09/28/2010 01:00 p.m. - 02:30 p.m. EDT
Federal Tax and Federal Tax Controversy + Litigation
Edward L. Froelich
After the Supreme Court denied cert. in U.S. v. Textron, the 1st Circuit case which held that taxpayer accrual papers are not protected work product, the D.C. Circuit Court weighed in on the scope of work product in U.S. v. Deloitte and provided a more expansive analysis than the 1st Circuit case. The Deloitte decision focused on the substance of the document, holding that a document is work product if the content, not the document itself, was prepared in anticipation of litigation. The court also held that disclosure of internal memoranda to the taxpayer’s auditor does not waive protection. The Deloitte decision represents a victory for taxpayers and has a major impact on a company’s disclosure of internal tax documents to outside auditors. The decision also has significant ramifications for the new IRS mandate for corporations to report uncertain tax positions.
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