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way prepared in anticipation of litigation. In a similar vein,
we have held that revenue agents' reports and appellate
conferees’ reports are not prepared in anticipation of
litigation. Branerton Corp. v. Commissioner, 64 T.C. at 196-199;
P.T.& L. Constr. Co. v. Commissioner, 63 T.C. 404, 408 (1974).
The question of whether the expert report here was prepared
in anticipation of litigation is a concept that is regularly
dealt with in connection with the work product doctrine. See
Hickman v. Taylor, 329 U.S. at 510-511. In Bernardo v.
Commissioner, 104 T.C. 677, 687 (1995), we explained the concept
of anticipation of litigation as follows:
Litigation is frequently anticipated prior to the time
a lawsuit is actually commenced. To show that a
document was prepared in anticipation of litigation "A
litigant must demonstrate that the documents were
created 'with a specific claim supported by concrete
facts which would likely lead to [the] litigation in
mind,' not merely assembled in the ordinary course of
business or for other nonlitigation purposes." Linde
Thomson Langworthy Kohn & Van Dyke, P.C. v. Resolution
Trust Corp., 5 F.3d [1508] at 1515 (quoting Coastal
States Gas Corp. v. Department of Energy, 617 F.2d 854,
865 (D.C. Cir. 1980)).
Respondent, contrary to the position he argues here, has argued
that materials accumulated prior to the issuance of the notice of
deficiency are not in anticipation of litigation. See Id. at
688. Generally, respondent's view has been accepted; however, in
the Bernardo case we found that once the taxpayers were aware
that the Commissioner disagreed with the value of their
charitable contribution, "it was reasonable for * * * the
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