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The Corporate CounselorLJN NewslettersNewsSections

Attorney Work Product at Risk

By Anthony M. Sabino

A new federal appeals court decision promises to give significant pause to corporate counsel, particularly in-house tax attorneys. To their dismay, the First Circuit has ruled that no amount of anticipation of litigation, nor the intimate involvement of legal counsel, can ever immunize so-called “tax accrual workpapers” from discovery by the IRS. Because of the widespread implications to the conduct of all litigation and the dispensing of legal advice in the business context, and the near certainty of Supreme Court review, we set out the controversy.

United States v. Textron Inc., ___ F.3d ___ (1st Cir. Aug. 13, 2009) (available on the First Circuit's Web site), involves Textron, a well-known aerospace and defense conglomerate. The corporation calculates its tax liability for the dual purposes of preparing audited financial statements, and its tax return. This gives rise to the commonplace necessity for “tax accrual workpapers.”

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