U.S. Federal Tax

Morrison & Foerster provides strategic tax advice to clients worldwide, from leading global companies to innovative emerging growth companies who are disrupting business models. We guide clients on their operational tax planning and on general business and transactional matters, including cross-border matters.

Clients continuously call on our tax lawyers for their tax needs because we are extremely adept at favorably handling their most important and complex tax issues.

Working with our colleagues across practices, we handle tax matters related to:

M&A, Private Equity and Venture Capital

Our tax lawyers work closely with lawyers in our M&A, private equity, and venture capital practice groups to develop practical, value-added solutions for clients in a wide variety of transactional contexts. We routinely represent clients around the globe in connection with taxable and non-taxable acquisitions, dispositions, restructurings, and reorganizations, as well as financings, refinancings, and recapitalizations.

We help to shape current market practices and serve as thought leaders and innovators across a wide range of industries, including consumer products, technology and telecommunications, healthcare, real estate, manufacturing and industrial, media and entertainment, and mining and natural resources.

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Partnerships, Investment Funds and Tax Equity

We provide sophisticated tax advice to a wide range of fund structuring, investment and operational activities with private funds, real estate funds, opportunity zone funds, hedge funds, co-investment vehicles, and other alternative investment products. We represent private equity sponsors and funds, both in connection with fund structuring and formation as well as portfolio investments, including with international planning aspects. We are well versed in the special tax rules applicable to the fund assets as well as the various categories of investors, such as tax-exempts, sovereign wealth funds and pension plans. We also have extensive experience representing funds, developers, and investors in renewable energy transactions, including with respect to, (i) the structuring of funds focused on renewable energy assets and (ii) tax matters through all phases of project development, including “tax equity” financing.

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REITs and Real Estate Transactions

We are regularly recognized for our tax work in the REIT and real estate space, with extensive experience advising public and private equity and mortgage REITs, real estate companies, and funds on all aspects of their businesses, including, with respect to:

  • Tax-free and taxable M&A transactions with private and public REITs and non-REITs;
  • Property acquisitions and “roll-up” transactions (including associated tax protection agreements), joint venture arrangements, tax-deferred exchanges, and real estate financing, development, and leasing;
  • Equity compensation, including LTIP plans and “carried interest”;
  • Cross-border structuring, including in-bound investments into U.S. real estate by non U.S. taxable and sovereign investors, out-bound investments and cross-border M&A transactions, and joint ventures;
  • Debt and equity offerings (including derivative transactions and preferred stock offerings);
  • Day-to-day REIT compliance and operational structuring, including handling  “ITSI,” “prohibited transactions,” rent and real property categorization, intercompany arrangements, and dividend requirements; and
  • Private letter rulings.

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Capital Markets and Structured Finance

We have extensive experience in advising both issuer and large financial institution clients on a broad range of capital markets transactions, derivatives, and financial instruments.

We advise clients in structuring and analyzing innovative tax-efficient financial products and transactions, including deductible hybrid securities, trust preferred securities, hedge fund and commodity-linked derivatives, convertible debt, contingent convertible debt instruments, structured notes, mandatory and optionally convertible instruments, and notional principal contracts (such as swaps, caps, and floors), collars, options, futures and forward contracts, securities lending, repurchase contracts and other hedging transactions, including, with respect to, foreign currencies and credit derivatives.

We also advise clients on debt and equity shelf registrations, the original issue discount rules, variable rate debt instrument and contingent debt rules, debt reopenings, debt exchanges and recapitalizations, foreign targeted securities offerings, withholding tax implications, and compliance with reporting rules.

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International Taxation and Tax Treaties

Our clients look to us for guidance on a wide range of international tax issues. We advise corporations and their shareholders in connection with their offshore acquisitions and activities and in connection with international operations and acquisitions. We regularly counsel clients on the coordination of tax laws in multiple jurisdictions in order to develop and implement cross-jurisdictional tax planning, overall operational synergies, and worldwide tax minimization strategies.

Our tax lawyers advise on structuring cross-border acquisitions and dispositions, and on the formation and operation of international joint ventures and business alliances in order to evaluate and manage potential tax costs consistent with the underlying business objectives. We work with local tax advisors where necessary (we have an established network of international relationships) to devise optimal structures that integrate all relevant tax laws. We assist many clients with advance structuring designed to facilitate their organic growth internationally, as well as in connection with growth by acquisitions. This advice typically involves questions of choice of entity types, development of holding company structures, drafting and implementing necessary intercompany arrangements, and appropriate tax classification of entities.

Morrison & Foerster is well-known for its deep experience in technology transactions, and our tax lawyers frequently assist clients in the development and implementation of appropriate structures for the ownership, development, and exploitation of intellectual and other intangible property internationally, including compliance with the rapidly changing “substance” requirements around the globe. We also advise clients on the application of the new “digital taxation” rules that are being adopted by many countries, and on the interplay of these new laws with the existing treaty obligations of the taxing jurisdiction.

We have a broad and deep knowledge of “supra-national” tax rules, such as those applicable in the European Union as well as all important OECD guidelines on international taxation. These guidelines, along with recent international tax changes in the United States, have reshaped the face of international tax planning. Our tax lawyers collaborate across jurisdictions to deliver results to clients that embody state-of-the-art solutions in a rapidly changing tax landscape.

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Tax Controversies and Litigation

We represent clients in audit, appeals, and dispute resolution proceedings before tax agencies and in litigation in all judicial fora.

We also assist clients outside the controversy and litigation context.  We prepare clients prior to an audit to best preserve privileges and protections and to avoid imposition of accuracy-related penalties.  We advise regarding the merits of proposed transactions.  We also act as special tax counsel in audit and litigation matters.

We have had excellent success for clients in negotiating favorable settlements with tax agencies administratively and after filing suit in the Tax Court or refund court. In our experience, a negotiated settlement almost always produces a better result for our clients. When it is not possible to negotiate a favorable settlement, we try cases.

We have handled and resolved issues arising in a wide variety of contexts, including international issues involving, for example, transfer pricing, treaty interpretation, outbound transfers, foreign tax credits and others, income tax accounting methods, insurance and financial products, bad debts, intangibles, employment, executive compensation, research and investment tax credits, valuation, mergers and acquisitions, and various excise taxes. We also have represented companies and individuals in connection with summons enforcement proceedings, alleged tax shelter transactions, and criminal tax enforcement proceedings. We represent individuals and companies accused of tax and related criminal offenses in administrative and grand jury investigations, administrative conferences, and criminal trials.

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State and Local Tax

We regularly advise clients on the state and local tax implications of corporate transactions and reorganizations, including multistate mergers and acquisitions. Our tax attorneys also handle state and local tax controversies involving both administration proceedings and litigation in state courts.

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Non-Profit Organizations

We have one of the preeminent nonprofit tax practices and routinely advises a wide range of exempt organizations, including charities, large and small, corporate and private foundations, community foundations, and their affiliates. In particular, our lawyers advise private and corporate foundations on matters, including program-related investments and mission-related impact investing, grantmaking, and international activities, including expenditure responsibility and Patriot Act compliance. We address the full range of exemption-related issues affecting charities, including unrelated business income tax, fundraising and corporate sponsorship, state charitable solicitation regulation and co-marketing, compensation, self-dealing and intermediate sanctions, public disclosure requirements, and charitable governance best practices. We represent tax-exempts in mergers, acquisitions, and dissolutions; structure taxable and exempt subsidiaries and affiliates, commercial co-venture arrangements, and joint ventures; negotiate major gifts and intellectual property transactions; and create microfinance and social investing funds.

Morrison & Foerster is also playing a leading role in the development of new corporate forms that are hybrids of for-profit and nonprofit models, such as the benefit corporation and low-profit limited liability company, which are expected to create new vehicles for corporate social responsibility and venture philanthropy. We also work closely with family offices and nontraditional philanthropic structures that flexibly and creatively use limited liability corporations, private foundations, donor-advised funds, nonprofits, and individual giving and investment to achieve impact investment and philanthropic goals.

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