Friday, December 31, 2010
Nearly five hundred years of judicial decision-making has created evidentiary privileges where the courts are willing to forego the disclosure of evidence in the interest of promoting socially valuable relationships. Tax attorneys often tell their clients that their communications are protected by the attorney-client privilege. In truth, the attorney-client privilege for tax practitioners is much diminished. In recent years, aggressive enforcement campaigns by the federal government, often against tax shelter promoters, have enjoyed great success as a compliant judiciary has granted access to an ever-broader range of documents. Following an analysis of relevant judicial decisions, this Article articulates a public policy rationale and an effective legislative privilege that will limit an increasingly assertive central government and give assurance to tax practitioners and their clients as to when their communications will be privileged.