Richard Smith practices primarily in the areas of business, commercial and tax litigation, estate planning, and general business representation.
He has been involved as trial counsel for various corporate and utility clients in tax cases litigated in federal and state courts or tax appeal boards in various tax-related cases before the IRS and in Idaho, California, Colorado, Arizona, Oregon, Nevada, New Mexico, Washington, Utah, Wyoming, Montana, Minnesota, Missouri, Iowa, and Illinois. He represents companies such as railroads, utilities, telecommunications companies, and companies in the lumber products and semiconductor industries. Some of these matters involved short multiple-day hearings, whereas others lasted weeks, the longest consuming 47 trial days. He has also handled cases involving a wide variety of business and commercial litigation at the federal, state, administrative, and ADR level, including insurance company regulation, securities law, antitrust, contract and real estate litigation, and general business and corporate disputes.
In addition, as chair of the tax practice group, Mr. Smith is engaged in a broad tax and estate planning practice, assisting clients in structuring transactions and business relationships, in dealing with tax issues that arise in the course of business, and in preparation of wills, trusts, and other estate planning documents.
“My goals in any representation are to assist clients in making rational decisions and then to work with them in managing cases in a cost effective manner to achieve the best results possible.”
Significant Reported Cases
The following are the reported appellate court decisions involving tax matters in which Mr. Smith has been involved in as either lead counsel or co-counsel:
Union Pacific Railroad Co. v. Oregon Department of Revenue, 843 P.2d 864 (Ore. 1991), a case requiring 10 weeks of trial that dealt with a myriad of issues in applying the income, cost and stock and debt methods in a unitary business valuation setting.The Supreme Court decided most issues in favor of the taxpayer.
Oregon Short Line Railroad Co. v. Oregon Department of Revenue, 139 F.3d 1259 (9th Cir. 1998), a case decided in the taxpayer’s favor under the federal “4-R Act” concerning many of the same substantive valuation issues as in the preceding case. The case also involved an equalization claim that the railroad had been taxed in a discriminatory manner where 100% of its value had been subject to tax while a lower percentage of value was assessed for other taxpayers.
Basin Electric Power Cooperative v. Wyoming Department of Revenue, 970 P.2d 841 (Wyo. 1998), a case in which the court rule in the taxpayer’s favor on issues of discriminatory taxation as well as the correct methods to use in valuing a unitary business and the proper application of those methods.
Basin Electric Power Cooperative v. Bowen, , 979 P.2d 503 (Wyo. 1998), a case adopting the taxpayer’s position concerning procedural issues in Wyoming that affect a taxpayer’s right to pay disputed taxes into escrow and control the disposition of those funds.
PacifiCorp v. Wyoming Department of Revenue, 31 P.3d 364 (Wyo. 2001), a case concerning the valuation of exempt property and involving uniformity issues as to whether the state could value the electric utility pollution control equipment in a manner different from the taxable property, and whether it could value the taxpayer’s property by a method different from similar property of other electric utilities.
AirTouch Communications v. Department of Revenue, 76 P.3d 342 (Wyo. 2003), a case concerning the standards for identifying and valuing intangible assets for purposes of excluding them from a unitary value. The court ruled in the taxpayer’s favor on several legal issues, and the case eventually led to new legislation that clarified and broadened the exemption for intangible property in Wyoming.
Union Pacific v. Shoshone County, 96 P.3d 629 (Idaho 2004), a case involving the issue of whether certain property was operating property or non-operating property, and whether the county or the state had the jurisdiction to value and assess the property. The court accepted the taxpayer’s position that the county did not have jurisdiction to assess the property.
Lockheed Martin Corp. v. Idaho State Tax Commission, 134 P.3d 641 (Idaho 2006), a case involving the issue of whether the taxpayer satisfied the definition of a “contractor,” such that construction in progress should be included in the numerator of the property factor for purposes of apportioning unitary business income. The court affirmed the district court’s reversal of the Tax Commission’s assessment.
Significant Unreported Cases
Union Pacific Railroad Company v. Idaho Tax Commission, decided by an Idaho district court in 1983 after a two-week trial, and not appealed. The court ruled in favor of the taxpayer and rejected valuation methods and results proffered by the state.
AT & T v. California Board of Equalization, decided by a California state district court after a three-week trial in 1992, and not appealed. This valuation case was decided in favor of AT&T, and resulted in millions of dollars of recovery for regulated utilities in California and a multi-year settlement that implemented new methods for taxing utilities in that state.
Union Pacific Corporation v. Idaho State Tax Commission, decided by an Idaho district in 2004, and not appealed. The court accepted the taxpayer’s position that sale of its non-controlling interest in a Wyoming mining venture did not constitute business income subject to apportionment in Idaho for income tax purposes.
PacifiCorp v. Wyoming Department of Revenue, decided by the Wyoming Board of Equalization in 2007 after a three-day trial, and not appealed. The Board accepted the taxpayer’s positions that obsolescence must be recognized in the valuation of construction work in progress by the same method used for other types of property.
Qwest Corporation v. Wyoming Department of Revenue, decided in 2010 by a Wyoming district court on appeal from the Board of Equalization. The court affirmed the decision by the Board that Qwest was entitled to a refund of sales tax on certain services where there was a dispute about whether the taxpayer timely provided the information necessary to substantiate the claim. The case was later affirmed on appeal by the Wyoming Supreme Court.
Law School: Georgetown University, J.D., cum laude, 1979
Managing Editor, Georgetown Law Journal, 1978-1979
Certification: Certified Public Accountant, Idaho, 1976
Undergraduate: University of Idaho, B.S., summa cum laude, 1975; B.A., 1974; Phi Beta Kappa