U.S. v. Textron: Implications for Corporate Taxpayers

Strategies for Protecting Confidentiality of Tax Accrual Work Papers

First Circuit reverses position on work product protection in tax matters

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

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Conducted on Thursday, September 24, 2009

Course Materials

This seminar will examine the First Circuit's recent reversal in U.S. v. Textron and the implications for business taxpayers. The panel will outline steps counsel can take to protect confidentiality of a company's tax work papers, to the extent still possible.


After vacating its U.S. v. Textron ruling earlier this year, the First Circuit has now reversed its prior position. The court concluded that tax accrual workpapers prepared by counsel and tax staff are not protected by the work product doctrine unless prepared in anticipation of litigation.

The court found no privilege attached to work papers prepared to comply with statutory and audit filings under SEC requirements. A strong dissent argues the majority created a more restrictive "in anticipation" of litigation standard that would only protect papers prepared "for use in" litigation.

The decision thus significantly impacts businesses' ability to protect their tax accrual work papers from discovery. Companies and their counsel now face the challenge of protecting work papers under new and potentially ambiguous standards.

Listen as our authoritative panel of tax attorneys examines the First Circuit’s ruling, the implications for businesses, and strategies for maintaining the confidentiality in tax matters.



  1. U.S. v. Textron
    1. District court ruling and First Circuit’s January ruling
    2. Majority opinion
    3. Dissent
  2. Impact of decision
    1. Application of the “in anticipation” standard
    2. In IRS summons
    3. Implications for interpreting Rule 26(b)(3)
    4. For litigation
  3. Strategies for protecting work papers


The panel will review these and other key questions:

  • What are the three competing applications of the "in participation" standard described in the First Circuit's dissent?
  • What steps should businesses take to address the standards and protect tax work papers?
  • What are the implications of Textron for interpreting Rule 26(b)(3)?
  • What steps should tax counsel take to maintain confidentiality of client information in tax matters?


Lawrence M. Hill
Lawrence M. Hill

Dewey LeBoeuf

He leads the firm's Tax Controversy and Litigation Group and is a preeminent advisor in tax controversy, procedure and...  |  Read More

Corina M. Trainer
Corina M. Trainer
Managing Director

She is responsible for a range of issues dealing with the IRS and its Office of Chief Counsel, with principal...  |  Read More

Edward L. Froelich
Edward L. Froelich

Of Counsel
Morrison & Foerster

He has represented corporations, partnerships, and individuals in the administrative and litigation stages of a federal...  |  Read More

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