Though it has taken many years to assimilate the information necessary to prepare this History of the Tax Section Report, recognition must be given to the two individuals who have had the greatest impact upon this product. Regrettably, recognition for both must be posthumous. The first of these individuals is Professor James Wershow (Chair of the Section 1967-68). Professor Wershow, who inspired many students through his teachings at the Institute of Food and Agricultural Sciences at the University of Florida, first initiated the collection of materials utilized for this Report in the mid-1970’s. David Richardson (Chair 1981-82) deserves thanks for preserving Professor Wershow’s collection of materials. After long last, Jim, your project has been completed; rest well.
The other individual who coerced, enticed, badgered…, (however appropriately phrased) me into this project is the late Gerald Hart who was taken from us tragically as he prepared to serve his term as Chair following Ed Koren (Chair 1990-91). Jerry truly understood the need to know one’s history in order to plot one’s course for the future so as to avoid the same mistakes and not lose sight of one’s principles. His leadership and friendship will be sorely missed.
As the Tax Section enters its sixth decade of service, it is befitting that we take a retrospective look at our past achievements and chart our course in this new century. It is the goal of all who have participated in this project that this report be utilized for the following purposes:
To recruit new members to the Tax Section;
To educate members as to the activities of the Section; and
As a guide to the wealth of materials that have been collected from past chairs of the Section to be utilized for future decision making on issues of interest to the Section.
I would like to relay special thanks: to all of the past chairs of the Section that have taken time from their practice or active retirements to provide us with the information necessary to prepare this Report; to the late Professor James Freeland for providing necessary background and “flavor” to many of the events described herein below; and to Bill Townsend for raising the bar (literally) for literary achievement by the Tax Section scribe.
1950’s – The Decade of Inception
The Tax Section of The Florida Bar is an outgrowth of the Committee on Federal Taxation of The Florida Bar. The leaders of this standing committee of the Bar recognized that the rapidly evolving field of tax law needed more specialized treatment. Beginning in September of 1950, the committee changed its name to the Tax Committee and adopted regional meetings and area chair to encourage greater committee participation.
Michel Emmanuel, (Chair 1954-55) recalls that the creation of the Section was a direct result of a meeting called by John Donahoo in Jacksonville, September 23, 1950, which set off the evolutionary process noted above. This culminated in the formation of the Tax Section by a vote of the Board of Governors at the annual Bar convention in June of 1952. The Tax Committee formally ceased operations and reorganized itself as the Tax Section at an organizational meeting held in Orlando on July 26, 1952.
Hugh R. Dowling was named the first chair of the Section which had a membership of 111. Membership dues were $5.00 annually except for those that had 3 years or less experience as a member of the Bar, in which event it was reduced to $2.50 annually. The first Treasurer’s report (a copy of which is attached hereto as Schedule 1) reflected a profit of $361.45 based on $510.00 of membership dues paid. The Section consisted of 4 committees as follows:
Committee on Federal Income Tax – Lucius A. Buck, Chair.
Committee on Estate and Gift Taxes – Douglas D. Felix, Chair.
Committee on State and Local Taxes – Ben C. Willis, Chair.
Committee on Public Relations – Michel G. Emmanuel, Chair.
The early issues facing the Section are still quite familiar, some 50 years later. The unauthorized practice of law (“UPL”) was the most controversial issue during the early years that pitted Certified Public Accountants against the Tax Bar. In this instance, the concern was over whether CPA’s should issue any tax advice or whether such advice was purely within the purview of the attorney. It is with great interest to witness how this issue of unauthorized practice of law has continued to play a crucial role in the Section’s activities, pitting different professional organizations against the Tax Bar. Always controversial, this issue certainly is representative of one of the cornerstones of the Section’s existence – the need to adequately protect and represent the consuming public. Michel Emmanuel also shares with us that the modernization of Florida Statutes dealing with probate and estate taxation was the other major focus of the Section during its early years.
Another of the cornerstone issues upon which the Section has developed is the further refinement of the level of expertise and professionalism within the Bar, and raising the public awareness of the need for legal services from tax attorneys. The first concept of tax specialization arose quite early in the Section’s history. This, as with UPL, has evolved significantly over the years to the current certification program.
The Section first published the Tax Section Bulletin during its first year of operation and held institutes for Section members and the general Bar membership. In an effort to educate the public, a speakers’ bureau was developed to address civic groups and hold radio talk shows. The first major federal legislation to attract the Section’s interest was the Internal Revenue Code of 1954.
As the decade of the 50’s came to a close, the Section membership had increased to 150 members, and there were 10 committees and 3 special committees. The Executive Council consisted of 17 members (3 officers and 14 at large).
1960’s – The Decade of Service to the Bar
It was during the 1960’s that the Section’s service to the Bar was first brought into the spotlight. The Tax Section constituted the tax lawyers of the Bar and they recognized their duty to represent the Bar. At the turn of the decade, under the leadership of Horace R. Drew, Jr. (Chair 1959-60) and George Ericksen (Chair 1960-61), the Tax Section was able to secure federal tax exempt status under Section 501(c)(3) for both The Florida Bar and the newly established Florida Bar Foundation. Horace Drew provides us with the following materials:
Subsequent to the creation of the present integrated Bar in 1948, The Florida Bar was ruled exempt by the Treasury Department as a Business League under Section 501(c)(6) of the Internal Revenue Code by ruling letter dated May 11, 1956. On February 10, 1956, The Florida Bar Foundation was incorporated, and an application filed for exemption under Section 501(c)(3) as a charitable corporation. This application was denied by the Treasury by letter dated August 5, 1960, on the ground that stated Foundation purposes “appear to be clearly business league purposes”, subject to submission of additional information.
At this point, the Board of Governors called on the Tax Section to obtain the Foundation tax exemption, and a Special Committee on Federal Tax Exemption of The Florida Bar Foundation was appointed on October 24, 1960 by George Ericksen, Tax Section Chair, comprised of Ralph Martin, William T. Stockton, Jr., Mr. Marshall Cassedy (ex officio) and me, as Chair.
The Special Committee accepted the task and gave first consideration to the fact that on the records of the Treasury both The Florida Bar and the newly-established Foundation were designated as “business leagues” for tax purposes.
After extensive analysis and research, and substantial revisions in Foundation Charter and By-Laws, the Special Committee prepared and filed separate Amended Applications for Exemption based on (1) The Florida Bar as an official arm and instrumentality of The Florida Supreme Court exempt under Section 170 of the Internal Revenue [Code] and (2) the Foundation as a non-profit charitable corporation exempt under Section 501(c)(3) of the Internal Revenue Code. Following a conference in Washington and the submission of added data, these applications for exemption were subsequently granted by the Treasury: The Foundation by Exemption Ruling on June 12, 1962 and The Florida Bar by Exemption Ruling dated January 16, 1963. These organizations have enjoyed this favorable tax status ever since those dates.
The obvious point here is that The Florida Bar and The Florida Bar Foundations should, in my opinion, be kept advised by their tax attorneys, the Tax Section, to closely adhere to and follow the requirements of their respective exempt ruling representations and requirements, in order to retain their respective exempt status. This is particularly true in the areas of the standards of professionalism, and activities in lobbying and politics prohibited by these statutes. I believe that the Tax Section has a specific and historic duty to do so.
The other major focus during the 1960’s was on educating general practitioners to identify tax issues and seek guidance from a “tax specialist”. The Section maintained institutes on a regular basis for the Bar and utilized the Tax Law Notes, a regular feature of the Florida Bar Journal established during William O. E. Henry’s (Chair 1958-59) tenure as a means to disseminate information to general practitioners.
The Tax Section also took a proactive stance in sponsoring and commenting on legislation at both the state and federal levels. State issues focused primarily on Florida’s apportionment statute, addressing ad valorem assessments and protecting and refining the green belt legislation to preserve agricultural land; while the federal issues related to the continuing evolution of the 1954 Code.
In 1966-7 the Tax Section was chaired by Stephen T. Dean who, prior to relocating to Florida, as Chair of the Philadelphia Bar Tax Section presented its views on pending legislation to the appropriate Committees of Congress. Steve Dean initiated the same program on behalf of our Tax Section, and he presented its views in the course of appearances before the Senate Finance and House Ways and Means Committees. Since then the House and Senate Committees as well as the Internal Revenue Service, have been receptive to the expressed views of The Florida Bar Tax Section which, in that sense, established an early presence at the national tax level. It was also during the 1960’s that the Section began mixing entertainment with meetings. Though its members had a heavy schedule of work meetings throughout the state, the Section’s membership also had travel weekends to Jamaica, the Bahamas, Mexico, Columbia, Puerto Rico, Costa Rica, etc. The Section developed the personality and reputation within the Bar of being hard working and dedicated individuals that had the ability to truly enjoy themselves in the company of their fellow practitioners.
1970’s – Growth and Reorganization
The membership of the Tax Section exploded to nearly 1,500 during the 1970’s. The Section leadership first responded to this growth by substantially increasing the membership of the Executive Council. Joel Sharp, Chair (1976-77), implemented a thorough advanced agenda presentation for all members of the Executive Council and practically doubled its size by involving a number of young tax lawyers around the state who wanted to serve. A number of other chairs followed this approach and ultimately it was determined that the Section’s organizational structure had to be decentralized to allow even greater participation. It was believed that this would allow for a healthier Section, placing less emphasis on the Chair’s activities and more upon the various members that made up the Executive Council. By the time the decade ended, under the leadership of Richard O. Jacobs (Chair – 1978-79) the Section had been reorganized into six (6) divisions and forty-five (45) committees.
Due to the increased size of the Section’s membership and the growing interest in the tax field, the Section’s CLE programs were highly successful, thus greatly enhancing the financial solvency of the Section. During this period, the Section reformatted its programs with more emphasis towards current events and more frequent programs. The Section also pioneered the use of (i) traveling programs to reach more practitioners, (ii) limited attendance programs and (iii) the requirement that speakers provide complete sentence outlines, thus giving the attendees useful resource materials. As a result of the successes, the Florida Bar took a greater interest in the revenues of the Tax Section. The Board of Governors changed procedures regarding continuing legal education requiring the Section to coordinate with the CLE Committee of the Bar. Also, all Sections of the Bar including the Tax Section were required to forfeit a portion of their funds yearly to the Bar. This erosion of the independence of the Section has, at times, strained the relationship between the Section and the Bar and makes for some rather interesting budgeting issues. During the 1970’s, the Section was very active on State tax issues. Most important was the Section’s participation, at the request of then Governor Askew, in rendering an opinion regarding the constitutionality of the proposed corporate income tax law. The Section opined that the constitutional prohibition against individual income tax would not be compromised by the passage of the corporate income tax law. It is widely considered that this opinion from the Section was crucial to the passage of this controversial legislation.
The Section introduced legislation and worked on the passage of many legislative initiatives dealing with the State of Florida estate tax and probate matters. It also prepared and filed briefs on State tax cases that were of interest to the Section involving documentary stamp and estate tax issues. Needless to say, the Section was extremely pro-active during the 70’s regarding legislation and administration of Florida’s tax laws.
On the Federal level, the Section, with the approval of the Board of Governors, continued to comment on behalf of the Florida Bar on many technical aspects of proposed Federal tax legislation and regulations. The Tax Section also took an active role in encouraging the Internal Revenue Service to make all letter rulings available for public inspection after deleting identifying details.
The Section’s continued involvement in the UPL area expanded to encompass concerns about the drafting of retirement plans and plan administration.
A major focus of the Section from 1975 through 1980 was the debate within The Florida Bar over legal specialization. In the early 1970’s The Florida Bar determined to recognize specialization. After lengthy consideration of a number of options, the Bar elected to institute a “Designation Plan” with relatively minimal standards for participation that were designed to involve as large a segment of The Florida Bar members as possible. However, the leadership of the Tax Section believed that The Florida Bar had made a mistake in selecting the designation approach. It was the position of the Section that, although the Designation Plan resulted in participation by a broad segment of the Bar, it fell short of meeting its stated goal of assisting members of the public in identifying true legal specialists because the standards for designation were minimal, at best. As a result of the Section’s continuous outspoken criticism of the Designation Plan, then Florida Bar President Russell Troutman, at the request of Joel Sharp (the Section’s liaison with the Board of Governors), spoke at the meeting of the Executive Council in the summer of 1977. Mr. Troutman invited the Tax Section to draft a pilot certification plan. He believed that a certification plan, if it would work in the practice of law at all, would be best suited for the practice of tax law. He wanted the Tax Section to take a leadership role in helping the Bar certify lawyers. He hoped that if certification proved successful in the field of tax law, it could be applied to other fields of law as well.
Chair Sam Ullman (1977-78) appointed a special committee consisting of Charles Egerton (Chair 1980-81), Robert E. Muraro (Chair 1979-80), Joel Sharp, Richard Jacobs, Ken Anderson, Ben Phipps, Hal Mullis, Alan Lindsay and himself to draft the proposed plan. The Committee produced a proposed plan and committee reports, explaining the intent of the various provisions, by late 1977. The draft and the committee report were sent to all Tax Section members for review and comment. The comments were overwhelmingly in favor of adoption of a certification plan. Special meetings of the Executive Council were held on this subject in late 1977 and early 1978. The draft plan was debated and ultimately adopted.
The Trial Lawyers Section, having heard about the Tax Section draft, prepared a draft certification plan for trial lawyers. That draft was based, in large part, on the Tax Section draft.
The Tax Section plan, along with the Trial Lawyers Section plan, was submitted to the Board of Governors of the Bar in early 1978. Mr. Sharp was a member of the Board of Governors at the time (the first Section Chair to serve thereon) and was instrumental in explaining the plan to the Board of Governors. Mr. Ullman and Mr. Egerton appeared before the Board of Governors on a number of occasions to urge adoption of the plan. Other Section members lobbied members of the Board of Governors as well, arguing that a certification plan would do a more effective job of assisting members of the public in finding a true specialist. At the same time, it would provide an incentive to members of the Bar to enhance their professional skills through extensive continuing legal education and other means in order to achieve recognition as a certified specialist.
The Tax Section plan and the Trial Lawyers Section plan were adopted by the Board of Governors in a very close vote, and later approved by the Florida Supreme Court. As a result of the tireless efforts of many people within the Section, taxation thus became one of the two original areas included in The Florida Bar Certification Plan.
The Section was not only in the forefront of the certification movement, but continued to press its argument that the Designation Plan should be replaced by certification rather than allowing the two plans to co-exist. It was the position of the Section that the continued existence of side-by-side certification and designation plans would lead to confusion on the part of the public, especially after the United States Supreme Court effectively removed most of the limitations on the advertisement of legal specialties. The Section’s position in this regard was vindicated as designation has been phased out in favor of certification.
The culture of the Section matured tremendously during the decade of the 70’s. With the increasing membership and the ever closer scrutiny of the Bar, gone were the days of the exotic trips to winter paradises in the Caribbean. The Section took on more of a business-like approach, having periodic Executive Council meetings three or four times a year and also various tax institutes or seminars. At the suggestion of David Richardson (Chair 1981-82) the Section initiated its first annual meeting in May, 1979 which was used as a springboard for the Chair-elect to outline his programs for the ensuing year prior to the Bar’s annual meeting. Also, during the 70’s the first attempt to prepare a history of the Section was initiated by James Wershow (Chair 1967-68), whose materials have played a great part in this report.
1980’s – The Pinnacle and the Other Side
The size (up to 1,800 members at the beginning of the decade) and stature of the Section continued to grow through the decade of the 80’s, achieving new heights after the Economic Recovery Tax Act of 1982 until the impact of the Tax Reform Act of 1986 was fully realized at the close of the decade. The Section’s prestige and influence appeared to have no limits during the 1980’s as its influence was felt not only in Tallahassee, on issues related to Florida law, but also in Washington, D.C., where the Section achieved new levels of respect on national and international issues. Federal tax legislation and regulations related thereto took the forefront during the decade of the 80’s. With the arrival of President Reagan’s administration and the Economic Recovery Tax Act of 1982, significant federal tax legislation became almost an annual event. The multitude of legislative changes made the Tax Section’s CLE programs most important as a means of keeping current. The size, frequency and success of these programs grew tremendously, the results of which further bolstered the financial solvency of the Section.
During the 1980’s, the Section ventured into new substantive areas of federal tax law and had significant impact upon the resulting legislation and regulations. One of the Section’s proudest accomplishments during the 1980’s was its leadership in convincing Congress and the Treasury Department to reconsider their initial proposal as to the method of withholding tax on income derived by nonresident aliens from United States real estate. Under the leadership of Bob Hudson (Chair 1989-90), the Foreign Tax Committee initiated and shepherded to a successful conclusion the withholding legislation under the Foreign Investment and Real Property Tax Act (FIRPTA). Subsequently, the Section has consistently been in the forefront on various foreign tax matters and commenting on proposed regulations related thereto. The Section also began to co-sponsor an annual Institute on International Taxation in Miami, with the Florida Institute of Certified Public Accountants.
In other new substantive areas for the Section, the Agricultural Tax Committee of the Section chaired by Michael Minton, played a crucial role in identifying, researching, commenting upon and resolving ambiguities under the depreciation schedules that were of great importance to Florida agriculture. Additionally, Richard Josepher and Marvin Gutter (Chair 2000-01) on behalf of the Section successfully obtained an I.R.S. ruling on the partnership tax status of the new Florida limited liability company.
During these years of active involvement in federal legislation, the Section held a number of meetings in Washington, D.C. initiated by Ben Phipps (Chair 1985-86) during his tenure as Chair. These meetings gave ample opportunity for direct discussions with members of Congress, the administration, the Treasury Department, Judges of the Tax Court and Court of Claims, and other tax practitioners. These activities served to not only educate the Section members, but to raise the exposure and prestige of the Section nationally.
Among the many projects carried on in the Federal tax arena during the 80’s, the most ambitious project which utilized the greatest number of Section members was the “Tax Reform Act of 1986, Highlights Report and Practitioner’s Alert List” prepared by Division V, then headed by Bob Hudson and Jerry August. This publication followed the enactment of the Tax Reform Act of 1986, which became law in October, 1986, and was distributed before year-end to provide vital year-end assistance to tax practitioners on a variety of subject matters that this sweeping tax legislation impacted. Approximately 70 tax lawyers throughout the State participated in the preparation of this publication.
On the State level, the Section met many new challenges. Under the leadership of Larry Gragg (Chair 1991-92), Jerry Hart (Chair 1991), Ben Phipps and Bob Pearce, the Section was instrumental in addressing issues ranging from changes in the Florida corporate income tax that would have adversely affected piggy-backing, attempts to tax subchapter S corporations and limited partnerships, and controversial new taxes such as the unitary tax and sales tax on services. The Section continued to appear in a number of Florida appellate cases, but during the 1980’s the focus was on state tax procedure.
Early in the decade, the Section published the definitive treatise on Florida taxation, a concept which has now been adopted and carried forward by other publishing companies. The treatise has been frequently cited by the appellate courts. The Section was also instrumental in establishing the National Association of State Bar Tax Sections, with Larry Gragg serving as Vice-Chair of the Association. Finally, during this period, the Section forged a new relationship with the Florida Department of Revenue, opening better lines of communication, commenting on regulations and greatly easing the ability of members of the Section to deal with the Department.
In striving to increase its membership and expand its exposure among new tax lawyers, the Tax Section increased its focus on future tax practitioners. The Section began sponsoring annual orientation programs for beginning graduate tax students at the masters programs at the University of Florida and the University of Miami schools of law. The orientation sessions familiarized students with the employment opportunities in tax areas of law, such as in private firms, the Florida Department of Revenue, the Internal Revenue Service and within the judiciary. The Section also began sponsoring annual scholarships at these programs. Mindful that graduate tax students were once juris doctor students, the Section helped to foster an early interest in taxation by sponsoring annual scholarships at law schools in Florida. The Section also began sponsoring an annual tax moot court competition.
The Section expended a great deal of energy during the 1980’s on increasing the professionalism of the Bar. The Tax Certification Program approved in 1982 became a model program for other Sections of the Bar. The Section did not rest on its successes, however, after the certification program became effective. Since the program’s inception, the Section has sponsored a certification review course, taught by tax professors on an annual basis, and has endeavored to find new ways to raise public awareness about the certification program. Joel Sharp and Sam Ullman were appointed to serve on the original Board of Certification, Designation and Advertising, and Charlie Egerton, Al O’Neil (Chair 1975-76), Bob Hart, Ken Anderson, Professor James Freeland, Hank Raattama (Chair 1983-84) and David Richardson were appointed to the initial Tax Certification Committee.
In April, 1982, the Section awarded the first annual award to the lawyer making the greatest contribution to the practice of tax law in Florida. The first recipient of the award was Professor James Freeland of the University of Florida College of Law, a nationally recognized expert on tax law, a longtime member of the Section and renowned by many as the patriarch of the Tax Bar in Florida. A complete list of the recipients of this prestigious award is contained in the Tax Section membership directory. In continuing its efforts on the UPL front, the Section issued an advisory opinion regarding non-lawyers involvement in the pension and profit sharing plan areas. This issue found its way to the Supreme Court of Florida which ultimately established parameters within which non-lawyers were to confine their activities regarding pension and profit sharing plans.
Don Tescher (Chair 1984-85) reflects that the relationship between the Section and the Bar was a primary focal point during the mid-80’s. The Section was instrumental in forming the Council of Sections, an ad hoc group of substantive law Section representatives, to deal with issues of common concern to the Sections. From this initial beginning, the Council of Sections has grown in importance and represents a formidable political force within the Bar.
Internally, the Section experienced much change as the decade of the 80’s came to a close. Under the leadership of Ed Koren (Chair 1990-91) the Bylaws of the Section were re-drafted with specific sensitivity to gender neutral language. The Section also entertained its first contested election with Les Barnett (Chair 1988-89) outpacing challenger Bob Panoff. Bob Panoff (Chair 1994-95) ultimately prevailed in the second contested election of the Section held in 1993. The Section leadership, having fully realized the implications of the Tax Reform Act of 1986, initiated further restructuring of the Section to better address the ever evolving needs of tax practitioners in Florida.
1990’s – In Search of CyberTax.com
During the decade of the ‘90’s, all aspects of the U.S. economy experienced the intellectual technology revolution and the Tax Section endeavored to maintain itself on the cutting edge of this revolution, though obsolesence was now being measured in minutes and days rather than years. The Section also completed the reorganization initiated in the late ‘80’s. Ed Koren (Chair 1990-91) notes in his annual report that the principal goal was to restructure the activities of the Executive Council, to involve more of the full council rather than have decisions made merely by the officers and directors. There was also a concerted effort to increase the activities of former Section Chairs in educational forums, committee studies and significant participation in council meetings. Of particular note is the “Sam Ullman Annual Review of Tax Law”, which has become institutionalized at the annual organizational meeting held each summer.
By the time the Section celebrated its 40th anniversary in 1992, the Section membership had grown to greater than 1,900 members. Bob Panoff (Chair 1994-95) attributes this to the overthrow of “the politics of exclusion and began the process of converting to the politics of inclusion….. Everyone was welcome to participate. The Tax Section started to become fun again.” By mid-decade, the Section, under the leadership of Linda Hanna (Chair 1995-96) and Joel Bronstein (Chair 1996-97), undertook two surveys of its members and many of its members attended a 2-day long range planning retreat entitled, “Tax 2000″ to analyze the survey results and chart the course for the Section as it prepared to enter the new millennium. David Bowers (Chair 1999-2000) chaired this meeting, which set forth a number of ideas for future projects that the Section has since undertaken. One of those new projects was the formation of the Young Tax Lawyers Committee established during Lauren Detzel’s year as Chair (1997-98), to recruit nouveau tax lawyers to become actively involved in the Tax Section and to develop a mentoring program whereby the elder statespersons of the Section could help introduce our new tax lawyers. David Pratt shepherded this project through the approval process and served as the first Chair of this committee.
Larry Gragg (Chair 1991-92) noted that the Section made a concerted effort during this decade to improve its relationship with the Board of Governors and reassert its position as the tax lawyers to the Florida Bar. The Section was instrumental in the formation of the ad hoc “Council of Sections” during 1991-92 fiscal year. Larry notes that Ed Koren played a pivotal role in this process. Also during this decade the Tax Section provided service to the Bar during the Constitutional Revision Commission. The Section served as technical advisor to the Commission. As the decade closed, the Section once again fulfilled its role as tax advisors to the Florida Bar by the participation of Sam Ullman and Don Tescher as members to the Florida Bar’s committee on Multi- Disciplinary Practices and Ancillary Business.
At the beginning of the decade, the Section endeavored to re-emphasize its involvement on State tax issues to complement the reputation of the Section on federal tax issues. An early effort undertaken to achieve this result was to establish a national level state tax conference, which was first co-sponsored in 1992 by the Section, the Florida Institute of Certified Public Accountants and the Florida Chapter of Tax Executive Institute. The Section’s leadership on State issues enjoyed great success throughout the decade, including such projects as: (i) the elimination of the limited liability company from Florida corporate income tax and subsequent rewrite of Chapter 608 of the Florida Statutes spearheaded by Richard Josepher; (ii) revisions to the Limited Liability Partnership Act and the Revised Uniform Partnership Act undertaken by Louis Conti (Chair 2001-02) and (iii) significant changes to the intangible tax and the use of non-Florida situs trusts. As the decade closed, the Section added an additional notch on its list of successes for State legislation with the enactment of the new elective share statute. Lauren Detzel and Don Tescher were actively involved in this process.
The Section continued its prowess in dealing with federal tax matters. It maintained its leadership role on international tax issues with Bob Hudson (Chair 1989- 90) testifying (with the assistance of Jason Warner (Chair 1992-93)) at the House and Ways Committee’s hearing on foreign investments in the U.S. In addition, the Section submitted comments on proposed regulations for the Uniform Capitalization Rules (§263A) prepared by Michael Minton and liberalization of subchapter S eligibility requirements proposed by Jerry August. One of the Section’s proudest moments during the decade, however, was its amicus curiae brief in the Estate of Hubert case, prepared by Jerry August and Jack Freeland which clarified deductibility of estate administration expenses. The same authors followed up on this issue by submitting comments on the proposed regulations promulgated by the IRS in 1998 as a result of the Estate of Hubert case.
During the decade of the ‘90’s, the Section’s Annual Tax Moot Court (initiated in 1989) continued to grow in stature and now attracts competition teams from 16 universities across the country. Susan Carlson, followed by Mitch Horowitz and Karen Keaton, pioneered this exciting new program for the Section.
The defining issue for the Section through the decade of the ‘90’s has to have been the intellectual technology revolution and its impact upon the legal profession. The Tax Section once again showed its leadership in analyzing and educating its membership regarding these developing technologies, starting with CLE courses regarding use of personal computers and the internet to developing a web page and tax chat rooms. Much of the Section’s business is now done via the internet/e-mail, which has brought Section membership closer together with instantaneous dialog opportunities. Other than the need to censor Bill Townsend’s jokes from his handheld gizmo, the Section has proven very successful in bringing its membership, some reluctantly, into the new millennium. The impact of the technology revolution is yet to be fully realized but the Section membership has a much better grasp upon its potential and its trappings as a result of the Section’s leadership on this issue. Leading by example, Joel Bronstein (Chair 1996-97), J. Bob Humphries (Chair 1998-99) and Marvin Gutter (Chair 2000-01) were three of the driving forces behind the Section’s leadership on this issue.
The social fabric of the Section continued to adapt to the changing Section membership and maintained the character of the Section as a close knit group that truly enjoyed each other’s company. The Section welcomed with open arms its new members, the young tax lawyers, while jealously trying to maintain active participation by its senior members. The minutes of the Section during the period of 1995-1998 also reached new literary heights (or depths, depending on who is critiquing), as Bill Townsend found a way to make the minutes of each meeting into an epic event. The following is a passage from the minutes of the 1997 organizational meeting:
(with SINCERE apologies to Rudyard Kipling)
By the banks of the great, gray green greasy St. Johns River, all set about with cypress trees, the aging Rock Python curled up to begin his tale ……
Ah, Best Beloved, he sibilantly said to the eager children of the tax law jungle, listen closely while I relate the story of the organizational meeting of the Directors of the Tax Section for 1997-98. As the jungle babies nestled amongst themselves to hear the senile old snake’s story, he hissed: “Bear in mind, O Best Beloved, ‘twas not I who first set down these events, but rather the hairless mancub, Mowgli Mark. Thus, errors and fabrications if there be any, are not, Best Beloved, to be attributed to this poor old serpent.”
It came to pass, Jungle Juveniles, that the Queen of the City of Orlando-wat, with its extravagant architecture now turning into waste amid the onslaught of the mice, resplendent in her jewels and jingles, summoned her courtiers to meet in council on the 3rd of July, 1997 at forty past the hour of three in the post meridian ….
In his hirsutely ingratiating manner, the Panoff, bearing a striking resemblance to King Louie of Disney fame, slyly insinuating himself into the proceedings raised a half-full glass in a toast to Queen Lauren of Detzel and the meeting began.
Adjournment which must have come as a great relief to all, was announced at 5:25 p.m. It was noted that there could now be found in the room three dead red soldiers, two dead white ones and one zin soldier traded for a Mossad agent later to be named.
2000’s – Marvin’s Gardens
Not so very long ago, it seemed to many that the importance of the Tax Lawyer was waning; with talk of Repeal of the “Death Tax” and adoption of a Federal Sales Tax or Value Added Tax. This ever-shifting tax landscape and uncertainty, however, proved that the need for, and relevancy of, Tax Lawyers was as strong as ever. As the Tax Section entered the new millennium, it endeavored to evolve and seek out new opportunities while still maintaining its core relationships and values. Old traditions, such as the annual organizational meeting at Amelia Island, the Sam Ullman Year in Review, and the Section’s National Moot Court Competition were enthusiastically continued. Through this decade many of these new initiatives and opportunities as well as the new Tax Lawyers that took up the charge of the Section leadership were identified, cultivated and nurtured by Marvin Gutter (Chair 2000-2001).
To begin the decade, in the 2000-01 year, the membership of the Section exceeded 2000. While encouraging active participation from its senior members, the Tax Section continued to successfully recruit new Tax Lawyers. A notable example of the Section’s dedication to bring in new Tax Lawyers and aid them in their professional development was a Breakfast Workshop on “What Young Tax Lawyers Should Know About the Practice of Tax Law and How to Solve Office Problems” held in the 2003-04 year and led by Joel Bronstein (Chair 1996-97), Jason Warner (Chair 1992-93) and Marvin Gutter (Chair 2000-01). The success of this effort has now spawned luncheons and receptions hosted periodically across the state to attract new Tax Lawyers.
The Section also reached out to LL.M. students, inviting them to participate in the annual meetings and retreats, creating an opportunity to get to know each other that benefitted all involved. Additionally, members of the Section were appointed to serve as liaisons with each of the LL.M. programs in Florida, participating in annual tax practice and ethics workshops and creating a “tax hot line” to assist the students in their recruiting efforts.
The New Tax Lawyers Committee was very active during this decade, establishing several new satellite committees, organizing the above referenced breakfast, luncheons and outstanding CLE programs, creating fellowship and mentoring programs, and organizing the above-referenced breakfast, lunch and happy hours for new Tax Lawyers, just to name a few accomplishments. Special mention goes out to Peter Blatt and Hunter Brownlee, whose leadership on this front Marvin Gutter (Chair 2000-01) credits with much of the growth at the beginning of the decade, and to Steve Hadjilogiou, chair of the New Tax Lawyer Committee in 2008 and 2009, who, according to David Pratt (Chair 2008-2009), treated his position as a “second job.” Notably, the Committee partnered with the Young Lawyers Division to provide a CLE on Basic Tax Practice.
Another focus of the Section during the early years of this decade was the issue of multidisciplinary practices. The Tax Section started out with no members on the Florida Bar Committee on Ancillary Business studying multidisciplinary practices, but the hard work of many, notably including Jerry Beer, as the Board of Governors liaison, resulted in the appointment of Sam Ullman (Chair 1977-78) and Donald Tescher (Chair 1984-85) to this very important Committee. In 2002, the Section analyzed the recently adopted Bar Rule 4-5.7, covering Ancillary Business, and a lively presentation was made on that Rule, to the edification of all, by Sam Ullman (Chair 1977-78), Donald Tescher (Chair 1984-85), and Sherwin Simmons, at the 2002 Annual Meeting. This issue of ancillary services was the primary focus during Rick Josepher’s term (Chair 2002-03) entitled “Let’s Get Universal” when the Section held a unique educational program, “Insurance 2003 – The New Universe,” including a presentation on the ethical obligations facing attorneys involved with selling life insurance products or providing ancillary services. No doubt this will continue to be a high profile topic.
The Section renewed its emphasis on certification, taking the position that “certification is an obligation of our profession.” Significantly, in 2001, laptop testing was available for the first time for those taking the certification exam. Additionally, CLE credits required for recertification were reduced from 150 to 125. Led by Mitchell Horowitz (Chair 2005-06), Mark Holcomb (Chair 2006-07), David Burke, Rick Josepher (Chair 2002-03), Jim Davis and David Pratt (Chair 2008-09), the Section encouraged more members to get certified, implementing a comprehensive certification review course. The exam was restructured in response to the suggestions and recommendations made by Section members, in an effort to make the exam more meaningful. The restructuring effort was headed by Guy Whitesman (Chair 2010-11), serving as co-chair of the Federal Tax Division and chair of the Tax Certification Committee of the Board of Legal Specialization and Education of the Florida Bar.
Looking outside its own boundaries, the Tax Section also promoted cooperation with the Florida Bar and other Sections. Notably, in 2004, the Section joined with the Health Law Section to sponsor a CLE Program titled “Representing the Physician – 2004.” This is only one of many meaningful partnerships forged with other sections to determine how we can best achieve our common goals. Other notable partnerships included a collaboration with the Business Law and the Real Property, Probate and Trust Law (“RPPTL”) sections on the Florida Revised Uniform Limited Partnership Act Project and with the RPPTL and the Elder Law sections on the Ad Hoc Florida Uniform Trust Code Revision Committee. Greg Marks spearheaded the committee evaluating the Florida Revised Uniform Limited Partnership Act on the Section’s end, and was greatly aided by Lou Conti (Chair 2001-02), Richard Comiter (Chair 2003-04), Nick Lioce, Jim Barrett, Alan Baseman and Cristin Conley. Bill Lane represented the Section on the Ad Hoc Florida Uniform Trust Code Revision Committee.
The Tax Section continued to partner with groups outside the Bar as well. The Section co-sponsored the International Tax Seminar and the Florida State Tax Conference with the FICPA . Thanks to the involvement of Bill Townsend (Chair 2004- 05), the Section and Deloitte & Touche (as co-sponsors) launched a National, State and Local Tax Symposium, which has now become one of the most prestigious and well attended multi-state tax programs in the country.
The Section also remained vigilant in legislative affairs. The Federal and State Tax Divisions stayed abreast of new legislation, regulations and rulings. The State Tax Division instituted a State of the Tax Law Address to the Florida Legislature, with the purpose of setting forth legislative initiatives to assist in administration of Florida’s tax laws and business regulations. The inaugural State of the Tax Law Committee was comprised of experts in the area of state taxation, including the three immediate past General Counsels of the Department of Revenue and the inaugural address was delivered in 2000 by Marvin Gutter (Chair 2000-01), whose influence continued to be felt throughout the decade through his hard work and dedication to the Section. This report offers important recommendations for changes needed to ensure uniformity and fairness in the administration of tax laws, many of which have been endorsed by the Florida Department of Revenue.
In addition to evaluating and making recommendations on state tax, Section members were active in commenting on proposed regulations at the federal level and participated in the annual IRS-Southeast Region Liaison Meeting in order to facilitate a dialogue with the IRS. In 2006, Marvin Gutter (Chair 2000-01) and Ted Brill coordinated the first liaison meeting since 2001 at the IRS headquarters office in Plantation, Florida, as part of the continuing effort to maintain open dialogue with the IRS. The Federal Tax Division prepared and filed comments, authored by Mike Lampert, Abe Smith and Jim Barrett, with the IRS in 2006, regarding proposed Circular 230 regulations. In 2007, the Federal Tax Division also filed comments on the hotly-debated issue of patentability of tax strategies and advice, led by Aaron Farmer, Jim Ervin, J.J. Wehle, Jim Barrett and Abe Smith, and on proposed private annuity transaction regulations, led by Mark Brown, Robert Williams, Elaine Bucher and Jim Barrett. The Section reinitiated meetings in Washington, D.C. and hosted annual receptions in 2007 and 2008 for the Florida Congressional Delegation, providing an invaluable opportunity for Section members to interact with their counterparts of the American Bar Association Tax Section. These meetings were made possible largely by the efforts of Rick Josepher (Chair 2002-03), David Pratt (Chair 2008-09) and Michael Minton. The 2008-09 year saw even more globe-trotting, when the Section also held a meeting in New York. In 2010, one of our own, Charlie Egerton (Chair 1980-81) reached the pinnacle of Bar participation when he was named Chair of the American Bar Association Tax Section.
In 2009, the Section hosted several meetings that truly speaks to the decade’s theme of celebrating the past while embracing the future. Donald Tescher (Chair 1984-85) and Lauren Detzel (Chair 1997-98) chaired a blockbuster estate planning seminar entitled “America’s Tax Idols-Part I,” rooted firmly in the present and future, and replete with nationally renowned speakers. This was followed by the equally successful “America’s Tax Idols – Part II” in the Spring of 2010. In 2009, Marvin Gutter (Chair 2000-01) received the Gerald T. Hart Outstanding Tax Lawyer of the Year Award in front of a record crowd who alternately wept and clapped throughout the evening. The Section also undertook a retrospective walk through history as Michael Minton emceed a special evening, themed “The Night History Came Alive,” to honor all past chairs and remember the Section’s many accomplishments over the years. The meeting was truly a treat for all present, as the decade began to wind down, and all began to ponder, once again, how far we have come and where we were going.
In all, the first decade of 2000 was an undeniable success. The continued growth of the Section and the unwavering dedication of its members, junior and senior, promises great things for the future. Professionally, the accomplishments of this decade speak for themselves. What is not so quantifiable, but is no less important, is the personal impact that the Section has had on all of our lives and on the lives of our families; or as Marvin Gutter’s law partner and lifelong friend, Richard Josepher (Chair 2002-03) so eloquently calls it, “collateral impact,” as opposed to “collateral damage.” Perhaps, as the first decade of this new century comes to a close, we should all take some extra time to reflect on those lasting relationships we members of the Section have formed over the years, built on friendship, love, mutual respect, and many fond memories.
In honor of his many accomplishments, starting with the year 2010, the Annual Award given to the member of the Section who works within the public sector (the Treasury Department, Internal Revenue Services, Department of Revenue of the State of Florida, etc.) that has performed services on behalf of the Section and its membership above and beyond the call of duty was retitled as the “Marvin C. Gutter Outstanding Public Service Award.” Prior to entering private practice, Marvin served as a trial attorney with the Office of Chief Counsel, IRS. We were all richer and eternally grateful for having been a part of his time on this earth and our experience in Marvin’s Gardens.
What we have uncovered through our review of the various materials received is that the Tax Section, much like the three-legged stool, derives its strength and purpose from three (3) basic tenets or principles. They are as follows:
Public Protection. Through our educational activities and commitment to prevent the unauthorized practice of law, the Tax Section strives to protect the public and to assist the public in obtaining the services of a qualified professional in this extremely complicated and complex area of the law. It is through the activities of the committees within the Section whereby the Section advocates changes to state and federal laws and analyzes and comments upon statutes, regulations, rulings, cases, etc. that we further provide important services to the public.
Professionalism. Through the various continuing legal education activities and the board certification program, the Tax Section strives to raise the level of awareness within the general practitioners and raise the level of competency within the Tax Section membership.
Service to the Bar. As Horace Drew so aptly states… “the Tax Section has a specific and historic duty….” to advise The Florida Bar and The Florida Bar Foundation in its capacity as their tax attorneys.
As the Section enters its seventh (7th) decade of service to the Bar and to the public of Florida, the Section continues to seek a balance between structure and flexibility. As Les Barnett points out: The Section has always been fluid in its approach to resolving issues as they arise – more flexibility is good but with sufficient structure and leadership to keep members involved and active. Lack of programming dulls involvement.
The greatest strength of the Section is its broad and diverse membership and the quality of the lawyers which make up its membership. The Section reached its heights during periods where the leadership sought to decentralize the activities of the Section so as to include many members in its programs and prevent the structure of the Section from stifling the involvement of its members. It is this active participation from such a diverse membership which adds value to one’s experience of being involved with the Section and makes us better attorneys for having invested the time to become involved.