The following is an excerpt from Practice Perspectives: Vault's Guide to Legal Practice Areas.
Elle Kaiser focuses her practice on state and local tax (SALT) matters. She advises clients in various industries, including technology, banking, consumer products, energy, insurance, retail, and transportation. Elle is experienced in both tax planning and tax disputes.
Elle has been involved in all phases of the discovery process through administrative appeals and in court. Elle identifies audit strategies, coordinates the factual and legal development of issues, and drafts responses to multiple information document requests and audit issue presentation sheets from tax authorities.
With in-depth M&A experience, Elle also advises both public and nonpublic companies in transaction structuring, financial modeling, and tax implication analyses, as well as provides post-deal integration recommendations. She is highly skilled in assessing risk and advising clients on tax-related issues associated with purchase agreements, consulting agreements, franchise agreements, and insurance terms. She also advises clients on related transactional and corporate matters, including successor liability, compliance procedures, and process improvement strategies.
Elle has experience drafting corporate restructuring decks, 100-day plans, and tax deal memoranda. She performs tax diligence for private equity and strategic clients as part of a variety of transactions such as asset acquisitions, leveraged acquisitions, stock acquisitions, and cross-border transactions.
While in law school, Elle was executive director of the moot court board and a student writer for The Journal of Corporation Law.
Describe your practice area and what it entails.
My practice encompasses a wide variety of SALT issues aimed to help my clients understand and navigate the maze of tax laws imposed by state and local governments. For example, for state and local sales and use tax purposes, I help companies determine where they have established nexus (and thus the obligation to collect and remit tax) and understand how their products and services are characterized by specific states and localities. I also advise clients as to the applicability of tax exemptions and monitor legislative and administrative changes to SALT laws to ensure my clients stay abreast of any new or changing tax obligations. On the controversy side, I frequently assist clients with the resolution of SALT controversies at the audit, administrative, and judicial levels.
What types of clients do you represent?
I represent a diverse range of clients including Fortune 500 companies, financial institutions, and high-net-worth individuals.
What types of cases/deals do you work on?
As a California-based SALT practitioner, I’m often asked to assist with California tax controversies involving disputes with the California Franchise Tax Board or California Department of Tax and Fee Administration. I’ve also had the opportunity to assist clients with the resolution of local tax controversies involving various local taxes such as the San Francisco Gross Receipts Tax or locally imposed user utility taxes. On the transactional side, I also advise on the California-specific tax aspects of M&A transactions or restructurings.
How did you choose this practice area?
I did not take state and local tax courses while in law school but was fortunate enough to clerk for the Iowa Department of Revenue and for the Texas Attorney General in its Tax, Charitable Trust, and Financial Litigation Division. Through those clerkships, I learned that SALT was a challenging yet exciting mix of two of my favorite law school courses: Constitutional Law and Administrative Law.
What is a “typical” day like and/or what are some common tasks you perform?
Because I often handle multiple complex cases simultaneously, the most “typical” aspect of each day is that I’m almost never dedicating an entire day to one matter but am most often allocating time across several projects. This allows me to have a creative and flexible schedule which keeps things interesting, but it also requires strong time management and attention to detail. Common tasks that I perform include conducting multistate legal research, drafting persuasive memoranda and briefs, communicating with state and local tax authorities, and collaborating with my colleagues on the proper application of ambiguous tax laws.
What training, classes, experience, or skills development would you recommend to someone who wishes to enter your practice area?
Although not required, I’ve found that being comfortable using Microsoft Excel has been immensely helpful in my career. Even though I don’t utilize Excel daily, my clients often do, and understanding the ins and outs of the program has allowed me to review their work papers and calculations in a more efficient and effective manner.
What is the most challenging aspect of practicing in this area?
As a multistate SALT practitioner, I have found that there’s no one “code” to rely on for answers. Rather, I’m tasked with understanding and navigating the complex, diverse, and ever-evolving tax laws and systems of many different states and localities, which often lack uniformity or clear guidance. For example, while many localities have published municipal codes that are easily accessible, others do not. This obviously adds a layer of complexity when you’re researching a local tax issue. There have been a few occasions where I’ve needed to physically go to the local library or local tax agency’s office to review tax provisions, city council meeting minutes, or other historical documents that are not published online.
Another challenging aspect of my practice is that I deal with matters spanning a broad range of taxes (e.g., income/ franchise taxes, sales and use taxes, property taxes, gross receipts taxes, utility taxes, payroll taxes, and unclaimed property). So even if I’m narrowly focused on the application of tax in one state, I need to understand the nuances of that state’s various tax regimes. For example, Washington historically imposed a different nexus standard for the purposes of the state retailing Business and Occupations Tax than it imposed for the purposes of the state sales tax. Under this varied nexus regime, it was possible for a retailer making sales in the state to establish nexus for sales and use tax purposes but not for the purposes of the retailing business and occupations tax. Complexities such as this exist in many states and only become more complicated when the consideration of local taxes is layered in.
What do you like best about your practice area?
One of my favorite parts about working as a SALT attorney is that no two days are exactly alike, and I appreciate the breadth of matters that I’ve had an opportunity to work on. To me, working in SALT is the best of both worlds because you’re given the chance to flex your muscles as a litigator and as a corporate attorney. Throughout my career, there have been ample opportunities to argue legal points and to challenge evidence presented by tax authorities. I’ve also had many opportunities to advise clients on the SALT aspects of M&A transactions and restructurings. And while I’ve thus far chosen not to focus solely on tax controversy or tax transaction matters, it is also very possible to specialize in one over the other. SALT really offers an opportunity to choose your own adventure in the best possible way.
What misconceptions exist about your practice area?
I think there are misconceptions that SALT law is tedious and the SALT practice group is merely ancillary to a firm’s corporate or litigation group. Fortunately, neither could be further from the truth! Particularly for students who are interested in litigation, SALT controversy work presents many opportunities to advocate on behalf of clients before both administrative and judicial bodies. Rumors that you need to be a CPA or have your LL.M. to become a successful SALT attorney are also untrue.
As a junior attorney, how did you learn the ins and outs of the tax code so that you could hit the ground running on your clients’ complex issues?
I sought out a variety of projects, particularly those involving taxes and fees, that I was less familiar with (e.g., property tax or unclaimed property). Although this often felt intimidating, it ultimately helped me to feel confident that I can quickly learn the ins and outs of a state or locality tax code, even if the provisions I’m reviewing aren’t ones that I’ve dealt with before.