- 13 - 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 toPage: Previous 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Next
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