PANDEMIC TAX INTEREST AND PENALTY CONSULTING SERVICES
This Engagement Agreement for Pandemic Tax Interest and Penalty Consulting Services (this “Agreement”) is entered into as of {date} (the “Effective Date”) between Kenstone LLC, a Delaware limited liability company, (“Kenstone”) and {name} (collectively and together with any applicable affiliates thereof, jointly and severally, “Client”).
1. Scope of Engagement Services: Client hereby engages Kenstone to provide consulting services to identify, evaluate, and quantify Client’s eligibility to pursue potential refunds, abatements or credits of federal taxes relating to interest and/or penalties assessed during the COVID-19 pandemic, including but not limited to relief arising under federally declared disaster provisions and related judicial interpretations (individually and collectively, the “Recovery”). Such services shall include reviewing Client’s transcripts, tax returns and related documents to determine eligibility for the Recovery; preparing supporting documentation, calculations and analyses required to determine the amount of the Recovery (the “Recovery Delivery”), and assisting Client’s tax advisors or accountants with the preparation of Recovery claims and related filings (collectively, the “Services”). Client acknowledges that Kenstone may subcontract, delegate or assign the performance of a portion of the Services to third parties, including without limitation, by engaging outside attorneys, accountants and/or consultants. Client agrees to work with Kenstone and shall (i) exclusively utilize Kenstone for the Services described herein and (ii) promptly submit to Kenstone all relevant data and information requested by Kenstone. Kenstone’s obligations under this Agreement are limited solely to the performance of the Services expressly described herein. If Client elects to commence, join, or otherwise pursue any litigation, judicial proceeding, or other formal claim against the Internal Revenue Service, or any other taxing agency or governmental authority, including, without limitation, the United States Court of Federal Claims, any United States District Court, or any state court or tribunal, such litigation and related proceedings are expressly excluded from the scope of the Services. In such event, Kenstone shall have no obligation to participate in, manage, support, or otherwise assist with such litigation, except that, upon Client’s written request, Kenstone shall provide copies of documentation in its possession relating to the Services, provided that doing so does not require Kenstone to incur any out-of-pocket cost or expense. Any attorneys, accountants, experts, consultants, or other professionals engaged in connection with any such litigation or dispute with any taxing authority shall be separately retained directly by Client and shall be solely at Client’s cost and expense.
2. Compensation: Kenstone’s fee for performing the Services is equal to thirty percent (30%) of the total Recovery identified in the Recovery Delivery, including without limitation, all refunds, credits, abatements and offsets and any interest paid thereupon (the fee relating to each Recovery, a “Fee” and collectively, the “Fees”). The Fee for each Recovery shall be fully earned by Kenstone upon delivery of the Recovery Delivery to Client. Payment of all Fees shall be due and payable to Kenstone within three (3) business days after Client first receives payment or is credited for, or otherwise receives any benefit from each applicable Recovery. Notwithstanding anything to the contrary, in the event that (i) this Agreement is terminated by Client for any reason and (ii) Client claims the Recovery (on its own or through an accountant or other consultant), Client acknowledges and agrees that all Fees shall be due and payable in full to Kenstone at such time as Client claims any Recovery. Client shall promptly provide Kenstone with copies of any material correspondence received from any applicable governmental agency or other party relating to the Recovery. In the event Client does not respond in writing within fourteen (14) days following any written request from Kenstone inquiring as to the status and/or receipt of any Recovery, then such Recovery shall be deemed to have been claimed by Client and notwithstanding anything to the contrary contained herein, any outstanding Fee with respect to such Recovery shall be due and payable in full to Kenstone on the day immediately following the expiration of such fourteen (14) day period. Notwithstanding anything to the contrary contained herein, Kenstone shall have no obligation to perform Services with respect to any claim, file, or matter for which the reasonably anticipated Recovery is less than Ten Thousand Dollars ($10,000), as determined by Kenstone in its sole but good faith discretion, and Kenstone may decline to proceed with or may discontinue Services on any such matter upon notice to Client.
3. Information to be Provided by Client: Client agrees to cooperate and deliver to Kenstone any and all records requested and to respond to all inquiries made by Kenstone on a timely basis. Any delay in providing correct, complete and accurate information to Kenstone may adversely affect the timely determination of eligibility for and calculation of the Recovery.
a. Client represents and warrants that all tax, financial and other information and documentation provided to Kenstone from Client, its accountants, agents and service providers (“Client Information”) will be accurate and complete. It is Client’s responsibility to ensure that the Client Information is accurate, complete and uncontradicted by information contained in other documents, such as, but not limited to, transcripts (which may be ordered through a third-party provider), tax returns as filed and any other ancillary and corporate filings or other documentation.
b. Kenstone’s consulting services are dependent upon the accuracy, completeness and timeliness of the Client Information. Kenstone will use and rely on Client Information provided by Client and third parties engaged by Client to determine Client’s eligibility for and calculation of the Recovery. Kenstone will not independently verify or audit Client Information. Inaccurate, incomplete or untimely documentation and representations may result in an inaccurate determination of eligibility for any Recovery and calculations relating thereto.
c. Kenstone requires the support and cooperation of Client’s personnel and accountants to achieve timely determination of eligibility for and calculation of the Recovery (“Support”). Support includes, but is not limited to, the collection of all relevant documents (paper or electronic) and the scheduling of interviews and coordination of meetings and telephone calls, as applicable. Failure to receive such Support in a timely manner may negatively affect Kenstone’s ability to complete the Services.
4. Filing Requirements: Kenstone shall not be responsible for, or sign any tax forms, returns, applications, agreements or other documents related to the Recovery as, a “preparer” or “authorized representative” of Client. Kenstone shall have no obligation to perform any consulting services or provide any deliverables other than as expressly set forth herein. In particular, the scope of Kenstone’s consulting services does not include responding to or assisting Client with any inquiries or audits by any applicable governmental or quasi-governmental agencies.
5. Change in Laws; Pending Litigation: Client acknowledges that (i) the laws, rules, regulations, administrative guidance, and other legal authorities relating to Recovery are governed by applicable federal law and may also be affected by judicial decisions, including pending, ongoing, or unsettled litigation and (ii) such laws, regulations, guidance, and legal determinations are subject to change, interpretation, and further development, and any such developments may affect the advice, analysis, or recommendations provided by Kenstone as part of this engagement.
6. Confidential Information/Data: A third-party portal or other online tools may be used to assist in the collection of Client Information and Recovery calculation process, including the gathering of data from Client, obtaining certifications and approvals and sharing of information as directed by Client. Client understands that its private and confidential information may be transmitted or stored using this portal or other online tools. Kenstone employs measures designed to maintain data security and uses reasonable efforts to keep confidential information secure in accordance with its obligations under applicable laws. By accepting the terms and conditions of this Agreement, Client is providing its consent and authorization to disclose its confidential information to the third-party portal or other online tool provider. Notwithstanding the reasonable security measures employed by Kenstone, Client recognizes and accepts that Kenstone does not have control over the unauthorized interception, access, or breach of any electronic data once it has been transmitted or any control over the reliability and functionality of the portal or other online tools. As such, Client agrees to indemnify and hold Kenstone harmless with respect to any and all claims arising from or related to the operation of the portal or other online tools. Further, Client agrees to protect its login or other authentication credentials related to the portal or other online tools to prevent unauthorized use.
7. Commencement: Kenstone will commence its consulting services upon receipt of an executed copy of this Agreement, together with any preliminary information requested by Kenstone from Client.
8. Client Responsibility: Client acknowledges and agrees that Kenstone does not warrant, guarantee, or predict results. Client understands and agrees that Kenstone’s consulting services may include advice and recommendations based upon its knowledge, training and experience, but at all times, Client is solely responsible for deciding whether to claim the Recovery.
9. Indemnification: Client agrees to indemnify, defend, and hold harmless Kenstone and any of its partners, principals, shareholders, officers, directors, members, employees, attorneys, agents or assigns with respect to any and all claims made by third parties arising out of or relating, directly or indirectly, to this Agreement, regardless of the nature of the claim, and including the negligence of any party, provided, however, that such indemnity shall not apply to any portion of such claims to the extent it is found in a final judgment by a court of competent jurisdiction (not subject to further appeal) to have resulted primarily and directly from the gross negligence or willful misconduct of Kenstone.
10. Limitation of Liability: Kenstone shall not under any circumstances be liable to Client and/or to any other person or entity in an aggregate amount exceeding the Fee. NEITHER PARTY SHALL BE LIABLE TO THE OTHER OR TO ANY OTHER PERSON OR ENTITY FOR ANY CONSEQUENTIAL, INCIDENTAL OR INDIRECT DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION ANY SUCH DAMAGES FOR LOST PROFITS.
11. Governing Law: This Agreement shall be governed by and construed under the laws of the State of New York without regard to any conflicts of laws principles thereof. With respect to any controversy or claim arising out of, or relating to, this Agreement, or breach thereof, the parties submit themselves to the exclusive jurisdiction to the state and/or federal courts sitting in Nassau County, State of New York and waive any and all objections or challenges to the jurisdiction of such courts, whether on the basis of forum non conveniens or any other grounds. In any legal action or other proceeding related to this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and other costs incurred in connection with such action or proceeding, in addition to any other relief to which such party may be entitled.
12. Late Fee: Upon the failure of Client to pay the Fee due to Kenstone in connection with any Recovery within thirty (30) days of the date upon which a payment was due, a late payment penalty equal to ten percent (10%) of the past due amount ("Late Payment Amount") shall immediately be charged to Client and Client shall pay the Late Payment Amount to Kenstone upon demand, together with all amounts then due. The imposition of the Late Payment Amount shall be in addition to any other rights and remedies of Kenstone under this Agreement or in law or equity.
13. Notices: Any notices or communications required or permitted to be given by this Agreement must be (i) given in writing and (ii) personally delivered or mailed, by prepaid, certified mail or overnight courier, or (iii) transmitted by electronic mail transmission (including PDF), with read receipt request to the party to whom such notice or communication is directed, to the mailing address or regularly-monitored electronic mail address of such party as set forth below. The authorized representatives of their respective entities defined below shall receive and initiate all notices required or permitted hereunder and shall be the parties authorized by their respective entities to render binding decisions related to the scope and term of the Services under this Agreement.
Client: {name}
(Authorized Representative)
Tel: {phoneNumber}
Email: {email}
Kenstone: Kenstone LLC
661 Central Avenue
Cedarhurst, New York 11516
David Schlesinger
(Authorized Representative)
Tel: 212-246-1800
Email: david@kenstonegroup.com
14. Agreement Drafted by Parties: For all purposes this Agreement shall be deemed drafted by all parties hereto even though one of the parties may have initially drafted the Agreement and submitted it to the others for review. No provision in this Agreement shall be interpreted for or against a particular party due to the fact that the party drafted the provision.
15. Authority to Bind Client: The undersigned individual(s) executing this agreement on behalf of Client hereby warrants and represents that the correct and legal company name or names of the companies named in this Agreement is/are set forth below and he/she has all requisite power and authority to enter into this Agreement on behalf of Client, and to bind Client to the promises, covenants, and terms contained herein. The execution and delivery by Client of this Agreement have been duly authorized by all requisite action of Client, its officers, directors, members, and/or shareholders. This Agreement, when executed and delivered to Kenstone, will constitute the legal, valid, and binding obligations of Client.
16. Miscellaneous: This Agreement shall constitute the entire agreement between Client and Kenstone relating to the subject matter hereof, and no representations, promises, understandings, or agreements, oral or otherwise, not herein contained shall be of any force or effect. No modification or waiver of any provision of this Agreement shall be valid unless it is in writing and signed by the party against whom it is sought to be enforced. No waiver at any time of any provision of this Agreement shall be deemed a waiver of any other provision of this Agreement at that time or a waiver of that or any other provision at any other time. If any portion of this Agreement is deemed invalid or unenforceable, said finding shall not operate to invalidate the remainder of the terms set forth in this Agreement. Consultant shall perform all Services as an independent contractor and not as an employee or agent of Client. Consultant shall have no authority to bind Client in any respect. The parties agree that this Agreement and any related documents may be executed and delivered by electronic means, including without limitation electronic signature platforms, secure portals, or other electronic methods. Any such electronic signature shall be deemed to have the same legal effect as a handwritten signature for all purposes. The parties further agree that delivery of this Agreement by electronic transmission (including PDF or other electronic format) shall be effective as delivery of an original executed agreement. Each party consents to the use of electronic records and signatures in connection with this Agreement pursuant to the federal Electronic Signatures in Global and National Commerce Act (E-SIGN) and applicable state Uniform Electronic Transactions Act (UETA), and agrees not to contest the validity or enforceability of this Agreement on the basis that it was executed or delivered electronically. This Agreement may be executed in counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument.
17. Acknowledgment: By countersigning this Agreement below, Client and {legalName}, a principal of Client (“Principal”) agree and certify that (i) Client shall be responsible to pay the Fees and the Principal shall cause Client to pay the Fees to Kenstone in accordance with the terms and conditions set forth herein, (ii) in the event that Client fails to pay the Fees, the Principal shall be individually responsible to pay the Fees to Kenstone in accordance with the terms and conditions set forth herein; and (iii) all information and documentation that has and will be provided to Kenstone during the term of this Agreement shall be truthful and accurate.
The parties hereto hereby acknowledge that this Agreement is a valid legal document that was written in accordance with the principles of Halacha required for the writing of legal documents (“Shtaros”), and was executed and delivered in a manner consistent with affecting a halachic legal transfer and is not an “Asmachta”.
We appreciate the opportunity to be of service to you. Please date and execute this Agreement and return it to us to acknowledge your acceptance.
[SIGNATURE TO FOLLOW]
IN WITNESS WHEREOF, the parties hereto have read, understood and agree to the terms of the Agreement intending to be legally bound have caused their proper and duly authorized officers to execute and deliver this Agreement as of the Effective Date.
Kenstone:
Kenstone LLC
By: 
Name: Joel Schlesinger
Title: Member
Client: {name}