U.S. v. Deloitte: Expansion of Work Product Doctrine in Tax Controversies

Protecting Confidentiality of Internal Tax Documents From the IRS

Recording of a 90-minute premium CLE/CPE webinar with Q&A

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Conducted on Tuesday, September 28, 2010

Recorded event now available

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Course Materials

This CLE course will analyze evolving case law on the scope of attorney work product for corporate tax documents; discuss the implications of Deloitte on the protection of tax documents and for the new IRS mandate on reporting of uncertain tax positions; and provide strategies for protecting corporate tax documents.


After the Supreme Court denied cert. in U.S. v. Textron, the 1st Circuit case which held that taxpayer accrual papers are not protected work product, the D.C. Circuit Court weighed in on the scope of work product in U.S. v. Deloitte and provided a more expansive analysis than the 1st Circuit case.

The Deloitte decision focused on the substance of the document, holding that a document is work product if the content, not the document itself, was prepared in anticipation of litigation. The court also held that disclosure of internal memoranda to the taxpayer’s auditor does not waive protection.

The Deloitte decision represents a victory for taxpayers and has a major impact on a company’s disclosure of internal tax documents to outside auditors. The decision also has significant ramifications for the new IRS mandate for corporations to report uncertain tax positions.

Listen as our authoritative panel of tax attorneys discusses the implications of the Deloitte decision on work product protection of internal corporate tax documents and explains strategies for protecting the confidentiality of these documents.



  1. U.S. v. Deloitte
    1. District court ruling
    2. Comparison to U.S. v. Textron
    3. Other circuit cases
  2. Impact of Deloitte decision
    1. Application of the “in anticipation of litigation” standard
    2. In IRS summonses
    3. Implications for interpreting Rule 26(b)(3)
    4. Implications for IRS mandate for reporting uncertain tax positions
  3. Strategies for protecting internal corporate tax documents


The panel will review these and other key questions:

  • How have the courts treated privilege and work product with regard to tax accrual workpapers and other internal tax documents?
  • What are the implications of U.S. v. Deloitte for interpreting Rule 26(b)(3)?
  • What are the implications of Deloitte for a corporate taxpayer's obligation to report uncertain tax positions?
  • What steps should tax counsel take to maintain confidentiality of client information in tax matters?


Jonathan M. Prokup
Jonathan M. Prokup

Chamberlain Hrdlicka

His practice encompasses a broad array of tax matters, from structuring complex financial transactions to representing...  |  Read More

Edward Froelich
Edward Froelich

Of Counsel
Morrison & Foerster

He is a federal tax litigator and tax controversy specialist who previously in his career litigated for the Justice...  |  Read More

Kevin Spencer
Kevin Spencer

McDermott Will & Emery

He focuses his practice on tax controversy and litigation issues. Prior to joining the Firm, he worked with an...  |  Read More

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