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sentences to run concurrently. In addition, the plea agreement
provided for the criminal forfeiture of whatever interest
petitioner had in espionage-related assets. At the time of
trial, petitioner was serving a life sentence in a Federal
penitentiary.
OPINION
I. Work Product Doctrine--Criminal Reference Letter
We first consider petitioner’s motion to compel production
of respondent’s criminal reference letter (CRL). CRL’s typically
contain a detailed recommendation and supporting legal analysis,
from the Commissioner to the U.S. Department of Justice, that a
taxpayer be prosecuted for various criminal tax violations. See
Brown v. Commissioner, T.C. Memo. 1994-282.
Tax Court Rules provide for discovery of information that is
not privileged but is relevant to the subject matter involved in
the pending case. See Rule 70(b). A party opposing discovery
bears the burden of establishing that the information sought is
privileged. See Zaentz v. Commissioner, 73 T.C. 469, 475 (1979).
Respondent contends that the CRL was prepared in
anticipation of litigation and, thus, is protected under the work
product doctrine. We agree. The CRL contains respondent’s
counsel’s legal analysis that petitioner be criminally prosecuted
for various tax violations. This type of correspondence is a
classic example of attorney work product. See, e.g., Brown v.
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