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Friday, January 14, 2005

Lavoie on Attorney-Client Privilege in Tax Planning

LavoieRichard Lavoie has published Making a List and Checking it Twice: Must Tax Attorneys Divulge Who's Naughty and Nice?, 38 U.C. Davis L. Rev. 141 (2004). Here is the abstract:

This Article analyzes the ability of tax attorneys to shield a client's identity from disclosure to the Internal Revenue Service under the attorney-client privilege. The Article concludes that, on policy grounds, the attorney-client privilege should be limited in the context of tax planning. Consequently, client identity should not be privileged irrespective of whether a tax shelter is involved. The Article also concludes that the privilege would not be available under the current judicial approach to client identity questions. As a result, recent regulations requiring tax attorneys to maintain lists of clients engaging in specified tax motivated transactions represent an appropriate response to recent tax shelter activity.

http://taxprof.typepad.com/taxprof_blog/2005/01/lavoie_on_ematt.html

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Comments

I have not had the benefit or reading the article but find it difficult to accept a distinction for tax attorneys for purposes of the attorney-client privilege in tax planning. Tax planning involves more than just tax considerations. So what part of the attorney's advice would serve as the exception to the rule? Frankly, I think the IRS should go after more tax advisers under the authority it already has for their participation in egregious tax shelter planning. In that manner, perhaps these wayward tax advisers would revert to the old role of ethical gatekeepers. The duty of the tax attorney is not limited to the client but he/she should not be coerced to name names. In any event, modifying the rule for tax attorneys would at a minimum require the tax attorney to advise the client in advance that he/she may pass on to the IRS the client's name. These are just some preliminary thoughts. Hopefully more tax (and other) attorneys will comment further.

Posted by: Shag from Brookline | Jan 14, 2005 4:04:12 AM