Donald C. Alexander

Donald C. Alexander, who died in 2009 at age 87, became a Fellow of the American College of Employee Benefits Counsel (the “College”) in 2001. Don was a noted tax lawyer of considerable breadth who made significant contributions in the early implementation and subsequent development of the Employee Retirement Income Security Act of 1974 (“ERISA”) and advocated for sound national tax policy throughout his career.

Don graduated from Yale College in New Haven, Connecticut, receiving his A.B. with honors in 1942. He then served in World War II as a forward artillery observer and was awarded the Silver Star and the Bronze Star for his valor and bravery. In 1948, he received his law degree from Harvard Law School in Cambridge, Massachusetts, magna cum laude, where he edited the law review. Following graduation, he entered private practice as a tax lawyer at Covington & Burling in Washington, DC. Don subsequently moved to Cincinnati, Ohio, where he practiced first as a partner at Taft, Stettinius & Hollister from 1954 to 1966 and then as a partner with Dinsmore, Shohl, Coates & Deupree (later known as Dinsmore & Shohl LLP) until 1973. During this period, he authored numerous tax articles on a variety of topics, including family tax planning, taxation of professional associations, and charitable giving. He also served as a consultant to the U.S. Treasury Department in 1966 to 1968 and was vice chairman of the American Bar Association’s Section of Taxation in 1967 to 1968.

In May, 1973, Don was appointed Commissioner of Internal Revenue by President Richard Nixon. In that role he is especially remembered by the general public for his actions taken in response to the improper use of Internal Revenue Service (“IRS”) resources for political purposes. Several weeks after assuming his new position, Don announced that he had shut down the “Special Service Staff” of the IRS which had been investigating critics of Nixon and his Vietnam policies.

Soon after becoming the IRS Commissioner, Don took an active interest in ERISA’s development. It was not unusual for him to visit with Laurence N. Woodworth, Chairman of the Congressional Joint Committee of Taxation, to offer his views on strategic employee plans policy and drafting matters. Also, Don liked to meet with IRS staff consultants to the Joint Committee, College Fellows William Lieber and William Posner and actuary Ira Cohen, to discuss events of the day. After passage of ERISA on September 2, 1974, Don continued to offer his expertise during important regulations drafting sessions, making it clear at these meetings that he was to be viewed as another technician giving his input and not as Commissioner directing a specific result. Bill Posner counted Don as one of his heroes.

College Fellow Alvin Lurie, then Assistant Commissioner, Employee Plans and Exempt Organizations (“EP/EO”), IRS, in describing IRS functions and structures relating to ERISA implementation, also lauded Don’s leadership:

The Commissioner is Donald Alexander, ... our No. 1 pension man in IRS. Professionally, Don Alexander has got to be, in everyone’s book, the top pension expert in the country at the present time. It never ceases to amaze me how, with all the unbelievably back-breaking tasks that that man shoulders, he stays completely on top of all the intricacies of the new ERISA legislation, and of my office’s various activities in implementation of it. That should be very reassuring to you who work in this field, because it tells you of the personal commitment and dedication that the Commissioner himself brings to this newly-exploded area.

“An Overview of ERISA,” Record of Society of Actuaries 1975, Vol. 1, No. 3, May 1975.

In remarks titled “A View from the IRS,” made shortly before enactment of ERISA, Don discussed some of the challenges ahead, such as a heavy workload for ERISA guidance with 15 task forces already established to work on regulatory projects and more than 60 regulation projects to be undertaken. Shared responsibility by the IRS and the Department of Labor (“DOL”) created the need to cooperate to manage potential for problems with conflicting agency requirements. He was pleased by the creation of the then new office of Assistant Commissioner of EP/EO, stating, “I think Congress is trying to tell us that in the field of employee plans and exempt organizations, we have a regulatory function, and not a revenue raising function.” “The New Pension Law - Symposium” published in 9 Real Prop, Prob & Tr. J. 461 (1974).

The IRS under Don’s leadership made significant strides to meet the intense demands. The Commissioner of Internal Revenue’s 1975 Annual Report stated that 12 regulations and a variety of other pieces of guidance had already been issued to provide assistance in administering employee plans.

At a 1976 Congressional hearing addressing the administrative difficulties, cost, and confusion resulting from dual regulation of ERISA by IRS and DOL, changes were discussed to place some, if not all, responsibility for administering parts or all of ERISA on either IRS or DOL or an independent commission. In a letter to Senator Bentsen referenced at the hearing, Commissioner Alexander added his view that the “single most compelling area in need of improvement relating to the administration of ERISA is the prohibited transaction segment, and most particularly, the dual interlocking jurisdiction of the Internal Revenue Service and the Department of Labor.” He proposed that DOL exclusively administer provisions dealing primarily with the conduct of fiduciaries, while IRS would exclusively administer all prohibited transaction provisions and have sole jurisdiction to grant administrative exemptions. (Subcommittee on Labor Standards of the House Committee on Education and Labor, U.S. House of Representatives, Ninety-fourth Congress, second session, on Public Law 93-406 concerning General Oversight of ERISA, held on July 20, 1976.) Don held his position as Commissioner until February, 1977, when President Jimmy Carter appointed his replacement. A solution based in part on the concept proposed by Don came into reality with President Carter's Executive Order issuing the Reorganization Plan No. 4 of 1978 (43 FR 47713, October 17, 1978), effective December 31, 1978.

After leaving the IRS, Don served as a director of the U.S. Chamber of Commerce from 1984 to 1989 and worked in a series of New York and Washington law firms including Cadwalader, Wickersham & Taft. In 1987 he became Chair of the IRS Commissioner’s Exempt Organization Advisory Group. In 1993, Don became a partner at Akin Gump Strauss Hauer & Feld in Washington, DC, where he remained active until a few weeks before his death in 2009. There he continued his wide-ranging tax practice, testifying frequently before Congressional committees, corresponding regularly with IRS and Treasury on policy and technical matters, and making public comment on IRS and other agency guidance. Don also served on numerous federal commissions including the Commission on Federal Paperwork, the Interior Department's Coal Leasing Commission, and the Martin Luther King, Jr. Federal Holiday Commission.

Don continued as a prolific writer publishing articles of note. For example, in 2003 he authored “Nonqualified Deferred Compensation and Retirement Savings: Where Are We? Where Should We Be?” published as part of an American Law Institute- American Bar Association course of study on deferred compensation October 9-11, 2003, recapping the history of deferred compensation back to 1950 and subsequent developments through Enron and beyond, and posing policy questions for the future. In recognition of Don’s talent and contributions as a writer, the Federal Bar Association Section on Taxation established the prestigious Donald C. Alexander Tax Law Writing Competition for law students, noting that throughout his career, Don was both a widely admired role model and an advocate for writing skills and style in tax law.

In an interview with the Harvard Law Bulletin (Summer 2005), Don expressed his interest in promoting tax research and the importance of sound federal tax policy. Asked what advice he would give new graduates, he said “Plan to do some public service at some time in your career. I think we all owe it to our country and our communities.” Don’s commitment to public service, even as he excelled as a legendary practitioner, is indeed remarkable, and his leadership in laying the foundations for ERISA’s practical and effective implementation cannot be overstated.


Photo Source: Harvard Law Today, Harvard Law School, 2005