Bradley T. Borden

Tax lawyer.

expert witness.

consultant.

Professor of Law, BROOKLYN LAW SCHOOL

Brad Borden is an internationally known expert on transactional real estate and passthrough taxation and LLC and partnership law. He is a tenured professor at Brooklyn Law School and a tax lawyer. As a lawyer, he advises clients regarding tax aspects of complex transactions and ownership structures. With his focus on tax law and specific aspects of business law, he works closely with real estate and business attorneys to help ensure their clients receive critical tax-structuring advice for their transactions. He is also hired as a consultant and expert witness on complex litigation and other matters that raise tax or legal issues related to his areas of expertise. In all of these matters, he draws upon his extensive knowledge and experience as a lawyer, expert witness, consultant, author, teacher, and lecturer.

Credentials / CV

  • JD, LL.M. (Taxation)
  • Certified Public Accountant
  • MBA, accounting emphasis
  • Fellow, American Bar Foundation
  • Fellow, American College of Tax Counsel
  • Columnist, Journal of Passthrough Entities
  • Member, Bloomberg BNA Pass-Through Entities Advisory Board
  • Member, Florida Tax Review Board of Advisors
  • Past Chair, Sales, Exchanges & Basis Committee, Section of Taxation, American Bar Association
  • Member, Business Law Section, New York State Bar Association
  • Member, Real Property Law Section, New York State Bar Association
  • Member, Tax Section, New York State Bar Association
  • Member, New York City Bar Association
  • Member, New York County Lawyers Association
  • Author, TAX-FREE LIKE-KIND EXCHANGES –¬†comprehensive treatise on Section 1031
  • Co-Author, LIMITED LIABILITY ENTITIES: STATE-BY-STATE GUIDE TO LLCS, LPS AND LLPS

Services

TAX PLANNING
AND ADVICE

Tax law drives the structure of many real estate and business transactions and ownership arrangements as property owners and businesses seek to exclude or defer gain, take advantage of deductions, or obtain favorable long-term capital-gain classification. Mr. Borden, having literally written the books on taxation of real estate and business transactions, helps property owners and businesses obtain tax-efficient outcomes of their transactions and ownership arrangements. Mr. Borden also works closely with transactional and business lawyers to document transactions to obtain the sought-after tax treatment.

OPINION
LETTERS

Many transactions and business structures create uncertain tax consequences. Some clients seek tax opinion letters regarding the likelihood of a tax position being upheld if challenged. Mr. Borden provides such tax opinion letters and supporting advice, when appropriate.

CO-COUNSEL WITH REAL ESTATE AND BUSINESS LAWYERS

Mr. Borden often teams up with business and real estate lawyers to provide specialized tax advice on transactions. In such arrangements, real estate and business lawyers provide non-tax legal services, including preparing deal documents. These arrangements allow the clients to obtain advice otherwise only available through large, general service firms. The arrangements also allow clients to maintain their relationships with their primary real estate or business lawyers while receiving top-tier tax advice.

EXPERT WITNESS AND
CONSULTING

Mr. Borden has served as an expert or consulting witness on numerous occasions. Mr.Borden’s knowledge, experience, extensive publication record, and professional reputation add credibility to litigation positions that are consistent with positions he has taken in his published works. He has also been a consultant to the federal government and to law and accounting firms regarding transactional and compliance matters.

Representative Engagements

General TRANSACTIONAL TAX ADVICE

  • Tax-efficient structure to subdivide and
    develop property
  • Ownership structure to isolate and preserve favorable
    long-term capital gain and provide tax-efficient
    exit of investment
  • Characterization of transaction as lease or sale
  • Mergers and divisions of LLCs and partnerships
  • Tax-efficient structures of real estate ventures
  • Investment in a U.S. real estate fund with a
    sovereign wealth fund
  • Financial and tax aspects of LLC and partnership
    contribution and distribution provisions
  • Tax-efficient structure to facilitate settlement of dispute
    involving an in-kind distribution of property
    from a real estate syndication

All aspects of section 1031 exchanges

  • Separate section 1031 exchanges for co-owners by designing pre-closing divisions of partnerships and other entities (colloquially known as drop-and-swap exchanges)
  • Pre-section 1031 exchange structures for property held in multiple entities to facilitate a single exchange
  • Leasehold improvements exchange for multi-national company and numerous other property owners
  • First private ruling sanctioning leasehold improvements exchanges
  • Tax oversight on creation of TIC and DST ownership structures
  • Outside counsel to section 1031 qualified intermediaries, assisting with entity structure, document creation, and internal controls
  • Convert a disguised sale of real property to a partnership into a tax-free section 1031 exchange

Expert Witness and Consultant

  • Fraud claim against major bank related to disposition of a section 1031 qualified intermediary
  • Malpractice claim against attorney representing client of a collapsed section 1031 qualified intermediary
  • Class action against providers of mortgage-backed securities questioning the tax classification of such securities
  • Case in foreign court seeking classification of a New York entity
  • Arbitrated disagreement regarding the proper interpretation of an IRR distribution waterfall
  • Consultant to the Joint Committee on Taxation of the U.S. Congress on issues related to passthrough taxation
  • Consultant to law firms and accounting firms regarding technical aspects of tax law

Journal Publications

Professor Borden has published more than 100 articles
in the following leading professional journals and law reviews.

Professional Journals

  • BUSINESS LAW TODAY
  • CAYMAN FINANCIAL REVIEW
  • Journal of Passthrough Entities
    (Section 1031 Columnist)
  • JOURNAL OF REAL ESTATE TAXATION
  • JOURNAL OF TAXATION
  • JOURNAL OF TAXATION OF INVESTMENTS
  • THE PRACTICAL REAL ESTATE LAWYER
  • THE PRACTICAL TAX LAWYER
  • PROBATE AND PROPERTY
  • TAX MANAGEMENT REAL ESTATE JOURNAL
  • TAX NOTES
  • Taxes, The Tax Magazine

Law Reviews

  • BROOKLYN LAW REVIEW
  • FLORIDA LAW REVIEW
  • GEORGIA LAW REVIEW
  • HOUSTON LAW REVIEW
  • IOWA LAW REVIEW
  • REAL PROPERTY
  • THE TAX LAWYER
  • TRUST & ESTATE LAW JOURNAL
  • UNIVERSITY OF KANSAS LAW REVIEW
  • UNIVERSITY OF PENNSYLVANIA JOURNAL OF BUSINESS LAW
  • VIRGINIA TAX REVIEW

Presentations

Professor Borden has presented at more than 225
professional and academic conferences, including the following:

  • American Bar Association, Section of Taxation
  • American Accounting Association
  • American Law Institute Continuing Legal Education
  • American Petroleum Institute Federal Tax Forum
  • Bloomberg BNA Tax Management Advisory Board Meeting
  • Canadian Law and Economics Association
  • CBIZ Tax Conference
  • Ellis County Bar Association
  • Federation of Exchange Accommodators Conference
  • Idaho State Tax Institute
  • Jeremiah Long Memorial Conference on Like-Kind Exchanges Under Section 1031 IRC
  • Kansas Accountants Tax Conference
  • Kansas Society of Certified Public Accountants Tax Conference
  • Law and Society Association
  • Midwest Law and Economics Association
  • National Tax Association
  • New York State Bar Association, Business Law Section
  • New York University Institute on Federal Taxation
  • Philadelphia Bar Association Tax Section CLE
  • Practicing Law Institute Pocket MBA
  • Southeast Texas Chapter of the Texas Society of Certified Public Accountants
  • Standards of Practice and their Implications in Law and Accounting Firms, Northwestern University Pritzker School of Law
  • State Bar of New Mexico Convention
  • Tax Institute of the University of Iowa College of Law and Iowa State Bar Association
  • Texas Bar Association Advanced Tax Law Course
  • Texas CPA Institute
  • Texas Federal Tax Institute Tulane Tax Institute
  • Tulane Tax Institute
  • University of Houston Law Foundation’s Advising Small Businesses
  • University of Houston Law Foundation’s Real Estate Documents, Workouts and Closings
  • University of Texas School of Law LLCs, LPs and Partnerships Conference
  • University of Texas School of Law Taxation Conference