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to compel production. Respondent reasons that the documents
sought may be relevant to those issues and that it would be
“unfair” to grant the motion without first deciding respondent’s
motion to compel production.
III. Analysis
A. Impact of Respondent’s Motion To Compel Production
We first address respondent’s argument that we are precluded
from granting partial summary judgment to participating partner
until we have decided respondent’s motion to compel production.
As noted supra, petitioner’s revised privilege log describes
all of the documents listed therein and sought by respondent as
“advice regarding the tax law.” Respondent does not object to
that description of the documents, and he is willing to assume
arguendo that the only reason for the motion to compel production
“is to secure discovery regarding a tax avoidance motive”.
Participating partner concedes, however, that the liquidating
distribution was structured to defer tax by distributing to Mr.
Winn and Mr. Curtis property rather than cash. Indeed, he
concedes that tax avoidance (or, as participating partner’s
counsel would prefer to describe it, “tax planning”) was the sole
motivation for the formation of CLPP and MP, the CB&T loans, and
the purchase of the AIG notes, all steps taken to ensure that, in
redemption of their partnership interests, Mr. Winn and Mr.
Curtis received only property, and no cash. In the light of
those concessions, we cannot see how respondent can continue to
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Last modified: March 27, 2008