| ||The Tax Adviser’s Privilege in Transactional Matters: A Synopsis and a Suggestion|
* Partner, Milbank, Tweed, Hadley & McCloy LLP, New York, New York; B.A., B.S.E., University of Pennsylvania, 1979; J.D., Harvard Law School, 1982.
In The Tax Adviser’s Privilege in Transactional Matters: A Synopsis and a Suggestion, Bruce Kayle examines the attorney-client and work-product privileges as they apply to the practice of a tax lawyer.
The article begins with a discussion of the history of privilege and reveals that what most lawyers believe to be privileged frequently may fall outside the true contours of the attorney-client and work-product privileges. The Article’s review of the privileges starts with an examination of the elements that must be present for an appropriate claim of privilege. The elements required to claim the attorney-client privilege are almost completely different from those required to claim the work-product privilege. Each of these elements are discussed separately, focusing on their relevance to the practice of a tax lawyer.
The Article then applies the privileges to transactions often encountered by tax lawyers in transactional practice. First, the Article examines the tax lawyer’s role in a typical corporate acquisition. The applicability of the attorney-client and work-product privileges is reviewed at each stage of the acquisition. Next, the development, marketing and execution of a corporate tax shelter are discussed. Here, again, the tax lawyer’s role and the applicability of the privileges are reviewed. The tax shelter regulations, as they interact with the attorney-client and work-product privileges, are also discussed in this section.
Lastly, the Article questions the appropriateness of applying the privileges in transactional tax matters in the same manner as they are applied in other areas of the law. The Article reviews the purposes of the privileges and asks whether those purposes are served equally in tax law and non-tax law matters. It then proposes that the application of the privileges in tax matters be altered in such a way to more appropriately serve the purposes justifying the attorney-client and work-product privileges.