Exhibit: Employee Retention Credit Contract, Whitley Penn Letter to Chapter 7 Trustee (April 9, 2024)

Summary

An engagement letter dated April 9, 2024 from Whitley Penn LLP to Randolph N. Osherow, Chapter 7 Trustee for the bankruptcy estate of Central Texas Medical Specialist, PLLC, filed April 22, 2024 as Doc#45-4, an Employee Retention Credit Contract exhibit, in case 24-10011-smr. Whitley Penn would prepare the Debtor's Forms 941 to claim the Employee Retention Credit, track the claim with the IRS and provide audit defense. The letter states that Whitley Penn has determined the estimated retention credit to be paid by the IRS will equal $2,279,823 plus applicable interest, and that its fee for obtaining it will be $182,400. If less than $2,279,823 is recovered, the fee would not exceed 8% of any recovery. All terms are subject to bankruptcy court approval.

Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used

Full text

Text recognized from a scanned document; may contain errors.

Firefox

1 of 6

24-10011-smr Doc#45-4 Filed 04/22/24 Entered 04/22/24 09:53:51 Exhibit Employee @>out:blank

Retention Credit Contract Pg 1 of 6

Fort Worth Office
640 Tayler Strest
Suite 2200

Fost Warth, Texas 76102

817.250.9100 fain

April 9, 2024

Mr, Randolph N. Osherow
Chapter 7 Trustee

342 W, Woodlawn Ave., Suite 100
San Antonio, TX 78212

Re: Case No. XX—In re Central Texas Medical Specialist, PLLC pending in the United States
Bankruptcy Court for the Southern District of Texas, Austin Division

Dear Mr. Osherow

We are pleased to confirm our understanding of the services Whitley Penn LLP (‘Whitley Penn”
or the “Firny’) will provide to the Trustee for the bankruptcy estate of Central Texas Medical
Specialist, PLLC et al (“CTMS” or “The Debtor”),! This letter will define the terms and objectives
of the engagement and the nature and limitations of the services Whitley Penn will provide you in
your role as Chapter 7 Trustee (the “Trustee”) of the Debtor:

Scope of Engagement and Services to be Provided Include:

« Preparation of the Debtor’ Form 941% for purposes of claiming the Employee
Retention Credit.

¢ Tracking of Employee Retention Credit claim with the IRS.

e Audit defense if Employee Retention Credit claim were to be audited by IRS.

Responsibilifies of Engagement

Whitley Penn will provide the services and perform the engagements in accordance with the
American Institute of Certified Public Accounts (“AICPA”) Code of Professional Conduct and
Statements on Standards for Tax Services and will adhere to all applicable regulations governing
practice before the Internal Revenue Service as defined in Treasury Department Circular
No. 230 (“Circular 230”).

Whitley Penn will perform these engagements based on information and representations provided
by The Trustee and will not audit or otherwise verify the data submitted by the Trustee. Complete
and accurate information is essential to the performance of Whitley Penn ’s work. In accordance
with applicable professional standards, Whitley Penn will inquire with The Trustee when it is
necessary to clarify or determine the reasonableness of any information that has been provided.

! in re: Central Texas Medical Specialist Case No. XX(EVR) Chapter 7 (the “Bankruptcy Case”). The
Bankruptcy Case is currently pending in United States Bankruptcy Court, Western District of Texas (the
“Bankruptcy Court”), ©

AND ACCOUNTING NETWORK

4/10/2024, 8:04 AM
Firefox

2 of 6

Retention Credit Contract Pg 2 of 6

Mr. Randoiph N. Osherow April 9, 2024
Chapter 7 Trustee Page 2

The Trustee should retain all documents that provide evidence and support for its reported income,
gains, losses, deductions, and credits as required by all applicable tax laws. The Trustee hereby
represents that it will retain and produce such documentation that may be required to be provided
io any applicable taxing authorities during the applicable statute of limitations period to the extent
available.

The Trustee is responsible to inform Whitley Penn of the US state and local and foreign
jurisdictions in which it conducts business. Whitley Penn will work with The Trustee to determine
any filing requirements that may be required in the applicable US state and local jurisdictions.
Whitley Penn will not determine the requirements for or prepare any filings required to be
submitted under the applicable laws of a foreign country. With regard to any filing requirements
for a foreign country, The Trustee may choose to authorize Whitley Penn to engage a finn located
in the applicable foreign country that is affiliated with the international Nexia® network of which
Whitley Penn is a member or another firm recommended by Whitley Penn to determine the
requirements for and prepare such filings. If The Trustee does not wish to utilize a finn
recommended by Whitley Penn, it agrees to engage its own third-party tax advisor to determine the
requirements for and prepare the applicable filings for that foreign country.

The Trustee also agrees to inform Whitley Penn of any known investment in foreign assets,
including foreign brokerage and bank accounts. Such investments may require the filing of
additional reports and disclosure statements with the IRS and other governmental agencies, Failure
to file such reports can result in the imposition of both civil and criminal penalties, both of which
may be significant. Whitley Penn will work with The Trustee to determine any U.S, filing
requirements related to foreign investments.

Whitley Penn will perform the engagement based on the relevant tax authority that is in effect at
the time of the completion of the engagement. Tax authority includes the Internal Revenue Code
(“IRC”), Treasury Regulations, judicial decisions, IRS positions including Revenue Rulings,
Revenue Procedures, Private Letter Rulings, IRS counsel pronouncements and other IRS guidance.
Tax authority also includes State statutes, judicial decisions, and other administrative
pronouncements, Tax authority that is in effect at the time of the engagement may be subject to
change by subsequent legislation, judicial rulings, and administrative changes. If Whitley Penn
determines that a subsequent change to the relevant tax authority issued after the completion of the
current engagement may be applied retroactively, Whitley Penn will inform The Trustee of the
change. If The Trustee and Whitley Penn agree to change any filing or report based on a change
in relevant tax authority, such change to the filing or report will constitute a separate engagement
for which a new engagement agreement will be executed.

Under Circular 230 and IRC Section 6694, Whitley Penn is prohibited from signing a federal
income tax return unless it has a reasonable belief that all tax return positions reported in the return
are supported by substantial authority or has a reasonable basis for reporting a return position and
that position is adequately disclosed in the return in accordance with prescribed disclosure
requirements.

Whitley Penn will not be liable for any additional tax, penalty, and interest attributable to a tax
return or other tax filing that Whitley Penn recommends that The Trustee file but The Trustee
declines to file. Whitley Penn will inform The Trustee of the reporting disclosures and
documentation required for a tax return position recommended by Whitley Penn that will be

24-10011-smr Doc#45-4 Filed 04/22/24 Entered 04/22/24 09:53:51 Exhibit Employee about:blank

4/10/2024, 8:04 AM
Firefox

3 of 6

Retention Credit Contract Pg 3 of 6

Mr, Randolph N. Osherow April 9, 2024
Chapter 7 Trustee Page 3

included in a tax return or other tax filing prepared by Whitley Penn or included in a tax return or
other tax filing prepared by a third party. If The Trustee does not agree to include those required
reporting disclosures and documentation in the applicable tax return or tax filing or retain the
supporting documentation identified by Whitley Penn, Whitley Penn will not sign that tax retum
or other tax filing as paid preparer and Whitley Penn will not be liable for any additional tax,
penalty, and interest related to that tax returm position if it is reported on a tax ret or tax filing
prepared by a third party. Whitley Penn also will not sign a tax return or other tax filing as paid
preparer if The Trustee wishes to adopt a tax retum position that Whitley Penn advises will not
meet the applicable authority and documentation standards required by Circular 230 or other
applicable Federal or State professional standards, including any tax return position recommended
by another third party consultant or advisor.

The Trustee acknowledges that he has the ultimate and final responsibility with the applicable
taxing authorities for the Debtor’s tax filings and the ultimate liability for the tax and any penalty
and interest related to those filings. Accordingly, the Trustee agrees she will thoroughly and
carefully review such filings prepared by Whitley Penn before submitting them to any taxing
authority. The Trustee agrees to hold Whitley Penn and any of its partners, principals, or employees
harmless for its failure to follow Whitley Penn’s recommendations regarding the submission of
required tax filings, documentation requirements, reporting requirements, tax return positions, and
tax retum disclosures. Whitley Penn reserves the right to withdraw from this engagement before
its completion if the Trustee disagrees or fails to follow its recommendations regarding the
submission of required tax filings, documentation requirements, reporting requirements, tax return
positions, or tax return disclosures or it determines for any other reason that professional standards
require withdrawal.

Client Records

In accordance with all applicable professional standards and regulatory and legal requirements,
Whitley Penn will prepare and retain the necessary working papers and documents required to
support any tax advice or tax return positions provided or taken on behalf of The Trustee. In
accordance with applicable professional standards, any tax working papers are the property of
Whitley Penn and Whitley Penn retains the ownership of those working papers at all times. Whitley
Penn will retain these working papers in accordance with its internal record keeping policies. Any
original documents or records that The Trustee submits to Whitley Penn are the property of The
Trustee and will be returned immediately upon request.

The Trustee will own all tangible written material prepared for and delivered to Whitley Penn under
this engagement letter except as follows: Whitley Penn owns its working papers, preexisting
materials, and any general skills, know-how, processes, software or other intellectual property
which Whitley Penn may have discovered or created as a result of this engagement,

In providing services to The Trustee, Whitley Penn may transmit electronic data over the internet,
store electronic data via computer software applications hosted remotely on the internet, or allow
access to electronic data through third-party hosted secured portals or clouds. In using these data
communication and storage methods, Whitley Penn employs specific policies and procedures
designed to maintain secure access to confidential data in accordance with its obligations under all
applicable laws and professional standards, Whitley Penn also requires all third-party vendors that
it utilizes to transmit and store confidential data to employ similar security policies and procedures.

24-10011-smr Doc#45-4 Filed 04/22/24 Entered 04/22/24 09:53:51 Exhibit Employee 2?out:blank

4/10/2024, 8:04. AM
Firefox

4 of 6

Retention Credit Contract Pg 4 of 6

Mr. Randolph N. Osherow April 9, 2024
Chapter 7 Trustee Page 4

The Trustee recognizes and consents to Whitley Penn’s use of these electronic devices and
applications and submission of confidential information to third-party vendors during this
engagement.

The Trustee understands that Whitley Penn may be compelled, whether by subpoena, regulatory
request or other order or by demand by a civil litigant or governmental entity, to disclose to a third
party records belonging to the Debtor or other confidential information Whitley Penn received
pursuant to the agreement. To the extent permitted under law, Whitley Penn shall provide The
Trustee with prompt notice of same so that The Trustee may seek a protective order or other
appropriate protective remedy to prevent the disclosure of the confidential information. The Trustee
shall provide Whitley Penn with prompt instructions as to whether the material should be produced
or withheld. In the event that such a protective order or other protective remedy is not fully
obtained, Whitley Penn shall furnish only that portion of the confidential information that, in the
opinion of its own legal counsel, it is legally required to disclose. The Trustee agrees that in the
event that Whitley Penn incurs costs of production to comply with the request, including filing and
attorney‘s fees, The Trustee shall reimburse such expenses as invoiced in accordance with Whitley
Penn’s regular practices.

Terms of Engagement and Fees

Whitley Penn has detennined that the estimated retention credit to be paid by the IRS will equal
$2,279,823 plus applicable interest. Whitley Penn’s fees for obtaining a $2,279,823 plus interest
retention credit will be $182,400. Uniess specifically described in the previous engagement scope
listing, any additional required filings, returns, or reports that are identified by Whitley Penn during
the course of this engagement will be considered services outside the scope of this engagement
letter. Ifa filing requirement that is not specified in this engagement letter is subsequently
determined, Whitley Penn will either amend this engagement letter or execute a new engagement
letter to account for such filing. See the subsequent discussion regarding additional services
provided by Whitley Penn outside the scope of this engagement letter.

The Trustee may also request that Whitley Penn perform additional services not contemplated in
this engagement letter. This includes Whitley Penn’s services provided and responses on The
Trustee’s behalf to any inquiry or examination by any Federal or State governmental agency or tax
authority. In the event that Whitley Penn provides such additional services, Whitley Penn will
communicate with The Trustee concerning the scope and estimated fees for such services. Whitley
Penn may also issue a separate engagement letter for the additional services. In the absence of any
other written communication from Whitley Penn documenting such additional services, Whitley
Penn’s services will continue to be governed by the terms of this engagement letter. Any additional
income tax consulting or compliance projects outside the scope of this engagement letter will be
based on the amount of time required to complete those projects charged at Whitley Penn’s standard
hourly billing rates. Whitley Penn will be paid in accordance with the Bankruptcy code.

Whitley Penn's invoice for these fees will be rendered once at least $2,279,823 is received by the
Estate and is payable pursuant to the Bankruptcy code and in accordance with an order of the
Bankruptcy court. In the event less than $2,279,823 is recovered, the Trustee and Whitley Penn
will agree on a lesser fee not to exceed 8% of any recovery, which will be reflected in Whitley
Penn's fee application. The Trustee agrees to pay reasonable attomey fees and collection costs
incurred related to the collection of fees for services performed under the terms of this engagement.

24-10011-smr Doc#45-4 Filed 04/22/24 Entered 04/22/24 09:53:51 Exhibit Employee about:blank

4/10/2024, 8:04 AM
Firefox

5 of 6

Retention Credit Contract Pg 5 of 6

Mr. Randolph N. Osherow April 9, 2024
Chapter 7 Trustee Page 5

In accordance with Whitley Penn Firm policy, work may be suspended if The Trustee’s account
becomes 30 days or more past due and will not resume until the account is paid in full. If Whitley
Penn elects to terminate its services for nonpayment, the engagement will be deemed to have been
complete even if Whitley Penn has not actually completed the engagement. The Trustee will be
obligated to compensate Whitley Penn for all time expended and to reimburse it for all out-of-
pocket expenditures through the date of termination.

Whitley Penn’s liability to The Trustee and any third party for any and all damages arising out of
this engagement agreement, including but not limited to contractual liability, the Finn’s negligence,
errors and omissions, and breach of contract or breach of warranty shall not exceed the aggregate
amount of fees paid to the Finn during the terms of the agreement. Under no circumstances shall
Whitley Penn be liable for consequential, punitive, incidental or special damages or claims in the
nature of lost profits, lost revenues or opportunity costs. The terms of this paragraph shall survive
the termination and expiration of the terms of this engagement. The Trustee understands and
accepts that this agreement prohibits the recovery of punitive damages.

The Trustee agrees that all services shall be provided by Whitley Penn and that all claims, if any,
will be made against Whitley Penn and not against any partner or employee of Whitley Penn.

In the unlikely event that differences concerning Whitley Penn 's services or fees should arise that
are not resolved by mutual agreement, to facilitate resolution and save time and expense of both
parties, The Trustee and Whitley Penn agree that any controversy, claim, dispute or questions
arising out of or in connection with this agreement or the engagement shall be determined by the
Bankruptcy court,The parties agree that any claim that may arise between them regarding any tax
return shall be made within two years of the due date of the tax return, including extensions. Any
claim that may arise regarding any other work product shall be made within two years of the
delivery date of the work product. Any claim not filed by these respective dates shall be waived
and barred and both parties agree that the discovery rule and any other common law or statutory
doctrine of tolling is hereby waived.

If any portion of this agreement is deemed invalid or unenforceable, such finding will not operate
to invalidate the remainder of the terms set forth in the engagement letter. This letter replaces and
supersedes any previous proposals, correspondence and understanding, whether written or oral.
The agreements contained in this engagement letter shall survive the completion or termination of
this engagement.

We appreciate the opportunity to be of service to The Trustee and believe this letter accurately
summiarizes the significant terms of our engagement. If you have any questions, please feel free to
contact us at (817) 259-9100. Ifyou agree with the terms of the engagement as described in this
letter, please sign one of the enclosed copies in the space subsequently provided and return it to me
in the enclosed envelope.

Sincerely,

24-10011-smr Doc#45-4 Filed 04/22/24 Entered 04/22/24 09:53:51 Exhibit Employee @bout:blank

4/10/2024, 8:04 AM
Firefox 24-10011-smr Doc#45-4 Filed 04/22/24 Entered 04/22/24 09:53:51 Exhibit Employee about:blank
Retention Credit Contract Pg 6 of 6

Mr. Randolph N. Osherow April 9, 2024
Chapter 7 Trustee Page 6
ACCEPTED:

This letter correctly sets forth the understanding of Mr. Randolph N. Osherow, Chapter 7 Trustee
for the bankruptcy estate of Central Texas Medical Specialist, PLLC Case No. XX pending in the
United State Bankruptcy Court for the Western District of Texas, Austin Division. All terms,
provisions and conditions of this agreement are subject to bankruptcy court approval

andolph N. Osherow, Chapter 7 Trustee

6 of 6 4/10/2024, 8:04 AM


File and source

File

45-4-exhibit-erc-contract-whitley-penn.pdf

Size

618,046 bytes

SHA-256

7a039d2fbebe0c2c61a65e033775066ea34999b236462200b88f85dbb304eb93

Our copy

45-4-exhibit-erc-contract-whitley-penn.pdf

Original

No public link identified.