technology, manufacturing, and real estate, among others.

In addition, we counsel our clients on strategies to reduce State & Local Tax (SALT) risks as well as opportunities for them to claim business tax incentives. For multistate businesses with operations across the country (including technology companies), we have experience handling matters in all 50 U.S. states and the District of Columbia. We proactively manage SALT issues by consulting and planning; handling audit defense and litigations; and providing legislative guidance. In our practice, we regularly address a broad array of tax types, including corporate income and franchise, gross receipts, sales and use, real property transfer taxes, personal income taxes, and energy/utility taxes. We also regularly advise clients on complex corporate transactions and reorganizations, marketplace nexus services, residency audits, whistleblower matters, criminal tax defense, and unclaimed property obligations. Moreover, we are proud to note that our SALT attorneys serve on advisory boards of various professional organizations and publications and have served as guest lecturers for graduate tax programs.

Our range of services includes:

  • Advising U.S. clients who operate internationally regarding cross-border tax issues such as income deferrals and U.S. tax laws concerning controlled foreign corporations and foreign passive investment companies; the availability of and strategic planning for the use of foreign tax credits; transfer pricing arrangements; and the various developments resulting from the Tax Cuts and Jobs Act of 2017 (including GILTI and FDII).
  • Advising non-U.S.-based clients that operate or invest in the United States on inbound tax issues, including how to expatriate earnings from U.S. operations efficiently and determining whether the client’s investments or operations constitute either a U.S. permanent establishment or the conduct of a U.S. trade or business.
  • Serving as tax advisor for U.S. real estate development projects, providing both pre- and post-formation tax planning, structuring investment vehicles to optimize after-tax returns for foreign investors, and determining whether any income earned from U.S. investments is subject to U.S. withholding taxes.

Barton’s tax group is well-versed regarding international tax issues and maintains a diverse international client base. Our attorneys also participate in a variety of international tax organizations and continue to cultivate well-established relationships with top tax advisors all over the world. Members of our tax team regularly speak about and lead discussions on cutting edge international tax issues.

Additionally, we regularly counsel senior management and business owners regarding executive compensation arrangements, both domestic and cross-border, giving due regard to the tax considerations of both employers and employees.
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Tax Consulting, Structuring, and Controversy: Federal, International, and State & Local

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Representative Matters

Represented an SaaS company regarding 401(k) plan non-discrimination, vesting, and other operational failures dating back over 7 years. Collaborated with the new CEO to address 401(k) issue requiring deep technical 401(k) experience, including for the IRS Employee Plans Compliance Resolution System (EPCRS) to address plan failings. Also worked with CEO to provide advisement, practical solutions, and communications to both non-highly compensated employees and highly compensated employees.

Represented an Australian company offering social gaming services to US customers and advised on whether their use of tokens (which were exchangeable in certain circumstances for cash) amounted to gambling under the US Tax Code and, if so, whether a gambling excise tax was payable by the company.

Represented a Gibraltar-based social gaming company offering sweepstake games to US customers whereby they could win prizes. Provided advice on structuring this business so that they did not have a taxable presence in the US, advised on whether IRS Form 1099 had to be provided to prize winners, and advised on whether state sales tax was required to be collected from customers.

Advised a consultancy company with respect to an employee who was a tax resident in Iraq but was moving to the US to study for a year and wanted to continue working for the client. Provided advice on structuring this situation so that the client was not treated under US law as having a permanent establishment in the US for tax purposes.

Assisted a bank with the completion of IRS form W-8BEN-E so that the bank could sell its investment holdings in a payment card services corporation without the need to pay US withholding tax. Worked with the payment card company's registrars EQ Shareholder Services to satisfy them that the bank met all the requirements of the US/Poland double tax treaty to qualify for a 0% rate of US withholding tax.

Represented a major foreign airline against the New York State Department of Finance and Taxation. The matter was related to access fees paid to other airlines so that the client's first and business class passengers could use other airlines' airport lounges, and whether such access fees were correctly subject to New York state sales tax.

Provided legal assistance to client in the sale of his 50% interest in a technology business consulting company and the sale of certain intellectual property owned by the client personally and licensed to the company.

Represented the purchaser as to U.S. law matters in the acquisition of Walker Books Limited and its subsidiaries, including Candlewick Press, by Trustbridge Global Media Ltd. and the subsequent financing of the business. Prior to acquisition, the target was owned by various nineteenth-century trust vehicles that had become legally obsolete, and the transaction therefore required judicial approvals at various levels in the English courts. At the same time, the transaction structure needed to comply with various UK and US tax regulations. The transaction was financed with an asset-based financing approximately six months after its completion which financing required extensive cross-guarantees.

Represented a strategic brand management business in its structuring and establishment of a joint venture between a high-profile media personality and a New York-based venture capital firm. The joint venture expects to create, produce, and release a series of consumer product offerings over the next several years under a new brand. We negotiated and drafted the documentation for the venture, as well as provided input on tax and intellectual property issues that arose as the negotiations proceeded.

Represented multiple clients in resolving open disputes with taxing authorities.

Represented multiple clients in structuring business purchase and sale transactions.

Provided advisement regarding non-qualified plans and Department of Labor Top Hat Filing Requirements for a not-for-profit entity involving compliance for non-qualified plans and complex IRS-related matters.

Represented an AI and data intelligence company, providing analyses and advisement regarding IRS technical analyses for a controlled group of corporations significantly affecting employee benefits compliance and governance. Conducted data gathering and analysis to provide opinion of controlled group status under Internal Revenue Code Sections 410(b)(c) and (m).