Bradley T. Borden

Representative Tax Strategy & Planning Engagements

• Advised on the section 1031 aspects of billion-dollar dispositions of property in the data center space and drafted opinion letters for such transactions
• Provided foundational opinion letter regarding the real-property and like-kind classification under section 1031 of primary assets in a multi-billion-dollar exchange of partial interests in real property between public companies
• Structured tax-efficient complex transactions using partnership divisions to separate property interests from multiple ownership structures and using a partnership merger to combine the property into a single entity to aggregate sale proceeds from multiple non-simultaneous sales and structured the staggered acquisition of a single replacement property as part of a complex section 1031 exchange and business restructuring
• Counsel to alternative asset manager regarding section 1031 and other tax aspects of DST-UpREIT rollover transactions
• Designed swap-and-drop transactions that permit section 1031 investors to join other investors in the acquisition of joint-venture property
• Oversaw the federal income tax aspects of a real estate fund’s nine-figure continuous flow of acquisitions, dispositions, and entity restructuring with frequent changes in the fund’s capital structure through investor turnover
• Structured a public company’s complex exchange requiring a disposition of replacement property within a consolidated group to accommodate the timing mismatch of buying and selling exchange property to avoid reverse exchange complexity
• Planned the tax-free exchange under section 1031 of a single property into dozens of replacement properties and proximate tax-free division of an S corporation among numerous second- and third-generation shareholders with disparate reinvestment and property-management objectives
• Created the structure for a tax-free merger and subsequent tax-free division of multiple co-owned corporations to facilitate an intra-family separation of ownership of multiple properties owned by various corporations
• Advised on a section 1031 exchange into an interest in Delaware statutory trust (DST) followed by a section 721 contribution to an UpREIT
• Provided opinion letter for tax-free division of an S corporation and proximate section 1031 exchange
• Directed owners of distressed property through the federal income tax nuances of judicial and nonjudicial foreclosure dispositions of real property as part of exchanges intended to qualify for section 1031 nonrecognition
• Drafted opinion letter regarding the authority regarding the application of the partnership disguised-sale rules to transfers of encumbered property to and the distribution of cash from a partnership and supporting nonrecognition of gain on the transaction
• Counsel section 1031 qualified intermediaries regarding all aspects of their business structure, baseline exchange documents, and nuances of exchange accommodation 

Representative Expert Witness & Litigation Advisory Engagements

• Trial testimony as expert witness regarding the failure of a purported drop-and-swap to satisfy the section 1031 requirements in a lawsuit for breach of contract and damages resulting from inability to complete a desired section 1031 exchange
• Trial testimony as expert witness before a New York administrative law judge (ALJ) regarding the federal income tax treatment of an at-closing drop-and-swap, resulting in a ruling favorable to the taxpayer
• Deposition testimony and written report as expert witness in a lawsuit regarding the structure of a so-called Bramblett transaction and the extent to which it helps lock-in predevelopment long-term capital gains for investors who intend to develop and dispose of property that was originally acquired for investment
• Deposition testimony and written report as expert witness of federal income tax classification of purported long-term lease as a financing arrangement
• Deposition testimony and written report as expert witness regarding the classification of digital currency under federal income tax law in seminal crypto currency classification case brought by the Securities and Exchange Commission 
• Deposition testimony and written report as expert witness in dispute regarding the classification of a co-ownership arrangement as a tenancy-in-common (TIC) or a partnership for federal income tax purposes
• Written report as expert witness in a class action lawsuit regarding the qualification of a purported tax-free spinoff of real property into a REIT, classification of resulting arrangement between REIT and OpCo as a true lease, and the extent to which the resulting PropCo satisfied the REIT requirements
• Written report as expert witness regarding status of a service provider as a state-law employee in claim by an individual that he was a partner in a complex energy-trading arrangement
• Written report as expert witness regarding the proper reporting of initial capital account balances in a Revenue Ruling 99-5 transaction in dispute regarding a mid-nine-figure purchase and option arrangement to acquire remaining interest in the subject entity. The report included a detailed analysis of the process for determining the value of property deemed contributed to a partnership as part of a Revenue Ruling 99-5 transaction
• Written report as expert witness regarding law firm’s breach of attorney standard of care in attorney malpractice suit against a law firm regarding the federal income tax consequences of acquiring a sham TIC interest and relying upon the advice of a section 1031 qualified intermediary
• Written report as expert witness in malpractice suit against a section 1031 qualified intermediary regarding a claim that a related-party transaction did not qualify for section 1031 nonrecognition
• Written report as expert witness regarding law firm’s qualification as section 1031 qualified intermediary in dispute regarding non-lawyer’s duty to assess law firm’s qualification
• Expert consultant for litigation law firm in class action lawsuit regarding the federal income tax requirements for mortgage-backed-security (MBS) trust to maintain its classification as a REMIC

Representative Academic Scholarship & Thought Leadership

• Provided theoretical basis and introduced the fundamental structure for leasehold improvement exchanges and helped secure first private letter ruling (Priv. Ltr. Rul. 2002-51-008 (Sep. 11, 2002)) granting section 1031 nonrecognition to the structure. Build-to-Suit Ruling Breaks New Ground for Taxpayers Seeking Swap Treatment, 98 J. Tax’n 22 (Jan. 2003) (with Alan S. Lederman and Glenn Spear); From the Ground Up: An In-Depth Analysis of Build-to-Suit and Related Party Exchanges, 44 Tax Mgt. Memo. 19 (Jan. 2003); New Safe Harbor Promotes Reverse Exchanges, 66 Prac. Tax. Strat. 68 (Feb. 2001) (leading to Priv. Ltr. Rul. 2002-51-008 (Sep. 11, 2002))
• Published the definitive work on the federal definition of tax partnership, which is cited by the United States Court of Appeals for the Fifth Circuit. The Federal Definition of Tax Partnership, 43 Hous. L. Rev. 925, 928–29 (2006) (cited in Southgate Master Fund, L.L.C. v. United States, 659 F.3d 466 (5th Cir. 2011))
• Generated ground-breaking work with co-authors regarding related-party exchanges that is cited by the Court of Appeals for the Ninth Circuit. Related-Party Like-Kind Exchanges, 115 Tax Notes 467, 479–80 (Apr. 30, 2007) (with Kelly E. Alton & Alan S. Lederman) (cited in Teruya Brothers, Ltd. v. Comm’r, 580 F.3d 1038 (9th Cir. 2009)); see also Malulani and the Entrenchment of Mechanical Analysis of Related-Party Exchange Rules, 20 J. Passthrough Ent. 15 (May-June 2017); North Central and the Expansion of Code Sec. 1031(f) Related-Party Exchange Rules, 18 J. Passthrough Ent. 19 (May-June 2015); Section 1031 Exchanges: Death of a Related-Party Exchange—Did “Butler” Do it?, 75 Daily Tax Rep. J-1 (Apr. 20, 2015) (with Alan S. Lederman); Are Related-Party Acquisitions in Anticipation of Exchange Technically and Theoretically Valid?, 120 J. Tax’n 52 (Feb. 2014) (with Kelly E. Alton & Alan S. Lederman); Related Party Like-Kind Exchanges: Teruya Brothers and Beyond, 111 J. Tax’n 324 (Dec. 2009) (with Kelly E. Alton and Alan S. Lederman)
• Arranged the extensive body of case law addressing the classification of partial interests in real property to present the nuances of the section 1031 like-kind requirement and show that not all real property interests are like-kind to general interests in real property. The Whole Truth About Using Partial Real Estate Interests in Section 1031 Exchanges, 31 Real Est. Tax’n 19 (4th Quarter 2003)
• Published comprehensive works on all aspects of section 1031 exchanges and proximate business transactions (i.e., drop-and-swaps and swap-and-drops) in a series of articles that reveal the unique section 1031 jurisprudence and provide the foundation for claiming nonrecognition on such transactions. A Critical Analysis of Alternative Section 1031 Proximate-Exchange Structures, 220 UC Law SF Bus. L.J. 81 (2025); TICnerships, 18 Brook. J. Corp., Fin. & Com. L. 587 (2024); The Section 1031 Qualified-Use Requirement, 18 Brook. J. Corp., Fin. & Com. L. 497 (2024); The Section 1031 Exchange Requirement, 18 Brook. J. Corp., Fin. & Com. L. 407 (2024)  
• Authored multiple books on section 1031 and taxation of real estate taxation. Tax-Free Like-Kind Exchanges (Civic Research Institute 2d ed. 2015); Section 1031 for Real Estate Investors and Professionals, (Vandeplas Publishing, 2021); Taxation and Business Planning for Real Estate Transactions (LexisNexis 2011)
• Authored books on partnership taxation, corporate taxation, and state-law and financial aspects of LLCs and partnerships. Federal Taxation of Corporations and Corporate Transactions (Aspen Publishers 2018) (with Steven Dean); Taxation and Business Planning for Partnerships and LLCs (Aspen Publishers 2017); LLCs and Partnerships: Law, Finance, and Tax Planning (Wolters Kluwer 2019); Limited Liability Entities: State by State Guide to LLCs, LPs and LLPs, (Wolters Kluwer Law & Business 2012, multiple annual updates) (with Robert J. Rhee)
• Established as the most prolific and comprehensive section 1031 scholar with dozens of academic and professional articles and multiple books published on almost every aspect of section 1031
• Pioneered work on academic REIT scholarship, including foundational work on REIT spinoffs, tax benefits of REITs, and fundamentals of REIT policy. Reforming REIT Taxation (or Not), 53 Hous. L. Rev. 1 (2015); Rethinking the Tax-Revenue Effect of REIT Taxation, 17 Fla. Tax Rev. 527 (2015)
• Teach unique tax planning and transactional courses at Brooklyn Law School and in the world-leading tax program at New York University School of Law, covering numerous aspects of real estate transactions, including planning objectives, opinion-writing, establishing substantial authority, planning to preserve capital-gain treatment by avoiding dealer-property status, preserving section 1031 nonrecognition, understanding and deploying leases, and planning opportunities with REITs
• Coined the phrase “TICnership” to emphasize the problematic co-ownership structures that are emerging to accommodate section 1031 exchanges. TICnerships, 18 Brook. J. Corp., Fin. & Com. L. 587 (2024)
• Deconstructed the use of IRR and basic Excel functions in partnership distribution waterfalls to illustrate the potential perils of blindly relying upon such concepts and provided a foundational framework for examining such structures. Equity Structure of Noncorporate Entities, 31 Real Est. Fin. J. 35 (Summer/Fall 2016); XIRR Guessing Games and Distribution Waterfalls, Bus. L. Today, No. 435 (Jan. 2016); Math Behind Financial Aspects of Partnership Distribution Waterfalls, 145 Tax Notes 305 (Oct. 20, 2014); The Overlap of Tax and Financial Aspects of Real Estate Ventures, 39 Real Est. Tax’n 67 (1st Quarter 2012)
• Provided foundational principles and examples of combining partnership merger and division rules with section 1031 exchanges to preserve nonrecognition in complex entity restructuring transactions that occur in proximity to exchanges of real property.  Tax Flotsam of Partnership Mergers and Divisions, 77 Tax Law. 425 (2024) (with Douglas L. Longhofer and Matthew E. Rappaport); Avoiding Adverse Tax Consequences in Partnership and LLC Reorganizations, 23 Bus. L. Today (online) (Dec. 2013) (with Brian J. O’Connor & Steven R. Schneider); What You Should Know About Mergers and Divisions of Partnerships, 17 Prac. Tax Law. 45 (Winter 2003)
• One of the most downloaded tax authors on Social Science Research Network