Thomas E. Johnston and Thomas E. Johnston, Successor in Interest to Shirley L. Johnston, Deceased, et al. - Page 13




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          privilege is inapplicable here stem from conduct occurring before           
          or considered by the State courts, this fact does not transform             
          the Federal tax nature of, or inject any State law cause of                 
          action into, the present proceeding.  We also point out that one            
          of the grounds relied upon in respondent’s motion (wherein                  
          petitioners are alleged to have placed communications at issue by           
          their litigation posture in this Court) deals exclusively with              
          what has transpired before us.  We conclude that Federal common             
          law governs.                                                                
               B.  Analysis                                                           
               As construed under Federal common law, the attorney-client             
          privilege exists “to encourage full and frank communication                 
          between attorneys and their clients and thereby promote broader             
          public interests in the observance of law and administration of             
          justice.”  Upjohn Co. v. United States, 449 U.S. 383, 389 (1981).           
          The privilege applies to communications made in confidence both:            
          (1) By a client to an attorney for the purpose of obtaining legal           
          advice, and (2) by an attorney to a client where containing legal           
          advice or revealing confidential information on which the client            
          seeks advice.  Id. at 390; Bernardo v. Commissioner, 104 T.C.               
          677, 682 (1995); Hartz Mountain Indus. v. Commissioner, 93 T.C.             
          521, 525 (1989); Karme v. Commissioner, 73 T.C. 1163, 1183                  
          (1980), affd. 673 F.2d 1062 (9th Cir. 1982).  The burden of                 
          establishing that the attorney-client privilege is applicable to            






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