David C. Cole, P.C.

Partner Tax Disputes

Houston +1 713 836 3302

David C. Cole, P.C.

Practices

Overview

David Cole is a tax partner in the Houston office of Kirkland & Ellis LLP. David focuses his practice on tax disputes with trial experience in both federal and state courts. The tax matters David has litigated include disputes with taxing authorities and between private parties.

The clients David represents include large and small partnerships, public and private partnerships, corporations, and high net worth individuals. His clients operate across an array of industries, including private equity, upstream (onshore and offshore), midstream, renewable energy, domestic and foreign manufacturing, real estate, and medical devices.

Of course, the best outcome in a dispute is to avoid it altogether. To that end, David also leverages his dispute experience to advise clients on the front end of matters on approaches and strategies to minimize the likelihood of even having a dispute.

When disputes happen, David represents clients in all phases of tax controversy from audit to IRS appeals to litigation. In his litigation practice, he has represented clients before the U.S. Tax Court, Federal Courts of Appeal, and in the Delaware Court of Chancery. He has extensive experience with partnership disputes, including litigating numerous cases under the Tax Equity and Fiscal Responsibility Act of 1982 (TEFRA) and advising clients on the Bipartisan Budget Act of 2015 (BBA).

David advises clients on all aspects of investments relating to renewable energy and carbon capture projects. Tax credits are critically important to the economics of these transactions, and David applies his practical tax dispute experience to help achieve and sustain the intended treatment of the tax credits.

Prior to joining Kirkland, David was involved in the following representations:

Tax Controversy/Litigation

  • Private Party Tax Disputes
    • The Williams Companies v. Energy Transfer Equity, L.P. – Claim for specific performance relating to a proposed $38 billion public merger that did not close because of the failure of a preclosing tax condition
    • The Williams Companies v. Energy Transfer LP – Claim for termination fee relating to failed public merger
    • Energy company in cross-border tax indemnification dispute
    • Manufacturer in state tax indemnification dispute
  • Federal Cases
    • Partnership proceeding in Tax Court involving challenges to restructurings and a corresponding Section 743(b) adjustment
    • Partnership proceeding in IRS Appeals involving challenge to debt financed distributions
    • Series of related partnership proceedings in Tax Court involving challenge to the sourcing and characterization of fund management and asset advisory fees
    • Proceeding in IRS Appeals involving a real estate investment trust in a dispute regarding the economic substance of recapitalization of a foreign subsidiary
    • Partnership proceeding in IRS Appeals involving procedural and valuation issues for solar project
    • Proceeding in IRS Appeals involving an offshore drilling contractor in a transfer pricing dispute regarding transfer of intangibles
    • Proceeding in IRS Appeals involving an oilfield services provider in a research and experimentation credit dispute
    • Partnership proceeding in Tax Court involving economic substance and TEFRA procedural issues
    • Proceeding in IRS Appeals involving a corporation in a valuation dispute regarding Alaskan onshore and offshore oil and gas properties
    • Proceeding in IRS Appeals involving a manufacturer in a cost sharing dispute relating to the amount of, and methodology for determining, the buy-in payment for intangibles transferred to foreign affiliates
    • Proceeding in IRS Appeals involving a manufacturer in a transfer pricing dispute regarding royalty paid by a foreign affiliate for use of U.S. intangibles
    • Partnership proceeding in Tax Court involving TEFRA procedural issues
    • Proceeding in bankruptcy court involving offshore trust structures
  • Transactional Tax
    • Viking Global Investors as a lead investor in the $15 billion business combination of Ginkgo Bioworks and Soaring Eagle Acquisition Corp., a SPAC
    • Underwriters to Sunnova Energy International Inc., a residential solar and energy storage service provider, in its $168 million initial public offering of common stock
    • Underwriters to Sunnova Energy International Inc. in its $115 million public offering of common stock by selling stockholders
    • Seadrill Partners LLC in its $221 million initial public offering of common units
    • Seadrill Partners LLC in a $380 million secondary equity offering; awarded the Marine Money Offshore Deal of the Year
    • KNOT Offshore Partners LP in its $180 million initial public offering of common units
    • Underwriters in the $350 million IPO of Transocean Partners LLC
Partner, Vinson & Elkins LLP

More

Thought Leadership

Publications

Quoted, “Biden Plan Puts Fossil Fuel Tax Breaks on Chopping Block,” Tax Notes, June 1, 2021

Co-author, “The New Era of Partnerships As Taxpayers,” American Investment Council, September 28, 2017

Co-author, “The Uncertain World of Uncertain Tax Position Disclosures and Privilege,” Bloomberg BNA Daily Tax Report, March 23, 2012

Speaking Engagements

Speaker, “IRS Update and New Enforcement Developments,” Tax Executives Institute – Houston Chapter Tax School, February 28, 2022

Co-speaker, “RWI and Other Transactional Insurances: M&A Risk Allocation Opportunities,” UT Law 17th Annual Mergers & Acquisitions Institute, October 7, 2021

Speaker, “Tax Controversy Trends in Alternative Energy Transactions,” Tax Executives Institute – Houston Chapter Tax School, May 5, 2020

Speaker, “Current Trends in Tax Controversy,” Tax Executives Institute – Houston Chapter Tax School, February 4, 2020

Co-Speaker, “Looming Regulatory Challenges in Light of Tax Reform,” Tax Executives Institute – Houston Chapter monthly meeting, March 28, 2019

Speaker, “Managing Information Requests in an IRS Audit,” 34th Annual Texas Federal Tax Institute, June 6, 2018

“Migration of Intangibles in a Low-Value Environment,” Tax Executives Institute – Houston Chapter Tax School, Houston, Texas, February 24, 2017

“Merger Agreements – Closing Conditions and Efforts Clauses in Uncertain Times,” Tax Executives Institute – Houston Chapter Tax School, Houston, Texas, February 24, 2017

“Inversions: Are they still viable planning opportunities?,” International Roundtable, Tax Executives Institute – Houston Chapter, Houston Texas, April 14, 2016

Speaker, “13th Biennial Parker C. Fielder Oil and Gas Tax Conference,” Houston, Texas, November 19, 2015

“International Tax Issues in Intellectual Property Transactions,” American Intellectual Property Law Association Annual Meeting, Washington, D.C., October 24, 2013

Recognition

The Legal 500 United States, Tax: U.S. Taxes: Contentious, 2016, 2018–2023

Super Lawyers (Thomson Reuters), Texas Rising Stars list, 2007

Memberships & Affiliations

Member, Houston Bar Association, Tax Section

Member, American Bar Association, Section of Taxation

Credentials

Admissions & Qualifications

  • Texas

Education

  • University of Texas at Austin School of LawJ.D.with High Honors2002

    Chancellor

    Associate Editor, Texas Law Review

  • University of Texas at AustinB.B.A., Computer Engineering Route to Business and Honors Businesswith Highest Honors1992