Colleagues have denounced the trend toward more continuing education (whether legal or professional) as a “racket,” or as “the Bar Associations’ Sustentation Act.” I’m of two minds about the subject.

Some programs are overpriced and of minimal usefulness. Many of the freebies are puff pieces and nearly worthless (I mean, how many lectures on the same timeworn topics can one ingest? And they don’t even serve drinks).

But there was an IRS webinar today on the Section 263 and Section 263A safe harbors for capitalists (I mean those who must capitalize their expenses) that was basic, but enlightening. And tomorrow there’s a law firm’s program on Tax Court practice that should be well worth attending.

At least I’ve been spared another “win your case at discovery,” at which IRS counsel appear to be the most faithful attendees.

And today STJ Daniel A. (“Yuda”) Guy has yet another installment of the perpetual discovery joust between Eaton Corporation and Subsidiaries, Docket No. 5576-12, filed 7/15/15, and the IRS.

Once again IRS claims (a) the stuff’s not privileged and (b) if it is they waived it. Of course this is the Section 7525 preparer cloak, and STJ Yuda got an in camera look-see bucked to him by Judge Kerrigan back in June.

Well, the Eatonians win this one, mostly.

STJ Yuda: “The … documents comprise internal emails, memos, and data compilations exchanged between petitioner’s employees and petitioner’s legal counsel …, and tax practitioners at [X] and [Y]. The documents generally were prepared or generated between 2009 and early 2012 in support of petitioner’s efforts to identify and correct errors in its advance pricing agreement annual reports submitted to the Internal Revenue Service (IRS) for a number of taxable years. Petitioner’s privilege claims are sustained. The Court’s review of the … documents shows that they qualify for protection under the attorney-client or tax practitioner privilege and/or the work product doctrine.” Order, at p. 2 (Names omitted, but the shoes are of the whitest).

For the benefit of those who tuned in late, see my blogpost “Advance and Retreat,” 6/26/13, for the backstory.

But there’s always more.

“During 2009 and 2010, in the course of an examination of petitioner’s tax returns, IRS personnel interviewed a substantial number of petitioner’s employees in the United States, Puerto Rico, and the Dominican Republic, as well as representatives and owners of electrical supply companies that distributed petitioner’s products. IRS attorneys also met with petitioner’s outside attorneys and tax practitioners. The [X] Notes, which were drafted by tax practitioners employed at [X] who attended the interviews and meetings, are best described as transcriptions or summaries of the interviews and meetings. Although the notes do not appear to include the mental impressions, conclusions, opinions or legal theories of any attorney or tax practitioner, the notes nevertheless constitute protected work product. Under the circumstances, the Court may order disclosure of the documents if respondent can show a ‘substantial need’ for the material and an inability to procure equivalent information ‘without undue hardship.’ Fed. R. Civ. P. 26(b)(3). Respondent has failed to make either showing.” Order, at pp. 2-3.

Why do any work (like asking your own people what happened) when you can demand other peoples’ notes?

Once again IRS claims waiver. I don’t fault them for that, it’s as well to use all the ammo you have.

Now there’s at least a soupçon of a hint that the Eatonians will claim the Section 6694 cover of reasonable reliance, and therefore what info they told their mayvonnim may well be the subject of IRS scrutiny.

But STJ Yuda, wise to the wiles of counsel, leaves that for Judge Kerrigan on the trial. As Robbie Frost remarked “Before I built a wall I’d ask to know/ What I was walling in or walling out.”

IRS seems also to be a disciple of The Poet Laureate of Vermont. “Something there is that doesn’t love a wall,/ That wants it down.”

So Judge Kerrigan can decide whether good fences make good neighbors.