David W. Foster, P.C.
Overview
David Foster is a partner in the Tax Practice Group in the Washington, D.C., office of Kirkland & Ellis LLP. David 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 and transfer pricing, TEFRA and BBA partnership audit and litigation procedures, taxation of financial products, estate and gift taxes, deferred compensation, voluntary disclosures and criminal tax.
A former Supreme Court clerk, David has prepared briefs and argued before many of the federal courts of appeals. Prior to joining Kirkland, he obtained a rare taxpayer victory striking down a Treasury Regulation in Hewitt v. Commissioner, 21 F.4th 1336 (11th Cir. 2021). He also 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.
Many of David’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
David 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 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.
David has repeatedly been ranked in Chambers USA, Chambers High Net Worth, The Best Lawyers in America and The Legal 500 United States, and was previously recognized as one of Washington, D.C.’s Trending 40 Lawyers Under 40 by Legal Bisnow. In the 2024 edition of The Legal 500 United States, David was listed as a “Leading Lawyer” for US Taxes: Contentious. He has also been included in Washingtonian’s Top Lawyers list since 2018.
Experience
Representative Matters
Prior to joining Kirkland, David’s representations 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.
Clerk & Government Experience
Law ClerkHon. Anthony M. KennedySupreme Court of the United States2006–2007
Law ClerkHon. Alex KozinskiUnited States Court of Appeals for the Ninth Circuit2005–2006
Prior Experience
More
Thought Leadership
Speaking Engagements
Speaker, “The Brave New (Anti-Regulatory) World,” Heckerling Institute on Estate Planning, January 2025
Speaker, “Welcome to the New Era of Tax Enforcement Relating to Partnerships and the Economic Substance Doctrine,” 2024 Criminal Tax Fraud and Tax Controversy, December 13, 2024
Speaker, “Tax Controversy Issues in M&A Transactions,” Practicing Law Institute Tax Strategies for Corporate Acquisitions, Dispositions, Spin-Offs, Joint Ventures, Financings, Reorganizations & Restructurings,” October 30 and November 13, 2024
Speaker, “Navigating IRS Appeals: Managing Internal Expectations, Pacifying Exam and Counsel, & Negotiating the Best Result,” Tax Executives Institute 2024 Annual Conference, October 29, 2024
Speaker, “Chevron and Procedural APA Deference Issues,” Southern Federal Tax Institute, October 21, 2024
Speaker, “Supreme Court: The Aftermath of Loper,” 44th Annual Ray Garrett Jr. Corporate & Securities Law Institute, September 26, 2024
Speaker, “Practical Implications of the End of Chevron Deference,” Tax Executives Institute Audits and Appeals Seminar, September 11, 2024
Moderator, “Loper Bright and the Future of Tax Guidance,” American College of Tax Counsel Webinar, September 20, 2024
Speaker, “First Look: A Tumultuous Term for Tax?: The Supreme Court’s Oct. 2023 Term,” Managed Funds Association Webinar, August 15, 2024
Speaker, “Chevron Overruled: A New Legal Landscape for Agency Deference,” American Bar Association Tax Section Webinar, July 17, 2024
Speaker, “The Administrative Procedure Act v. the IRS,” NYU Tax Controversy Forum, June 27, 2024
Speaker, “Corner Post and the Statute of Limitations on APA Challenges,” ABA Tax Section Administrative Practice Subcommittee Webinar, March 20, 2024
Speaker, “Handling High Wealth Taxpayer Examinations - What We Can Expect After the New IRS Inflation Reduction Act Funding,” USC Gould School of Law 2024 Tax Institute, January 23, 2024
Speaker, “What Happens if Chevron Is Overturned,” American Bar Association Tax Section 2024 Midyear Meeting, January 19, 2024
Speaker, “One Year Later: The IRS War on Conservation Easements,” California Lawyers Association Tax Annual Meeting, November 3, 2023
Speaker, “Increased Audit Scrutiny of Large and Complex Partnership Structures: Trends and Management Strategies,” Tax Executives Institute 2023 Annual Conference, October 23, 2023
Speaker, “Conservation Easements, Tax Regulations, Notices, and the APA,” American College of Trusts and Estates Counsel Estate and Gift Tax Committee Summer Meeting, June 23, 2023
Speaker, “The Administrative Procedure Act v. The IRS: Which Regulations, Rules and Notices Will Survive?,” NYU Tax Controversy Forum, June 8, 2023
Speaker, “In re Grand Jury and the Future of Attorney Client Privilege,” Beverly Hills Bar Association Webinar, May 2, 2023
Speaker, “What Is In re Grand Jury and Why Should You Care?” American Bar Association Tax Section 2024 Midyear Meeting, February 11, 2023
Speaker, “What Every Tax Litigator Needs to Know About the Appeal of Their Civil or Criminal Case,” National Institute on Criminal Tax Fraud, December 14, 2022
Speaker, “Who Needs Tax Rules and Regulations? The Surprising Ways the Administrative Procedure Act Is Affecting Tax Practice,” NYU Tax Controversy Forum, June 23, 2022
Speaker, “Testing Guidance under the Administrative Procedure Act,” Federal Bar Association 2022 Tax Law Conference, March 3, 2022
Speaker, “CIC Services, LLC v. Internal Revenue Service: Opening the Floodgates to Pre-Enforcement Tax Litigation?,” American Bar Association Tax Section Virtual 2021 Fall Tax Meeting, September 22, 2021
Speaker, “What’s Really Stopping Taxpayers? A Discussion of CIC Services and the Anti-Injunction Act,” Federal Bar Association Section on Taxation Tax Practice and Procedure Roundtable, October 15, 2020
Speaker, “Statutory Interpretation & Regulatory Deference,” Tax Executives Institute Virtual Midyear: Tax Controversy, Audits and Appeals, July 16, 2020
Moderator, “A Conversation with the National Taxpayer Advocate: Erin M. Collins,” D.C. Bar Tax Audits and Litigation Series Webinar, June 3, 2020
Speaker, “Exploring Tax Issues Related to Regulatory Authority, Chevron Deference, and the Administrative Procedure Act,” D.C. Bar Tax Legislative and Regulatory Update Conference, January 23, 2020
Speaker, “A Primer on the Use of Experts in Tax Court Cases,” NYU Tax Controversy Forum, June 21, 2019
Speaker, “Effective Oral Communications – Talking Tax to Non-Tax Professionals: How Do You Rate?,” Tax Executives Institute 2019 Audits and Appeals Seminar, May 21, 2019
Speaker, “Practical Privilege Issues,” Tax Executives Institute 2018 Audits and Appeals Seminar, May 1, 2018
Speaker, “Criminalization of International Tax Planning,” International Tax Enforcement and Controversy, October 27, 2017
Publications
Chambers Global Practice Guide: Tax Controversy (Law and Practice – USA), 2019
Recognition
Recognized by Chambers USA for Tax, 2020–2024
Recognized by The Legal 500 United States for U.S. Taxes: Contentious, 2023–2024; International Tax, 2024; U.S. Taxes: Non-Contentious, 2024
Credentials
Admissions & Qualifications
- District of Columbia
- Massachusetts
Courts
- Supreme Court of the United States
- United States Court of Appeals for the District of Columbia Circuit
- United States Court of Appeals for the Federal Circuit
- United States Court of Appeals for the Second Circuit
- United States Court of Appeals for the Fifth Circuit
- United States Court of Appeals for the Sixth Circuit
- United States Court of Appeals for the Seventh Circuit
- United States Court of Appeals for the Eighth Circuit
- United States Court of Appeals for the Ninth Circuit
- United States Court of Appeals for the Tenth Circuit
- United States Court of Appeals for the Eleventh Circuit
- United States Court of Federal Claims
- United States District Court for the District of Columbia
- United States Tax Court
Education
- Harvard Law SchoolJ.D.2005Supreme Court Chair, Harvard Law Review
- Harvard UniversityA.B.2000