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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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