David W. Foster, P.C.
Overview
David is a brilliant lawyer,” “a great writer, a really clear thinker and has outstanding judgment.” - Chambers USA, 2026
David Foster is a nationally recognized tax controversy attorney who helps lead the Tax Disputes Practice Group. He has been resolving tax disputes in every administrative and litigation forum for nearly twenty years since serving as a law clerk to Supreme Court Justice Anthony M. Kennedy.
David serves a broad array of clients — public and private companies, partnerships, high net worth individuals, estates and tax-exempt organizations. His practice covers a diverse range of tax matters, including corporate tax, partnership tax and BBA audit procedures, financial products, energy tax credits, regulation validity challenges, employment taxes, estate and gift taxes, information reporting, and the economic substance doctrine and other common law doctrines. He also handles sensitive tax matters (including section 6700 audits) that may involve fraud allegations or potential criminal tax liability.
He has successfully defended examinations by the IRS and state and local taxing authorities, has resolved multi-billion dollar adjustments with IRS Appeals, and has served as lead counsel in the Tax Court, federal district courts, Court of Federal Claims, the federal courts of appeals and the Supreme Court.
He has extensive experience in the rules applicable to tax-exempt entities. His transactional practice includes assisting in the formation and structuring of innovative joint ventures between tax-exempt and for-profit entities. He has led voluntary disclosures involving tax-exempt entities, as well as successful defense of proposed revocations of exempt status and criminal investigations involving tax-exempt entities.
He is a fellow of the American College of Tax Counsel and has served as chair of the D.C. Bar’s Tax Audits and Litigation Committee and as co-chair of the Civil Penalties Subcommittee and the Privilege Subcommittee of the ABA Tax Section’s 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 2024–2026 editions 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
Since joining Kirkland, David has been involved in the following matters:
- Sports Betting Alliance v. City of Chicago: Illinois constitutional challenge to City of Chicago tax on sports wagering.
- Marlin Woods Capital v. Commissioner: Litigation over the character of gain on the sale of partnership interests.
- SECA tax appeals: Representation of Managed Funds Association as amicus curiae over definition of “limited partner” for purposes of SECA tax exemption in Sirius Solutions (Fifth Circuit), Denham Capital (First Circuit), and Sorobon Capital Partners (Second Circuit) appeals.
- Riddle Aggregates v. Commissioner: Litigation addressing the Seventh Amendment right to an Article III forum and jury trial for tax penalties.
- North Wall Holdings v. Commissioner: Litigation addressing the jurisdictional nature of Tax Court filing deadlines.
- Agro Holdings LLC v. United States: Federal district court litigation resulting in agreement not to apply reportable transaction notice against clients.
- Successful defense of examinations of private equity sponsors and funds, asset managers, and individuals, including in BBA and Global High Wealth examinations.
- Successful settlement in Tax Court litigation and before IRS Appeals of deductions claimed in connection with litigation stemming from formation of new private equity firm.
- Representation of Otro Capital in its partnership with the University of Utah Growth Capital Partners Foundation to form Crimson Brand Partners.
Prior to joining Kirkland, David was involved in the following matters:
- 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 clean energy tax credit 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.
- A large public company in resolving with IRS Appeals the deductibility of a payment in excess of a billion dollars in connection with a bankruptcy restructuring.
- 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.
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, “Tax Litigation Update — The Year’s Most Significant Decisions,” D.C. Bar Tax Conference, January 14, 2027
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 20, 2026
Moderator, “Changes at IRS and DOJ and Their Impact on Issue Resolution,” Tax Executives Institute Audits and Appeals Seminar, September 10, 2026
Moderator, “Defining and Defending Economic Substance,” NYU Tax Controversy Forum, June 25, 2026
Moderator, “The Year in Review: Legislative, Judicial, and Enforcement Developments in Civil and Criminal Tax Penalties,” ABA Section of Taxation May Meeting, May 9, 2026
Speaker, “3M and the Future of Transfer Pricing Controversy: Bellwether or Outlier?” Tax Executives Institute 2025 Annual Conference, March 17, 2026
Speaker, “Criminal Enforcement and Exempt Organizations,” TEGE Annual Exempt Organizations Update and Meeting, March 5, 2026
Speaker, “Careers in Tax Controversy: Practitioner Insights,” Georgetown Tax Law Council, February 4, 2026
Speaker, “Tax Litigation Update: A Discussion on the Some of the Most Significant Tax-Related Judicial Decisions of the Past Year,” D.C. Bar Tax Conference, January 8, 2026
Moderator, “Cybersecurity: Ethical Considerations in Protecting Confidential Tax Information,” Criminal Tax Fraud and Tax Controversy Conference, December 12, 2025
Panelist, “‘Double or Nothing’ and the Economic Substance Doctrine,” University of Chicago Law School’s 78th Annual Federal Tax Conference, November 6, 2025
Moderator, “Navigating the IRS in the Wake of DOGE,” Tax Executives Institute 2025 Annual Conference, October 28, 2025
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 22, 2025
Speaker, “The Impact of Loper Bright on Tax Compliance and Enforcement,” NYU Tax Controversy Forum, June 26, 2025
Speaker, “What Tax Lawyers Need to Know About the APA in Our New Post-Chevron World,” Federal Bar Association Tax Law Conference, March 3, 2025
Speaker, “The Brave New (Anti-Regulatory) World,” Heckerling Institute on Estate Planning, January 15, 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 in The Best Lawyers in America®, 2020–2026
Recognized by Chambers USA for Tax, 2020–2026
Recognized by The Legal 500 United States for U.S. Taxes: Contentious, 2023–2026; 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 Armed Forces
- 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 District Court for the District of Columbia
- United States Court of Federal Claims
- United States Court of International Trade
- United States Tax Court
Education
- Harvard Law SchoolJ.D.2005Supreme Court Chair, Harvard Law Review
- Harvard UniversityA.B.2000