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tax


Our tax practice has deep expertise in virtually all U.S. tax issues. In addition, our tax team has particular expertise in cross-border matters (both in-bound and out-bound). Our tax team is particularly skilled in real estate matters, which fits nicely with our real estate pure play.


Practice Group Leader: Jessica Millett 


Overview

D&S is proud to have a world-class tax group chaired by Jessica Millett.

Jessica Millett is an expert in U.S. tax issues that arise in complex real estate transactions, notably Qualified Opportunity Fund structures and cross-border investments. Ms. Millett is at the forefront of structuring investments into Opportunity Zones along with the D&S real estate team.  She also has extensive experience in FIRPTA structuring for non-U.S. clients, and she is Chair of the Subcommittee for Foreign Investors of the ABA Tax Section Real Estate Committee.

Other senior members of the tax group include Stephen Land and Bradley Borden.

Stephen Land is one of the most pre-eminent tax lawyers in the United States. He is an expert in international finance, and advises on transactions and controversies involving complex financial instruments. He is a graduate of Harvard College – Harvard Law School – Harvard Business School – and an alum of Sullivan & Cromwell and Linklaters.  Mr. Land is the former Chair of the Tax Section of the New York State Bar Association, leading its work as the most respected provider in the United States of technical commentary on tax regulations and legislation.

Bradley Borden is a leading expert in Section 1031 and the taxation of real estate transactions. Mr. Borden’s Section 1031 expertise and facility with complex Section 1031 transactions is enhanced by his in-depth knowledge in other areas of tax, finance, and business law. For example, Mr. Borden’s work with passthrough entities, including writing multiple books and numerous articles on the topic, support his expertise in complex Section 1031 exchanges. He is a past chair of the Sales, Exchanges & Basis Committee of the American Bar Association Section of Taxation, the committee with jurisdiction over Section 1031, and remains active in the Section.

Our tax attorneys have handled exceptionally complicated real estate joint ventures, REIT structuring, real estate fund formation, inbound and outbound investment transactions, 1031 exchanges, mergers and acquisitions, restructurings, financial instruments, investment funds, executive compensation and employee benefits, and tax controversy work. 

D&S is unrivaled in the Opportunity Zone space. Opportunity Zones are a game changer for the real estate industry and we are an industry leader in this space on the tax side as well as the real estate transactional side.  For further information on our Opportunity Zone Practice Group, please click here

In addition, the Firm’s tax lawyers pride themselves on being user-friendly to both clients of the Firm and non-tax-lawyers at the Firm.  They are easy to speak to and can translate difficult and complex problems into understandable descriptions that are easy for non-tax minds to work with.  Our tax lawyers have a mission to avoid the easy way out (i.e., of just saying “no”). Instead, they think around problems while both (i) being appropriately conservative and (ii) finding a solution that works.

In keeping with the Firm’s Real Estate Pure Play, the Tax Group has extensive expertise in the taxation of real estate transactions. The Tax Group also has expertise in non-real estate matters and extensive cross-border experience.

Real Estate Specific Tax Services

The Firm’s Tax Group provides sophisticated tax advice in all areas related to real estate transactions, including the following:

  • Opportunity Zone investments and Qualified Opportunity Fund structures
  • Structuring tax-free like-kind exchanges under Section 1031
  • Real estate development joint ventures
  • Complex equity participations and debt restructurings
  • Fund manager compensation
  • Real estate fund formation
  • UBTI-sensitive structures including fraction’s rule compliant partnerships
  • Foreign investment in US real estate (including avoiding FIRPTA for foreign investors)
  • Structures for investment in non-US real estate and debt
  • Structuring leases
  • Avoiding cancellation of indebtedness Income
  • New York State and City transfer taxes
  • Structuring REIT transactions and managing REIT compliance
Tax Services Complementing Real Estate Tax Practice

Complementing its transactional real estate tax work, the Firm’s Tax Group provides tax advisory services in the following areas:

Subchapter K and Passthrough Taxation (LLCs, Partnerships, REITs)

  • Structuring fund investment and operational structures
  • Advising on complex allocation rules
  • Designing promotes and carried interests
  • Structuring tax-efficient mergers and divisions of LLCs and partnerships
  • Structuring transfers of interests in LLCs and partnerships
  • Structuring for foreign and tax-exempt investors
  • Negotiating side letters with investors
  • Assisting with entity terminations

Mergers & Acquisitions

  • Designing the deal, whether it is a headline merger of international public companies or a non-public strategic acquisition or buy-out
  • Issuing opinions or obtaining IRS rulings on tax-free spinoffs and acquisitions
  • Maximizing the tax benefit of financing costs 

Restructurings

  • Avoiding cancellation of debt income
  • Preserving loss carryforwards and other tax benefits
  • Managing accruals on distressed debt

Financial Instruments

  • Analyzing debt and equity derivatives, including structured notes
  • Designing securitization arrangements, rights offerings, bank capital, as well as conventional debt and equity 
  • Advising on rights offerings and bank capital
  • Ensuring compliance with bearer bond restrictions

Tax Controversies

  • Representing clients against the IRS and New York tax authorities
  • Resolving disputes before they escalate
  • Achieving highly favorable outcomes with vigorous advocacy
Cross Border

Given the globalization of commercial real estate, an in-depth familiarity in international tax issues is essential.  Cross-border transactions (inbound or outbound) invariably have critical tax issues.  Our tax attorneys have deep expertise in these issues and works closely with attorneys in our Real Estate Practice Group in these matters. Our tax lawyers also regularly advise our non-U.S. clients on a myriad of issues relating to investments in the U.S., including the following:

  • Avoiding being engaged in a “trade or business” in the U.S.
  • Minimizing withholding tax burdens
  • Navigating anti-deferral regimes such as the PFIC and CFC rules
  • Preserving exemptions for foreign pension and sovereign wealth funds
  • Securing treaty benefits
  • Integrating U.S. and foreign tax planning to minimize overall tax burdens
  • Dealing with FATCA and other foreign accounts reporting
  • Avoiding FIRPTA for foreign investors
  • Structuring to comply with the portfolio interest exemption
  • Negotiating cross-border financing arrangements
  • Advising on loan origination issues for non-U.S. investors
  • Structuring complex transactions

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