Not the Cool Kind of A/C
The ultimate owner of the privilege, and therefore, the only party that can waive it
Who is the client?
This landmark 1947 Supreme Court case established the work-product doctrine
What is Hickman v. Taylor?
When a communication or document reflects the give and take of the consultative process within a governmental agency, it meets this element of the DPP, an element which is hidden in plain sight
What is deliberative?
This federal rule governs when disclosure of privileged information results in waiver and when it does not
What is Federal Rule of Evidence 502?
The § 7525 privilege is modeled after this well-known legal doctrine
What is the attorney-client privilege?
This case recognized the extension of the attorney-client privilege to accounting professionals who help "interpret" tax and financial information so that attorneys can provide legal advice
What is U.S. v. Kovel?
The work-product doctrine is codified in this rule of the Federal Rules of Civil Procedure
What is Rule 26(b)(3)?
The one-word colloquial term for the phrase “antecedent to the adoption of an agency policy,” it’s one of the two elements required for asserting the DPP
What is predecisional?
This doctrine allows privileged materials to be shared with a government agency, like the IRS, without waiving privilege as to other parties
What is the selective waiver doctrine?
Communications related to these types of transactions are excluded from § 7525 protection
What are tax shelters?
This element, required to maintain the privilege, may be compromised by the presence of a third-party
What is confidentiality?
Ordinary work product may be discoverable if the requesting party shows these two elements
What are substantial need and undue hardship?
This is one of the three ways the DPP may be waived
What is adoption, disclosure or misconduct?
When a client discloses privileged information to the IRS during an examination, this typically happens
What is waiver through voluntary disclosure?
The § 7525 privilege only applies to these types of tax matters
What are noncriminal tax matters?
Under FRE 502(b), these two requirements prevent an inadvertent disclosure from becoming a waiver
What are 1) reasonable steps are taken to prevent it and 2) steps were promptly taken to rectify it?
Courts generally consider whether a document was prepared ____________ in determining whether the work-product doctrine applies
What is “in anticipation of litigation”?
Because the DPP can be overcome by demonstration of a compelling need for the information sought, it is one of these types of privileges
What is a qualified privilege?
This type of waiver may occur when privileged communications are shared among multiple parties with aligned interests, but confidentiality is not adequately maintained
What is waiver of the common-interest privilege?
This term includes CPAs, enrolled agents, and others authorized to practice before the IRS and entitled to protections under section 7525
What is a federally authorized tax practitioner or "FATP"?
Thanks to the Supreme Court's "DIG" in In re: Grand Jury, there are this many different circuit tests to determine whether dual purpose documents are privileged
What is three?
Courts most often apply these two tests when analyzing whether a document was prepared in anticipation of litigation
What is the “because of” test and the “primary purpose” test?
While privilege logs are generally required when the privilege is asserted, in these types of cases (at least in the D.C. Circuit, where most of them are heard), they are not
What are APA cases?
This doctrine can lead to broad disclosure if a party’s partial release of privileged information creates a misleading impression about legal advice
What is subject matter waiver?
This 1998 law created the tax practitioner privilege codified at 26 U.S.C. § 7525
What is the IRS Restructuring and Reform Act of 1998?