• July 27, 2011

An issue of narrow but deep importance (that is, nationwide and for all corporate tax-payers):  can the Internal Revenue Service (I.R.S.) issue a summons for Wells Fargo’s Tax Accrual Work Papers (TAWs) or is that privileged attorney work product?

There is a split among the United States Courts of Appeals (a “circuit split”) and there was a hearing before U.S. Judge John R. Tunheim (D. Minn.) this week on the subject.  Before the hearing, however, Judge Tunheim had to rule on the threshold issue of “who goes first?”  (The answer to the question depends on who has “the burden of proof,” which sometimes (as in this case) is not as clear as one might think because the burden can shift (first, party A must make a showing of X, and, if successful, the burden shifts to party B to make a showing of Y)).  Held: Wells Fargo bears the burden and must go first.  (Judge Tunheim also noted a practical consideration: a Wells Fargo witness was only available on the first day of the scheduled hearing.)

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