Commissioner of Revenue v. Comcast Corp.

901 N.E.2d 1185 (2009)

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Commissioner of Revenue v. Comcast Corp.

Massachusetts Supreme Judicial Court
901 N.E.2d 1185 (2009)

SC

Facts

U.S. West agreed to buy Continental Cablevision. Due to competitive concerns raised by the United States Department of Justice, U.S. West agreed to divest its interests in Teleport Communications Group, Inc. (TCG), another telecommunications company. U.S. West planned to divest TCG via a stock sale. Thomas Kennedy, a U.S. West executive, asked Andrew Ottinger, U.S. West’s in-house tax attorney, for advice on the tax implications of this stock sale. Ottinger, unfamiliar with applicable Massachusetts tax law, hired accounting firm Arthur Andersen LLP (Andersen) to provide tax advice. On Andersen’s advice, U.S. West created Continental Holding Company (Continental Holding), a corporate trust. U.S. West then dissolved TCG, and all TCG’s assets were transferred to Continental Holding. Continental Holding then claimed the corporate-trust tax exemption and did not file a corporate excise-tax return in Massachusetts. The Massachusetts Department of Revenue (the department) sought disclosure of certain memoranda Andersen had drafted for U.S. West. The trial court determined that the memoranda were protected under the derivative attorney-client privilege. The department appealed.

Rule of Law

Issue

Holding and Reasoning (Marshall, C.J.)

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