Subject Overview

Tax Law Subject Overview


Albert Einstein is commonly quoted as having said, “The hardest thing in the world to understand is the income tax.” Einstein certainly was exaggerating, but his statement reflects a common perception about tax and illustrates the need for attorneys who can advise individuals and businesses regarding tax matters.

Taxation affects almost every aspect of life. For example, an individual who sells a house, pays college tuition, pays alimony to a former spouse, or inherits property must consider the tax consequences of these events. Similarly, a corporation that pays to clean up its environmental contamination, acquires another corporation, or compensates its employees by issuing stock must take into account how these events will be treated for tax purposes. Tax attorneys assist clients in understanding and planning for the tax consequences of their actions.

Perhaps counterintuitively, tax is both fascinating and accessible. Many students, especially those with little or no background in finance, accounting, or related areas, approach the study of taxation with a sense of fear or with a sense that their study will be boring or, worse yet, with both fear and the apprehension that the subject will be boring.

Most students quickly discover, however, that tax is one of the most interesting areas of the law and one to which it is easy to relate. Everyone has given or received a gift, received a paycheck in early January for work performed in December, or paid for education. The introductory Federal Income Tax course focuses on just these sorts of events.

A common misperception is that tax is all about numbers, equations, and forms. It is true that the study (and practice) of tax law involves numbers, but for an attorney the underlying concepts are far more important. A student need not have an accounting, finance, or math background to succeed in tax and enjoy the subject matter. Students with those backgrounds are often drawn to tax, but some of the most successful tax attorneys had an undergraduate major in history, religion, music, or political science.

If you are intellectually curious and if you enjoy puzzles and solving problems, tax law may be a wonderful, satisfying career path for you.

Types of Work Performed by Tax Attorneys

The types of work that tax attorneys do can be divided into two broad categories: planning work and tax controversy work. Most tax attorneys do planning work, a smaller number do tax controversy work, and some attorneys do both. Most tax attorneys do little or no compliance work, such as preparing and filing tax returns; accountants usually perform compliance work. There are, of course, exceptions. An attorney who is also a CPA or who works in an accounting firm might do a substantial amount of return preparation or other compliance work.

Tax Planning

An attorney who provides tax planning services provides advice to clients on how to achieve their personal, investment, or business objectives in a way that minimizes the impact of taxes.

For example, an individual client who owns an appreciated asset (such as land or corporate stock) and whose child is in need of funds might require advice on the tax consequences of the available options. These options might include selling the asset for cash to a third party and transferring the cash to the child, transferring the asset to the child and having the child sell the asset for cash, or pledging the asset as security for a loan and transferring the loan proceeds to the child.

Or, an individual in the process of forming a new business might seek advice on the tax consequences that would result from organizing the business in one of the available forms, such as a corporation, a limited partnership, or a limited liability company.

An established business organized in any of these forms might seek advice on how to minimize taxes in connection with matters such as distributing profits to the owners, compensating employees, selling a portion of the business, or acquiring the business of a competitor. A tax attorney providing planning advice must analyze and explain the tax consequences of the available options and, just as importantly, remain sensitive to the personal or business objectives of the client.

Planning work can require a tax attorney to perform a wide variety of tasks. An attorney providing planning services might provide oral or written advice to the client. Written advice can take a number of forms, including a brief letter, a memorandum that sets forth a lengthy analysis, or a formal opinion letter.

If an attorney concludes that there is uncertainty concerning the proper tax treatment of a matter, the attorney might submit to the IRS a request for a private letter ruling, which is a ruling that can be relied on only by the taxpayer to whom it is issued. Submitting such a request can involve a substantial amount of work and can require the attorney to meet with IRS representatives to discuss the request.

Some clients might ask a tax attorney to keep abreast of new developments that affect them, such as new regulations and rulings, and to prepare an analysis of the developments as they occur.

Tax Controversies

An attorney whose practice involves tax controversies assists clients in resolving a dispute with taxing authorities. In the case of most federal taxes, the relevant taxing authority is the IRS, which is a bureau within the U.S. Treasury Department.

Tax attorneys might become involved in a tax controversy at any stage. The first stage usually is an audit. At this stage, the attorney deals on the client’s behalf with an IRS representative, such as an examining agent, and seeks to persuade the representative not to pursue one or more issues.

If the IRS representative takes an adverse position on one or more issues, the next stage is an administrative appeal. At the appeal stage, the attorney prepares a protest, which is a written document much like a brief, and meets with an IRS appeals officer to discuss dismissal or settlement of the issues.

If the appeals process does not produce satisfactory results, the attorney can, if warranted, pursue litigation in one of the courts with jurisdiction over federal tax matters—the United States Tax Court, the United States Court of Federal Claims, or a United States District Court. Decisions of each court can be appealed to the United States Courts of Appeals and, ultimately, a writ of certiorari can be requested from the United States Supreme Court.

A tax attorney also might assist clients in matters related to tax controversies, such as assisting the client in entering into a payment plan with the IRS, securing the IRS’s agreement to reduce the amount owed, or preventing the IRS from seizing one or more of the client’s assets.

Settings in Which Tax Attorneys Work

Tax attorneys work in a wide variety of settings in both the private and public sectors.

The Private Sector

Law Firms

In the private sector, most tax attorneys work in law firms. At one end of the law firm spectrum, a tax attorney might have his or her own practice and serve primarily individuals and small business owners. At the other end, a tax attorney might work in the tax group of a law firm with hundreds of attorneys and serve primarily Fortune 500 companies. In the middle of the spectrum, a tax attorney might work in a small or mid-size firm.

In a large law firm, a tax attorney tends to specialize in one or more areas of taxation. Conversely, in smaller firms and single-attorney practices, a tax attorney typically works in a wide variety of areas. Depending on the size of the firm and the nature of its practice, an attorney might work exclusively in the tax area or might be called upon to work in other areas as well, such as the business, corporate, or securities areas.

Accounting Firms

Tax attorneys also work in accounting firms. The large accounting firms, especially, hire a large number of tax attorneys to work in offices around the country and around the world. An attorney need not have a background in accounting or be a CPA in order to work as a tax attorney in an accounting firm.

A tax attorney working in a large accounting firm might perform planning work that is comparable to work performed in a large law firm, such as advising clients on the best structure for a corporate acquisition. Attorneys working in an accounting firm also might engage in controversy work by representing clients during audits or administrative appeals, but accounting firms, unlike law firms, do not represent clients in tax litigation.

Depending on the nature of the position, an attorney working in an accounting firm might provide compliance services that attorneys in a law firm would not normally provide, such as preparing returns or other documents to be filed with the IRS. The nature of the work that an attorney performs in an accounting firm will affect the attorney’s ability to move to a law firm if the attorney later wishes to pursue that option.

In-House Tax Departments

Large corporations such as Exxon, Shell, and Microsoft have in-house groups of attorneys whose work focuses on tax matters. In-house tax attorneys normally devote much of their time to planning matters. For example, if the corporation wishes to undertake a new project in a foreign country, in-house tax attorneys might provide advice on the best way to structure the new project—such as forming a new foreign subsidiary, or forming a partnership with an existing foreign corporation—in order to minimize taxes.

Similarly, in-house tax attorneys might advise on how and where the corporate group should hold its intellectual property such as patents. In-house tax attorneys also might engage in tax controversy work by representing the corporation in audits, administrative appeals, and tax litigation.

The Public Sector

Federal Government

There are many opportunities for tax attorneys in the federal government. Some of these opportunities are described below.

In the U.S. Treasury Department—the department within the executive branch that is charged with interpreting and enforcing federal tax laws—attorneys in Washington, D.C. work in positions such as attorney-advisors in the Office of Tax Policy. Attorney-advisors assist in matters such as establishing policy criteria for regulations and rulings, guiding the preparation of regulations and rulings with the IRS, and providing economic and legal policy analysis for domestic and international tax policy decisions.

In the IRS, which is a bureau within the Treasury Department, attorneys in the Office of Chief Counsel might work in the National Office in D.C. or in field offices in cities around the country, including Houston. Attorneys in the Office of Chief Counsel perform many different types of work. Attorneys in the National Office might perform functions such as drafting regulations and rulings, responding to taxpayer requests for private letter rulings, or providing advice to IRS agents in the field. Attorneys in a field office of the Office of Chief Counsel might spend most of their time litigating tax issues on behalf of the government in the U.S. Tax Court.

The Tax Division of the U.S. Department of Justice also employs many tax attorneys. Attorneys in the Civil Trial Sections of the Tax Division represent the government in civil tax litigation in U.S. District Courts and the U.S. Court of Federal Claims, while attorneys in the Tax Division’s Criminal Enforcement Sections are responsible for handling most federal criminal tax prosecutions. Attorneys in the Tax Division’s Appellate Section and the Criminal Appeals and Tax Enforcement Policy Section handle appeals of civil and criminal tax cases to the federal courts of appeals and assist the Office of the Solicitor General in preparing briefs in the United States Supreme Court.

Congress, the legislative branch of government, also offers many opportunities for tax attorneys. A tax attorney might serve on the staff of an individual member of the House of Representatives or the Senate, or might serve as a staff member for the House Ways and Means Committee or the Senate Finance Committee; these are the committees primarily responsible for tax legislation. The congressional Joint Committee on Taxation (JCT) also employs many tax attorneys. The JCT is responsible for matters such as providing estimates of the effect of proposed tax legislation on federal revenue and providing analysis of proposed and enacted tax legislation.

State Government

Offices within state governments also employ tax attorneys. In Texas, for example, the Comptroller’s Office is responsible for collecting many state taxes, such as the sales and use tax, the franchise tax, and the cigarette tax, and handles matters related to these taxes ranging from routine compliance issues to criminal investigations.

Subject Areas of Tax Practice and Course Selection

Subject Areas

Most tax attorneys focus on federal taxes. An attorney whose work focuses on federal taxation might work in a number of different areas. The practices of most tax attorneys concentrate on the application of the federal income tax to individuals and businesses, such as corporations, limited partnerships, and limited liability companies. The work of such an attorney might or might not include U.S. taxation of international transactions.

Other attorneys advise clients on the federal estate and gift taxes and provide assistance to individuals with estate planning. Still others focus on employee benefits and the rules that govern retirement plans.

Within any of these broad areas, attorneys often specialize in specific subjects. For example, a tax attorney who advises businesses on federal income tax matters might have special expertise in the taxation of partnerships and partners, may be less familiar with the tax treatment of corporate reorganizations, and may need to ask for assistance from an international specialist regarding the U.S. tax treatment of an international transaction. Estate and gift taxation and employee benefits are considered areas of specialization and attorneys who work in those areas tend to do so exclusively or primarily.

A smaller number of attorneys work in the area of state taxation. Nevertheless, state taxation is a significant concern for both individuals and businesses. Although there are many types of state taxes with which tax attorneys might deal, the most common are state sales and use taxes; state franchise taxes (which apply to businesses); and, in most states, state income taxes. A business that operates in several states needs assistance in apportioning its activities among the taxing jurisdictions and in complying with each state’s tax laws.

Course Selection

The accompanying pathway lists the main courses that could benefit students who wish to pursue a career in tax law. In addition to the required Federal Income Tax course, Stage 1 recommends doctrinal courses that provide the foundation for future tax courses. An understanding of corporate structures, for example, will help students better understand the tax issues reviewed in Corporate Taxation.

Although recommended, students are not required to take Corporations prior to enrolling in Corporate Taxation and are not required to take Agency & Partnership prior to enrolling in Partnership & Subchapter S Taxation. Scheduling matters and career objectives may influence course selection and sequencing. Wills, Trusts & Estates is a prerequisite for Estate & Gift Taxation.

Stage 2 lists the myriad advanced taxation courses that students may elect to take. Corporate Taxation and Partnership & Subchapter S Taxation examine the federal income taxation of business organizations and are relevant to most tax careers. Taxation–Advanced Income is a continuation of the Federal Income Tax course and focuses on issues relevant to a wide variety of tax practices.

U.S. Taxation of International Transactions can be extremely beneficial in practice (especially in a large law firm or large accounting firm), but the subject matter of this course is relevant for a smaller number of tax practices than the subject matter of the previously mentioned Stage 2 courses. The Taxation–Federal Procedure course is particularly relevant for students who are interested in a career that includes tax controversy work (as opposed to tax planning).

Estate & Gift Taxation is relevant both for those who contemplate a general tax practice and wish to have some knowledge of the federal estate & gift tax and for those who are considering specializing in estate planning. The pathway recommends Corporate Finance for students interested in the business side of tax who plan to advise existing corporations or counsel individuals who want to set up a business. Federal Tax Research provides students with hands-on practical training on how to conduct research in this field.

Additionally, through STCL Houston’s Government Process Clinic/Academic Internship, students can arrange fieldwork in government offices that address tax matters, such as the IRS Chief Counsel’s Office. Stage 3 includes several courses that are beneficial to attorneys practicing in many fields—including tax—such as Interviewing & Counseling and Nonprofit Incorporation.

The remainder of courses throughout Stages 2 and 3 of the accompanying pathway cover two of the specialties that tax attorneys may choose to pursue: estate planning and employee benefits. Students who have no interest in pursuing a career in either of these specialties need not pursue the related courses. Keep in mind, however, that Wills, Trust, & Estates and Administration of Estates & Guardianships will help students prepare for the bar examination.

For additional information on these two specialties, please consult the subject overviews and accompanying pathways for Estate Planning Law and Labor & Employment Law.

Advanced Studies in Tax: the LL.M. in Taxation

An LL.M. (or Master of Laws) is an advanced degree in law, typically in a specialized area, that attorneys can pursue after earning their J.D. Tax is one of the areas of law in which it is most common for an attorney to earn an LL.M.

Most tax LL.M. programs require students to complete 24 to 26 credit hours to earn the degree. Full-time students normally complete the degree in one academic year—that is, a fall and spring semester and perhaps a summer session. Some schools that offer an LL.M. in tax will permit students to count credits from some of their J.D. tax courses towards the credits required for the LL.M. Students enrolled in LL.M. programs engage in an intensive study of tax.

In selecting an LL.M. program, students have a number of choices to make and a number of factors to consider. Among the choices is whether to seek admission to a nationally known LL.M. program, such as those at New York University, the University of Florida, or Georgetown, or instead to enroll in a more regional or local program, such as those offered at the University of Houston or Southern Methodist University. This choice might be dictated by a student’s work or family obligations.

A significant factor to consider in choosing a program is cost. Programs such as those at New York University and Georgetown are very expensive. A student might obtain a very high-quality tax education at a regional or local program at a much lower cost. Students also should consider the placement opportunities available to graduates of the programs they are considering.

Many students ask whether an LL.M. in tax is required in order to practice tax law. Earning an LL.M. is not required to practice tax law, but the degree provides two major benefits. First, through appropriate course selection, an LL.M. program can provide students with a strong foundation in all major areas of tax. The knowledge gained in an LL.M. program will greatly increase a student’s level of confidence in addressing tax issues in practice. A newly licensed attorney with an LL.M. in tax will not necessarily know the answer to a tax issue that is presented, but will have a good sense of the implications of the issue and how to go about researching it.

The second major benefit that the LL.M. provides is that it significantly enhances a student’s prospects for obtaining employment as a tax attorney. Today, many law firms, large accounting firms, and major corporations hire most of their tax attorneys from LL.M. programs. The IRS also increasingly hires LL.M. graduates for positions in the Office of Chief Counsel.

In deciding whether to enroll in an LL.M. program, a student should first consider what opportunities are available for employment in the tax area at the time the student graduates from his or her J.D. program. If a good opportunity is available, it probably makes sense to take it and defer pursuing an LL.M. or pursue it on a part-time basis at a local law school. If the potential opportunities for employment at graduation do not meet subject matter or geographic needs, enrolling in an LL.M. program will provide the rigorous training described earlier and potentially will provide opportunities for employment that otherwise would not be available.