Thomas J. and Bonnie F. Ratke - Page 9




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          that the same considerations apply to the unredacted Hyman                  
          memorandum.  Petitioners also maintain that the memoranda were              
          prepared for “the case in chief” and are not work product with              
          respect to “the post-decision application for litigation costs              
          and sanctions”.  Finally, petitioners maintain that respondent’s            
          efforts to use the redacted version of the Hyman memorandum “as             
          support for its claim of substantial justification under I.R.C.             
          §7430(c)(4)(B)” should be treated as a waiver of the work product           
          doctrine privilege for the entire Hyman memorandum.                         
          C.  Summary and Conclusions                                                 
               Both the Welhaf memorandum and the Hyman memorandum are work           
          product and so are privileged.  The privilege is qualified.  We             
          examined both memoranda in camera and conclude that (1)                     
          exceptions to this privilege do not apply and (2) this privilege            
          has not been waived.  Accordingly, neither memorandum is required           
          to be disclosed in the present proceeding.                                  
          D.  Analysis                                                                
          1.  In General                                                              
               We set forth this Court’s general view of the work product             
          doctrine in P.T. & L. Construction Co. v. Commissioner, 63 T.C.             
          404, 407-408 (1974), as follows:                                            
               The work product doctrine was given its first thorough                 
               exposition in the Federal courts in Hickman v. Taylor,                 









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