Media Mentions
2012
“Use of Accounting Firm’s Advice as Penalty Defense Waives Work Product Protection”
Federal Tax Weekly, February 2, 2012
Robin Greenhouse said that a recent Court of Federal Claims decision ordering disclosure of work papers on an alleged tax shelter showed that “work product protection is waived by putting the tax advisor’s advice at issue for penalty protection.” She cautioned that taxpayers “should think carefully and strategically about whether and when – during the audit, appeals or litigation – to put the tax advisor at issue.”
Robin L. Greenhouse, International Tax, Tax
“Work Product Privilege Waived for Penalty Defense Documents, Court Holds”
Tax Notes Today, January 24, 2012
Robin Greenhouse said a Court of Federal Claims decision that a taxpayer waived work product privilege for tax reserve workpapers by claiming reliance on independent audit advice to avoid penalties “highlights the harsh consequences that can result when the financial auditor is also the taxpayer’s tax adviser.” Ms. Greenhouse added, however, that “in allowing the parties to reach agreement over the characterization of documents as privileged without causing waiver of any applicable privilege, the court offers a potentially effective process for future privilege litigation.”
Robin L. Greenhouse, International Tax, Tax
2011
“New FAQs on Schedule UTP Offer Necessary Clarifications, Practitioners Say”
Tax Analysts, July, 20 2011
Robin Greenhouse said that “corporate taxpayers will be pleased with the additional guidance” recently provided by the IRS for making uncertain tax provision (UTP) disclosures. She singled out one particular “welcome departure” from previous UTP filing instructions, which now “extends the NOL/credit carry forward transition rule … to post-transition periods,” rather than requiring repeated disclosures.
2010
Robin Greenhouse was cited extensively by Tax Analysts (October 7) in a story on whether corporations can refuse to disclose questionable tax positions on the new Schedule UTP by claiming that disclosure seeks protected work product. She said that while some corporations may be willing to take that risky position because the IRS has not yet set a penalty for failing to file Schedule UTP, they will not be able to maintain it based on the recent Deloitte work product case. “I don’t think Deloitte went that far” as to offer work product protection, Ms. Greenhouse said. She noted that IRS rules call for concise UTP descriptions of the “potential downside” of tax positions taken, and added that companies should work with outside counsel “as to how they write up those few brief sentences and whether or not any of them are actually going to claim privilege on any of this.”
Robin L. Greenhouse, Tax, Tax Controversy
“IRS Finalizes Uncertain Tax Disclosures, With Concessions”
Compliance Week, October 1, 2010
Robin Greenhouse was quoted regarding final Internal Revenue Service rules for Schedule UTP, which allows companies to list and rank their tax return issues that may draw IRS questions. Ms. Greenhouse called the final rules “a significant relaxation of what was proposed. There are still some corporations that would rather not see the schedule implemented, but this was certainly a major move in the right direction for corporate taxpayers.”
Robin L. Greenhouse, Tax, Tax Controversy
Elizabeth Erickson, Robin Greenhouse, Jean Pawlow and Kevin Spencer were cited by International Tax Review (October 2010) as successfully representing Capital One in U.S. Tax Court litigation against the Internal Revenue Service. As a result of this September 21 victory, the IRS Chief Counsel Office announced on September 27 that it will no longer challenge the classification and reporting of credit card interchange fees as original issue discount (OID), a form of interest. The article noted that all four lawyers are partners in McDermott’s Washington, DC office.
Elizabeth Erickson, Robin L. Greenhouse, Jean A. Pawlow, Kevin Spencer, Tax
Robin Greenhouse was quoted by Tax Analysts (September 9) concerning proposed IRS regulations to implement uncertain tax position (UTP) reporting. She said the proposal is “not a surprise but the document doesn’t tell us very much,” adding that the IRS position is that “whatever the UTP form sets out, taxpayers will have to comply with.” Ms. Greenhouse noted that some UTP proposals rest on doubtful authority. She cited as an example a proposal to force taxpayers to make a hypothetical tax computation based on privileged information, which McDermott had called into question in a comment letter issued before the proposed new regulations. “Our comments are still valid,” she said of the letter.
Robin Greenhouse was quoted by HealthLeaders Media (July 13) concerning the complex steps that academic medical centers must follow to secure reimbursement of FICA taxes for medical residents, paid under protest to the IRS for more than a decade. The centers must provide the IRS with a consent form signed by every resident dating back to 1995. “These are residents who may no longer be affiliated with these academic medical centers. So identifying their last known addresses takes work,” Ms. Greenhouse declared. She added, “This is an area where hospitals need to be careful. The IRS will look at the reasonableness of their efforts. They don’t have to be perfect but they have to have acted reasonably.”
Robin Greenhouse was quoted by TaxAnalysts on June 29 concerning the D.C. Circuit Court’s ruling in US v. Deloitte that the government could not compel an accounting firm to disclose a taxpayer’s workpapers containing attorney work product because the documents were privileged and no waiver occurred. “This is a significant decision on work product,” she stated, because the court held “that a dual purpose document, which includes material developed in anticipation of litigation, can be incorporated into a document during a financial audit without ceasing to be work product.” Ms. Greenhouse added, “This is the first court of appeals to decide the waiver issue,” since the en banc panel in the earlier Textron workpapers case “did not reach the issue.”
Robin Greenhouse commented for CCH Federal Tax Weekly (number 22) on the U.S. Supreme Court’s decision to let stand the First Circuit’s controversial Textron ruling that a taxpayer may not claim work product privilege protection against an IRS request for tax accrual workpapers. Ms. Greenhouse predicted that “this issue will be the subject of protracted litigation throughout the federal courts” which “will not be limited to tax cases.” She expects more private litigants to make discovery requests for litigation reserve workpapers, and “would not be surprised” if the federal government “attempts to expand the use of the government deliberative process privilege in lieu of or in addition to its routine claims of work product.”
Robin L. Greenhouse, Tax, Tax Cases, Tax Controversy
Robin Greenhouse was quoted in Taxanalysts (May 25) regarding the Supreme Courts’s denial of certiorari to reconsider the First Circuit’s Textron rejection of work product privilege for tax accrual workpapers. “Given the clear conflict in the circuits on this question, I am surprised that the Supreme Court denied Textron’s cert. petition,” she said. Ms. Greenhouse added that she expects the issue to be raised “in both nontax and tax cases” following the denial.
Robin L. Greenhouse, Tax, Tax Cases, Tax Controversy
Robin Greenhouse commented in a March 1 Tax Analysts story about a District of Columbia federal court panel’s questioning of the Internal Revenue Service in a case involving the scope of work product protection that applies to work papers created by an independent auditor. Ms. Greenhouse, who attended the hearing, said the panel was highly skeptical of the IRS contention that an attorney’s litigation strategy loses its work product protection if communicated to the auditor. “With respect to this issue, based on the court’s questions and demeanor, I would expect the court to hold that the work product protection applies to an auditor’s recording of the attorney’s analysis,” she said, “but that the case should be remanded for an in camera review … to determine if redaction is appropriate under this holding.”
2009
Robin Greenhouse was quoted by Compliance Week on September 15 concerning the First Circuit’s ruling in U.S. v. Textron, which reduced work product protection for documents in tax litigation. Ms. Greenhouse noted that other Circuit Courts have generally afforded tax accrual work papers more protection, but companies generating them should still take protections. “Companies need to look at how they prepare their tax accrual work papers to satisfy the FIN 48 requirement,” she stated. “They obviously need to meet the requirement, but not put more in those papers than is required.”
Robin Greenhouse commented for Tax Analysts (August 14) on the First Circuit's en banc U.S. v. Textron ruling, which reversed an earlier panel decision and held 3-2 that tax accrual workpapers are not subject to work product protection. She said the majority's new work product rule "is directly in conflict with the Second Circuit's decision in Adlman and is even more restrictive than the Fifth Circuit's 'primary motivating purpose' standard." She noted that the dissent would support a petition for certiorari by Textron: "There are significant nontax ramifications from this decision, and all litigators and general counsel should be concerned. This decision opens the door for one part in litigation to discover an opposing party's litigation reserve fund." She made similar points for Bloomberg.com, where she observed that the ruling was "a very results-oriented decision. The court wanted to find that this was not privileged."
Joseph Selby and Robin Greenhouse were quoted in a June 18 Tax Analysts story on Valero Energy v. U.S., a Seventh Circuit case that broadly constructed the tax shelter promotion exception to the section 7525 federal tax practitioner privilege, upholding the government right to documents that Valero claimed were privileged. Mr. Selby took exception to the ruling, saying that “the word ‘promotion’ when used in connection with ‘tax shelter’ is a term of art that comports with Valero’s definition.” The Court explained why its ruling differed from the district court in a similar case, U.S. v. Textron, but ignored the fact that it also was contrary to a Tax Court ruling in Countryside Ltd. Partnership v. Commissioner, which Ms. Greenhouse felt was because “it would have been more difficult to distinguish Countryside.”
Robin Greenhouse commented in Tax Analysts (June 19) regarding a U.S. district court’s use of the Regions Financial Corp. v. U.S. to hold that a taxpayer’s claim of work product privilege was not waived by disclosing documents to an accounting firm. “The Regions decision continues to have legs with respect to analysis of waiver of work product,” Ms. Greenhouse said, but she added that in another case “the DOJ does not seem to have the same policy” of restraint toward work product production. “It is unclear whether this is the result of a new DOJ policy,” she stated, “or the unusual circumstances of a particular case.”
Robin L. Greenhouse, Tax, Tax Cases
Robin Greenhouse discussed for Tax Analysts on June 9 the U.S. Tax Court’s ruling in Countryside Limited Partnership v. Commissioner. The Court held that a taxpayer’s meeting minutes did not have to be disclosed to the IRS because the government failed to show that a tax exception applied, and Ms. Greenhouse noted that the ruling could affect the Seventh Circuit appeal of a contrary district court ruling in Valero Energy Corp. v. U.S. “Based on the legislative history,” she stated, “the [tax] court rejected the broad definition of [tax shelter] promotion applied by the district court in Valero, which defined promoter as one who organizes or assists in organizing a tax shelter.” She added, “I expect that the taxpayer will act promptly to send a letter to the Seventh Circuit reporting on this favorable Tax Court decision.”
Robin L. Greenhouse, Tax, Tax Cases
Robin Greenhouse was interviewed in the June 1, 2009, Tax Analysts Tax Notes concerning key tax law issues. Ms. Greenhouse stated that the
Robin L. Greenhouse, Tax, Tax Cases, Tax Controversy
Robin Greenhouse was quoted in the January 23 issue of The National Law Journal and on January 26 on Law.com's In-House Counsel on how Textron Inc. can withhold some documents related to tax shelters from the IRS. For taxpayers, the ruling by the 1st U.S. Circuit Court of Appeals in U.S. v. Textron, No. 07-2631, is a "significant victory," said Ms. Greenhouse.
Robin L. Greenhouse, Tax, Tax Controversy
Robin Greenhouse was quoted in the January 23 issue of the Daily Tax Reporter in an article about how the First Circuit on January 21 held that tax accrual workpapers are protected by the work product privilege even if the documents are required by financial reporting rules, but it remanded the case to the district court for a determination of whether Textron might have waived the privilege in its case through disclosure to its outside auditor. "If there had been some indication or reference to the taxpawyers tax accrual workpapers in the auditor's workpapers, the auditor would claim privilege," said Ms. Greenhouse. "That is exactly what happened in the Regions Financial [Corp. & Subsidiaries v. United States] case," she added.
Robin L. Greenhouse, Tax, Tax Controversy
Robin Greenhouse was quoted in the January 22 issue of Bloomberg on how Textron Inc. can withhold some documents related to tax shelters from the IRS. "It's a big decision," Ms. Greenhouse said. "It doesn't end the case," she added.
Robin L. Greenhouse, Tax, Tax Controversy
Robin Greenhouse was quoted in the January 22 issue of Tax Notes in an article about how the First Circuit on January 21 held that tax accrual workpapers are protected by the work product privilege even if the documents are required by financial reporting rules, but it remanded the case to the district court for a determination of whether Textron might have waived the privilege in its case through disclosure to its outside auditor. "While the auditor's workpapers may generally be subject to disclosure, to the extent they contain or reflect Textron's work product, the auditor would likely redact that privileged material and claim work product," said Ms. Greenhouse.
Robin L. Greenhouse, Tax, Tax Controversy
2008
Robin Greenhouse was quoted in the December 24 issue of Tax Notes about Regions Financial Corp. and the IRS coming to a settlement regarding the company's tax liabilities from 1999 through 2006. Because tax years at issue in the case are covered by the agreement, "I think a reasonable assumption is that it settles all issues that were raised for those years. And that would include the issues that were the subject of the tax accrual workpapers," Ms. Greenhouse said. "If the tax year is resolved, then we would expect the case -- the appeal -- to be moot. But the decision below would not be vacated," she added.
Robin L. Greenhouse, Tax, Tax Controversy
Robin Greenhouse was quoted in the August 11 issue of Tax Analysts on the recent district court ruling that requires a company to release to the government documents it claimed were subject to nondisclosure by the tax practitioner privilege. "I've been concerned about the scope of the tax practitioner privilege for some time and in particular the legal implications of a ruling in a summons enforcement case that the transaction at issue is a tax shelter for purposes of the tax shelter exception under section 7525," Ms. Greenhouse said.
Robin L. Greenhouse, Tax, Tax Controversy
Robin Greenhouse was mentioned in the August 7 issue of the Daily Tax Report for being part of the team representing Wal-Mart Stores, Inc. The North Carolina Court of Appeals ordered in camera review of tax documents related to consulting services Ernst & Young provided to assist Wal-Mart Stores, Inc. in implementing tax shelters to see if any of the materials is protected from a DOR summons.
Robin L. Greenhouse, Tax, Tax Controversy
Robin Greenhouse was quoted in the July 28 issue of The National Law Journal on how the attorney work-product fight is now taking shape in the federal courts, most recently in the Textron and Regions cases. Ms. Greenhouse commented that the work-product controversy may be "something of a perfect storm," triggered by post-Enron demands for greater financial disclosures.
Robin L. Greenhouse, Tax, Tax Controversy
Robin Greenhouse was quoted in the May 22 issue of CCH Federal Tax Weekly on Regions Financial Corp. et al. v. United States. Ms. Greenhouse explained that both Regions and Textron (a much-heralded IRS loss on privilege that is now on appeal in the First Circuit) found that it would be unfair for the government to obtain these documents. "It's not helping the IRS develop the facts or develop issues. It's really just telling the IRS--This is how the taxpayer values the case." Ms. Greenhouse further pointed out that the government would be just as adamant about protecting its own work product documents as well.
Robin L. Greenhouse, Tax, Tax Controversy
Robin Greenhouse was quoted in the May 15 issue of CCH Federal Tax Weekly on Regions Financial Corp. et al. v. United States. Ms. Greenhouse pointed put that, while application of the work product doctrine in Textron and Regions was the same, the facts were slightly different in what the IRS was seeking from the taxpayer. Ms. Greenhouse stated, "In Textron, they were looking more at the actual workpapers themselves...items indicating the percentage of likelihood of success...this is looking at the actual tax opinion that was prepared ... Regions is really looking at the opinion; Textron is looking at: Now what do they do based on their legal opinions?"
Robin L. Greenhouse, Tax, Tax Controversy
Robin Greenhouse was quoted in the May 13 issue of Tax Notes on Regions Financial Corp. et al. v. United States. Ms. Greenhouse said the opinion was important, "Because it provides work product protection for a tax opinion that is prepared to evaluate the litigation risk of a particular transaction, even if it is understood at the time of preparation that such opinion will likely be disclosed to the independent auditor."
Robin L. Greenhouse, Tax, Tax Controversy
Robin Greenhouse was referenced in the January issue of The Tax Adviser about FIN 48 compliance. "Effective tax rate reconciliation workpapers, whether created by the taxpayer or the auditor, are part of the tax accrual workpapers" and are thus subject to restraint, Ms. Greenhouse was cited.
Robin L. Greenhouse, Tax, Tax Controversy
2007
Robin Greenhouse was quoted in an August 31 article published by Tax Analysts regarding the district court decision in United States v. Textron. The district court refused to enforce an IRS summons for the tax accrual workpapers of Textron Inc. and its subsidiaries, finding that the workpapers are protected by the work product privilege and that Textron didn’t waive that privilege by disclosing the documents to Ernst & Young, its independent auditor. Ms. Greenhouse said Textron was correctly decided and a significant win for taxpayers. “The long and the short of it is an issue of fairness. The court may have been influenced by fairness. That’s what really shows up on the last two pages of the opinion,” stated Ms. Greenhouse.
Robin L. Greenhouse, Tax, Tax Controversy
McDermott client Murphy Oil Corporation was profiled in The Washington Post on January 31 for its contribution to the El Dorado Promise foundation, a scholarship program for El Dorado, Arkansas public school students. The foundation was established with the assistance of Robert Louthian and Robin Greenhouse. Murphy Oil contacted Ms. Greenhouse for assistance, and Mr. Louthian was instrumental in establishing the foundation and is currently in the process of obtaining a tax-exemption for the foundation.
Robin L. Greenhouse, Robert C. Louthian III, Health, Tax Exemption
2006
Robin Greenhouse was quoted in the August 28 issue of Tax Notes about the Sixth Court reversing a district court order that compelled a company to provide documents to the IRS, remanding the case to the district court to grant the company's motion to quash the IRS summons because the documents sought are protected by work product privilege. "The Roxworthy opinion is important because it means another circuit has joined the majority view that work product protects documents prepared 'because of' anticipation of litigation," Ms. Greenhouse said.
2004
Robin Greenhouse was quoted in the July 19 issue of Tax Analysts in an article regarding IRS agents asking for attorneys' opinions associated with reportable transactions. She explained that with tax lawyers in the middle of the various forces pressing for opinions, they need to tell clients to "push back" on workpaper requests.
