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Women in tax: The US perspective

It's a good time to be a female tax lawyer in the United States. While, most certainly, more needs to be done, women have made significant progress in the US in recent years.

Two women have been commissioners of the IRS: Peggy Richardson and Shirley Peterson. Peggy was Commissioner for four years, and Shirley, following her tenure as Commissioner, has sat on a number of large corporate boards of directors. A third woman, Linda Stiff, also served as an acting IRS commissioner.

I remember the first time that I met Shirley. She was dressed in beautifully attractive clothes. It impressed me as a young female tax attorney to meet her. A woman could be both successful and beautifully dressed.

In the US Treasury Department, Danielle Rolfes serves as International Tax Counsel. In the IRS, two deputy associate chief counsels (international) are female, Anne Deveraux and Margie Rollinson, and two international branch chiefs, Elizabeth Karzon and Barbara Felker, are women. It wasn't long ago that Phyllis Marcus was also an international branch chief. These are talented, as well as important, people. Danielle and Barbara, for example, went to Harvard Law School.

There have also been notable and encouraging developments in the private practice of tax law. The California Bar Tax Section has had eight female chairs of the Tax Section, and the New York State Bar Tax Section has had five women serve as chair. Most of this happened in recent years.

More needs to be done in the tax world, however. The US Tax Court, which has 18 sitting judges, has only five female judges. These are impressive judges, indeed, but it would seem there should be more than only five women on the court. Judge Marvel, for example, recently wrote the court's opinion in one of the most significant decisions in recent years in the Tax Court, Altera v Commissioner. Altera involves an effort by the IRS to overrule an earlier decision in Xilinx v Commissioner, by issuing a new regulation. Judge Marvel, writing for a unanimous court, held that in this situation the IRS did not apply proper administrative review procedures and wrote a regulation that is contrary to the guiding arm's-length standard. While as a practitioner I was pleased to see that the taxpayer was successful in this important case, the more impressive thing to me was the understanding and intellect that went into the court's opinion. Judge Marvel did an excellent job.

A few years ago, I had a trial with Judge Cohen in Illinois Tool Works v Commissioner. She was the Tax Court's first female Chief Judge. At that time, there were only two other women on the court. While five female members of the court today suggests some improvement, I think there should be more.

I was at a dinner in New York last year and met Erika Nijenhuis, a senior tax partner with Cleary Gottlieb Steen & Hamilton and a past chair of the NYS Bar Association Tax Section. It was great talking with her. It made me think of that term – dare I use it – "old boy's network," but there we were: two successful tax lawyers, female and beautifully feminine. Two judges spoke at the dinner, too. Both were female.

It is an exciting time for women tax lawyers in the US. Things have improved so much since the time of Supreme Court Justices Ginsburg and O'Connor who graduated with very high honours from law school but could not get jobs with a law firm because they were female. We've made great progress, but as I said above, more is needed to continue moving in the right direction and eradicate gender bias entirely.

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Jennifer Fuller

Fenwick & West


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