The following is an excerpt from Practice Perspectives: Vault's Guide to Legal Practice Areas.
Anne Marie Konopack—Partner, and Brian W. Kittle, Partner and Practice Co-Leader, Tax
Anne Marie Konopack has substantial experience structuring real estate, venture capital and private equity funds on behalf of fund sponsors, as well as structuring investments in such funds in a tax efficient manner for taxable, U.S. tax-exempt, foreign governmental investors and other non-U.S. investors. In addition, Anne Marie emphasizes structuring and tax planning for REITs, partnerships, and limited liability companies investing in real estate and real estate-flavored assets. Anne Marie is a recommended lawyer in the Legal 500 USA 2012 rankings for Investment Fund Formation and Management – Private Equity Funds, where clients described her as “head and shoulders above her peer set.”
Brian Kittle is a partner in New York and is a co-leader of the Tax Controversy & Transfer Pricing practice. Brian handles a wide range of tax controversy matters that involve representing companies and high-net-worth individuals in litigation and before various tax authorities, including the Internal Revenue Service. He is frequently asked to write about and speak on various tax matters and is recognized as a leading tax controversy attorney.
Please provide an overview of what, substantively, your practice area entails.
Anne Marie: My practice focuses on fund formation, meaning I generally represent fund sponsors that are raising third party investor money in order to invest along side other investors in certain asset classes. These funds can raise between $200 million and over $1 billion. My job is to make sure that the funds are designed so that the investors receive the most favorable tax treatment permitted under the law. These funds may invest in the U.S., India, Mexico, Brazil and other countries, so it is interesting to learn about the laws in other countries.
Brian: I represent taxpayers in very high-stakes tax disputes with various tax authorities, including the Internal Revenue Service. Resolving those disputes entails learning about the company’s business, developing strategies, crafting persuasive arguments, presenting evidence—including documents, fact witness testimony and expert testimony—writing briefs, and presenting arguments.
What types of clients do you represent?
Anne Marie: I principally represent the sponsor of the fund and advise them on the best structure to attract the most investors.
Brian: I represent a diverse group of corporate taxpayers such as Eaton Corporation and CIBC. Beyond that, I represent high-net-worth individuals who need assistance with their tax disputes.
What types of cases/deals do you work on?
Anne Marie: The deals that I work on are predominately real estate funds and joint ventures.
Brian: My matters deal mostly with income tax disputes. For instance, I am currently representing several major financial institutions in tax refund litigations, and I represent other corporations in the U.S. Tax Court that are challenging Internal Revenue Service’s determinations that they owe additional tax. What’s more, I represent several companies which are being audited by the Internal Revenue Service and before IRS Appeals, which is an alternative dispute resolution tool (like an arbitration) used to resolve tax disputes.
How did you decide to practice in your area?
Anne Marie: In law school I was drawn to tax. I liked the logic of the Code and took five tax classes. When I started working at Mayer Brown, I did a lot of public REIT work. REITs are a particularly tax efficient vehicle for private funds.
Brian: Truth be told, it was fate. I enrolled in every tax class in law school, was a finalist in a national tax moot court competition, and received an LL.M. in Tax. Then, as a clerk to Judge Goeke at the U.S. Tax Court, I was able to observe how important it was for a taxpayers’ counsel to develop and implement a sound litigation strategy. I was also fortunate to have Judge Goeke as mentor as he encouraged me to join Mayer Brown’s top ranked Tax Controversy Practice that he and Joel Williamson, who is still leading the practice, had built.
What is a typical day or week like in your practice area?
Anne Marie: I spend my time coming up with structures and talking to our clients.
Brian: I spend most of my time analyzing and crafting strategies with my colleagues at Mayer Brown, my clients, and co-counsel. I also spend a great amount of time drafting, reviewing, and editing responses to IRS information requests and position papers. I spend a little less of my time in depositions, witness interviews, and interacting with different tax authorities and courts. The rest of my time is spent focusing on business development activities, including writing articles, speaking at conferences, and presenting to clients.
What is the best thing about your practice area?
Anne Marie: I learn something new everyday and not only about U.S. tax law, but the about the laws in other countries.
Brian: There isn’t a single best thing about my practice area, other than its being awesome. I enjoy working with the people on my team, which includes our clients. I also really love the challenge of having to develop strategies to resolve significant disputes. And finally, I love winning and resolving disputes, and my job gives me the opportunity to compete against top adversaries and find a way to resolve the matter on terms favorable to my clients, which sometimes includes winning in court.
What is the most challenging aspect of your practice area?
Anne Marie: Having to learn something new everyday! Especially with the new tax reform bill.
Brian: The cases I typically work are so large that you need a team to effectively present the client’s position. Developing a team mentality (that is, everyone is not only prepared to do his or her job but is also ready to pitch in to address unexpected issues that will arise) is not easy to do.
What training, classes, experience, or skills development would you recommend to someone who wishes to enter your practice area?
Anne Marie: I think taking tax classes and learning from your peers are highly recommended.
Brian: My practice is a hybrid practice. The ingredients that I believe serve as the basis for a good Tax Controversy attorney are a love of the tax law, the willingness to be a litigator, and the dogged pursuit of success.
What misconceptions exist about your practice area? What do you wish you had known before joining your practice area?
Anne Marie: That tax is boring, which it is not! There is really nothing I wish I had know before becoming a tax lawyer. I have a great and interesting job.
Brian: Tax controversy is not limited to litigation. In addition to being in the courtroom, one needs to develop skills and experience with various alternative dispute resolution tools to resolve matters as early and cost efficiently as possible for your clients.
What is unique about your practice area at your firm, and how has it evolved since you have been at the firm?
Anne Marie: The unique thing about the tax practice at Mayer Brown is that we work as a team with our real estate and corporate partners. Teamwork has become much more important to the fabric of the firm.
Brian: We are tax lawyers who specialize in resolving tax controversies. Since joining the firm, my practice has evolved from a pure controversy focused practice to hybrid practice. As such, I am required to resolve tax disputes and to provide tax advice, including assisting with designing and assessing the tax risks of potential transactions.
What activities do you enjoy when you are not in the office, and how do you make time for them?
Anne Marie: I like taking Spanish lessons, reading and going to great restaurants. You can always find time for those things!
Brian: I have two young boys at home, so I spend most of my precious free time with them and my wife. It is very challenging to find a way to balance my work and family life. To deal with this I get up early and make sure I have couple of hours in the morning with my family before heading to work. I also spend, at least, a full day on the weekend with them. Protecting my time with them is very important to me.