Tom has one of the nation’s premier tax-litigation resumes. Tom has a nationwide federal tax practice in which he has advised or represented many of the nation’s most recognizable companies, tax-exempt organizations, and individuals. He is known especially for his handling of cutting-edge federal tax-refund suits in which he “choreographs” multiple pending seven- or eight-figure suits. He recently first-chaired a proposed class action seeking $400 to $500 million in additional interest for the nation’s incorporated tax-exempt teaching hospitals — probably the largest tax class action in history, in terms of dollars and members.
Currently, Tom is focused upon whether the IRS interpretation set out in Notice 2018-18 and the Treasury Regulations it promises is valid — an issue of great interest to hedge-fund managers. His interest stems from the large role that Notice played in his class action suit — and from holdings and observations made in his cases that call that cast deep doubt upon the IRS interpretation.
To his practice, Tom brings several key elements:
- 37 years of technical tax experience, first representing the IRS and, after that, representing blue-chip taxpayers
- 14 years of federal government service in Washington, D.C., where he represented the IRS in courts around the nation and in Washington.
- 40 years of extensive first-chair, in-court, trial and appellate experience
- Five years as a prosecutor in his native Wisconsin, including both a stint as a federal prosecutor in Madison, and a stint as the youngest District (County) Attorney in Wisconsin
This “360-degree,” litigation-heavy combination enhances Tom’s ability to realistically assess the legal hazards faced by a taxpayer involved in a tax dispute; to plot, pursue, and implement a strategy for settlement that comprehends the inner workings of both the IRS and the U.S. Department of Justice; and seamlessly to move ahead, if necessary, into litigation, through and including any appeals that are taken.
Tom’s highly unusual tax and litigation skill sets allow a taxpayer to avoid the “two headed” arrangement for litigating tax cases, where a law-firm tax partner is “yoked” to a litigation partner — a less-than-optimal arrangement used by most law firms litigating federal tax cases.
Tom believes that early engagement of a tax lawyer with a prominent complex-litigation capability facilitates fair settlements with administrative tax authorities — and enables a taxpayer to make a well-informed assessment of a proposed settlement against the ultimate benchmark: litigation hazards and delay, and expense.
Tom is knowledgeable about litigation finance for tax cases, and published the first article ever on the subject.
Tom is one of a handful of tax lawyers in private practice nationally to have first-chaired more than 20 jury trials and more than a dozen appeals in the federal courts. He has argued cases before five federal courts of appeals — very unusual for a tax lawyer in private practice. With his award-winning, supervisory experience at the Department of Justice in Washington and as a long-time partner in private law practice, Tom may have handled more multi-million dollar tax-refund suits in the federal trial courts than any attorney now active in private practice in the United States. Tom estimates that he has litigated more than 200 federal tax cases over the last 30 years, on “both sides of the ball.”
Tom is the only attorney in private practice in the nation, of whom he is aware, who formerly worked in both a district-court section (five years) and in the Court of Federal Claims section (nine years) of the Tax Division of the U.S. Department of Justice, in Washington, D.C. This unique background provides Tom with unique insights into the comparative tax-related functions and capabilities of those two tax-litigation forums.
In addition to his in-court practice, Tom represents taxpayers before the IRS’s Examination, Collection, Appeals, and Criminal Investigation Divisions, and before the IRS National Office. Tom also handles state and local tax disputes, including disputes with the Illinois Department of Revenue and the City of Chicago and its suburbs. Tom has worked with, or opposite, the IRS since 1983, when, as a federal prosecutor, he handled his first federal tax case — a criminal prosecution that went to a jury verdict and then, successfully, to the U.S. Court of Appeals for the Seventh Circuit on an issue of first impression in that circuit.
Tom has significant experience with state and local tax (SALT) matters. In recent years, significant matters handled include: a key role in assisting a Racino in recovering $30 million in Indiana gaming excise tax; first-chairing a two-day hearing in a charitable property-tax exemption case before an Illinois Department of Revenue ALJ; formulating arguments, and collecting evidence and preparing witnesses, for a suit by business faced with a “bet the company” assessment of lodging excise taxes by a suburban Chicago municipality; and formulating arguments respecting equitable recoupment in a nine-figure California franchise-tax case.
Since 2004, Tom has been at the forefront of the landmark litigation over FICA tax paid on stipends provided to medical residents – litigation that in March 2010 led the IRS to announce a global concession of the issue. Tom first-chaired the landmark victories for The University of Chicago Hospitals in both the federal district court and then in the U.S. Court of Appeals for the Seventh Circuit. These victories were instrumental in prompting the IRS to announce its 2010 global concession. This reversal, by the IRS, of its long-time litigation position respecting an issue worth billions of dollars is one of the most notable reversals in IRS history. At the time of the IRS’s capitulation, Tom was lead counsel in more of the pending FICA-tax cases than any other attorney in the nation. He is the only attorney identified by The Legal 500 (2010 ed.) for work in this field.
After working with many tax-exempt institutions to navigate the IRS’s implementation of its 2010 global concession, Tom concluded that most of these institutions had been denied the proper amount of interest on their refunds of employer-portion FICA tax. Again finding himself on the leading edge, Tom currently represents teaching hospitals seeking to recover seven or eight figures of additional statutory interest as a “follow on” to the FICA refunds made in 2012 or 2013 under the IRS’s 2010 global concession that he helped to secure. Tom is the only lawyer in the nation to have actively pursued additional interest in suits filed in federal court, filing his first suit of that type in July of 2013.
Tom has extensive familiarity with new Code section 1061(c)(4)(A) and IRS Notice 2018-18 — provisions restricting the tax benefits of Carried Interest, relevant to hedge fund managers. He is the only tax attorney in the nation to have litigated the scope and meaning of the critical “corporation” term found pervasively across about 600 Code Sections and in new section 1061(c)(4)(A). In that litigation, DOJ/IRS took incoherent positions that are inconsistent with the IRS’s announced view in Notice 2018-18. Opinions issued by the federal courts of appeals in those litigated cases, in which Tom filed over 20 briefs, reflect holdings about the “unambiguous” meaning of “corporation” that are fundamentally inconsistent with Notice 2018-18. Those briefs and courts of appeals opinions, which carried the day to deny the Nation’s tax-exempt, incorporated teaching hospitals hundreds of millions of dollars in statutory interest, are now expected to “boomerang” against the IRS in litigation brought by managers of S-corp hedge funds who wish to challenge Notice 2018-18 and the purportedly “clarifying” regulations it promises.
Recently, Tom reviewed the new Opportunity Zone legislation at the request of a potential investor.
Tom’s resume displays an intellectual bent. He is the co-author (revisor) of the definitive BNA Tax Management Portfolio (TMP) No. 524, Deductibility of Illegal Payments, Fines and Penalties, as well as co-author (revisor) of the chapter of BNA’s Tax Practice Series (TPS) that addresses IRS audits, assessments, and appeals. It includes a chapter on the Foreign Corrupt Practices Acts (FCPA), which has ever-increasing importance for companies with multinational operations. While a law student at Ohio State, he wrote an article on Wisconsin Rule of Evidence 407 that appeared in the Ohio State Law Journal, his law school’s flagship publication. Tom might be called a “thought leader:” over the years, he has published extensively, and his writings have been cited by the Supreme Court of Wisconsin; in several leading tax treatises; and in the American University Law Review, the Creighton University Law Review, the Marquette Law Review, the Nebraska Law Review, the Ohio State Law Journal, the University of Cincinnati Law Review, the University of Miami Law Review, the New York University School of Law Tax Law Review, and the University of Southern California Law Review. Tom is a frequent media quote source for prominent national publications addressing tax issues of the day.
Tom has long been professionally active with respect to a rapidly evolving field that has become critically important to tax professionals: the standards applicable to whether Treasury Regulations are authorized and valid, particularly under so-called Chevron Steps Zero, One, and Two. Tom published his first articles in this field back in 2001 (Chevron Step Zero) and 2003 (Chevron Step One). In 2011, he guided the briefing of a case that held a Treasury Regulation invalid under Step One. In a recent case, his Chevron-related arguments (all steps) prompted the U.S. Department of Justice to eschew, on brief in the Second Circuit, any reliance on a Treasury Regulation that had never been held invalid in any court — a move that is believed to be entirely without precedent. Currently, Tom is litigating several cases that present Chevron issues, including his recently filed class-action suit.
In recognition of his tax-focused contributions, Tom recently was again named an Illinois Super Lawyer in Tax for 2019. Eleven times Tom has been named an Illinois Super Lawyer in Tax (i.e., Top 5% as ranked by peers): in 2005, 2007, 2010, 2011, 2013-2020. He has been named a Leading Lawyer in Tax Law–Business by the Leading Lawyers Network, including for 2019 (again, Top 5%); and named a leading lawyer in the tax controversy field in the 2007 and the 2010 and 2011 editions of The Legal 500. While at the U.S. Department of Justice’s Tax Division in Washington, D.C., Tom received its Outstanding Attorney Award in 1986, 1988, 1991 and 1997, before leaving a GM-15 supervisory post for private practice in D.C. in 1998.
Tom formerly was a tax partner, or a tax shareholder, with the Chicago offices of two of the nation’s largest and most prestigious law firms. In addition, after leaving the U.S. Department of Justice’s Tax Division in 1998, after 14 years, he immediately became a partner with a “K Street” tax boutique in Washington, D.C. Tom’s nationwide federal tax practice thus brings with it the acumen and connections of a Washington-based “tax insider,” coupled with a complex-litigation resume of the highest order.
In short, Tom brings a classic, recognition-winning “big firm resume,” with an intense “360-degree” tax and complex-litigation perspective, to a smaller, more nimble, and extremely efficient boutique setting in the Midwest – one that is unencumbered by bureaucracy, firm-generated conflicts of interest, and expensive, rate-hiking foreign offices.
Tom limits his nationwide law practice to federal tax matters:
- Federal Trial- and Appellate-Court Tax Litigation
- Matters before the IRS
- Matters before the U.S. Treasury Department
- Matters before the U.S. Department of Justice, including the defense of Criminal and Quasi-Criminal Investigations
- J.D., The Ohio State University, Moritz College of Law, 1979. Published student note in Ohio State Law Review, 41 Ohio St. 211 (1980).
- B.A., magna cum laude, University of Wisconsin, Eau Claire, 1976
- Actively licensed in Wisconsin (since 1979), the District of Columbia (since 1998), and Illinois (since 2002). Not licensed in Washington state, where he resides.
- U.S. Court of Appeals for the Second Circuit
- U.S. Court of Appeals for the Sixth Circuit
- U.S. Court of Appeals for the Seventh Circuit
- U.S. Court of Appeals for the Tenth Circuit
- U.S. Court of Appeals for the Eleventh Circuit
- U.S. Court of Appeals for the Federal Circuit
- U.S. District Court, Northern District of Illinois
- Trial Bar, U.S. District Court, Northern District of Illinois
- U.S. District Court, Central District of Illinois
- U.S. District Court, Eastern District of Wisconsin
- U.S. District Court, Western District of Wisconsin
- U.S. District Court for the Eastern District of Michigan
- U.S. Tax Court
- U.S. Court of Federal Claims
- U.S. Supreme Court
- Member, Tax Advisory Board, John Marshall Law School, 2008-2014
- Member, Legal Committee and Safety Committee, Union League Boys & Girls Clubs of Chicago, 2011-present
- Board of Governors, Court of Federal Claims Bar Association, 2001-2003
- Profiled, The Ohio State University Moritz College of Law’s All Rise Magazine, Winter 2013
- Illinois Super Lawyer for Tax, 2005, 2007, 2010-2011, 2013-2020 — ranked by peers among Top 5% of Illinois Tax Lawyers (all types); Illinois Super Lawyer for Appellate, 2017
- Listed, The Legal 500, United States, 2007, 2010-2011. In 2010, listed for practice in the medical-resident FICA field.
- Listed, Leading Lawyers Network (Illinois), Tax Law — Business (again, Top 5%), including for 2019
- Rated “Superb” (10.0/10) among tax lawyers by the AVVO lawyer-rating website
- Outstanding Attorney Award, U.S. Department of Justice, Tax Division, Washington, D.C., 1986, 1988, 1991, 1997
- Promoted into ascending supervisory, civil-service positions (GM-15) at the Tax Division, U.S. Department of Justice, Washington, D.C., 1991 and 1997
- Appointed by a U.S. district judge to act as lead counsel for the plaintiff in an employment-discrimination case
- Lead counsel in Cook County Circuit Court in a case where he successfully represented an artist involved a contract dispute
- Judging at annual ABA Moot Court competitions