-
Bradford C. and Marybeth B. Bernardo, Petitioners v. Commissioner of Internal Revenue, RespondentBernardo v. CommissionerDocket No. 24694-93June 20, 1995, Filed
United States Tax Court *36 An appropriate order will be issued.
R filed a motion to compel production of documents. Ps objected to the production of certain documents on the grounds of attorney-client privilege, work product, or both. As to Ps' claim of privilege, R contends that, because Ps' attorneys never engaged Ps' accountant, documents prepared by and received by Ps' accountant are not privileged. As to Ps' claim of work product, R contends that documents prepared prior to the issuance of the notice of deficiency do not constitute work product because they were not prepared in anticipation of litigation. Finally, R, relying on
Karme v. Commissioner , 73 T.C. 1163 (1980)673 F.2d 1062">673 F.2d 1062 (9th Cir. 1982), contends that, by filing a petition with this Court, Ps impliedly waived both the attorney-client privilege and the protection afforded by the work product doctrine.Held , the attorney-client privilege protects communications or reports by third parties, made at the request of P, to Ps' attorneys.Held, further: The accountant was not engaged by Ps to assist their attorneys in providing them with legal advice. Consequently, *37 the attorney-client privilege does not attach to the accountant's communications to Ps' attorneys.Held, further: Documents prepared by Ps' representatives after Ps received the report of the IRS's Art Advisory Panel, but before the notice of deficiency was issued, were prepared in anticipation of litigation. Consequently, such documents constitute work product.Held, further: Ps did not impliedly waive the attorney-client privilege or the work product doctrine by virtue of filing a petition with this Court.Ps filed a motion to compel R to produce documents and to compel R to respond to Ps' interrogatories. R contends that all documents contained in the files of R's counsel have been provided to Ps except the following: (1) Internal notes of counsel; (2) draft statutory notices of deficiency that were never issued to Ps; (3) a memorandum written by an Appeals officer in response to the comments of R's counsel; (4) notes of the Art Advisory Panel concerning the fair market value of the sculpture donated by Ps. R objects to the discovery of such documents on grounds that the notes of R's counsel and the memorandum of the Appeals officer are work product; that the draft statutory*38 notices are not relevant to the issues to be decided in the instant case; and that notes of the Art Advisory Panel are protected from discovery by executive privilege.
Held , as to the notes of R's counsel, the draft statutory notices of deficiency and memorandum of the Appeals officer, R's objections to Ps' motion to compel are sustained.Held, further , the notes of the Art Advisory Panel are not protected from discovery by executive privilege.E. Hans Lundsten and Christopher C. Whitney, for petitioners.Powell W. Holly andMeryl Silver , for respondent.Wells.WELLS*678 OPINION
WELLS,
Judge: The instant case is before us on respondent's motion to compel production of documents and petitioners' motion to compel answers to interrogatories and to compel production of documents. Respondent determined deficiencies in petitioners' Federal income taxes for their taxable years 1987, 1988, and 1989, as well as additions to tax and penalties for such years.Background The facts leading up to the parties' motions to compel are summarized as follows. On their 1986 Federal income tax return, petitioners claimed a $ 593,000 charitable contribution deduction for the donation*39 of a 21-foot granite sculpture entitled Omphalos *679 in the amounts of $ 40,406, $ 262,355, and $ 188,057 for their taxable years 1987, 1988, and 1989, respectively.
In the notice of deficiency, respondent denied the charitable contribution deductions petitioners claimed on their 1987, 1988, and 1989 Federal income tax returns on the grounds that petitioners failed to establish that they are entitled to a deduction under any*40 section of the Internal Revenue Code. The notice of deficiency alternatively states that, if petitioners are able to establish that they are entitled to claim a deduction for the donation of Omphalos to the authority, the amount of the deduction petitioners are entitled to claim is limited to $ 100,000, rather than the $ 593,000 petitioners claimed on their 1986 Federal income tax return.
Petitioners resided in Wakefield, Rhode Island, when the petition in the instant case was filed.
Respondent's Motion To Compel Respondent filed a motion to compel the production of documents, and petitioners timely filed an objection to respondent's motion. Respondent filed a response to petitioners' objection. A hearing on respondent's motion to compel the production of documents was set, and petitioners were directed to file a response to respondent's response to petitioners' objection. Petitioners then filed a supplement to their objection, which stated that petitioners opposed the production of certain documents on the grounds that such documents are privileged, and that such documents, therefore, are not subject to discovery. As part of their supplement, petitioners submitted a privilege*41 log that listed the 39 documents they are withholding from production to respondent. Subsequently, petitioners filed a second supplement listing an additional seven documents that they are withholding based upon privilege.
At the hearing, petitioners offered the affidavit of Mr. Benjamin G. Paster, a partner in the law firm of Adler, Pollock & Sheehan. *680 the early 1980's to render legal advice concerning a possible donation of Omphalos to the authority. Mr. Paster provided petitioners with legal advice concerning the structure of the donation of the sculpture to the authority, and whether petitioners should claim a charitable contribution deduction on their Federal income tax return based upon that donation.
*42 In his affidavit, Mr. Paster states that he would not have been able to render the legal advice concerning petitioners' donation without the assistance of Mr. Kenneth J. Linsner, a professional art appraiser, and Mr. Daniel J. Ryan, a certified public accountant. As to Mr. Linsner's services, Mr. Paster states:
Mr. Linsner, [was] the professional art appraiser who in early 1987 produced the appraisal of Omphalos of $ 596,000 [sic] that the * * * [petitioners] submitted to the Internal Revenue Service ("IRS") in support of the charitable deduction which * * * [petitioner Marybeth Bernardo] claimed in connection with the gifting of Omphalos, [and] it was I who first interviewed Mr. Linsner, and who engaged him on behalf of Marybeth Bernardo.
The only communications which I have ever had with Mr. Linsner were with respect to the valuation of Omphalos. All of my communications with him were for the sole purpose of obtaining his best professional opinion as to the fair market value of Omphalos as to which, for lack of training and expertise, I had no opinion, either professional or personal. In turn, the sole purpose of seeking his opinion as to fair market value was to assist me in*43 providing legal advice to the * * * [petitioners] regarding the proposed gifting of the sculpture to the MBTA * * *.
During the hearing, petitioners' counsel stated that Mr. Paster did not pay Mr. Linsner's fee but that he engaged him "in the sense that he located Mr. Linsner as the professional art adviser, talked to him about the terms of his engagement and saw to the engagement of Mr. Linsner". In his affidavit, Mr. Paster states that he expected that his communications with Mr. Linsner would be kept confidential, and that, to the best of his knowledge, Mr. Linsner has kept such communications *681 confidential. Mr. Paster acknowledged sharing the substance of those communications with petitioners and Mr. Ryan.
During the hearing, Mr. Ryan testified to the following facts. Petitioners engaged him to assist them with the preparation of their Federal income tax returns beginning in 1982. Mr. Ryan oversaw the preparation of petitioners' Federal income tax returns for the taxable years 1987, 1988, and 1989, the taxable years in issue in the instant case. *44 tax returns for the taxable years in issue, and filed a protest with the IRS's Appeals Office. The notice of deficiency indicates that a copy of the notice was sent to Mr. Ryan in his capacity as petitioners' authorized representative.
Mr. Ryan was aware that petitioners had engaged Mr. Paster to structure the donation of Omphalos to the authority. Mr. Ryan provided Mr. Paster with information regarding petitioners' Federal income tax returns. During April of 1991, the IRS notified Mr. Ryan that its Art Advisory Panel had determined that the fair market value of Omphalos was substantially less than the amount of the charitable contribution deduction petitioners claimed on their 1986 Federal income tax return. Upon receiving the notice of the Art Advisory Panel's findings, Mr. Ryan informed petitioners that he believed that they would have to legally challenge the IRS's position as to the fair market*45 value of the sculpture.
Mr. Ryan also provided information about petitioners' Federal income tax returns to Mr. Lawrence McCarthy III and Mr. Gerald DeMaria. Messrs. McCarthy and DeMaria are partners in the law firm of Higgins, Cavanagh & Cooney, and they represented petitioner Bradford C. Bernardo in his divorce from petitioner Marybeth Bernardo.
Mr. Ryan testified that he kept all of his communications with petitioners and their attorneys confidential. Mr. Ryan was hired and paid by petitioners. Mr. Ryan never received a letter of engagement from petitioners' attorneys.
*682 Discussion Rule 70(b) provides that "The information or response sought through discovery may concern any matter not privileged and which is relevant to the subject matter involved in the pending case." The party opposing the production of information has the burden of establishing that the documents sought by the other party are not relevant or that they are otherwise not discoverable.Rutter v. Commissioner , 81 T.C. 937">81 T.C. 937Branerton Corp. v. Commissioner , 64 T.C. 191">64 T.C. 191Hospital Corp. of America v. Commissioner , T.C. Memo. 1994-1001. Attorney-Client Privilege The attorney-client privilege "applies to communications made in confidence by a client to an attorney for the purpose of obtaining legal advice, and also to confidential communications made by the attorney to the client if such communications contain legal advice or reveal confidential information on which the client seeks advice."
Hartz Mountain Indus. v. Commissioner , 93 T.C. 521">93 T.C. 521Upjohn Co. v. United States , 449 U.S. 383">449 U.S. 383Disclosure of a privileged communication may result in a waiver of the attorney-client privilege.
Id. The party asserting the attorney-client privilege must prove that it has not waived the privilege.Id. Blanket claims of privilege without any allegations that the production of the documents requested would reveal, directly or indirectly, confidential communications between the taxpayer and the attorney, or without any allegations that the particular documents were related to the securing of legal advice, are insufficient*47 to sustain a claim of attorney-client privilege.Zaentz v. Commissioner , 73 T.C. 469">73 T.C. 469Section 7453 provides that the Tax Court is bound by the rules of evidence applicable in a trial without a jury in the U.S. District Court for the District of Columbia.Rule 143(a) ;Fu Inv. Co. v. Commissioner , 104 T.C. 408">104 T.C. 408Von Tersch v. Commissioner , 47 T.C. 415">47 T.C. 415Linde Thomson Langworthy Kohn & Van Dyke, P.C. v. Resolution Trust Corp. , 5 F.3d 1508">5 F.3d 1508In re Sealed Case , 676 F.2d 793">676 F.2d 793Linde Thomson , the Court of Appeals for the District of Columbia held that there was no insurer-insured privilege similar to the attorney-client privilege. In reaching its decision, the Court of Appeals analyzed the "logic" of the attorney-client*48 privilege "principle" as follows:
The attorney-client privilege undeniably extends to communications with "one employed to assist the lawyer in the rendition of professional legal services." Supreme Court Standards 503(a)(3), 503(b),cited in United States v. ( Under Seal) , 748 F.2d 871">748 F.2d 871FTC v. TRW, Inc. , 628 F.2d 207">628 F.2d 207United States v. Kovel , 296 F.2d 918">296 F.2d 918TRW , 628 F.2d at 212in confidence for the purpose of obtaininglegal advice from the lawyer ."Id. * * * We cited cases consistent with this limitation extending the attorney-client*49 privilege to a psychiatrist hired by a defense lawyer to aid in an insanity defense,United States v. Alvarez , 519 F.2d 1036">519 F.2d 1036United States v. Cote , 456 F.2d 142">456 F.2d 142United States v. Judson , 322 F.2d 460">322 F.2d 460TRW , 628 F.2d at 212Id. at 1514-1515As stated above, the attorney-client privilege protects communications or reports by third parties, made at the request of the client, to the client's attorney.
*50 Petitioners contend that log Nos. 1-10, 12-38, and 40-46 are protected from discovery by the attorney-client privilege. During the hearing on respondent's motion to compel, respondent conceded that, absent a waiver of the privilege by petitioners, the documents listed in petitioners' privilege log as Nos. 1-9, 14, 38, and 46 are protected from discovery by the attorney-client privilege. Respondent conceded on brief that privilege log No. 39, absent a waiver, is also protected from discovery by the attorney-privilege. *51 the documents petitioners contend are protected by the attorney-client privilege were prepared by or sent to Mr. Ryan, a certified public accountant.
In re Horowitz , 482 F.2d 72">482 F.2d 72, 81 (2d Cir. 1973)Chubb Integrated Sys. Ltd. v. National Bank , 103 F.R.D. 52">103 F.R.D. 52Hartz Mountain Indus. v. Commissioner , 93 T.C. at 526Chubb Integrated Sys. Ltd. v. National Bank, supra at 63*52 The majority of petitioners' privilege claims relate to documents produced by Mr. Ryan during the IRS's audit of petitioners. Mr. Ryan was no doubt acting as petitioners' representative when he communicated with their attorneys. If, however, Mr. Ryan was petitioners' primary representative, and his communications with petitioners' attorneys were incidental to his representation of petitioners, the attorney-client privilege does not attach to such communications.
United States v. Kovel , 296 F.2d 918">296 F.2d 918, 922 (2d Cir. 1961)Log No. 15 is a letter from Mr. Paster to petitioner Bradford C. Bernardo. Log No. 19 is a letter from Mr. McCarthy to petitioner Bradford C. Bernardo regarding the charitable contribution deduction claimed for the donation of Omphalos to the authority. Log No. 37 is a letter *54 from Mr. E. Hans Lundsten, a partner in Adler, Pollock & Sheehan, to Mr. Joseph Houlihan *686 returns. Log Nos. 15 and 19 constitute privileged attorney-client communications and are not subject to discovery. Similarly, log No. 37 is also protected from discovery by the attorney-client privilege. *55 28 is also a letter by Mr. Ryan to "Jean" of Providence Granite Co. Jean was not petitioners' agent. Consequently, we hold that log Nos. 23, 25, and 28 are not protected by the attorney-client privilege.
Log No. 10 is a letter from Mr. Paster to Mr. Linsner regarding an "estimate of course of materials for sculpture." Log No. 12 is a draft appraisal of Omphalos prepared by Mr. Linsner. Mr. Paster stated that he engaged Mr. Linsner on "behalf of petitioner Marybeth Bernardo." Mr. Linsner was under Mr. Paster's direct supervision and control. Accordingly, we find that Mr. Paster engaged Mr. Linsner to assist him in providing legal advice to petitioners and that log Nos. 10 and 12 are protected by the attorney-client privilege, absent a waiver of the privilege by petitioners.
Materials provided by a taxpayer to his attorney for tax preparation purposes are intended to be disclosed to the IRS in the taxpayer's return. Consequently, under such circumstances, the taxpayer is considered to have waived the attorney-client privilege as to such information. See, e.g.,
United States v. Lawless , 709 F.2d 485">709 F.2d 485United States v. Cote , 456 F.2d 142">456 F.2d 142Colton v. United States , 306 F.2d 633">306 F.2d 633Olender v. United States , 210 F.2d 795">210 F.2d 795United States v. Cote, supra at 144-145Hartz Mountain Indus. v. Commissioner , 93 T.C. at 526Chubb Integrated Sys. Ltd. v. National Bank , 103 F.R.D. at 63*57 2.
Work Product The work product doctrine protects documents, interviews, statements, memoranda, correspondence, briefs, mental impressions, and tangible things prepared by an attorney in anticipation of litigation or trial.
Hickman v. Taylor , 329 U.S. 495">329 U.S. 495Hartz Mountain Indus. v. Commissioner, supra at 526-527Branerton Corp. v. Commissioner , 64 T.C. at 198P.T. & L. Constr. Co. v. Commissioner , 63 T.C. 404">63 T.C. 404Linde Thomson Langworthy Kohn & Van Dyke, P.C. v. Resolution Trust Corp. , 5 F.3d at 1515Coastal States Gas Corp. v. Department of Energy , 617 F.2d 854">617 F.2d 854The scope of the protection provided by the work product doctrine is broader than the protection afforded by the attorney-client privilege.
Id. The work product doctrine protects documents and other materials prepared in anticipation of litigation by a representative of a party, regardless of *688 whether the representative was retained by the party directly or by his attorney. SeeFed. R. Civ. P. 26(b)(3) (extending protection to "documents and tangible things * * * prepared in anticipation of litigation or trial by or for another party or by or for that other party's representative (including the other party's attorney, consultant, surety, indemnitor, insurer or agent)");Branerton Corp. v. Commissioner, supra at 198Carver v. Allstate Ins. Co. , 94 F.R.D. 131">94 F.R.D. 131Westhemeco, Ltd. v. New Hampshire Ins. Co. , 82 F.R.D. 702">82 F.R.D. 702Commercial Union Ins. Co. v. Albert Pipe & Supply Co. , 484 F. Supp. 1153">484 F. Supp. 1153*59 Respondent contends that only documents prepared after the notice of deficiency was issued to petitioners were prepared in anticipation of litigation. We disagree. Once the IRS informed petitioners that its Art Advisory Panel concluded that Omphalos had a fair market value that was substantially less than the charitable contribution deduction petitioners claimed on their 1986 Federal income tax return, it was reasonable for petitioners and their representatives to anticipate litigation concerning those deductions. Log Nos. 16-22, 24, 26-27, 29-40, and 42-45 were prepared by petitioners or their representatives after the IRS informed petitioners of the Art Advisory Panel's findings. Consequently, we conclude that such documents were prepared in anticipation of litigation and are protected by the work product doctrine. *60 *689 Log Nos. 10-13 were prepared prior to the date the IRS notified petitioners of the Art Advisory Panel's findings. Consequently, we find that log Nos. 10-13 were not prepared in anticipation of litigation and are therefore not protected from discovery by the work product doctrine. Log No. 27 gives no indication as to the contents of the letter. Consequently, petitioners have failed to prove that log No. 27 is work product.
Log Nos. 23, 25, and 28 are letters to "Jean", a secretary employed by Providence Granite Co., and are by Mr. McCarthy, Mr. DeMaria, and Mr. Ryan, respectively. Jean was neither petitioners' agent nor their representative. Consequently, we conclude that log Nos. 23, 25, and 28 are not work products.
Respondent, relying on
Radiant Burners, Inc. v. American Gas Association , 207 F. Supp. 771">207 F. Supp. 771320 F.2d 314">320 F.2d 314 (7th Cir. 1963), also contends that the protection afforded by the work product doctrine may only be claimed by the attorneys who actually prepared or supervised the preparation of the documents the other party is seeking to discover. Respondent argues*61 that petitioners have not introduced affidavits or any other evidence showing that Messrs. DeMaria, McCarthy, and Houlihan object to production of the documents listed above. InRadiant Burners , the court merely stated that the fact that the client was a corporation did not prevent its attorney from invoking the work product doctrine. The court inRadiant Burners did not state that the attorney who actually prepared the documents sought by the discovering party was the only person entitled to claim the protection afforded by the work product doctrine. Accordingly, we find respondent's reliance onRadiant Burners to be misplaced.3. Implied Waiver of Attorney-Client Privilege and Work Product Finally, respondent, relying on
Karme v. Commissioner , 73 T.C. 1163 (1980)673 F.2d 1062">673 F.2d 1062 (9th Cir. 1982), contends that, by filing a petition with this Court, petitioners have waived both the attorney-client privilege and work product doctrine with respect to all subjects set forth in the petition. InKarme , we held, inter alia, that the *690 documents the taxpayers sought to withhold were*62 not protected by the attorney-client privilege. Our holding was based on the fact that the documents the taxpayers sought to protect did not contain legal advice or summaries of confidential communications the taxpayers made to their attorneys.Id. at 1183Id. at 1183-1184We then stated:
by taking the affirmative step of petitioning this Court for a redetermination of respondent's finding of deficiency, petitioners have waived the privilege. By challenging respondent's determination that in substance petitioners did not make an interest payment, petitioners thereby put the substance of these transactions (including all the underlying facts which petitioners claim are protected) in issue. * * * [Id. at 1184Hearn v. Rhay , 68 F.R.D. 574">68 F.R.D. 574Hearn v. Rhay, supra Hearn , have frequently held that such party impliedly waives the privilege as to attorney-client communications because such communications may be the only probative evidence of the party's state of mind or knowledge, and therefore, it would be unfair to the other party to deny access to such communications. See, e.g.,United States v. Bilzerian , 926 F.2d 1285">926 F.2d 1285Conkling v. Turner , 883 F.2d 431">883 F.2d 431Greater Newburyport Clamshell Alliance v. Public Serv. Co. , 838 F.2d 13">838 F.2d 13Afro-Lecon, Inc. v. United States , 820 F.2d 1198">820 F.2d 1198GAB Business Servs., Inc. v. Syndicate 627 , 809 F.2d 755">809 F.2d 755United States v. Exxon Corp. , 94 F.R.D. 246">94 F.R.D. 246Petitioners served respondent with a request for the production of documents along with a set of interrogatories. Respondent timely served petitioners with a response to petitioners' request for the production of documents and a response to petitioners' interrogatories. Subsequently, petitioners filed a motion to compel the production of documents and to compel a response to their interrogatories pursuant to Rules 71(c), 72(b), and 104(b). Respondent was directed to file a response to petitioners' motion to compel at the hearing set for respondent's motion to compel discussed
supra . *66 At the hearing, respondent filed an objection to petitioners' motion to compel along with a motion for a protective order.As stated above,
Rule 70(b) provides that "The information or response sought through discovery may concern any matter not privileged and which is relevant to the subject matter involved in the pending case." The party opposing the production of information has the burden of establishing that the documents sought by the other party are not relevant, or that they are otherwise not discoverable.Rutter v. Commissioner , 81 T.C. at 948Branerton Corp. v. Commissioner , 64 T.C. at 193Hospital Corp. of America v. Commissioner , T.C. Memo. 1994-100Respondent contends that all documents that are contained in the files of respondent's counsel have been provided to petitioners except the following: (1) The internal notes of counsel; (2) draft statutory notices of deficiency that were never issued to petitioners; (3) a memorandum written by an Appeals*67 officer in response to counsel's comments about the draft statutory notices of deficiency; and (4) two pages of notes by the Art Advisory Panel. We address each of the foregoing items separately.
1. Internal Notes of Counsel Respondent contends that the notes of counsel assigned to litigate the instant case are protected from discovery because they constitute an attorney's work product. The work product doctrine protects documents, interviews, statements, memoranda, correspondence, briefs and mental impressions, and tangible items prepared by attorneys in anticipation of litigation.
Hickman v. Taylor , 329 U.S. at 510-511Hartz Mountain Indus. v. Commissioner , 93 T.C. at 526-527Branerton Corp. v. Commissioner, supra at 1982. Draft Notices of Deficiency Respondent contends that the draft notices of deficiency are not relevant to the issues for decision in the instant case. Under
Rule 70(b) a party may seek discovery of information even if the information sought would not be admissible*68 at trial as long as the information or response sought is reasonably calculated to lead to the discovery of admissible evidence.P.T. & L. Constr. Co. v. Commissioner , 63 T.C. at 414The issues for decision in the instant case include the issue of whether petitioners are entitled to claim a charitable contribution deduction for their donation of the sculpture Omphalos to the authority, and, if so, the amount of the deduction petitioners are entitled to claim. We are not persuaded that the discovery of the draft statutory notices of deficiency would lead to the discovery of admissible evidence *693 Accordingly, we hold that respondent is not required to produce the draft statutory notices of deficiency.
3. Appeals Officer's Memorandum Respondent contends that the Appeals officer's memorandum is protected from discovery by the work product doctrine. Generally, documents prepared by the revenue agents and Appeals officers during the course of an investigation are not considered to have been prepared in anticipation of litigation, and therefore, such documents are not considered work product.
Branerton Corp. v. Commissioner, supra at 198Id. According to respondent, the Appeals officer's memorandum was prepared in response to the comments of respondent's counsel concerning the draft statutory notices of deficiency. Because the memorandum was prepared in response to the comments of respondent's counsel and subsequent to the decision of the Art Advisory Panel, we hold that it was prepared in anticipation of litigation and therefore constitutes work product. Consequently, respondent is not required to provide petitioners with a copy of the Appeals officer's memorandum.4. Art Advisory Panel Notes Respondent contends that the Art Advisory Panel's notes are not discoverable because they "contain purely predecisional, deliberative statements that * * * fall directly within the governmental privilege." In
P.T. & L. Constr. Co. v. Commissioner, supra at 410all opinions, conclusions, mental impressions, *70 and thought processes of governmental officials." Statements that a governmental official "would hesitate to make for fear of disclosure to the public" may be protected by the doctrine of executive privilege.Id. In holding that the doctrine of executive privilege is not absolute, we stated:
[executive] privilege is qualified in that it recognizes there are instances in which justice will require disclosure of such material. A balancing of interests is required; the gravity of the individual's need for disclosure *694 must be weighed against the harm that disclosure may do to intragovernmental candor. [Id. at 409The Art Advisory Panel (panel) was first authorized by the Secretary of the Treasury in 1968, and the panel is now composed of 25 prominent art specialists and authorities who are charged with assisting the IRS in determining the authenticity and fair market value of works of art. According to 2 Audit, Internal Revenue Manual (CCH), sec. 42(16)4.2, at 7347-4, any income tax case involving a claimed value for a single work of art of $ 20,000 or more must be referred to the National Office for consideration by the panel. The panel's*71 meetings are closed to the public in order to prevent the disclosure of confidential tax return information. *72 of the information provided to the panel by taxpayers and not to insure the candor of intragovernmental communications.
(1) All documents referring, regarding, or relating to any of Dimitri Hadzi's sculptures, including but not limited to appraisals of the Art Advisory Panel regarding*73 his work;
*695 (2) all appraisals of the Art Advisory Panel of granite sculptures since 1980;
(3) all appraisals of the Art Advisory Panel of so-called monumental works of art since 1980;
We agree with respondent's contention that petitioners' requests are overly*75 broad and unduly burdensome. Moreover, we do not believe that the furnishing of such information is reasonably calculated to lead to the discovery of admissible evidence. In light of the breadth of the search respondent would have to conduct in order to satisfy petitioners' requests, and the unlikelihood that the production of the documents sought by petitioners would lead to the discovery of admissible evidence, we hold that, with the exception of petitioners' request No. 8, respondent is not required to produce the documents or the information sought in the requests listed above. To the extent that the information sought in request No. 8 may be provided without disclosure of confidential materials, respondent is directed to provide petitioners with such information.
Based upon the foregoing,
An appropriate order will be issued .Footnotes
1. Omphalos is the Greek word for navel.↩
2. Unless otherwise stated, all section references are to the Internal Revenue Code in effect for the taxable years in issue, and all Rule references are to the Tax Court Rules of Practice and Procedure.↩
3. During the hearing, respondent objected to the introduction of Mr. Paster's affidavit into evidence on the grounds of hearsay. Petitioners' counsel informed the Court that Mr. Paster was unable to testify at the hearing because he was recovering from chemotherapy treatment and was advised by his doctor not to travel.
Fed. R. Evid. 804(b)(5)↩ provides an exception to the hearsay rule for witnesses who are unavailable if the statement is offered as evidence of a material fact, it is more probative on the point for which it offered than any other evidence which the proponent can procure, and the interests of justice will be best served by admitting the statement into evidence. We find that Mr. Paster's affidavit is material to the issue of whether his communications with Messrs. Ryan and Linsner fall within the scope of the attorney-client privilege, that the affidavit is more probative than any other evidence petitioners could offer, and that the interests of justice would be best served by admitting the affidavit into evidence. Accordingly, we will admit Mr. Paster's affidavit into evidence. We note that affidavits are a staple of motions practice, particularly where the parties assert that documents are protected from discovery by the attorney-client privilege or the work product doctrine. Indeed, respondent offered the affidavit of Ms. Karen E. Carolan as support for respondent's objection to petitioners' discovery requests.4. Mr. Ryan also prepared Federal income tax returns for petitioners' wholly owned business, the Providence Granite Co.↩
5. In
United States v. Kovel , 296 F.2d 918">296 F.2d 918this draws what may seem to some a rather arbitrary line between a case where the client communicates first to his own accountant (no privilege as to such communications, even though he later consults his lawyer on the same matter,
Gariepy v. United States , 189 F.2d 459">189 F.2d 459Id. at 922The Court of Appeals for the Second Circuit also stated that
We do not deal in this opinion with the question under what circumstances, if any, such communications could be deemed privileged on the basis that they were being made to the accountant as the client's agent for the purpose of subsequent communication by the accountant to the lawyer; communications by the client's agent to the attorney are privileged. [
Id. n.4; citations omitted.]The issue of who engaged the accountant or other expert (i.e., the client or the attorney) and when the accountant or expert was retained (i.e., before or after the attorney) are factors that other courts have also considered when deciding whether the accountant's or expert's input into the attorney's legal advice is entitled to protection under the attorney-client privilege. See, e.g.,
United States v. Judson , 322 F.2d 460">322 F.2d 460Samuels v. Mitchell , 155 F.R.D. 195">155 F.R.D. 1956. Respondent's concession is curious in light of the fact that petitioners did not claim attorney-client privilege with respect to this document. We will treat respondent's statement on brief as conceding that document No. 39 is protected by the work product doctrine, absent a waiver by petitioners.↩
7. Federal law does not recognize an accountant-client privilege.
Couch v. United States , 409 U.S. 322">409 U.S. 3228. Conversely, if the attorney is the primary representative of the taxpayer, and the attorney-accountant communications are incidental to the attorney's representation of the client, the attorney-client privilege may attach and protect such communications from discovery.
United States v. Kovel, supra↩ at 9229. Mr. Ryan was petitioners' authorized representative during the IRS's audit of petitioners' Federal income tax returns for the taxable years in issue in the instant case.↩
10. Documents in the record indicate that Mr. Houlihan is an attorney with the law firm of Corcoran, Peckham & Hayes, and that he represented petitioner Marybeth Bernardo during her divorce from petitioner Bradford C. Bernardo.↩
11. Petitioners have joint representation in the instant proceeding. Consequently, we do not view the disclosure of information regarding petitioners' Federal income tax returns to Mr. Houlihan as a voluntary disclosure of privileged information to a third party.↩
12. The petition in the instant case states:
5. The facts upon which Petitioners rely, as the basis of Petitioners' case, are as follows:
(a) On December 23, 1986, the Petitioner, Marybeth B. Bernardo, pursuant to a Deed of Gift transferred to the MASSACHUSETTS BAY TRANSIT AUTHORITY ("MBTA") title to the 21 foot granite sculpture,
OMPHALOS , which had been created by the sculptor, Dimitri Hadzi. At the time of the gift the sculpture was on loan from the Petitioner, Marybeth B. Bernardo, to the MBTA and was located in Harvard Square, Cambridge, Massachusetts.* * * *
(c) Petitioners received an appraisal dated 20 February, 1987 from Kenneth Jay Linsner which stated, based on his academic and experiential qualifications and as a result of research conducted by him "through the collection of verifiable sales data as directed under
sec. 170A-1(a)(2)(ii)(e) of the Income Tax Regulations ," that the fair market value of the sculpture as of December 1986 was $ 593,000.(d) Based on the appraisal Petitioners claimed on their 1986 Joint U.S. Individual Income Tax Return a charitable gift of $ 593,000 and attached to that return IRS Form 8283, "Noncash Charitable Contribution", which described this gift and stated that the appraised value of the gift was $ 593,000. Part III of that form, entitled "Certification of Appraiser" which verified the appraised value of this gift, was signed by Mr. Linsner.↩
13. We have not adopted a corresponding rule to
Fed. R. Civ. P. 26(b)(3) , but the explanatory note toTax Court Rule 70(b) states:With certain exceptions and subject to the limitations of these Rules, the scope of allowable discovery under these Rules is intended to parallel the scope of allowable discovery under the Federal Rules. * * * The other areas, i.e., the "work product" of counsel and material prepared in anticipation of litigation or for trial, are generally intended to be outside the scope of allowable discovery under these Rules, and therefore the specific provisions for disclosure of such materials in
FRCP 26(b)(3) have not been adopted. Cf.Hickman v. Taylor , 329 U.S. 495">329 U.S. 49560 T.C. 1098">60 T.C. 1098↩ .]14. The work product doctrine also protects documents prepared in anticipation of another trial or litigation, regardless of whether the documents are directly related to the case at bar. Wright et al., Federal Practice and Procedure, sec. 2024, at 351 (2d ed. 1994). Log Nos. 18, 22, 24, 26, 30-31, 33, and 35 are letters from Mr. McCarthy or Mr. DeMaria sent directly to Mr. Ryan or letters sent by them to other persons, with copies sent to Mr. Ryan. Log No. 44 was prepared by Mr. Houlihan. All of the documents prepared by Messrs. Ryan, DeMaria, McCarthy, and Houlihan concern the IRS's audit of petitioners' Federal income tax returns. Based on the record in the instant case, we conclude that documents produced by Messrs. Ryan, DeMaria, McCarthy, and Houlihan were prepared in anticipation of litigation; i.e., either for the instant litigation or in anticipation of any litigation that might have resulted from petitioners' divorce.↩
15. In
Karme v. Commissioner , 73 T.C. 1163">73 T.C. 1163673 F.2d 1062">673 F.2d 1062↩ (9th Cir. 1982), we did not address the issue of whether the taxpayers impliedly waived the protection afforded by the work product doctrine merely by filing a petition with this Court. Consequently, respondent's contention that petitioners waived any protection provided by the work product doctrine by filing a petition in the instant case is wholly without merit.16. Once the client impliedly waives the attorney-client privilege by raising a claim or defense that places his state of mind or knowledge in issue, the client is deemed to have waived the privilege with respect to all attorney-client communications reflecting on its state of mind or knowledge. See
United States v. Exxon Corp. , 94 F.R.D. 246">94 F.R.D. 24617. The penalties determined in the notice of deficiency, although refuted in the petition, do not appear to raise any question as to petitioners' state of mind.↩
18. The Annual Summary Report For 1991 Of Closed Meeting Activity Of The Art Advisory Panel Of The Commissioner Of The Internal Revenue Service states:
All meetings were closed to the public by determination of the Commissioner that the substantive discussions and records of the Panel dealt with value of works of art involved in federal tax returns and are thus concerned with matters listed in
section 552b(c)(3) ,(4) ,(6) , and(7) of Title 5 of the United States Code . Consequently, the meetings at which such matters are discussed and the records of such meetings should not be open to the public. This is necessary to protect the confidentiality of tax returns undersection 6103 of Title 26 of the United States Code↩ .19. Respondent has made no attempt to demonstrate that the candor of the Art Advisory Panel's discussions will be damaged as a result of the disclosure of the panel's notes concerning its valuation of Omphalos.↩
20. Respondent contends that the background and qualifications of each of the panel members who participated in the appraisal of Omphalos were included in the appraisal report already provided to petitioners.↩
Document Info
Docket Number： Docket No. 24694-93
Citation Numbers： 104 T.C. 677, 1995 U.S. Tax Ct. LEXIS 36, 104 T.C. No. 33
Judges： Wells
Filed Date： 6/20/1995
Precedential Status： Precedential
Modified Date： 10/19/2024