Key Digital Asset Tax Proposals in the Biden Administration's Green Book

Andrea (Andie) S. Kramer has a sophisticated and unique multi-disciplinary legal practice that covers all aspects of financial transaction, derivatives, cryptocurrency, and energy transactions. She focuses on taxation, regulation, contract design, documentation, and trading operations. Andie helps clients successfully resolve difficult legal situations, including federal and state regulatory matters, adversarial proceedings, and tax planning and compliance issues. She addresses interrelated business objectives, regulatory and legal requirements, and public policy. In recent years, Andie has focused on federal administrative and legislative counseling, financial risk management and hedging procedures, the exploding cryptocurrency and NFT marketplaces, proprietary trading policies, codes of conduct and internal controls, tax compliance and controversy, and insurance product design. Andie provides compliance advice with respect to the rules that apply to swap dealers, major swap participants, commercial end users, and financial end users. She works closely with a wide range of market participants, including miners, stakers, NFT creators, and lenders, to evaluate their use of financial products and cryptocurrency and the effect on their operations, existing contractual relationships, regulatory requirements and tax obligations. Andie designs, structures, and defends financial product transactions, including complex hedging and risk management programs. Andie has extensive experience advising energy companies, public utilities, pipelines, generators, power marketers, wind-power companies, commodity traders, dealers, and hedge funds. She has conducted workshops on negotiating energy and natural resource contracts in Malaysia, Egypt, Singapore, Gabon, Kenya, Uganda, and Côte d’Ivoire. Andie is a major contributor to the tax literature on cryptocurrency transactions and reporting obligations for US and international users on straddles, mixed straddles, section 1256 contract treatment, wash sales, tax basis, tax classification as commodities or securities, and the legal effect of IRS pronouncements cryptocurrency and NFTs. She was named the 2020 Go-To Thought Leader in Virtual Currency Tax by the National Law Review and a 2021 Readers’ Choice Top Author in cryptocurrency taxation by JD Supra. Andie served as an adjunct professor at Northwestern University School of Law for over 20 years, where she taught classes on the taxation of financial derivatives. Andie is a founding member of the Firm’s Diversity Committee and previously served as founding chair of the Gender Diversity Committee. She has also served on the Firm’s Management Committee and Compensation Committee. Andie is the author of the two volume treatise, Financial Products: Taxation, Regulations, and Design (4th Edition 2021). She is also an editor of and contributor to Energy and Environmental Project Finance Law and Taxation (2010) and Energy and Environmental Trading (2008).

John T. Lutz advises clients on the tax aspects of investment funds, structured finance, derivatives and structured products. He also counsels clients on matters related to insurance products, investment tax credits, conventional US and cross-border securities offerings, and corporate mergers and acquisitions. John represents a number of tax-exempt organizations in connection with their investment activities and incentive compensation arrangements. John handles all aspects of tax-advantaged financings and investments for financial institutions, investment fund managers, high net worth individuals and investors. He represents banks and investment managers in connection with asset backed securities including collateralized loan obligations, structured notes and repackagings. John is a recognized leader in the tax aspects of municipal derivatives and tax-exempt bond securitizations. He provides tax advice to derivative products dealers in the domestic and cross-border contexts, advising on US and international tax issues related to insurance products, equity swaps, repurchase agreements, structured notes and offshore structured finance vehicles.

William (Bill) R. Pomierski focuses his practice on the taxation of financial products and capital markets transactions, as well as on executive compensation matters. He is a former chair of the Firm’s Executive Compensation Practice Group. Bill advises clients on the federal income tax implications of a variety of domestic, cross-border and global financial products and related transactions. He has worked extensively with public and private companies, hedge funds, trading firms, financial institutions, high-net-worth individuals, trust advisors and family offices in connection with a range of capital market and financial product issues. He has advised insurance companies, financial institutions, equipment manufacturers, retailers, energy companies, food processors and manufacturers, and chemical companies. In the derivatives arena, Bill’s advice spans a wide range of commodities, along with interest rate, currency, credit default, equity and weather derivatives. His experience covers domestic and foreign exchange-traded positions, cleared bilateral products, as well as over-the-counter transactions. Bill works with clients to ensure compliance with federal income tax rules that potentially apply to domestic and international derivative activities, including hedging and straddle issues, Subpart F considerations, cross-border withholding issues, US trade or business issues for foreign persons (including the availability of trading safe harbors), constructive sales and constructive ownership rules, mandatory and elective mark-to-market issues, securities lending, short sales, repo transactions and wash sales. He also advises on capital markets tax issues involving debt and equity offerings. He has significant experience in the special rules that apply to debt instruments, including original issue discount (OID), market and acquisition discounts and premiums, contingent and convertible debt, and debt modifications, among others. Bill counsels corporate debt issuers on various limitations affecting the deductibility of interest, including debt-equity considerations, earnings stripping rules, Applicable High Yield Discount Obligation (AYHDO) and convertible debt, and he addresses tax issues relating to foreign currency denominated borrowings, hybrid securities, and securitization transactions, as well as finance and true lease transactions. Bill also advises on the tax issues associated with accelerate share repurchase programs. Bill has extensive tax controversy experience. He routinely assists clients at the examination level, as well as participates in the Internal Revenue Service (IRS) appeals process, including handling protest letters and appeals settlement conferences. Bill’s executive compensation practice involves the design and drafting of a variety of compensation plans or arrangements, with a particular emphasis on equity-based compensation plans for public and private companies, such as options, restricted stock and stock units, stock appreciation rights, and profits interests, along with performance based compensation, including annual and long-term performance bonus arrangements and performance equity. He also advises clients on senior executive employment, consulting and retirement arrangements, including change in control severance programs. Bill also advises clients on the federal income tax implications of executive compensation programs, including in particular the special rules for incentive and nonqualified stock options, Section 83 restricted property considerations, Section 280G golden parachute tax considerations, the Section 162(m) deduction limitations for public corporations and the Section 409A limitations on nonqualified deferral arrangements. Bill speaks and writes frequently on a variety of topics relating to the taxation of financial products. While in law school, Bill was a member of the University of Illinois Law Review. He is also a member of our legal cannabis industry group. Our Cannabis Industry group is a multidisciplinary team of lawyers providing clients with regulatory, litigation, intellectual property, trade and tax services with respect to their investments and participation in the cannabis industry, all subject to the Firm’s obligations under federal and state laws and bar licensure rules.

Andrew M. Granek focuses his practice on US and international tax matters. Andrew’s practice includes advising corporate and private equity clients on domestic and cross-border mergers and acquisitions, inversions, financings and restructurings.