Timothy Jacobs

Hunton Andrews Kurth

Tim’s practice focuses on all areas of federal income tax law, with emphasis on tax controversies and renewable energy.

Tim served as an attorney-advisor to the Hon. Michael B. Thornton (2003-2005) and the Hon. Robert P. Ruwe (2001-2003) on the US Tax Court, and has particular knowledge in the areas of Tax Court practice, procedure, and litigation. Tim practices regularly in the Tax Court and the US Court of Federal Claims and also is admitted to practice in the US Supreme Court, and the US Courts of Appeals for the Third, Fourth, Sixth and Federal Circuits.

As a member of the Renewable Energy Tax Team, Tim is also involved in every aspect of achieving recognition of tax incentives from the legislative process, to the Treasury and IRS guidance phase, to the forward-planning phase, to representing industry leaders in the renewable space, and finally to defending tax incentives at both the administrative and court level. Tim is highly engaged in providing direct support to clients in navigating the Inflation Reduction Act of 2022.

Relevant Experience

  • Represent and advise applicants and taxpayers in controversies involving the Treasury's Section 1603 grant program. Litigate Section 1603 cases in the US Court of Federal Claims and US Court of Appeals for the Federal Circuit.
    • Lead counsel for plaintiff in Silver State Solar Power South, LLC v. US, Fed. Cl. Case No. 18-266T, involving approximately $136 million in Section 1603 payments at issue.
    • RP1 Fuel Cell LLC, et al. v. US, 120 Fed. Cl. 288 (Mar. 31, 2015). Full win in case involving fuel cell power plant and scope of property eligible for Section 1603 grant. First Section 1603 case to go to trial and first judgment in favor of applicant. Affirmed on appeal to the Federal Circuit (No. 15-5106), 644 Fed. Appx. 1012 (2016), which Tim briefed and argued.
    • GUSC Energy, Inc. v. US, 129 Fed. Cl. 118 (2016) (cogeneration facility; use of steam for electric and thermal energy) (partial judgment in favor of plaintiff).
    • W.E. Partners II, LLC v. US, Fed. Cir. No. 15-5054 (counsel for amicus curiae American Forest and Paper Association).
    • Successful representation of taxpayers in IRS audits of Section 1603 grants. Fifteen years of experience advising taxpayers on compliance issues in the renewable energy industry (wind, solar, biomass, hydropower, fuel cells, combined heat and power, cogeneration facilities) with respect to the Section 1603 grant, the investment tax credit (ITC), and production tax credit (PTC).
  • Successfully tried foreign tax credit case in the US Tax Court involving the creditability of the UK Windfall Tax. In a unanimous 9-0 opinion, the US Supreme Court agreed with this holding based on the Tax Court record and opinion.
  • Successfully tried utility industry issue in the US Tax Court involving the depreciation period of street lights.
  • Representing taxpayers in complex IRS proceedings involving financial products and financial instruments. Issues handled include the classification of a transaction as a hedging transaction, treatment of original issue discount (OID) and contingent payment debt instruments, and intangible asset classification.

  • Successfully represented taxpayer in partnership matter in challenging IRS’s treatment of taxpayer as a partner in the partnership after taxpayer’s interests had been transferred. Fountain Hills Investment Company, LLC v. Comm’r, Tax Ct. No. 18620-18.

  • Litigated cases in US Tax Court and handled IRS appeals involving alleged “intermediary” transactions covered by IRS Notice 2001-16 and Notice 2008-111.
  • Successfully tried four consolidated cases involving alleged intermediary transactions in US Tax Court. Tax Court issued sweeping precedent opinion on correct application of transferee liability rules to such transactions. Won motion to transfer venue in Sixth Circuit. Government. conceded case after venue transferred to Fourth Circuit.
    • Swords v. Comm’r, 142 T.C.  317 (May 29, 2014).
    • Swords Trust v. Comm’r, Order Transferring Venue, 6th Cir. No. 14-2279, et al., 2014 WL 7929830 (Dec. 18, 2014).
    • Swords Trust v. Comm’r, Order Dismissing Appeal, 4th Cir. No. 14-2383 (Jan. 13, 2015).
    • M. Sapirie, “Midcos Might Be Heading to the Supreme Court,” 143 Tax Notes 1351 (June 23, 2014).
    • M. Sapirie, “Venue Transfer in Swords Trust Has Broad Impact,” 146 Tax Notes 59 (Jan. 5, 2015).
    • M. Beddingfield, “IRS Drops Case Against Reynolds Metals Heirs After Transfer to Fourth Circuit,” Daily Tax Report, 15 DTR K-1 (Jan. 23, 2015).
  • Johnson v. Comm’r, Tax Ct. Nos. 19768-11, 19769-11, 19770-11 (settled with substantial concession by IRS).
  • Represent and advise taxpayers with respect to IRS challenges to partnerships with federal and state tax credits. Commentator on the leading federal tax credit partnership case in Historic Boardwalk Hall, LLC v. Comm’r, 694 F.3d 425 (3d Cir. 2012).
    • A. Elliott, “IRS Provides Rehab Tax Credit Safe Harbor Following Historic Boardwalk,” 2014 TNT 1-2 (Jan. 2, 2014).
    • S. Trivedi, “Practitioners Balk at IRS Memo on Rehabilitation Credits,” 138 Tax Notes 1050 (Mar. 4, 2013).
    • S. Trivedi, “No Surprises, Just Disappointment with IRS Memo on Rehabilitation Credits,” Tax Notes Today, 2013 TNT 41-2 (Mar. 1, 2013).
    • S. Trivedi, “Third Circuit Reverses Tax Court in Historic Boardwalk Hall,” Tax Notes Today, 2012 TNT 167-1 (Aug. 28, 2012).
  • Litigating and litigated cases in US Tax Court involving Virginia conservation easements, including valuation issues, partnership issues, and the application of the disguised sale rules to state tax credit transactions.
    • Route 231, LLC v. Comm’r, T.C. Memo. 2014-30 (Feb. 24, 2014) (holding that disguised sale rules apply). Handled and argued appeal in US Court of Appeals for the Fourth Circuit (Case No. 14-1983), 810 F.3d 247 (2016).
    • SWF Real Estate LLC v. Comm’r, T.C. Memo. 2015-63 (Apr. 2, 2015). Full win on valuation issue reversing approximately $5 million adjustment.
    • Squires v. Comm’r, Tax Ct. No. 12683-15 (conservation easement and valuation issues) (settled with substantial concession by IRS).
    • Fairborn Wright, LLC v. Comm’r, Tax Ct. No. 18098-10 (settled).
    • Carlyle Commonwealth Fund, LLC v. Comm’r, Tax Ct. No. 18097-10 (settled).
    • Rulings of the Virginia Tax Commissioner, Public Document Number 13-225 (Dec. 17, 2013) (ruling that federal disguised sale determination with respect to land preservation tax credit partnership does not result in income or gain for Virginia tax purposes).
  • Served as an expert witness in state court litigation involving the IRS’s evolving administrative position on the treatment of façade easements.
    • Advise and represent individual taxpayers in “high-net worth” and “high-income” audits by IRS. Substantial experience in purported “family office,” “trade or business” determinations, and treatment of IRC Section 212 investment expenses.
    • Advise and represent financial institutions, state and local government entities and authorities, and other taxpayers with respect to information return filings, classification of employees, treatment of settlement payments, and penalties.
    • Successfully handled numerous claims for abatement of penalties (in some cases, involving millions of dollars). Considerable experience with penalties applied with respect to missing or incorrect Taxpayer Identification Numbers (TINs) and mass filing errors.
    • Many years of experience negotiating with lead IRS contacts with respect to voluntary compliance agreements for information return and other errors.
    • Working with IRS, developed template that is now codified in the Internal Revenue Manual
  • Filed amici brief in US Court of Appeals for the Fourth Circuit in support of taxpayer in leading state tax credit partnership case.
  • Successfully litigated a high-profile, national issue involving the validity of a regulatory statute of limitations under the Chevron deference standards and an issue of first impression involving the application of the tolling rules under Treas. Reg. § 301.9100-3. Argued case before Court of Appeals for the Fourth Circuit.
  • Fully briefed and submitted in the US Tax Court a high-profile corporate tax issue involving the rescission of a corporate dividend. Issue resolved favorably to taxpayer without decision as a result of prevailing on related issue in case.
    • PPL Corp. & Subs. v. Comm’r, Tax Ct. No. 25393-07.
  • Successfully represented company in obtaining pre-filing agreement from IRS permitting deduction of a substantial portion of the company's settlement of one of the largest judgments under the Federal False Claims Act.
  • Successfully represented a publicly traded alternative energy company before the IRS National Office as part of its technical advice process with respect to a substantial disallowance of tax credits and application of penalties. The issue involved the identification of the facility and whether it was timely placed in service for federal tax credit purposes.
  • Successfully represented major public entity in connection with one of the largest rail transportation projects in the United States, obtaining a private letter ruling that relocation of utility lines and payments to an electric utility were excludable from income.
  • Successfully represented a publicly traded corporation before the IRS with respect to a large worthless stock deduction claimed by the corporation. After the IRS proposed to disallow the deduction in full, the IRS National Office conceded the case based on the arguments presented.