issued between 1946 and 2013,1 find evidence that memoranda
are increasingly significant, measurable outputs of executive action.
Avoid writing memoranda
using the question-and-answer format because reading it is tedious, and the opposing attorney likely will challenge the fraud examiner on why he or she asked a particular question but not another.
When the two KPMG memoranda
were not produced, the IRS brought a summons enforcement action in district court.
Many practitioners have expressed concern that their clients will make a blanket waiver of privilege by disclosing all opinions or memoranda
that provide a legal analysis of the tax shelter transaction.
They alleged the firm knew, but failed to disclose in the offering memoranda
, that the partnerships would be required to incur significant debt to continue in business and that the necessary loans were unavailable.
We also recommend that the memoranda
be published (subject to the standard redaction procedures).
Sequa asserted that the memoranda
were protected from disclosure by the attorney-client privilege and the work-product doctrine.
We recognize that pending litigation about whether field service advice memoranda
must be disclosed pursuant to section 6110 of the Internal Revenue Code may preclude a fullscale discussion of this topic.
In Adlman, 68 F3d 1495 (1995), aff'g in part and vac'g in part DC N.Y, 1994, the Second Circuit denied a claim of attorney-client privilege asserted as a defense against an IRS summons that sought memoranda
prepared by an accounting firm discussing tax implications of a corporate client's pending restructuring.