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. He has also been included in Washingtonian’s Top Lawyers list since 2018.
Chambers Global Practice Guide: Tax Controversy (Law and Practice – USA), 2019
Recognized by Chambers USA as "Up and Coming" for Tax, 2023
Recognized by The Legal 500 United States for U.S. Taxes: Contentious, 2023
Admissions & Qualifications
- District of Columbia
- 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 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
- Harvard Law SchoolJ.D.2005Supreme Court Chair, Harvard Law Review
- Harvard UniversityA.B.2000