June 10, 2021 From the Chair

Not for the Faint of Heart

By Joan C. Arnold, Troutman Pepper, Philadelphia, PA

This time last year I was brimming with goals and ideas as I looked forward to my term as Chair of the Tax Section beginning in August 2020. Starting in the midst of the pandemic was, of course, quite difficult. Many plans had to take a back seat as we pivoted to the delivery of member benefits in a remote setting. Nonetheless, the Section has learned a lot. Hopefully we will come out of this even stronger and more relevant to our members.

We have now completed three fully virtual meetings: Fall 2020, Midyear (January) 2021 (in case you wonder why it is called Midyear, as I did for years, it is because the ABA is on a September 1 fiscal year, making January the Midyear Meeting), and the 2021 May Meeting. I extend my sincere and deep thanks to the many people who made those virtual meetings succeed—from the Tax Section staff, who stepped up to learn new skills and implemented them so well, to committee members who adapted by developing new means of presenting our CLE and keeping us all in touch with each other.

We will have one more fully virtual meeting in the fall, scheduled for September 20–24, 2021. The leadership thought long and hard about making the September 2021 meeting an in-person meeting. Based on conversations we had with members, we found that a significant number are still reluctant to attend a large, in-person meeting when considerable uncertainty remains regarding the potential for a fall surge. That is particularly true for those with young children, and a material number of our members are specifically interested in being able to attend remotely for other reasons.

We do expect the Midyear Tax Meeting scheduled for January 27–29, 2022 in Orlando to proceed as an in-person meeting. We are, however, planning to incorporate virtual attendance for those who cannot attend. The Section will have more details on those plans in the near future.

The plan to meet in Florida has brought to our attention a significant continuing legal education (CLE) issue that has arisen with the state of Florida. On April 15, the Florida Supreme Court banned CLE course approval for any program “that uses quotas based on race, ethnicity, gender, religion, national origin, disability or sexual orientation in the selection of course faculty or participants.” The court indicated that “[q]uotas based on characteristics like the ones in this policy are antithetical to basic American principles of nondiscrimination.”

The Florida Bar has determined that in order to comply with the court ruling, it cannot award CLE credit to an organization with quotas. The ABA has a policy stating that it expects all its sponsored or co-sponsored CLE programs to include members of diverse groups based on race, ethnicity, gender, sexual orientation, gender identity and disability. Specifically, the ABA policy says CLE programs with three or more panelists, including the moderator, must have at least one member from a diverse group; programs with five to eight panelists must have at least two; and programs with nine or more panelists must have at least three members from a diverse group. The Florida Bar administration concluded that the ABA diversity policy violates the court ruling, and thus no attorneys can receive Florida CLE credit for any ABA program not approved prior to the April 15, 2021 date of the Florida court order. The ABA is developing a response to Florida on this issue in hopes of finding a path forward, and the Tax Section will do everything it can to assist in that effort. The Section will not, however, retrench from our commitment to diversity and inclusion.

As I look back at what we have accomplished this year, I am truly gratified. We have instituted significant changes in our relationship with the government, been active in comment letters on regulations, and sent comments to the OECD for the first time. We have also invested in ourselves—we are, at our heart, a membership organization. I am very excited to announce that we have recently hired a staff Director of Membership, Marketing, and Diversity, a position that had been vacant for over a year. As you can also see in reading the article on the nomination of Caroline Ciraolo to the position of Vice Chair of Membership, Diversity, and Inclusion, the Section will have a significant focus on building our membership, with an emphasis on expanding the diversity of the tax bar. If you want to be involved in this effort, please let me or Caroline know!

Finally, as I write this, I am contemplating just how to advise clients given the recent release of the Green Book. I’m sure you are in the same boat. It’s rocky waters ahead, isn’t it? But we aren’t tax lawyers because we are faint of heart. If you have thoughts to be shared on areas of your interest, please reach out to your committee leadership to discuss how the Section can contribute. We are more than willing to consider comments on the Green Book proposals if they can be done in the interest of fair and just tax administration.

Best wishes for a terrific summer, and I look forward to connecting with you at the Fall Tax Meeting. We may well have a great deal to discuss, given the anticipated legislation.