- 6 -
Messrs. Franco and Missry at two meetings to educate them about
the options transactions, including the possibility of IRS
examination of the transaction. Petitioner and the L.L.C. do not
claim, nor do we see, any opinion work product (i.e., “mental
impressions, conclusions, opinions, or legal theories of an
attorney or other representative of a party concerning the
litigation”). If anything, the documents contain fact-based work
product. Fact-based work product may be discovered on a showing
of substantial need and the inability to obtain the substantial
equivalent without undue hardship. We shall assume, without
deciding, that the documents contain fact-based work product.
Because we find that respondent has substantial need for the
information contained in the two documents and the inability to
obtain the substantial equivalent from other sources, respondent
may have discovery of the documents.
Respondent claims that the documents will show the purpose,
structure, parties, and fees for the transactions in question,
all of which may assist respondent in proving that the
transactions in question were entered into for purely tax
avoidance purposes. It is a fair inference from the L.L.C.
memorandum that the documents do contain information concerning
the purpose, structure, parties, and fees for the transaction, or
concerning at least some of those matters, and our in camera
examination confirms that inference. We shall assume that a tax
avoidance purpose is relevant to the cases before us, something
that the L.L.C. and petitioner do not contest. Respondent claims
Page: Previous 1 2 3 4 5 6 7 8 Next
Last modified: March 27, 2008