| ||Privilege and the Work Product Doctrine in Tax Cases |
Martin J. McMahon, Jr.* and Ira B. Shepard**
*Martin J. McMahon, Jr., Clarence J. TeSelle Professor of Law, University of Florida, Fredric G. Levin College of Law, Graduate Tax Program; Rutgers University at New Brunswick, B.A., 1971; Boston College, J.D., 1974; Boston University, LL.M., 1979
**Ira B. Shephard, Professor of Law, University of Houston Law Center; Harvard University, A.B., 1958; LL.B., 1964.
The authors are particularly grateful to Steve Johnson, Jerry Israel, Chris Slobogin, and Mike Siegel for extensive helpful comments on earlier drafts of this article. All of the opinions expressed herein and any errors that remain are our own.
Over the past few years, the applicability of the attorney-client privilege, the related section 7525 tax practitioner-client privilege, and the work product doctrine have emerged as significant issues in tax litigation. For the most part, the recent cases have arisen in the context of marketed tax shelters and other aggressive tax planning transactions, but a few of the cases have surfaced in more prosaic contexts. As a result of the recent firestorm of controversy in this area, tax practitioners are becoming increasingly conscious of the importance of raising privilege and work product doctrine challenges when the Service seeks information about taxpayers’ transactions pursuant to a summons or in the course of discovery. This article is intended to acquaint practitioners with the core principles governing resolution of controversies of this nature.