Work-product privilege.

• Author: Burt, Charles J., II

In the course of examining a taxpayer's return, the IRS may attempt under Sec. 7602 to summons "any books, papers, or other data which may be relevant. " The common test of whether materials are relevant (and therefore subject to Sec. 7602 summons authority) is whether the documents "may throw ligt upon correctness of the return" at issue (Wyatt, 637 F2d 293 (5th Cir. 1981)). The taxpayer may then still claim that some "privilege" protects him from the requirement to deliver certain documents.

Accountant-client privilege: The Supreme Court in Couch, 409 US 322 (1973), held that "no confidential accountant-client privilege exists under federal law, and no state-created privilege has been recognized in federal cases."

Attorney-client privilege: The attorney-client privilege generally applies. to communications made in confidence by a client to an attorney for purposes of obtaining legal advice, and to communications made by an attorney to the client if such communications contain legal advice or reveal any confidential information on which the client seeks advice. Typically, the determinative factor in ascertaining the applicability of the attorney-client privilege is that the communication be made in confidence for the purpose of obtaining legal advice from the lawyer. The attorney-client privilege may extend to communications made by third parties, such as CPAs, who assist attorneys in providing legal services, if such communications to a client's attorney are made at the request of the client. The test of whether a CPA assists an attorney appears to be whether the CPA or the attorney is the client's primary representative. An attorney is the primary representative if the attorney is hired directly by the client and the attorney retains a CPA in the course of rendering legal services. in this case, the attorney-client privilege may attach to communications with the CPA and his workpapers. A CPA is the primary representative if the CPA is hired directly by the client and communications with an attorney are incidental to rendering accounting services. In this case, the attorney-client privilege attaches to neither the CPA nor the attorney communications. Furthermore, voluntary disclosure of otherwise privileged information waives the privilege.

Work-product privilege: The work-product privilege, as developed by the Supreme Court in Hickman v. Taylor, 329 US 495 (1947), protects documents, interviews, statements, memoranda, correspondence...