Case Detail

FOIA Project Annotation: Judge Emmet Sullivan has ruled that the IRS may withhold Chief Counsel advice memoranda prepared by the Office of Chief Counsel concerning cases pending in Tax Court as attorney work product. The case was brought by Tax Analysts after the agency changed its policy on CCAs in July 2003 to withhold any memos that had a "litigation predicate." Tax Analysts argued that Section 6110, which requires the agency to disclose written determinations, forced the agency to disclose any discussion of its working law and that the memos currently being withheld in their entirety should be redacted so that passages discussing working law were disclosed. The IRS claimed that the D.C. Circuit's ruling in Tax Analysts v. IRS, 294 F.3d 71 (D.C. Cir. 2002), allowed the agency to withhold Technical Assistance memoranda whenever it was protected by the attorney work product privilege. Tax Analysts responded that the case was not on point because it involved FOIA, not Section 6110. But Sullivan concluded that "there is no principled reason to apply the work product doctrine differently under section 6110. In fact, as defendant notes, it would defy logic to interpret section 6110 in a vacuum, without reference to the substantial body of FOIA precedent that has developed to give meaning to its provisions." He added that "if the portions of the CCA described by plaintiffs as 'agency working law' were prepared in anticipation of litigation and meet the criteria established in [Supreme Court precedent] and its progeny, then they are properly covered by the attorney work product doctrine and exempt from disclosure pursuant to the FOIA, as incorporated by 26 U.S.C. § 6110(i)(3)." After finding that the memos were protected as attorney work product, Sullivan further explained the policy implications, noting that "the CCA in this case present an especially strong case for application of the work product doctrine â€" not only was each prepared in anticipation of litigation, but each actually pertains to cases already docketed in Tax Court. The need for disclosure of agency working law in these docketed case CCA is considerably less compelling than in the typical case. . .[T]he Chief Counsel's legal decisions with respect to these docketed case CCA will come out in litigation, and the 'law' will ultimately be made not by OCC, but by the Tax Court." Tax Analysts also claimed that taxpayer information on the docketed cases was no longer protected under Section 6103 because the taxpayers had waived protection by agreeing to resolve their tax cases on the public record. Sullivan noted, however, that disclosure of this information "would reveal not only the taxpayers' identities but also the fact that these taxpayers' cases have been the subject of further investigation and analysis in the form of CCA. This fact has not been made public in the taxpayers' pending Tax Court cases and seems to be precisely the type of information Congress intended to protect by defining 'return information' broadly. . .[T]he simple fact that the taxpayers in this case have chosen to litigate their cases in Tax Court is not enough to dissolve section 6103's protection of other information about their returns, including the fact that their cases have been selected by OCC for further investigation in the form of CCA."
Issues: Exemption 5 - Privileges - Attorney work-product privilege

Date Filed	Doc #	Docket Text
2004-06-25	1	COMPLAINT against INTERNAL REVENUE SERVICE (Filing fee $ 150.) filed by TAX ANALYSTS.(bcs, ) (Entered: 06/28/2004)
2004-06-25	2	LCvR 7.1 - CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by TAX ANALYSTS. (bcs, ) (Entered: 06/28/2004)
2004-06-25		SUMMONS Issued (3)as to INTERNAL REVENUE SERVICE, U.S. Attorney and U.S. Attorney General (bcs, ) (Entered: 06/28/2004)
2004-07-15	3	SUMMONS Returned Executed by TAX ANALYSTS. INTERNAL REVENUE SERVICE served on 6/29/2004, answer due 7/29/2004. (Hitchcock, Cornish) (Entered: 07/15/2004)
2004-07-29	4	ANSWER to Complaint by INTERNAL REVENUE SERVICE.(Martineau, Michael) (Entered: 07/29/2004)
2004-07-29	5	ORDER Initial Conference set for 9/24/2004 10:00 AM in Courtroom 1 before Judge Emmet G. Sullivan. setting forth further instruction to counsel;. Signed by Judge Emmet G. Sullivan on 7/29/04. (clv, ) (Entered: 07/29/2004)
2004-07-30	6	AMENDED ANSWER to Complaint by INTERNAL REVENUE SERVICE.(Martineau, Michael) (Entered: 07/30/2004)
2004-08-17	7	Consent MOTION to Continue Initial Scheduling Conference by TAX ANALYSTS. (Attachments: # 1 Text of Proposed Order)(Hitchcock, Cornish) (Entered: 08/17/2004)
2004-08-18		MINUTE ORDER granting 7 Motion to Continue Initial Scheduling Conference until October 8, 2004 at 10:30 a.m.Signed by Judge Emmet G. Sullivan on August 18, 2004. (lcegs2) (Entered: 08/18/2004)
2004-08-18		Set/Reset Hearings: Initial Conference set for 10/8/2004 at 10:30 AM in Courtroom 1 before Judge Emmet G. Sullivan. The September 24, 2004, Initial Scheduling Conference date is vacated. (lcegs2) (Entered: 08/18/2004)
2004-09-14	8	Consent MOTION for Extension of Time to File LCvR16.3(c) Report by INTERNAL REVENUE SERVICE. (Attachments: # 1 Text of Proposed Order # 2 Certificate of Service)(Martineau, Michael) (Entered: 09/14/2004)
2004-09-15		MINUTE ORDER granting 8 Consent Motion for Extension of Time to File LCvR16.3(c) Report until October 1, 2004.Signed by Judge Emmet G. Sullivan on September 15, 2004. (lcegs2) (Entered: 09/15/2004)
2004-09-30	9	MEET AND CONFER STATEMENT. (Martineau, Michael) (Entered: 09/30/2004)
2004-10-05		NOTICE of Hearing: The Initial Status Conference previously scheduled for 10/8/04 is changed. The Initial Conference is now set for 10/7/2004 10:30 AM in Courtroom 1 before Judge Emmet G. Sullivan. (clv, ) (Entered: 10/05/2004)
2004-10-07		Minute Entry for proceedings held before Judge Emmet G. Sullivan : Status Conference held on 10/7/2004. Summary Judgment motions due by 12/17/2004. Response to Motion for Summary Judgment due by 2/18/2005. Reply to Motion for Summary Judgment due by 3/4/2005. defendant reply due 3/18/05(Court Reporter Elaine Merchant.) (clv, ) (Entered: 10/07/2004)
2004-12-17	10	MOTION for Summary Judgment by INTERNAL REVENUE SERVICE. (Attachments: # 1 Affidavit Declaration of Sarah Tate# 2 Memorandum of Law In Support# 3 Statement of Undisputed Facts# 4 Text of Proposed Order)(Martineau, Michael) (Entered: 12/17/2004)
2004-12-17	11	NOTICE of Release of Documents to Plaintiff by INTERNAL REVENUE SERVICE (Martineau, Michael) (Entered: 12/17/2004)
2004-12-17	12	NOTICE of In Camera Submission of Documents by INTERNAL REVENUE SERVICE (Martineau, Michael) (Entered: 12/17/2004)
2005-02-18	13	ENTERED IN ERROR. . . .Memorandum in opposition to motion re 10 IRS motion for summary judgment and in support of Tax Analysts' motion for partial summary judgment, filed herewith filed by TAX ANALYSTS. (Attachments: # 1 Plaintiffs' Motion for Partial Summary Judgment# 2 Exhibit Plaintiffs' Exhibits 1 and 2# 3 Exhibit Plaintiffs' Exhibits 3, 4, 5)(Hitchcock, Cornish) Modified on 2/22/2005 (td, ). (Entered: 02/18/2005)
2005-02-18	14	ENTERED IN ERROR. . . .AFFIDAVIT re 13 Memorandum in Opposition, and motion for partial summary judgment by TAX ANALYSTS. (Attachments: # 1 Plaintiffs' Statement of Material Facts# 2 Plaintiffs' draft order denying IRS' motion for summary judgment and granting plaintiff's motion for partial summary judgment)(Hitchcock, Cornish) Modified on 2/22/2005 (td, ). (Entered: 02/18/2005)
2005-02-22		DOCUMENT NO.'S 13 and 14 were "Entered In Error" and counsel was advised to refile as one document. (td, ) (Entered: 02/22/2005)
2005-02-22	15	MOTION for Partial Summary Judgment and memorandum in opposition to IRS' motion for summary judgment and in support of this motion for partial summary judgment by TAX ANALYSTS. (Attachments: # 1 Affidavit Declaration of Christopher Bergin# 2 Statement of Materials Facts# 3 Exhibit Pl. Ex. 1 and 2# 4 Exhibit Pl. Ex. 3-5# 5 Text of Proposed Order)(Hitchcock, Cornish) (Entered: 02/22/2005)
2005-02-22	19	Memorandum in opposition to defendant's motion re 10 for summary judgment filed by TAX ANALYSTS. (SEE DOCUMENT NO. 15 FOR IMAGE) (td, ) (Entered: 04/06/2005)
2005-02-24	16	Consent MOTION AMEND BRIEFING SCHEDULE re Status Conference,, Set Deadlines, by INTERNAL REVENUE SERVICE. (Attachments: # 1 Text of Proposed Order)(Martineau, Michael) (Entered: 02/24/2005)
2005-02-24		MINUTE ORDER granting 16 Consent Motion to Amend Briefing Schedule. The Scheduling Order entered October 7, 2004 is hereby amended to provide that: 1) defendant shall file a reply to plaintiff's opposition to defendant's motion for summary judgment and a response to plaintiff's motion for partial summary judgment by no later than March 18, 2005; and 2) plaintiff shall file a reply todefendant's response to plaintiff's motion for partial summary judgment by no later than April 1, 2005. Signed by Judge Emmet G. Sullivan on February 24, 2005. (lcegs2) (Entered: 02/24/2005)
2005-02-24		Set/Reset Deadlines: Responses due by 3/18/2005 Replies due by 4/1/2005. (clv, ) (Entered: 02/25/2005)
2005-03-18	17	REPLY to opposition to motion re 10 and opposition to Tax Analysts' motion for partial summary judgment filed by INTERNAL REVENUE SERVICE. (Attachments: # 1 Tax Analysts' Memo in support of Supplemental Motion# 2 July 6, 2004, Order# 3 July 27, 2004 Order)(Martineau, Michael) (Entered: 03/18/2005)
2005-03-18	20	Memorandum in opposition to plaintiffs motion re 15 for partial summary judgment filed by INTERNAL REVENUE SERVICE. (SEE DOCUMENT NO. 17 FOR IMAGE) (td, ) (Entered: 04/06/2005)
2005-04-01	18	REPLY to opposition to motion re 15 by plaintiffs for partial summary judgment filed by TAX ANALYSTS. (Hitchcock, Cornish) (Entered: 04/01/2005)
2005-09-26	21	MEMORANDUM OPINION granting 10 Defendant's Motion for Summary Judgment, denying 15 Plaintiff's Motion for Partial Summary Judgment. Signed by Judge Emmet G. Sullivan on September 26, 2005. (lcegs2) (Entered: 09/26/2005)
2005-09-26	22	ORDER & JUDGMENT in favor of defendant against plaintiff. Signed by Judge Emmet G. Sullivan on September 26, 2005. (lcegs2) (Entered: 09/26/2005)
2005-09-26	23	CLERK'S JUDGMENT in favor of Defendant against Plailntiff. Signed by Carol Votteler, Courtroom Deputy for Judge Emmet G. Sullivan on 9/26/05. (clv, ) (Entered: 09/26/2005)
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