I must express my sympathy for STJ Zachary S. (“Hi-Rise”) Fried. Detailed for in camera of a monumental docu-dump in Amgen Inc. & Subsidiaries, et al., Docket No. 16017-21, filed 11/14/24, he does a phoneathon to get permission to do a random sampling, Order, at p. 1.

Breaking down the documents into “families,” he scans them for privilege, specifically client-attorney and FATP (Section 7525 federally-authorized tax practitioners, as defined by 30 USC §330; more about that later.). FATP communications are privileged like client-attorney communications.

Non-attorney candidates for admission to United States Tax Court should note carefully several of Judge Fried’s points. They might could just maybe so show up on the exam.

First, the difference between in-house counsel and external counsel; the presumption in favor of privilege for external counsel communications does not extend to in-housers. Apparently, given current hourly billing rates, nobody talks to nonsalaried lawyers unless they have to.

Second, the general waiver of privilege when petitioner will raise good-faith reliance on expert opinion as an affirmative defense to chops. Amgen avoids this in their pleadings. Whether this is a good tactic remains to be seen.

Third, specificity. Among whom or to whom and related to what was the communication directed or circulated? A PowerPoint presentation, which might have been viewed by anyone, is discoverable, as are items claimed to be privileged, to which no communication relates. Finally, e-mails sent to unidentified recipients: were these directed to persons seeking legal advice? Need-to-know is the guidepost.

Now about FATPs, as seen by Taishoff.

30 USC §330 speaks of “representatives of persons before the Department of the Treasury.” Y’all will recall how Dave Williams and Doug Shulman tried to stretch this to include return preparers, and came unglued in Loving. If you don’t recall, see my blogpost “Loving Conquers All,” 2/12/14.*

But non-attorneys who are admitted to US Tax Court  (USTCP = United States Tax Court Practitioner) represent persons before the Tax Court, a creation of Congress, and is separate from the Department of the Treasury. Tax Court loudly proclaims its independence from Treasury and all its works.

A USTCP, armed with Form 2848, can of course represent parties before Treasury.  But it’s the Form 2848 that gives him/her standing to do so, not admission to US Tax Court.

5 USC §500, to which 30 USC §330 is subject, doesn’t mention USTCPs, only representation before agencies.

So is a USTCP a FATP? If not, how are communications with such an one privileged?

* https://taishofflaw.com/2014/02/12/loving-conquers-all/