Accountant workpaper privilege upheld by First Circuit.

• Author: Nevius, Alistair M.

On January 21, 2009, the First Circuit upheld a district court's decision that the work-product privilege applies to certain accountant workpapers (Textron Inc., No. 07-2631 (1st Cir. 1/21/09), aff'g in part, vacating in part, and remanding 507 F. Supp. 2d 138 (D.R.I. 2007)).

Textron is a publicly traded conglomerate with approximately 190 subsidiaries. Like other large corporations, Textron's federal tax returns are audited periodically. Textron and its subsidiaries annually prepare tax accrual workpapers.

Textron's tax accrual workpapers were prepared by attorneys and CPAs working for Textron. Textron's subsidiary companies prepared their workpapers with some input from private law firms and outside accounting firms. According to Textron officials, Textron's ultimate purpose in preparing the tax accrual workpapers was to ensure that Textron was "adequately reserved with respect to any potential disputes or litigation that would happen in the future."

During an audit of Textron's 1998-2001 tax years, the IRS issued more than 500 information document requests to Textron. Textron refused to comply with any requests that sought tax accrual workpapers, asserting that the workpapers were protected by attorney-client, tax practitioner-client, and work-product privileges.

The district court, after considering whether the privileges applied and whether Textron had waived the privileges, held that work-product privilege applied and had not been waived (the others had been waived), so Textron did not have to give its tax accrual workpapers to the IRS.

The work-product privilege (or work-product doctrine) is related to the attorney-client privilege and applies to materials prepared or gathered by an...