David Foster represents clients in tax litigation and in administrative tax controversies.

Bio

Mr. Foster advises a broad range of clients, including large corporations, private equity firms and hedge funds, partnerships, estates, exempt organizations and individuals, many of whom are subject to the IRS’ Global High Wealth initiative. His practice covers a diverse range of tax issues, including international tax, TEFRA and BBA partnership audit and litigation procedures, taxation of financial products, estate and gift taxes, deferred compensation, voluntary disclosures and criminal tax.

Mr. Foster’s representations have included:

  • Hewitt v. Commissioner, 21 F.4th 1336 (11th Cir. 2021). Appellate victory striking down a Treasury regulation as arbitrary and capricious under the Administrative Procedure Act.
  • Cross Refined Coal, LLC v. Commissioner, Tax Court Docket No. 19502-17, Index No. 177 (2019), aff’d, 45 F.4th 150 (D.C. Cir. 2022). Trial and appellate victories holding that a partnership was a bona fide partnership with bona fide partners.
  • a hedge fund in what The Wall Street Journal described as one of the largest tax settlements in history, which included a resolution of a long-running partnership dispute over the income tax character of billions of dollars of investment gains.
  • prominent estates in some of the largest Tax Court gift and estate tax cases in history, which included the favorable resolutions of asserted deficiencies in excess of $2.8 billion and $500 million.
  • individuals, partnerships and corporations in connection with potential criminal tax issues, including a jury acquittal of an attorney on tax evasion charges.
  • Ingersoll Rand Co. v. Commissioner, Tax Court Docket No. 25769-13. Resolution by settlement of IRS treaty-shopping claims regarding withholding tax issues arising out of intercompany debt structure.
  • Massachusetts Mutual Life Insurance Co. v. United States, 782 F.3d 1354 (Fed. Cir. 2015). Appellate victory affirming the timing of an insurance company’s deduction of nearly $250 million in policyholder dividend payments.

Many of Mr. Foster’s most significant representations involve proceedings before the IRS and DOJ where the taxpayer’s privacy is closely guarded, including:

  • private equity firms and hedge funds, and their individual owners, in IRS examinations, before IRS Appeals and in Tax Court trial testimony. Areas of dispute have included taxation of financial products, taxation of distressed debt, taxation of retirement accounts, valuation issues, existence of a U.S. trade or business, charitable contribution deductions, information and FBAR reporting, and withholding taxation on cross-border payments.
  • corporations in IRS examinations and before IRS Appeals regarding the deductibility of payments made to resolve litigation.
  • prominent individuals in Global High Wealth examinations and before IRS Appeals with more than $1 billion of proposed deficiencies.
  • individuals in connection with voluntary disclosures of offshore tax issues and with grand jury investigations.

A former Supreme Court clerk, Mr. Foster has prepared briefs and argued before many of the federal courts of appeals. He represented five former IRS commissioners in a D.C. Circuit amicus brief in Loving v. IRS in support of licensing standards for tax return preparers, as well as the American College of Tax Counsel in amicus briefs in the Tax Court and the Supreme Court. In addition, he helped draft the Supreme Court briefs pro bono for a state prisoner’s double jeopardy challenge to a state prosecution in Blueford v. Arkansas, 132 S. Ct. 2044 (2012). He also has experience in the certiorari process, both successfully petitioning in favor and in opposition.

Mr. Foster lectures regularly to in-house tax departments and professional associations. He is a fellow of the American College of Tax Counsel and the American Bar Foundation. He also has served as chair of the D.C. Bar’s Tax Audits and Litigation Committee and as co-chair of the ABA Tax Section’s Privileges Subcommittee of the Civil and Criminal Tax Penalties Committee. Mr. Foster has repeatedly been ranked in Chambers USA, Chambers High Net WorthThe Best Lawyers in America and The Legal 500 U.S., and was previously recognized as one of Washington, D.C.’s Trending 40 Lawyers Under 40 by Legal Bisnow. He also has been included in Washingtonian’s Top Lawyers list since 2018.

Credentials

Education

  • J.D., Harvard Law School, 2005 (Supreme Court Chair of the Harvard Law Review)
  • A.B., Harvard University, Harvard College, 2000

Admissions

  • Massachusetts
  • District of Columbia

Experience

  • Law Clerk, Hon. Anthony M. Kennedy, U.S. Supreme Court (2006-2007)
  • Law Clerk, Hon. Alex Kozinski, U.S. Court of Appeals for the Ninth Circuit (2005-2006)