Brock Edward Whalen

Senior Counsel

Overview

Brock E. Whalen is a tax attorney in Holland & Knight's Austin office. Mr. Whalen focuses his practice on tax litigation and providing advice in connection with applying tax laws to individuals, estates, corporations and partnerships. Mr. Whalen has experience in all aspects of federal tax practice, including IRS audits, appeals, collection and litigation. In addition, Mr. Whalen has significant experience in state and local tax controversy matters.

Prior to joining Holland & Knight, Mr. Whalen served as an attorney and front line manager for more than 12 years at the IRS Office of Chief Counsel, where he tried cases in the U.S. Tax Court. During this time, Mr. Whalen litigated income tax, estate and gift tax, collection, Tax Equity and Fiscal Responsibility Act of 1982 (TEFRA), and micro-captive insurance matters. He also represented the United States in district court as a Special Assistant U.S. Attorney in IRS summons enforcement suits.

In addition to his litigation work, Mr. Whalen served as a member of several select chief counsel groups that supported IRS initiatives, including those involving syndicated conservation easements, inbound withholding and passthrough entities. He also served as an instructor for courses designed to train IRS and IRS Appeals personnel on the following topics: tax fraud, burden of proof in tax court, evidentiary considerations in tax court, tax court rule changes, managerial approval of penalties under I.R.C. § 6751(b), and IRS summons enforcement and interview techniques.

Mr. Whalen's state and local tax experience includes representation of business entities in sales and use tax and corporate income tax cases before state trial and appellate courts, involving novel and broadly impactful substantive and procedural issues.

Representative Experience

  • Represented a mining company before state supreme court resulting in refund of sales and use tax paid on equipment used in processing tangible personal property
  • Represented a utility company before state supreme court resulting in a refund of sales and use tax as underlying claim; refund met specificity requirements for placing taxing authority on notice of basis for the claim
  • Represented a medical device company resulting in refund of benefits under state enterprise zone program, effectively arguing that taxing authority sought to impose burdens and conditions in excess of statutory requirements regarding the level of detail needed for an initial refund claim
  • Represented an upstream oil and gas company before state supreme court in tax refund case involving novel intersection between federal partnership tax law and state franchise tax
  • Represented a company before state supreme court in tax refund case involving novel textual construction issues, and challenged lower courts' reliance on administrative rule to impose heightened evidentiary standard in judicial proceedings
  • Represented a company before state supreme court in tax refund suit involving state franchise tax apportionment and the sourcing of sales of tangible personal property to out-of-state persons

  • Successfully litigated a federal tax case involving court's jurisdiction, under Tax Equity and Fiscal Responsibility Act of 1982 (TEFRA) regulations, to consider gross valuation misstatement penalty in partner-level proceedings subsequent to partnership-level case
  • Successfully litigated a federal tax case involving bona fides of "micro-captive" insurance arrangement and associated accuracy-related penalties
  • Successfully litigated a federal tax case involving whether passive activity loss limitations under Internal Revenue Code (IRC) Section 469 apply to individual shareholders' passive income from S Corporations, and the validity of the "self-rental rule" regulations that recharacterize as nonpassive the net rental activity income from property rented for use in a business activity in which the taxpayer materially participates
  • Successfully litigated a federal tax case concerning statutorily enumerated requirements for deductible charitable contributions and the applicability of the doctrine of "substantial compliance" to such requirements
  • Successfully litigated a federal tax case involving distinction between tax-deductible alimony payments versus nondeductible child support payments
  • Successfully litigated a federal tax case involving deductibility of alimony payments that, due to ambiguity in a divorce instrument, turned upon whether payments terminated upon the payee spouse's death by operation of state law
  • Successfully a litigated federal tax case involving application of the origin-of-the-claim doctrine to determine deductibility of legal expenses associated with suits to recover business venture funds from ex-spouse
  • Successfully litigated a federal tax case involving evidentiary and burden shifting issues under IRC Section 6201, inherent in cancellation of indebtedness income matter
  • Successfully litigated several federal tax cases involving strict substantiation requirements for federal income tax deductions associated with use of listed property under IRC Sections 274 and 280F
  • Successfully litigated a federal tax case involving whether payments from the Office of Personnel Management are excludable as payments for illness or disability under IRC Section 104
  • Successfully litigated a federal tax case involving imposition of sanctions for institution of frivolous or groundless proceedings under IRC Section 6673
  • Successfully litigated a federal tax case involving issue of whether excess amount paid by IRS to a taxpayer was a rebate refund, which is recoverable under deficiency procedures, versus a non-rebate refund, which is recoverable under math-error procedures
  • Successfully litigated a federal tax collection due process (CDP) case involving consequences of violation of terms of prior offer-in-compromise agreement
  • Successfully litigated a federal tax CDP case involving issue of whether court had jurisdiction to consider underlying tax liability due to taxpayer's failure to challenge liability in underlying administrative proceedings

Credentials

Education
  • University of Houston Law Center, LL.M.
  • University of Houston Law Center, J.D.
  • Tufts University, B.A.
Bar Admissions/Licenses
  • Texas
Court Admissions
  • U.S. Tax Court
  • U.S. District Court for the Eastern District of Texas
  • U.S. District Court for the Western District of Texas
Memberships
  • Texas Bar Foundation, Fellow, 2022-Present
  • Institute for Professionals in Taxation, 2021-Present
  • Austin Bar Association, 2021-Present
  • Government Employees Federal Credit Union, Supervisory Committee, 2016-2019

Speaking Engagements