Honors & Awards

Best Lawyers® Criteria for Practice Area Recognition – Definitions:

MERGERS AND ACQUISITIONS LAW

A merger or large acquisition is a significant event in the life of a company and its numerous constituencies – from shareholders, directors, and managers to employees, customers, and communities. M&A lawyers play critical roles in how mergers and acquisitions are evaluated, structured, and implemented.

Mergers and Acquisitions in the United States are governed by a dual regulatory regime, consisting of state corporation laws (e.g., the Delaware General Corporation Law) and the Federal securities laws (primarily, the Securities Act of 1933 and the Securities Exchange Act of 1934). There are three primary types of M&A transactions: (1) a merger, which is the legal combination of two separate entities under state law; (2) “stock deals,” which is the purchase of a business through the purchase of the owner, or an interest in the owner, of the business; and (3) “asset deals,” which is the purchase of a business through the purchase of assets. Transactions can involve public or private companies, may be on a hostile or friendly basis and may entail acquisition of 100% ownership, a controlling interest, or a minority stake.

The legal environment for the public company merger and acquisition activity in the United States has changed dramatically over the last several years, and the process of change continues apace. M&A lawyers advise their clients to ensure the transaction is in compliance with federal and state laws. We work with our clients to evaluate the strategy and tactical advantage of a friendly versus hostile transaction. M&A lawyers represent their clients in negotiations on the structure of the deal, perform due diligence and assist with the terms of the contract. M&A lawyers’ responsibilities extend beyond merely negotiating the terms of the agreements, but to the entire process by which Board decisions are made. This includes board and management counseling throughout the process on legal obligations, evolving corporate governance standards, and shareholder relations.

Richard Hall, Partner
Mark I. Greene, Partner

Cravath, Swaine & Moore LLP

TAX LAW

The practice of tax law involves providing advice on the structure of a variety of commercial transactions, negotiating their terms, and assisting clients with tax-related controversies, including any that may arise out of those transactions. The types of transactions covered can vary widely, from the formation of new enterprises, funds, and joint ventures to mergers and acquisitions, securities offerings, and bank financings and even to internal restructurings and bankruptcies.

The structure of a transaction can significantly affect its tax consequences, and very small changes in structure or in the underlying facts can have enormous tax significance. Tax lawyers design structures with those consequences in mind, while also taking into account the parties’ commercial goals, timing issues, and any other legal or accounting considerations. The tax treatment of some transactions — such as a “spin-off,” where a company distributes subsidiary stock to its shareholders — is highly complex, and tax lawyers may assist clients in obtaining confirmation of their transactions’ tax consequences from the IRS in the form of a private letter ruling.

Tax lawyers also review and negotiate the terms of the transaction, ensuring that the legal agreements implement the deal in a manner consistent with its intended structure. The agreements also govern the relationship between the parties. They may help the parties understand the intended tax treatment, identify certain tax exposures, and allocate responsibility between the parties for any taxes that may apply.

Tax lawyers also work with clients to determine the most tax efficient manner of carrying on ongoing business operations, taking into account federal, state, local, and international tax considerations.

On occasion, tax-related disputes arise between the parties to a transaction or with the IRS or another taxing authority. Tax lawyers may represent clients in administrative proceedings, private settlement negotiations, or litigation related to these controversies.

Tax lawyers are responsible for providing technical advice and analysis but must fully understand the overall business transaction in order to do so. The best lawyers give advice in a way that is clear, thoughtful, and business-minded. Tax lawyers need to be closely involved in a transaction from the very beginning and throughout the transaction, in order to be able to give the best advice on an ongoing basis and to be able to modify the structure, if necessary, in response to any changes to the business terms of the transaction.

Stephen L. Gordon, Partner

Andrew W. Needham, Partner

Lauren Angelilli, Partner

Cravath, Swaine & Moore LLP

LITIGATION AND CONTROVERSY – TAX

Tax Controversy

Tax litigation and controversy broadly describes the practice of resolving tax disputes with federal, state, local, and foreign tax authorities. A tax controversy may involve a business (whether for-profit or not-for-profit), trust, estate, or individual, and can result from any form of taxation, including income tax, estate and gift tax, state sales and use tax, or local property tax. In general, tax disputes are separated into civil and criminal matters.

Civil Tax Controversies

Attorneys specializing in tax controversies may assist a taxpayer in a civil matter by providing expertise regarding substantive tax laws, dealing with revenue agents, formulating audit strategies, and pursuing administrative or judicial appeals. Although litigation is usually the option of last resort for most taxpayers, an experienced attorney can provide skillful representation in court proceedings. A tax attorney can play a leading role in resolving a tax controversy or simply serve as an advisor to the taxpayer or his or her accountant. In addition, an attorney may assist the taxpayer in planning transactions to avoid future disputes.

Civil tax matters usually begin with audit, assessment, and collection activities by a taxing authority. Alternatively, a controversy may be initiated by a taxpayer claiming a refund. At the federal level, resolving a civil tax controversy may require discussions with the IRS, a written appeal to and discussions with the Appeals Office, or, potentially, litigation in the United States Tax Court, District Courts, or Court of Federal Claims. After litigation of a case in a lower court, the taxpayer may have appeal rights in the federal appellate courts. A similar process is available in resolving civil tax controversies at the state and local levels.

An international tax attorney may assist a taxpayer in resolving issues with taxing authorities in foreign jurisdictions or involving issues arising in international transactions, including advanced ruling requests to achieve tax certainty and penalty protection, competent authority requests to resolve treaty issues, advanced pricing agreements to resolve transfer pricing issues, and using voluntary disclosure programs to prevent or reduce tax penalties.

Criminal Tax Controversies

Criminal tax matters involve taxpayers alleged to have evaded taxes or otherwise willfully violated the tax laws. Tax litigators can assist such taxpayers by representing them during criminal investigations by the IRS, the Justice Department, or state taxing authorities, and in criminal trials, sentencing proceedings, and appeals.

Thomas R. Frantz, CEO
Jenny L. Connors, Associate John S. Davis, Partner

Williams Mullen