- 3 -
toward an ultimate challenge of the transactions by the
IRS. As with their notes from the September 22
meeting, both Mr. Missry’s and Mr. Franco’s notes
reflect discussions concerning the tax benefits of the
transactions in question and the need to anticipate an
IRS challenge through REDACTED .
Arguments of the Parties
L.L.C. argues that the documents were prepared in
anticipation of litigation and, for that reason, are entitled to
work product protection. L.L.C. argues: “The term ‘litigation’
* * * has been construed expansively so as to encompass virtually
any type of adversarial forum, including an IRS audit.” Also:
“As the above facts demonstrate, the prospect of an ultimate
dispute with the IRS was an ever-present consideration in the
minds of Mr. Franco and Mr. Missry at the time of the September
22 and October 28, 1999 meetings.”1 L.L.C. recognizes that work
product may be subject to discovery if the information is
essential to the opponent’s case and is otherwise unavailable.
L.L.C. argues:
This is plainly not the case here. As noted above, the
September 22 and October 28 meetings for which
Respondent now seeks Mr. Franco’s and Mr. Missry’s
notes were attended by several witnesses. One of those
witnesses, Marvin Robinson, Esq. submitted to an
informal interview with Respondent. Another witness,
Eric Hananel, is being deposed by respondent in June.
In addition, Respondent has had discussions with Mr.
Missry himself about arranging an informal interview.
And, of course, Respondent will have the opportunity to
question Mr. Franco about these meetings during any
ultimate trial in this case.
1 L.L.C. identifies Mr. Franco as an investor in Sterling
Trading Opportunities, L.L.C., and Topaz Trading, L.L.C., and as
the “ultimate taxpayer whose liabilities are at issue in this
case.”
Page: Previous 1 2 3 4 5 6 7 8 Next
Last modified: March 27, 2008