In United States v. Sanmina Corp. & Subsidiaries, No. 18-17036, 2020 U.S. App. LEXIS 24936 (9th Cir. Aug. 7, 2020 ), the Ninth Circuit embraced the D.C. Circuit’s decision in United States v. Deloitte LLP, 610 F.3d 129 (D.C. Cir. 2010) confirming that the disclosure of a work product to certain third parties, like a law firm providing valuation services or an independent auditor, does not waive protection. The Ninth Circuit’s holding should give some comfort to taxpayers wondering where the Ninth Circuit comes down in the split between Textron and Deloitte, as described below. As also described below, the Ninth Circuit’s analysis of implied waiver provides guidance to taxpayers defending work product claims during an audit and in litigation.
Victoria Kovanis is an associate in Baker McKenzie's Tax Practice Group in Palo Alto, where she advises multinational corporations on tax planning, controversy, and transfer pricing matters.