In Nonprosecution Deal Over Tax Shelters, Jenkens & Gilchrist to Pay $76M and Shut Doors

NEW YORK LAW JOURNAL – March 30, 2007 – Federal prosecutors in Manhattan have entered into a nonprosecution agreement with Dallas law firm Jenkens & Gilchrist over its past involvement in illegal tax shelters, a scandal that has already fatally crippled the once-thriving firm.

Between 1998 and 2003, the firm’s Chicago-based tax shelter practice provided hundreds of legal opinion letters in support of tax shelters the Internal Revenue Service subsequently deemed illegal. The criminal probe of the firm by the Southern District of New York U.S. Attorney’s Office followed several civil suits by tax shelter investors whose claims the firm has agreed to settle for $85 million.

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2 Responses

  1. Congratulations DOJ, a victory is a victory even if it is a pyrrhic victory since J&G was going BK anyways and will unlikely be able to pay the fine. You have proved once again your perception of the law is reality though not necessarily the law. Luckily, in this matter, you did not receive the same type of scrutiny as the AG in the fired prosecutor mess. Who could withstand that type of scrutiny especially if the prosecutor firing mess is SOP at the DOJ. One must wonder however if the same type of duplicitous behavior did not occur with J&G as in the fired prosecutor mess. In fact, none of the J&G transactions have ever been legally determined to be tax shelters from even a civil perspective, let alone criminal. You certainly haves much power and an interesting interpretation of the tax law but one must wonder what type of internal deliberations you had regarding criminality. Though it is difficult to obtain public information on DOJ internal deliberations on these matters, the Stein case provides much insight. In the Stein case, dealing with KPMG tax shelters similar to the J&G transactions, the DOJ provided to the court an IRS memorandum portending to support the DOJ contention that the KPMG transactions were tax shelters. Yet on page 12 of such legal memorandum which was underlined by the DOJ, the IRS concludes the KPMG transactions were not tax shelters unless the investments were outstanding after year end (which the DOJ and IRS have consistently maintained none were). Further, in the Stein case regarding tax shelters, an email in early 2003 from the lead IRS lawyer on the case states that if KPMG litigates the issue of whether the transaction is a tax shelter, it is substantially likely KPMG would prevail and in the process create some bad law. Yet the DOJ recently obtained a declaration from the same IRS lawyer that there was no question that the KPMG transactions would be treated as tax shelters (sounds like Kyle Sampson). Even in the grand jury transcripts provided by the DOJ in the Stein case, light is shed on the methods of the DOJ in these matters. The DOJ interviewed two witnesses before the grand jury on the tax shelter issues and was able to persuade both witnesses to testify the KPMG transactions were tax shelters. The DOJ obtained this testimony even though such testimony was in direct conflict with the IRS rules described and underlined by the DOJ in the IRS memorandum concluding the transactions were not tax shelters. In any event, most likely, the J&G transactions were not tax shelters under the Internal Revenue Code even though the DOJ was able to persuade the 1/3 remaining at J&G otherwise. You have to give the DOJ credit, regardless of the law (fortunately, not every matter receives the same scrutiny as the AG firing of the prosecutors), the DOJ gets what it wants, companies have no other business choice than to proceed as J&G did.

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