Tax Opinion Practice
Robert P. Rothman*
Tax advisors render advice to their clients in any number of different forms. These forms include oral communications, informal written answers to specific questions (today, often in the form of electronic communications such as email), letters (far less prevalent than they once were), and legal memoranda. At the pinnacle of legal advice is the formal opinion.
This Article addresses a number of issues that arise in federal taxation practice with respect to formal opinions.1 Part II begins by discussing the various functions that legal opinions perform in the tax area and Part III addresses the range of comfort levels they represent. Part IV then goes on to discuss certain regulatory and ethical rules and principles that come into play when preparing tax opinions—most notably, the Treasury Department rules of practice contained in the infamous Circular 230.2 Finally, Part V discusses a number of specific issues and problems that frequently arise in particular contexts.
*Robert P. Rothman is Senior Counsel in the New York office of Akin Gump Strauss Hauer & Feld LLP, where he practices in the area of federal income taxation. The author thanks Alice Hsu, Stuart Leblang, Christina Padien, Geoffrey Secol, and Jenny Woodson for their comments and assistance in the preparation of this Article. The views expressed herein are solely those of the author, as is the responsibility for any errors.