Tuesday, September 11, 2007

Tax Court: IRS Attorney Work Product Protection Continues to Apply After Trial

Here is a post from TaxProf Blog discussing a case touching on the work product doctrine:

Bryan Camp (Texas Tech) passed along these thoughts about Ratke v. Commissioner, 129 T.C. No. 6 (9/5/07):

The issue was whether attorney work product privilege protected a memo prepared for trial once the trial was over. The parties were in dispute over attorneys fees and possible sanctions against the IRS trial attorney. The taxpayer sought an unredacted copy of the IRS trial attorney's internal trial memo (a memo required to be sent to the National Office for review in certain cases). The taxpayer's theory was that the IRS trial attorney misrepresented the facts to the National Office in order to get clearance to pursue the matter). The Tax Court (1) held the trial memo was still protected work product even after trial was closed, judgment was entered (for taxpayer) and no appeal was taken; and (2) made an in-camera inspection of the trial memo, concluding that the taxpayer was not missing out on anything important.

This result is very consistent with the general inquisitorial approach taken by the Tax Court to disputes before it. I note that the taxpayer kinda got what he wanted, which is for the Court to take a look at the unredacted memo. If anything had jumped out at the Court I'm sure the case would have come out differently. The Court may have been concerned about a flood of requests for IRS memos. Seems reasonable, but this is not a common case.


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