Mark E. Berg

Mark is Chair of the firm’s Tax Practice Group. For more than 35 years, he has concentrated his practice on advising clients on the federal, New York State, New York City and international tax and business aspects of a variety of complex domestic and cross-border transactions as well as handling high-stakes federal, New York State and New York City tax controversies.

Mark has decades of experience applying his broad and deep knowledge of the tax law and his understanding of business transactions to come up with creative and effective approaches to achieving clients’ business objectives in a tax-efficient manner. He has guided business entities and high-net-worth individuals through the federal, New York and international tax rules applicable to their domestic and cross-border transactions involving, for example, corporations, partnerships, joint ventures, investment funds, limited liability companies, S corporations, real estate investment trusts and debt workouts.  Mark also has extensive experience implementing tax and business planning by preparing and negotiating the necessary agreements and other documents.

In tax controversy matters, Mark has extensive experience representing individuals and entities at the audit stage, at the administrative appeals or conciliation level and where necessary at trial and on appeal. He approaches these matters by developing a thorough understanding of the relevant facts by speaking with the client and the client’s representatives and reviewing the relevant documents, preparing an overwhelmingly persuasive written presentation to the tax authorities by applying his deep knowledge of the applicable law to the underlying facts, and working with the tax authorities to arrive at a favorable resolution of the matter that is often a complete client victory.

Mark’s approach has been highly successful in a number of federal tax controversy matters involving domestic tax issues such as reasonable compensation and the proper treatment of interest income and expense and international tax issues such as source and characterization of compensation and royalty income, transfer pricing adjustments and the application of tax treaties, as well as  New York State and City tax controversy matters involving issues such as statutory residency, domicile, source and characterization of income, assignments of income and deductibility of interest.

Mark is also a frequent author and lecturer. He has been a co-editor of the Business Entities Journal’s International Taxation Department, the pass-through entities columnist and a member of the Board of Advisors and Contributors of the Journal of S Corporation Taxation, and a member of the Board of Advisors of the Journal of Limited Liability Companies.

Quoted, “‘Bitcoin Jesus’ Cites Loper and Uncertainty in Tax Crime Defense,” Tax Notes Today Federal, December 5, 2024

Panelist, “Positioning Your Business for Success in M&A,” Klehr Harrison M&A Summit, September 20, 2024

Co-Author, “U.S. Tax Court Provides Its First Indication of the Effect of the Demise of the Chevron Doctrine on the Validity of Tax Regulations,” September 18, 2024

Quoted, “Supreme Court Says Transition Tax is Constitutional in Narrow Ruling,” Bloomberg Daily Tax Report, June 21, 2024

Presenter, “Choose Wisely: Business, Legal and Tax Considerations in Selecting the Right Entity Type for Your Business’ Future,” accredited CLE Program, May 30, 2024 

Co-Author, “Energy-Related Tax Incentives Create Significant Opportunities for the Real Estate Industry,” February 23, 2024

Cited, “Moore than Meets the I.R.C.? The Apportionment Rule’s Originalist Backstop for I.R.C. § 877A,” Harvard Law Review, Vol. 137, Issue 4, February 2024

Panelist, “Moore v. United States: What’s at Stake,” Taxing Issues webinar series, Tax Analysts, December 12, 2023

Quoted, “Government May Have Upper Hand in Moore, but Court May Go Narrow,” Tax Notes, December 6, 2023

Co-Author, “IRS Announces New Initiative to Audit Large and Complex Partnerships and LLCs,” October 19, 2023

Quoted, “Tax world shudders as Supreme Court prepares for ‘repatriation’ tax case,” Politico, September 25, 2023

Press Release, “Klehr Harrison Files Amicus Curiae Brief in US Supreme Court Tax Case,” September 22, 2023

Author, Amicus Curiae Brief filed with the U.S. Supreme Court in Moore v. United States, September 6, 2023

Presenter, “Current Trends in Structuring Acquisitions — A View From the Business, Legal and Tax Perspective,” accredited CLE Program, June 14, 2023

Mentioned, “Midsize Moves: Klehr Harrison Hires Tax Leader in NY,” Law.com Pro Mid-Market, June 7, 2023

Press Release, “Klehr Harrison Expands New York Presence with New Chair of Tax Practice,” May 1, 2023

Quoted, “SALT Deductions for Investor Entities,” Tax Notes Federal, October 4, 2021.

Author, “New York’s Proposed ‘SALT Workaround’ Legislation — Observations,” Tax Notes State, March 15, 2021.

Presenter, “Escape From New York?: Residency for New York State and City Personal Income Tax Purposes — Developments and Observations,” New York Tax Club, October 21, 2020.

Panelist, “Foreign Withholding is Just So Taxing: Tools for Optimizing Foreign Tax Recovery,” webinar, December 11, 2019.

Co-author, “Commentary: Are Tax-Exempt Investors Really Tax Exempt?”, Pensions & Investments, August 12, 2019.

Co-author, “Insight: IRS Regulations Surprisingly Permit Certain Partners to Avoid GILTI,” Bloomberg BNA Daily Tax Report, July 30, 2019.

Panelist, “Hot Potato: Tax-Exempt Investors’ Liability for Other Partners’ Taxes After the 2015 Bipartisan Budget Act,” webinar, May 7, 2019.

Presenter, “Tax Primer: Certain Tax Implications of IP Transactions,” New York City Bar Association’s Trademark Committee, April 16, 2019.

Presenter, “Tax Primer: Implications of IP Transactions,” International Trademark Association’s 2019 March Conference, March 28, 2019.

Author, “Insight: The Proposed Federal Wealth Tax Would Be Unconstitutional,” Bloomberg BNA Daily Tax Report, February 25, 2019.

Panelist, “Institutional Investors and the 2017 Tax Act,” American Bar Association Business Law Section, Institutional Investors Committee, July 24, 2018.

Panelist, “Being “Sort of Tax Exempt”: How a Partnership-Level Audit Might Expand a Tax-Exempt Investor’s Tax Liability,” American Bar Association Business Law Section, Institutional Investors Committee, June 1, 2018.

Co-author, “The Deemed Repatriation Tax — A Bridge Too Far?,” Tax Notes Federal, March 5, 2018.

Author, “Tax Planning in the ‘Economic Substance’ Era,” Tax Notes Federal, October 5, 2015.

Author, “Bar the Exit (Tax)! Section 877A, the Constitutional Prohibition Against Unapportioned Direct Taxes and the Realization Requirement,” Tax Lawyer, 2012.

Author, “Judicial Deference to Tax Regulations: A Reconsideration in Light of National Cable, Swallows Holding and Other Developments,” Tax Lawyer, 2008.

Co-author, “Whither the Branches?,” Tax Law Review, 1989.

Co-author, “Losses and the Partner: Toward a Rational Basis Standard,” Journal of Partnership Taxation, 1986.

• Representing a corporation and its shareholders in connection with the tax consequences of the sale of an interest in the corporation and an application to the Internal Revenue Service for a ruling that any prior termination of the corporation’s S corporation election was inadvertent.
• Successfully handled to conclusion New York income tax examinations of several high-profile executives of a Fortune 30 public company.
• Successfully handled to conclusion numerous federal and New York income tax examinations of high-profile individuals involved in various aspects of the entertainment industry.
• Advised regarding the structuring and U.S. tax implications of the global split-up of a large foreign-based multinational business enterprise the assets of which include U.S. commercial real estate, including the drafting of complex operative documents.
• Successfully handled to conclusion numerous federal and New York income tax examinations of high-profile executives of privately held companies, including the largest New York residency cases on record.
• Advised high-profile authors regarding the U.S. tax consequences of their book publishing arrangements.
• Advised on several of the highest grossing worldwide concert tours of all time regarding structure and U.S. and global tax implications, including the negotiating and drafting of complex operative documents.
• Advised a highly successful privately held business and its owners regarding federal and New York tax planning, including planning with New York exempt resident trusts, in respect of an exit strategy for the owners.
• Advised regarding potential New York sales tax liabilities in connection with the acquisition of a company engaged in the “software as a service” business.
• Advising a successful privately held company regarding the tax consequences of the restructuring of its indebtedness.