Richard L. Bennett - Page 17

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            [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 begin                                  




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