- 17 - [taxpayers] to anticipate litigation concerning those deductions." Id. From that premise we held that the documents in question in Bernardo were prepared in anticipation of litigation and protected by the work product doctrine. By way of analogy, in cases where grand jury information was being used by the Government in connection with a related civil matter, it was required, among other things, that the disclosure of grand jury information be "preliminarily to or in connection with a judicial proceeding". Fed. R. Crim. P. 6(e)(3)(C)(i). That concept is substantially similar to "anticipation of litigation". We consider the following Supreme Court explanation of "preliminarily to or in connection with a judicial proceeding" as helpful to our analysis here: the Rule contemplates only uses related fairly directly to some identifiable litigation, pending or anticipated. Thus, it is not enough to show that some litigation may emerge from the matter in which the material is to be used, or even that litigation is factually likely to emerge. * * * It follows that disclosure is not appropriate for use in an IRS audit or civil tax liability, because the purpose of the audit is not to prepare for or conduct litigation, but to assess the amount of tax liability through administrative channels. * * * [United States v. Baggot, 463 U.S. 476, 480 (1983); fn. ref. omitted.] See also Kluger v. Commissioner, 83 T.C. 309, 326-327 (1984). We accept the general concept that, normally, the audit or examination process is not conducted in anticipation of litigation. If a particular matter has been singled out for litigation and Government lawyers become involved to beginPage: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Next
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