D.C. Circuit Jabs First Circuit - Work Product Means Something in the Nation's Capital

On and off for the last 26 years, the Internal Revenue Service It has gone toe to toe with taxpayers to try to obtain a "cheat sheet" to understand how corporate America handicaps the positions it takes on its federal income tax returns. Ever since the Supreme Court of the United States affirmed the IRS's right to obtain tax accrual workpapers prepared by a taxpayer's independent auditors, (1) the IRS has increasingly flexed its muscles in search of "smoking gun" documents that may reveal a taxpayer's assessment of weaknesses in its own case. After the IRS ultimately prevailed after three rounds in Textron, (2) taxpayers wondered whether the fight was over. Ding, ding, ding ... Round Four has gone to the taxpayer. On June 29, 2010, the U.S. Court of Appeals for the District of Columbia Circuit counter punched the First Circuit and its decision in Textron, holding that audit work papers can contain protected work product and disclosure of documents to an outside auditor does not waive work product protection. (3) After reviewing the development of the law since Arthur Young, this article discusses the new Deloitte decision.