Erika Nijenhuis’ practice focuses on financial products, financial institutions, and international tax planning.

She regularly advises financial institutions and other domestic and foreign clients on issues relating to capital markets transactions, the development of new financial products, and inbound and outbound business operations. She has been at the forefront of new developments in tax policy and financial products and is sought after to advise on the most important and complex tax matters. She is a strong advocate for the private sector, and her tax policy recommendations and representations of clients before the Department of the Treasury and the IRS have frequently led to, and shaped, new regulations and legislative changes.

Erika has been repeatedly recognized as a leader in her field. In 2018 and 2014, she won the “Best in Tax” award at the Americas Women in Business Law Awards of Euromoney Legal Media Group, and she was also named New York City Tax Law “Lawyer of the Year” by The Best Lawyers in America in 2017 and 2015. She is a sought-after speaker at tax conferences and has published many articles on the taxation of financial transactions, many of which are among the leading articles on those topics.

Erika joined the firm in 1990 and became a partner in 1997.

Notable Experience

  • Leading advisor on domestic and cross-border tax issues relating to the derivatives market and bank regulation.

  • Frequently represents sovereign governments on complex capital market transactions and debt restructurings, including exchange offers with global implications (Argentina, Greece, Iraq).

  • Advises on a range of financial product and international tax policy issues before the Department of the Treasury and the Internal Revenue Service, inspiring and shaping legislative changes and new regulations.

  • U.S. and non-U.S. financial institutions on U.S. tax law relating to debt and equity capital markets transactions, including:

    • hybrid securities qualifying for Tier 1 or Tier 2 capital treatment, including contingent capital securities, trust preferreds, enhanced trust preferreds, and REIT preferreds;
    • exchange offers, consent solicitations, and other liability management transactions;
    • structured finance transactions;
    • structured notes; securities loans and repos;
    • total return swaps, credit default swaps, and swap documentation for both over-the-counter and cleared swaps;
    • convertible bonds, including contingent interest convertible bond offerings and public and private mandatory convertibles; and
    • equity derivatives such as variable prepaid forward contracts, equity swaps, compensation hedging transactions, and accelerated stock repurchase transactions.

  • Clients on cross-border withholding tax and reporting issues, including under FATCA.

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Selected Activities

  • Member, New York State Bar Association Tax Section; Former Tax Section Chair (2009–2010); Former Financial Instruments Committee Co-Chair
  • Guest Lecturer, Internal Revenue Service and at law schools, including the University of Michigan, New York University, and Georgetown University
  • Former Adjunct Professor, University of Washington Law School

Publications

  • Ruminations on the BEAT and Foreign Banks Operating in the United States,” PLI Tax Series Special Update: Tax Practice After the Tax Cuts and Jobs Act (March 27, 2018)
  • “Post-Financial Crisis Regulation and the U.S. Tax Treatment of Bank Capital Securities,” Tax Forum, No. 673 (2016) (unpublished; available from author)
  • “Observations on the Temporary Regulations on Swap Upfront Payments,” Journal of Taxation of Financial Products (November 2015) 
  • “New PFIC Reporting Requirements for Investors in CLO Subordinated Notes, Preferred Shares and Income Notes,” The Loan Syndications and Trading Association (January 10, 2014)
  • “Foreign Tax Law: Its Relevance in Resolving U.S. Tax Law Issues,” 91 TAXES 39 (April 2013) (originally presented at the University of Chicago Law School’s 65th Annual Federal Tax Conference)
  • “U.S. – Proposed IRS Regulations Will Impose U.S. Withholding Tax on Dividend-Linked Amounts under many Equity Swaps and Other Equity-Linked Transactions on U.S. Equities,” Thomson ReutersPractical International Tax Strategies, Vol. 16, Number 3 (February 15, 2012)
  • “Repos, the Technical Taxpayer Rules, and Foreign Tax Credit Splitter Rules (Section 909),” BNA Tax Management International Journal, Vol. 40, No. 6 (June 10, 2011) and BNA Tax Management Memorandum, Vol. 52., No. 10 (May 9, 2011)
  • “New Tax Issues Arising from the Dodd-Frank Act and Related Changes to the Market Practice for Derivatives,” Columbia Journal of Tax Law, Vol. 2.1 (January 2011) and Tax Strategies For Corporate Acquisitions, Dispositions, Spin-offs, Joint Ventures, Financings, Reorganizations & Restructurings (PLI 2011, updated periodically) 
  • “Credit Default Swap Tax Issues Arising from the New Regulatory Environment,” Tax Forum, No. 623 (2010) (unpublished; available from author)
  • “Have Straddles Swallowed Short Sales?,” 125 Tax Notes 1301 (December 21, 2009)
  • “The 2009-2010 Special Election to Defer Cancellation of Debt Income,” Tax Planning for Domestic & Foreign Partnerships, LLC, Joint Ventures & Other Strategies Alliances (PLI 2009) 
  • “Some Proposals for Interpreting the Tax Straddle Rules,” Tax Forum, No. 601 (2007) (unpublished; available from author)
  • “Notice 2004-52: One Small Step Forward on Credit Default Swaps,” 104 Tax Notes 1287 (September 13, 2004)
  • “Wash Sales Then & Now,” 82 TAXES 181 (2004) (originally presented at the University of Chicago Law School’s 56th Annual Federal Tax Conference)
  • “Disclosure, Listing and Registration Rules for ’Potentially Abusive Tax Shelters,’” Tax Strategies for Corporate Acquisitions, Dispositions, Spin-offs, Joint Ventures, Financings, Reorganizations & Restructurings (PLI 2002, updated periodically)
  • “Taxation of Securities Futures Contracts,” Tax Strategies for Corporate Acquisitions, Dispositions, Spin-offs, Joint Ventures, Financings, Reorganizations & Restructurings (PLI 2002, updated periodically)
  • “Contingent Interest Convertible Bonds and the Economic Accrual Regime,” Tax Strategies for Corporate Acquisitions, Dispositions, Spin-offs, Joint Ventures, Financings, Reorganizations & Restructurings (PLI 2002, updated periodically)
  • “The Section 864(b)(2) ’Trading in Derivatives’ Safe Harbor,” 39 Tax Management Memorandum 371 (November 9, 1998)
  • “ISDA Master Agreement Tax Issues,” Swaps and Other Derivatives in 2000, Ch. 4 (PLI 2000)
  • “Taxation of Notional Principal Contracts,” in Taxation of Financial Instruments, Ch. 3 (Clark Boardman Callaghan 1999)
  • “Proposed Regs on Global Dealing Operations,” 78 Tax Notes 1689 (March 30, 1998)
  • “Everything I know about New Financial Products I Learned from DECS,” Tax Strategies for Corporate Acquisitions, Dispositions, Spin-offs, Joint Ventures, Financings, Reorganizations & Restructurings(PLI 1997, updated periodically)
  • “Short Sales and Short Sale Principles in Contemporary Applications,” 53 N.Y.U. Inst. Fed. Tax’n Ch. 17 (1995)
  • “Arkansas Best and the Taxation of Notional Principal Contracts and Other Derivatives” XII Futures International Law Letter No. 4 (1992)

 

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