Dan Brody

Controversy / Administrative Practice

Represented a major electric utility before IRS Appeals on issues related to the valuation and hedging of power sale agreements, including issues related to the marking-to-market of futures contracts under Internal Revenue Code section 1256, as well as the business hedge identification and accounting rules under Treas. Regs. §§ 1.1221-2 and 1.446-4. Obtained a full concession on the issues briefed.

Represented a major petrochemical firm before the IRS (including both IRS Exam and IRS Appeals) on issues related to the tax treatment of debt instruments similar to Debt Exchangeable for Common Stock (“DECS”), including the favorable resolution of issues under the straddle rules, the wash sale rules, Internal Revenue Code section 263(g), the tax treatment of options and futures contracts, and various other issues related to debt-for-debt exchanges.

Represented a major electric utility before the IRS's Office of Chief Counsel (Financial Institutions and Products) on tax issues related to the utility's planned multi-billion dollar asset securitization.  Representation resulted in a formal change to IRS policy that allowed the securitization to be completed.

Represented an individual in a tax-related lawsuit against the United States in U.S. District Court, based on an "Innocent Spouse Relief" claim.  Obtained a full recovery.

Advised Halliburton Co. on certain tax issues related to the Chapter 11 petition filed by several of its subsidiaries, including the treatment of capitalized bankruptcy costs under Treas. Regs. § 1.263(a)-5.

Obtained a favorable IRS private letter ruling under Internal Revenue Code section 355 for Halliburton Co. in connection with its spinoff of KBR, Inc.

Obtained a favorable IRS private letter ruling under Internal Revenue Code sections 368(a)(1)(D) and 357(c) for a major drilling services provider.

Derivatives

Advised a major petrochemical firm on the tax consequences of a fixed-to-floating interest rate hedge under the integrated debt instrument regulations (Treas. Regs. § 1.1275-6), which also included an analysis of the variable rate debt instrument rules (Treas. Regs. § 1.1275-5) and the tax treatment of interest rate swaps.

Advised various clients on “integrated call spread” convertible debt issuances.

Advised Liberty Media Corporation on various investments in derivative products, including several interest rate swap agreements with non-U.S. commercial banks.  Representation required working knowledge of several U.S. tax treaties as well as the Treasury regulations related to notional principal contracts.

Mergers, Acquisitions, and Divestments

Represented Platte River Ventures I, L.P. in connection with its acquisition of Giddens Industries, Inc.

Represented Real Goods Solar, Inc. in connection with its acquisition of Regrid Power, Inc.

Represented a major electric utility in its bid to acquire a large natural gas pipeline network.

Advised CenterPoint Energy on its $3.65 billion sale of Texas Genco Holdings to Kohlberg Kravis Roberts & Co., The Blackstone Group, Hellman & Friedman and Texas Pacific Group, as reported in The American Lawyer, October 2004.

Represented Halliburton Co. in its spin-off of KBR, Inc.  

Investment Vehicles

Represented the Crow Tribe of Indians in connection with its strategic alliance with the Australian-American Energy Company for the development of a $7 billion coal-to-liquids project on the Crow Reservation.

Advised the Platte River Ventures group of funds on various tax and structuring issues related to private equity fund formation and maintenance.

Advised an offshore hedge fund on structuring alternatives for inbound U.S. investment.

Advised a commercial real estate developer on the formation of a large investment partnership.  

Debt and Equity Issuances

Represented Caltius Partners in connection with its mezzanine lending and related equity investment in each of Bulk Handling Systems, Diversified Human Resources, and Griplock Systems.

Represented Platte River Ventures I, L.P. in connection with the $1.1 billion IPO of Intrepid Potash, Inc.

Represented Real Goods Solar, Inc. in connection with its $55 million IPO

Represented Halliburton Co. in its $544 million IPO of KBR, Inc.

Advised Halliburton Co. on its issuance of $1.2 billion of contingent convertible debt.

Advised CenterPoint Energy on its refunding and remarketing of several tranches of tax-free municipal bonds.  Representation included an analysis of the Internal Revenue Code provisions and Treasury regulations related to tax-free debt, included both pre- and post-86 Act provisions.

Advised JP Morgan on its underwriting of contingent interest convertibles issued by Maverick Tube Corporation.  Representation included a complete analysis of the contingent payment debt instrument rules (Treas. Regs. § 1.1275-4) as well as the production of a projected payment schedule and an OID accrual schedule.

Advised a major electric utility on its refinancing of a $118 million credit facility.

Represented a petrochemical services company in its redemption and reissuance of preferred stock and issuance of first and second lien debt.

Represented a large residential real estate developer in its issuance of trust preferred securities. .

Panelist, ABA Financial Transactions Committee’s panel on Internal Revenue Code section 475, ABA Section of Taxation Midyear Meeting, San Diego, February 2006.

Principal author, ABA Section of Taxation’s submission to the IRS regarding proposed regulations under Internal Revenue Code section 475.  See, “ABA Tax Section Comments on Possible Securities and Commodities Safe Harbor,” Tax Notes Today, Dec. 7, 2005 (2005 TNT 236-17).

Contributor, ABA Corporate Tax Committee’s submission to the IRS regarding IRS Notice 2004-18.  See, “ABA Members Comment on Treatment of Capitalized Transaction Costs,” Tax Notes Today, April 15, 2005 (2005 TNT 75-34)