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the answer in the instant case. The Hyman memorandum was sent
before the instant case was first noticed for trial. Thus, both
memoranda were prepared as part of respondent’s counsels’ efforts
to “prepare * * * legal theories and plan * * * strategy” for the
instant case. Hickman v. Taylor, 329 U.S. at 511. It follows
that both memoranda are work product for the instant case.
Petitioners contend that both memoranda were prepared for
“the case in chief” and are not work product with respect to “the
post-decision application for costs and sanctions”. We disagree.
Firstly, the instant case is the same litigation for which
the memoranda were prepared. The litigation for which the
memoranda were prepared will not be concluded, by entry of
decision, until petitioners’ motions under sections 7430 and
6673(a)(2) have been dealt with.6 We have not found, and
petitioners have not directed our attention to, any case law
indicating that one lawsuit should be segmented for purposes of
determining whether a document is work product.
Secondly, in Ames v. Commissioner, supra, we dealt with a
document prepared by the Commissioner’s counsel in anticipation
of criminal tax prosecution. The taxpayer sought production of
6 Rule 232(f) provides that the disposition of the sec. 7430
motion “shall be included in the decision entered in the case.”
Indeed, when the Court entered decision for petitioners in the
instant case after issuing T.C. Memo. 2004-86, petitioners moved
to vacate the decision so that they would be permitted to file
their sec. 7430 motion.
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Last modified: November 10, 2007