Free Supplemental Brief - District Court of Federal Claims - federal

Case 5:04-cv-00278-TJW 1:01-cv-00256-CFL

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Bates Nos. CC0048-CC0049 -An exchange of four emails among Gary Wilcox, B. John Williams, Chief Counsel, Cary Pugh, Horace Howells, Donna Marie Young, Heather Maloy, William O'Shea, Deborah Butler, Associate Chief Counsel (Procedure and Administration) ("PA"), Henry Schneiderman, Special Counsel to the Associate Chief Counsel (PA), and Deborah Harrington on May 6 and 7, 2003, transmitting clean and redlined versions of the May 6, 2003, draft regulations and including a discussion of a revision of the preambles to the draft NPRM and temporary regulations. The Service claims executive privilege for the entire document because it consists of the respective authors' suggested draft language, including typewritten redlined text, and the authors' respective opinions, analyses, conclusions and recommendations with respect to a particular approach being considered for the draft regulations. Bates Nos. CC0051-CC0052 - An exchange of seven emails among Donna Marie Young, Dianna Miosi, Horace Howells, Deborah Harrington, Heather Maloy, Eric Solomon, and William O'Shea on May 6 and 7, 2003, discussing changes in the latest version of the draft regulations. The Service claims executive privilege for the entire document because it consists of suggested draft language for, and the respective authors' opinions, analyses, conclusions and recommendations on the tax treatment to be given certain transactions under, the draft regulations. Bates Nos. CC0053-CC0055 - An exchange of seven emails among Heather Maloy, Donna Marie Young, Horace Howells, Dianna Miosi, Eric Solomon, Deborah Harrington, Gary Wilcox, B John Williams, Cary Pugh, William O'Shea, Deborah Butler, and Henry Schneiderman on May 6 and 7, 2003, discussing the language of the most current version of the draft regulations, including a particular approach being considered. The Service claims executive privilege for portions of Mr. Wilcox's emails on May 7 at 10:43am, 11:55 am and 4:19pm,, Ms. Pugh's emails on May 6, and Ms. Harrington's email on May 6 because these portions consist of suggested draft language for, and the respective authors' opinions, analyses, conclusions and recommendations with respect to, a particular approach being considered for the draft regulations. Bates Nos. CC0057-CC0058 - An exchange of three emails among Deborah Harrington, Gary Wilcox, Horace Howells, Cary Pugh, Matthew Stevens, Special Counsel to Chief Counsel, Heather Maloy, William O'Shea, Dianna Miosi, Deborah Harrington, Emily Parker, Deputy Chief Counsel, Operations, and Dale Collinson, Counsel to the Associate Chief Counsel (Financial Institutions and Products) ("FIP"), on May 29, 2003, and June 2, 2003, transmitting clean and redlined versions of the May 29, 2003, draft regulations and discussing changes made to the draft regulations. The Service claims executive privilege for the portions of the document that contain Ms. Harrington's email after the first sentence, and the body paragraph of Mr. Wilcox's email up to the last sentence because these portions discuss changes made to the language of the draft regulations. The Service also claims executive privilege for the portions of Mr.

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Howell's email that contain the first line of the second paragraph and the parenthetical notations at the end of each paragraph because these portions notate specific changes made to the draft regulations. Bates Nos. CC0059-CC0060 - An exchange of three emails among Deborah Harrington, Gary Wilcox, Heather Maloy, Emily Parker, Cary Pugh, Eric Solomon, and Horace Howells on June 10 and 11,2003, regarding the impending transmittal of the draft regulations to the Federal Register. Also included in the email chain are discussions regarding changes made to the language of the draft regulations. Bates No. CC0060 is blank. The Service claims executive privilege for the portion of the document that contains the first paragraph of Mr. Wilcox's email beginning in the second line after the word "decisions," because this portion reflects alternative courses of action and approaches in the preamble of the NPRM and temporary regulations that could be taken; this portion seeks the concurrence of OTP on the analysis and recommendations of the author regarding the draft language for the final regulations. Bates Nos. CC0064-CC0066 - An exchange of three emails among Deborah Harrington, Horace Howells, Audrey Nacamuli, William Alexander, Special Counsel to the Associate Chief Counsel (Corporate), Philip Levine, Deputy Associate Chief Counsel (Corporate), Eric Solomon, and Jeffrey Paravano, attorney, OTP, on August 10 and 13, 2001, and October 1,2001, discussing a possible approach for regulations under § 357(d). The Service claims executive privilege for the entire document because it consists of suggested draft language proposed by Corporate for others' consideration, and the respective authors' opinions, analyses, conclusions and recommendations for what should be incorporated into the draft regulations. Bates Nos. CC0067-CC0068An email from Deborah Harrington to Horace Howells, dated October 2, 2001, highlighting issues that needed to be addressed under the § 358 draft regulations. The Service claims executive privilege for the entire document because it consists of the authors' opinions, analyses, conclusions and recommendations for the approach that may be taken in, and the language to be incorporated into, the draft regulations. Bates No. CC0069 - An exchange of three emails among Douglas Bates, attorney, Branch 5, Corporate, Horace Howells, Deborah Carlisle, Chief, Branch 5, Corporate, Audrey Nacamuli, Eric Solomon, Robert Hanson, attorney, OTP, Jeffrey Paravano, Jasper Cummings, Associate Chief Counsel (Corporate), Philip Levine, and William Alexander, on September 28, 2001, and October 1 and 3, 2001, discussing OTP's suggestions that were incorporated into the latest version of the draft regulations and their reactions to them. The Service claims executive privilege for the portion of the document that contains Ms. Carlisle's October 1,2001, email because it discusses language OTP attorneys suggested, her reactions to same, and about which she solicits reactions from the others at an upcoming meeting to discuss the next version of the draft regulations.

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Bates No. CC0070 -An exchange of two emails between Deborah Harrington and Horace Howells on November 13 and 14, 2001, discussing a potential approach for § 752 regulations. The Service claims executive privilege for the portion that contains Horace Howell's email because it reflects the author's mental impressions and recommendations regarding the draft language for the regulations he has prepared. Bates No. CC0072 - An exchange of five emails among Douglas Bates, Horace Howells, Debra Carlisle, Audrey Nacamuli, Eric Solomon, Robert Hanson, Jeffrey Paravano, Jasper Cummings, Philip Levine, and William Alexander on September 28, 2001, October 1 and 3, 2001, and January 14, 2002, discussing the status of the § 357 regulations project and changes made in the most recent version of the draft regulations. The Service claims executive privilege for the portion of the document that contains Ms. Carlisle's October 1,2001, email because it is a duplicate of Bates No. CC0069; the assertion of executive privilege, and the reason therefor, is the same. Bates No. CC0073 - An exchange of two emails between Robert Casey, Chief, Branch 3, Associate Chief Counsel (Income Tax and Accounting) ("ITA"), and Horace Howells on January 17 and 18, 2002, regarding the application of the current regulations to a specific fact pattern. The Service claims executive privilege for the entire document because it reflects the opinions, analysis, and mental impressions of the respective authors as they analyze and consider the appropriate tax treatment under the regulations, as they continued to work on the development of the draft regulations, which had not yet been issued. Bates Nos. CC0074-CC0075 -An email prepared by Horace Howells, for himself (it was sent from his office to home email account), dated January 21, 2002, containing an outline of possible approaches for the draft regulations. The Service claims executive privilege for the entire document because the outline consists of alternative approaches he considered in drafting the regulations, suggested draft language for the draft regulations, and includes the author's opinions, analyses and conclusions as to the scope and direction of the regulation project. Bates Nos. CC0078-CC0079 - An exchange of four emails between Robert Casey and Horace Howells on January 17 and 18, 2002, and February 20, 2002, discussing the application of the current regulations to a specific fact pattern. The Service claims executive privilege for the entire document because it reflects the opinions, analysis, and mental impressions of the respective authors as they analyze and consider the appropriate tax treatment under the regulations. Bates No. CC0080 - An email from Deborah Harrington to Horace Howells and copied to Dianna Miosi, Stephanie Robinson, attorney, OTP, Jeffrey Paravano, Eric Solomon, Audrey Nacamuli, and Donna Marie Young, dated February 26,

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2002, suggesting changes to the approach taken in the present draft of the regulations. The Service claims executive privilege for the entire document because it reflects the mental impressions and analysis of the author, as well as certain others, regarding the draft language for the regulations, including possible example language. Bates Nos. CC0081-CC0082 - An exchange of six emails between Robert Casey and Horace Howells on January 17 and 18, 2002, February 20, 2002, and March 6, 2002, discussing the application of the current regulations to a specific fact pattern. The Service claims executive privilege for the entire document because it reflects the opinions, analysis, and mental impressions of the respective authors as they analyze and consider the appropriate tax treatment under the regulations. Bates No. CC0083 - An email from Dianna Miosi to Horace Howells, dated March 7, 2002, providing four specific areas in which work is needed in drafting the regulations. The Service claims executive privilege for the portion of the document that contains the four numbered paragraphs because it reflects Ms. Miosi's analysis and recommendations regarding the scope and direction of the next draft of the regulations, including the need to research certain areas that may be relevant to the regulations. Bates No. CC0084 - An email from Robert Casey to Horace Howells, dated March 11,2002, providing additional thoughts regarding the application of the current regulations to a specific fact pattern. The Service claims executive privilege for the entire document because it reflects the opinions, analysis, and mental impressions of the respective authors as they analyze and consider the appropriate tax treatment under the regulations. Bates No. CC0085 - An exchange of seven emails among Douglas Bates, Horace Howells, Debra Carlisle, Audrey Nacamuli, Eric Solomon, Robert Hanson, Jeffrey Paravano, Jasper Cummings, Philip Levine, and William Alexander, on September 28, 2001, October 1 and 3, 2001, January 14, 2002, and March 20, 2002, discussing the status of the § 357 regulations project and changes made in the most recent version of the draft regulations. The Service claims executive privilege for the portion of the document that contains Ms. Carlisle's October 1, 2001, email because it discusses language OTP attorneys suggested, her reactions to same, and about which she solicits reactions from the others at an upcoming meeting to discuss the next version of the draft regulations. Bates Nos. CC0086-CC0087 -An email from Deborah Harrington to Horace Howells, Dianna Miosi, Donna Marie Young, William O'Shea, and Paul Kugler, Associate Chief Counsel (PSI), dated May 22, 2002, transmitting the May 17, 2002, version of the draft § 752 regulations and including an explanation of Ms. Harrington's thinking as she made certain revisions from the prior draft into the

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May 17, 2002, version of the draft regulations. The Service claims executive privilege for the portion of the document that contains everything following the first paragraph because it consists of suggested draft language and the author's opinions, analyses, conclusions and recommendations for the draft regulations, including the scope of matters still to be addressed in successive drafts. Bates No. CC0088 - An exchange of three emails among David Fish, Chief, Branch 1, Disclosure & Privacy Law, William Heard, attorney, Branch 3, Administrative Provisions & Judicial Practice, and Horace Howells, dated May 31,2002, discussing the disclosure rules under section 6103 affecting the sharing of information between partner and partnership, as well as a description of the intended direction of the draft regulations. The Service claims executive privilege for the entire document because it reflects the mental impressions of the authors regarding the scope of the draft regulations, including draft language for the draft regulations. Bates No. CC0090 -An email from Daniel Carmody, Senior Technician Reviewer, Branch 1, Associate Chief Counsel (PSI) to Horace Howells, dated July 24, 2002, providing comments regarding the language of the draft regulations. The Service claims executive privilege for the portion of the document that contains the numbered paragraphs because it reflects the mental impressions, opinions, analysis, and conclusions of the author regarding the draft language for the regulations, including questions prompted by his review and concerns for certain treatments under the draft regulations. Bates No. CC0091 - An exchange of two emails among lan Russell, Senior Technician Reviewer, Branch 5, Corporate, Horace Howells, and Richard Starke, attorney, Branch 5, Corporate, on July 25, 2002, transmitting an advance copy of the July 25, 2002, version of the draft regulations for comment. The Service claims executive privilege for the entire document because it reflects the mental impressions, opinions, analysis, and conclusions of the respective authors regarding the proposed language for, and the scope of, the draft regulations. Bates No. CC0092 - An exchange of two emails among Richard Starke, Horace Howells, lan Russell, Audrey Nacamuli, and Dianna Miosi on July 25 and 29, 2002, transmitting the July 25, 2002, version of the draft regulations for comment. The Howells' email is a duplicate of Bates No. CC0091 and the Service's claim of executive privilege and the reason therefor is the same. The Service also claims executive privilege for the Starke email because it reflects the author's reactions to, and comments on, the language of the draft regulations. Bates Nos. CC0093-CC0094 - An email from Jonathon Zelnik to Donna Marie Young and copied to James Gergurich, attorney, Branch 3, PSI, Christine Ellison, Danielle Grimm, Senior Legal Counsel (Tax Shelters), Large & Mid Size Business Division ("LMSB"), and Horace Howells, dated August 30, 2002, providing a detailed list of questions regarding the direction of the draft

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regulations under § 752. The Service claims executive privilege for the entire document because it reflects the mental impressions, opinions, analysis, and conclusions of the author regarding the language for, and the scope and direction of, the draft regulations. Bates No. CC0096 - An email from Daniel Carmody to Dianna Miosi and copied to Horace Howells, dated October 2, 2002, conveying his opinions regarding the current draft of the § 752 regulations and transmitting a PowerPoint presentation illustrating the concerns he has with the approach taken in the draft regulations. The Service claims executive privilege for the entire document because it reflects the mental impressions, opinions, analysis, and conclusions of the author regarding the language for the draft regulations. The document also memorializes OTP attorneys' views regarding this same approach. Bates Nos. CC0097-CC0098 - An exchange of two emails among Donna Marie Young, Horace Howells, Deborah Harrington, William O'Shea, and Dianna Miosi on October 10 and 16, 2002, transmitting the October 10, 2002, draft of the regulations and providing comments on this draft of the regulations. The Service claims executive privilege for the portion of the document that contains all of the bullet paragraphs in Ms. Young's email because it consists of editorial suggestions in the draft language, suggested draft language of a more substantive nature, as well as the author's opinions, analyses, conclusions and recommendations for the tax treatments set forth in the draft regulations. Bates No. CC0099 - An email from Donna Marie Young to Horace Howells and copied to Dianna Miosi and William O'Shea, dated October 30, 2002, relaying a suggestion by Mr. O'Shea, to which she comments, regarding a change in the language of the draft regulations. The Service claims executive privilege for the entire document because it consists of recommended language for inclusion in the draft regulations. Bates No. CC0101 - An email from Audrey Ellis, attorney, Branch 2, PSI, to Horace Howells, dated December 6, 2002, transmitting language from other draft regulations and conveying concerns regarding the interaction of these draft regulations with the § 752 draft regulations. The Service claims executive privilege for the entire document because it reflects Ms. Ellis' views, as well as the views of other attorneys, regarding the language for the draft regulations and the manner in which they can reconcile the two projects. Bates Nos. CC0104-CC0105 - An exchange of four emails among Heather Maloy, Horace Howells, Dianna Miosi, William O'Shea, Gary Wilcox, B John Williams, Emily Parker, Nicholas DeNovio, Special Counsel to the Chief Counsel, Cary Pugh, Matthew Stevens, Jonathan Zelnik, and David O'Connor, Special Counsel to the Chief Counsel, on January 2, 2003, outlining the consensus reached following a joint briefing regarding regulations under § 358(h). The Service claims executive privilege for the portion of the document that contains

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Mr. Wilcox's 12:34pm email following the introductory paragraph because it relays certain approaches that achieved consensus during and following a joint briefing on the regulation project, and solicits the views of the recipients as to the scope and direction that should be taken in the next version of the draft regulations. Bates Nos. CC0108-CC0109 -An exchange of two emails among Donna Marie Young, Horace Howells, William O'Shea, Dianna Miosi, and Deborah Harrington, dated March 13, 2003, containing comments regarding the examples section of the most recent version of the draft regulations under § 752. The Service claims executive privilege for the entire document because it consists of suggested draft language and the respective authors' opinions, analyses, conclusions and recommendations for the draft regulations. Bates Nos. CC0110-CC0111 - An exchange of three emails among Gary Wilcox, Horace Howells, Heather Maloy, William O'Shea, Donna Marie Young, Dianna Miosi, Matthew Stevens, Cary Pugh, Deborah Harrington, Helen Hubbard, Tax Legislative Counsel, OTP, and Eric Solomon on March 20 and 21, 2003, and April 9, 2003, transmitting clean and redlined versions of the draft regulations and discussing changes made to the draft regulations. The Service claims executive privilege for the portions of the document that contain the last three sentences of the first paragraph of Mr. Wilcox's email and the first sentence of the second paragraph of Mr. Howells' March 20, 2003, email because these portions consist of the authors' opinions and recommendations for the scope and direction of the draft regulations, including draft language. Bates No. CC0113 - An email from Gary Wilcox to Horace Howells, dated April 24, 2003, containing comments regarding most recent draft of §§ 358(h) and 752 regulations. The Service claims executive privilege for the portion of the document that contains Mr. Wilcox's email after the first sentence because it consists of suggested draft language with which Mr. Wilcox had questions, and the author's recommendations for the draft regulations. Bates Nos. CC0114-CC0115An exchange of four emails among Gary Wilcox, Horace Howells, Donna Marie Young, Dianna Miosi, Deborah Harrington, Heather Maloy, William O'Shea, Christine Ellison, William Alexander, Associate Chief Counsel (Corporate), Eric Solomon, and Cary Pugh on April 23, 24 and 25, 2003, containing B John Williams' revisions to the most recent version of the draft regulations. The Service claims executive privilege for the portions of the document that contain Mr. Wilcox's emails and Mr. Howells' April 24 email because they consist of suggested draft language and the authors' opinions, analyses, conclusions and recommendations with respect to these suggestions for the draft regulations. Bates No. CC0117 - An email from Donna Marie Young to Horace Howells, dated May 1,2003, identifying two typographical errors in the most recent

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version of the draft § 752 regulations (the draft language for the paragraphs in which the typographical errors occur are reproduced in the email). The Service claims executive privilege for the entire document because it reflects proposed language for the draft regulations. Bates No. CC0118 - An exchange of three emails among Donna Marie Young, Horace Howells, Heather Maloy, William O'Shea, and Dianna Miosi on May 7, 2003, transmitting redlined versions of the May 7, 2003, version of § 752 draft regulations and explaining changes in this version of the draft language compared to the previous version. The Service claims executive privilege for the portion of the document that contains Ms. Young's 2:58pm email because it consists of the author's (and Treasury attorneys') opinions and recommendations as to the reasons for changes to language of the draft regulations. Bates Nos. CC0119-CC0121 - An exchange of four emails among Rebecca Asta, attorney, Branch 3, Office of Associate Chief Counsel (FIP), Horace Howells, Dianna Miosi, William Blanchard, Senior Technician Reviewer, Branch 3, FIP, Dale Collinson, Donna Marie Young, Christine Ellison, and James Gergurich on May 1 and 16, 2003, transmitting the April 28, 2003, version of the draft regulations and providing comments thereon. The Service claims executive privilege on the portions that contain the third sentence of the first paragraph and all subsequent paragraphs of Ms. Asta's May 16 email and Ms. Asta's May 1 email because they consist of suggested draft language of, and the opinions, analyses, and recommendations of the author and others regarding, the draft regulations. Bates Nos. CC0122-CC0123 -An exchange of four emails among Matthew Lay, Senior Technician Reviewer, Branch 2, PSI, Horace Howells, Dianna Miosi, Deborah Harrington, Victoria Balacek, attorney, Branch 2, FIP, Richard Probst, attorney, Branch 2, PSI, and Donna Marie Young, dated May 5 and 21,2003, transmitting draft language for the § 420 regulations and discussing the interaction between the draft § 420 regulations and the draft § 752 regulations. The discussion of the interaction between the draft language of the two regulations followed an email which circulated a copy of the draft § 460 regulations, which was also sent to Eric Solomon, Helen Hubbard, Jeffrey Paravano, Christine Ellison, William Alexander, Richard Todd, Publications Manager, Corporate, "&FIP REVIEW [various designees within the FIP office]," Steven Musher, Deputy Associate Chief Counsel, International, Allen Goldstein, Publications Manager, International, Sarah Ingram, Associate Chief Counsel/Division Counsel (Tax Exempt & Governmental Entities) ("TEGE"), Nancy Marks, Deputy Associate/Deputy Division Counsel (TEGE), Lewis Fernandez, Deputy Associate Chief Counsel (Income Tax & Accounting) ("ITA"), John Aramburu, Senior Counsel, ITA, David Schneider, Special Counsel, ITA, Deborah Butler, Associate Chief Counsel (PA), Lisa Shuman, Senior Legal Counsel, LMSB, Linda Kroening, Special Counsel, ITA, Kirsten Wielobob, Division Counsel, Wage & Investment ('3/V1"),Larry Langdon, Division

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Commissioner, LMSB, Deborah Nolan, Deputy Commissioner, LMSB, Joseph Kehoe, Division Commissioner, Small Business/Self Employed Division ("SBSE"), Kevin Brown, Division Counsel, SBSE, Dale Hart, Deputy Division Commissioner, SBSE, Evelyn Petschek, Division Commissioner, TEGE, Richard Morgante, Commissioner, WI, Thomas Terry, Special Assistant to Ms. Petschek, Nina Olson, National Taxpayer Advocate, Carol Campbell, Counsel to the National Taxpayer Advocate, Carol Savage, Federal Register Liaison, PA, and Nancy Thomas, Revenue Agent, Examination, SBSE. The Service claims executive privilege for the portions of the document that contain Mr. Lay's emails on May 21 at 1:12pm and 6:03pm, and the first paragraph of Mr. Probst's email on May 5 because these portions consist of the respective authors' opinions, analyses, conclusions and recommendations for the approaches taken in, and tax treatments addressed in, the draft regulations. Bates No. CC0124- Email from Danielle Grimm to Horace Howells, Donna Marie Young, and Dianna Miosi and copied to Jonathan Zelnik and James Fee, Associate Area Counsel, LMSB, dated May 22, 2003, providing preliminary estimates regarding the number of taxpayers who may have participated in transactions identified in Notice 2000-44 for inclusion in the preamble language of the draft regulations. The Service claims executive privilege for the portions of the document that contain the portion of the first sentence following the word "PSI" and the entire third paragraph because they consists of preliminary estimates of the number of individuals engaged in the listed transaction which were not final at the time of the drafting of the email. Bates No. CC0125 - An exchange of emails among Danielle Grimm, Horace Howells, Donna Marie Young, Dianna Miosi, Jonathan Zelnik and James Fee on May 22, 2003, providing preliminary estimates regarding the number of taxpayers who may have participated in transactions identified in Notice 200044 for inclusion in the preamble language of the draft regulations. The Service claims executive privilege for the portion of this document that duplicates Bates No. CC0124 for the same reason as that duplicate document. Bates No. CC0126 - An email from Horace Howells to Heather Maloy, William O'Shea, Donna Marie Young, and Dianna Miosi and copied to Deborah Harrington dated May 23, 2003, transmitting clean and redlined versions of the May 29, 2003, draft regulations and discussing changes made in the draft regulations. The Service claims executive privilege for the portions of the document that contain the parenthetical notations at the end of each paragraph because they identify specific portions of the draft language of the regulations to be changed. Bates No. CC0129 - Email from Horace Howells to Gary Wilcox and copied to Cary Pugh, Matthew Stevens, Heather Maloy, William O'Shea, Dianna Miosi, and Deborah Harrington, dated May 23, 2003, transmitting clean and redlined versions of the May 29, 2003, draft regulations and discussing changes made in

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the draft regulations. The Service claims executive privilege for the portions of the document that contain the parenthetical notations at the end of each paragraph because they identify specific portions of the draft language of the regulations that were changed from prior versions on the basis of comments provided by identified OTP and Counsel commentators. Bates No. CC0130 - An exchange of two emails among Horace Howells, Gary Wilcox, Cary Pugh, Matthew Stevens, Heather Maloy, William O'Shea, Dianna Miosi, and Deborah Harrington on May 29, 2003, and June 2, 2003, transmitting clean and redlined versions of the May 29, 2003, draft regulations and discussing changes made in the draft regulations. The Service claims executive privilege for the portions of the document that contain the phrase between the words "on" and "of_'in the first line and the entire second sentence of the June 2 email because they identify specific changes made to the draft regulations. The Service also claims executive privilege for the portions of the document that contain the parenthetical notations at the end of each paragraph in the May 29 email because they identify specific portions of the draft language of the regulations that were changed from prior versions on the basis of comments provided by identified OTP and Counsel commentators. This latter email is a duplicate of Bates No. CC0129. · Binder 2

Bates Nos. CC0134-CC0144Excerpt from Partnership Treatise by McKee Nelson with handwritten notes and editing by Shannon Cohen, attorney, Branch 1, PSI, on Bates No. CC0134. The Service claims executive privilege for the portions of the document, on Bates No. CC0134, which consist of handwritten comments and editorial notations. These portions reflect the author's analysis of, and reactions to, the particular portion of the excerpt that informed the author as to the scope of, and alternative theory underpinning, the draft regulations then undergoing development. Bates Nos. CC0208-CC0211 -"Attorney Plans to Speak at Public Hearing on Proposed Regs on Allocating Partnership Debt," by Jennifer H. Weiss, 2000 TNT 81-11, with handwritten comments at Bates No. CC0211. The Service claims executive privilege for the portion of the document, on Bates No. CC0211, which consists of a handwritten comment of an unspecified Counsel attorney that reflects the author's analysis of, and reactions to, the particular portion of the excerpt, which informed the author as to the scope of, and alternative theory underpinning, the draft regulations then undergoing development. Bates Nos. CC0333-CC0336"Roth-Moynihan Substitute Trade Bill Features Section 358 Provision," by Sen. William V. Roth, Jr., 2000 TNT 66-11, with handwritten comments at selective points of the excerpt. The Service claims executive privilege for the portion of the document, on Bates Nos. CC0334CC0335, which consists of handwritten comments of an unspecified Counsel

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attorney that reflect the author's analysis of, and reactions to, the particular portion of the excerpt, which informed the author as to the scope of, and alternative theory underpinning, the draft regulations then undergoing development. Bates Nos. CC0374-CC0383 - Undated, unsigned draft of 9 357(d) regulations prepared by Glenn Mincey, attorney, Branch 5, Corporate, with a handwritten diagram by Shannon Cohen of the transaction that traces the application of the regulations. The Service asserts executive privilege for the entire document as it is a draft of the 9 357(d) regulations that had not yet been issued and it reflects the impressions of the annotator as to how the regulations would apply. Bates Nos. CC0387-CC0388 - An exchange of seven emails among Donna Marie Young, Debra Carlisle, William O'Shea, Matthew Lay, Assistant to the Branch Chief, Branch 2, PSI, and Glenn Mincey on September 22 and 26, 2000, and October 2 and 6, 2000, discussing possible applications of the draft 9 357 regulations to partnerships, with handwritten comments by Ms. Young at Bates No. CC0387. The Service claims executive privilege for the portions of the document that contain the handwritten comments, the second, third, and fourth sentences of Ms. Young's October 6, 2000, email, the third and fourth sentences of Ms. Carlisle's 4:03pm October 2, 2000, email, the fourth, fifth, and sixth sentences of Ms. Carlisle's September 26, 2000, email, and the middle paragraph of Ms. Carlisle's September 22, 2000, email because they reflect the respective authors' comments on, and reactions to, how the language of the draft 9 357 regulations would apply to particular fact patterns. Bates Nos. CC0480-CC0485 - Unsigned draft of an Internal Revenue Bulletin (IRB) Notice, dated August 8, 2000, prepared by David Shulman, attorney, Branch 3, PSI, and Victoria Balacek, titled "Tax Avoidance Using Artificially High Basis." The Service asserts executive privilege for the entire document as it is a draft of the IRB Notice that was not yet issued by the Office of Chief Counsel. Bates No. CC0540 - Email from Matthew Lay to Shannon Cohen and copied to Dianna Miosi, dated October 20, 2000, providing the author's opinions about, and reactions to, the application of Peracchi v. Commissioner, 143 F.3d 487 (9th Cir. 1998), to regulations projects under 99 357 and 752. The Service claims executive privilege for the entire document because it reflects Mr. Lay's suggestions regarding the possible inclusion of the Service's reaction to this legal authority in the draft regulations undergoing development. Bates No. CC0543 - Routing Slip from Shannon Cohen to Dianna Miosi, Barbara MacMillan, attorney, Branch 1, PSI, and Horace Howells, dated March 21,2000, regarding assumption of partnership liabilities which references a set of attachments which are not attached. The Service claims executive privilege for the portion of the document that contains the third numbered paragraph because

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it discusses draft language that was removed from the § 752 proposed regulations prior to publication. Bates Nos. CC0544-CC0545, and CC0545A - Handwritten notes from an October 24, 2000, meeting with Dianna Miosi, Barbara MacMillan, Horace Howells, and Shannon Cohen, regarding guidance projects under §§ 357(d), 358(h), and 752, written by Ms. Cohen. The Service asserts executive privilege for the entire document because it reflects the author's memorialization of what the various attendees considered to be issues of interest, and possible examples for inclusion in, the drafting of the Treasury Regulations under § 752 which had not yet been issued. Bates Nos. CC0602-CC0613 - "NYSBA Tax Section Suggests Changes to Legislation on Assumed Liabilities," by New York State Bar Association, 1999 TNT 18-15, with handwritten annotations of an unspecified Counsel attorney. The Service claims executive privilege for the portions of the document, on Bates Nos. CC0602, CC0605-CC0607, and CC0610, because the handwritten comments and editorial changes reflect the author's analysis of, and reactions to, the particular portions of the excerpt, which informed the author as to the scope of, and alternative theory underpinning, the draft regulations then undergoing development. Bates No. CC0630 - Email from James Sowell, attorney, OTP, to Shannon Cohen and copied to Elizabeth Askey, attorney, OTP, dated November 20, 2000, commenting on the approach Ms. Cohen took in the draft regulations under § 752. The Service claims executive privilege for the entire document because it identifies particular aspects of the draft regulations for which he had questions and concerns, and includes suggestions for additional matters that should be addressed in the next version of the draft regulations. Bates Nos. CC0632-CC0635 - Handwritten notes prepared by James Sowell to the attention of Shannon Cohen on August 10, 2000, regarding the § 752 regulations project. The Service claims executive privilege for the entire document because it identifies particular aspects of the draft regulations for which he had questions and concerns, and includes suggestions for additional matters that should be addressed in the next version of the draft regulations. Bates Nos. CC0636-CC0643 - Draft legislation amending §§ 357,358, and 368, with handwritten annotations by Deborah Harrington. The Service claims executive privilege for the portions of the document, on Bates Nos. CC0640CC0641, because the handwritten comments and editorial notations reflect the author's analysis of, and reactions to, the particular portion of the excerpt, which informed the author as to the scope of, and alternative theory underpinning, the draft regulations then undergoing development.

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·

Binder 3

Bates Nos. CC0644-CC0672 - Unsigned, draft memorandum, dated December 2, 2002, prepared by James Gergurich, for the signature of Heather Maloy to B John Williams, concerning the Son of Boss Transaction, with handwritten annotations by Horace Howells on the first page. Although written in memorandum format, this document is an early draft of the Chief Counsel Notice "Son of BOSS Loan Premium." The Service claims executive privilege for the entire document as it is a draft of the Chief Counsel Notice that was not yet issued by the Office of Chief Counsel. Bates Nos. CC0714-CC0719 - Unsigned draft of the preamble portion of the NPRM, with cross referenced temporary regulations under § 752, prepared by Horace Howells, dated March 11,2002, with handwritten annotations throughout by Dianna Miosi. The Service claims executive privilege for the entire document as it is a draft of regulations not yet issued. Bates No. CC0720 - Undated handwritten outline prepared by Dianna Miosi for Horace Howells regarding the structure for how the § 752 regulations should be drafted. The Service claims executive privilege for the entire document because it consists of the author's opinions and recommendations for the matters to be addressed, and their sequence, in the draft of regulations not yet issued. Bates Nos. CC0721-CC0725 - Unsigned draft of the NPRM under § 752, prepared by Horace Howells, dated March 25, 2002, with handwritten annotations throughout by Dianna Miosi. The Service claims executive privilege for the entire document as it is a draft of regulations not yet issued. Bates Nos. CC0726-CC0738 - Unsigned draft of temporary regulations under § 752, prepared by Horace Howells, dated March 25, 2002, with handwritten annotations throughout by Dianna Miosi. The Service claims executive privilege for the entire document as it is a draft of regulations not yet issued. Bates Nos. CC0759-CC0822 -"Reflections on Liabilities: Extension of New Law to Partnership Formations," by Monte Jackel and Jerred Blanchard, Jr., 91 Tax Notes 1579, with handwritten notes, underscoring and editorial comments by Horace Howells throughout. The Service claims executive privilege for the portions of the document that contain the handwritten notes at the top of Bates No. CC0759, Bates No. CC0773, Bates No. CC0786, and Bates Nos. CC0763CC0769, CC0785, CC0787, CC0789-CC0795, CC0800, CC0803, and CC0818CC0819, because these handwritten comments and editorial changes reflect the author's analysis of, and reactions to, the particular portion of the excerpt, which informed the author as to the scope of, and alternative theory underpinning, the draft regulations then undergoing development.

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Bates Nos. CC0823-CC0828 - The last six pages of an unsigned draft of the proposed regulations under § 752 (first four pages at Bates No. CC0866), prepared by Horace Howells dated October 30, 2001. The Service claims executive privilege for the entire document as it is a draft of regulations not yet issued. Bates Nos. CC0858-CC0865 -'_#Vhat is a Liability?" by Lee Sheppard, 2000 TNT 243-4, with handwritten underling by Horace Howells throughout. The Service claims executive privilege for the portions of the document at Bates Nos. CC0859-CC0862 and CC0864, because the underscoring and other handwritten notations reflect the author's analysis of, and reactions to, the particular portion of the excerpt, which informed the author as to the scope of, and alternative theory underpinning, the draft regulations then undergoing development. Bates Nos. CC0866-CC0869 - The first four pages of an unsigned draft of proposed regulations under § 752 (last six pages at Bates No. CC0823), prepared by Horace Howells, dated October 30, 2001. The Service claims executive privilege for the entire document as it is a draft of regulations not yet issued. Bates Nos. CC0938-CC0964 - "Fixing the Assumption of Liability Rules," by Jerred Blanchard and Kenneth Hooker, 1999 TNT 219-109, with handwritten notes by Horace Howells at Bates No. CC0938. The Service claims executive privilege for the portion of the document that contains the handwritten notation on Bates No. CC0938 because the handwritten notation reflects the author's analysis of, and reactions to, the particular portion of the excerpt, which informed the author as to the scope of, and alternative theory underpinning, the draft regulations then undergoing development. Bates No. CC0995 - An exchange of two emails between Robert Casey and Horace Howells on January 17 and 18, 2002, posing a question with a response to a contingent liability example to be clarified for development of the draft § 752 regulations. The Service claims executive privilege for the entire document because it reflects the authors' respective opinions and analyses regarding an approach being developed for possible inclusion in the draft regulations, which had not yet been issued. Bates No. CC0996 - Undated typewritten notes prepared by Glenn Mincey from an internal meeting concerning the treatment of contingent liability in another regulations project, which informed PSI attorneys as they were developing the § 357 regulations, including opinions regarding contingent liabilities and addressing such as part of the business plan. The Service claims executive privilege for the entire document because it consists of the author's opinions and recommendations for the draft § 357 regulations not yet issued.

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Bates Nos. CC1025-CC1034Unsigned, undated draft of a NPRM under § 357 and notice of public hearing, prepared by Glenn Mincey. The Service claims executive privilege for the entire document as it is a draft of regulations not yet issued. Bates Nos. CC1037-CC1040 - Unsigned draft of the text of regulations under §§ 301 and 357, dated September 28, 2001, prepared by Glenn Mincey with additional handwritten notes by Mr. Mincey at Bates Nos. CC1037-CC1038. The Service claims executive privilege for the entire document as it is a draft of regulations not yet issued. Bates Nos. CC1041-CC1043 -This is a duplicate of the email correspondence under Bates Nos. CC0064-CC0066, and the Service's assertion of executive privilege, and the reason therefor, is the same as stated for that duplicate document. Bates Nos. CC1044-CC1045 -This is a duplicate of the email correspondence under Bates Nos. CC0104-CC0105, and the Service's assertion of executive privilege, and the reason therefor, is the same as stated for that duplicate document. Bates No. CC1048- Typewritten notes prepared by Horace Howells from a meeting attended by Gary Wilcox, Cary Pugh, Matthew Stevens, Heather Maloy, William O'Shea, Donna Marie Young, Dianna Miosi, Danielle Grimm, and Mr. Howells, memorializing the participants' respective views on several options for approaches to be taken in, and language for, the draft regulations. The Service claims executive privilege for the entire document because it consists of the opinions and recommendations of the author and others for the draft § 752 regulations not yet issued. Bates No. CC1049- An email from Horace Howells to Deborah Harrington, Heather Maloy, William O'Shea, Donna Marie Young, and Dianna Miosi, dated November 6, 2002, recapping a meeting with Gary Wilcox and Matthew Stevens that was held on November 5, 2002. The Service claims executive privilege for the entire document because it relates Mr. Wilcox's concerns with, and suggested changes to, the language of the draft regulations concerning an approach for treatment of contingent liabilities and basis to use for the draft regulations. Bates No. CC1052 - Case history sheet for REG-106736-00, Assumption of Partnership Liabilities. The Service claims executive privilege for the portion of the document that contains the entries for "11/9/02," "11/18," "3/15," and "5/15" because they reflect various changes in the content of the draft regulations at a time when they were under development.

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Bates Nos. CC1053-CC1055Unsigned "Conference Report" memorandum prepared by Horace Howells for Dianna Miosi's signature, dated December 18, 2002, memorializing a meeting on December 17, 2002, with Eric Solomon, Deborah Harrington, Greg Jenner, Deputy Assistant Secretary (Tax Policy), OTP, Jeffery Paravano, Helen Hubbard, Stephanie Robinson, B John Williams, Gary Wilcox, Cary Pugh, Matthew Stevens, Heather Maloy, William O'Shea, Donna Marie Young, Dianna Miosi, Horace Howells, James Gergurich, and Jonathan Zelnik, discussing the treatment of certain contingent liabilities under the draft § 752 regulations. The Service claims executive privilege for the entire document because it reflects Mr. Howells' memorialization of the attendees' discussions of several areas of concern in the scope of, and treatment of transactions under, the draft regulations and outlines ways to address such concerns. Bates Nos. CC1056-CC1057 -This is a duplicate of the email correspondence under Bates Nos. CC0048-CC0049, and the Service's assertion of executive privilege, and the reason therefor, is the same as stated for that duplicate document. Bates Nos. CC1058-CC1060Unsigned Conference Report memorandum prepared by Horace Howells for Dianna Miosi's signature, dated May 15, 2003, memorializing a meeting on May 15, 2003, with Pam Olson, Assistant Secretary (Tax Policy), OTP. Eric Solomon, Deborah Harrington, Rick Carro, attorney, General Counsel, Treasury, B John Williams, Gary Wilcox, Cary Pugh, Emily Parker, David O'Connor, Nicholas DeNovio, Jonathan Zelnik, Heather Maloy, William O'Shea, Donna Marie Young, Dianna Miosi, Horace Howells, Henry Schneiderman, and Kathryn Zuba, Special Counsel to the Associate Chief Counsel (Procedure and Administration), discussing the interaction of authorities for the draft § 752 regulations. The Service claims executive privilege for the entire document because it consists of Mr. Howells' memorialization of the respective opinions, analyses, and recommendations of the author and other participants regarding the scope of the draft regulations. Bates Nos. CC1061-CC1062 -This is a duplicate of the email correspondence under Bates Nos. CC0114-CC0115, and the Service's assertion of executive privilege, and the reason therefor, is the same as stated for that duplicate document. Bates Nos. CC1063-CC1066This is a duplicate of the email correspondence under Bates Nos. CC0036-CC0039, and the Service's assertion of executive privilege, and the reason therefor, is the same as stated for that duplicate document. Bates Nos. CC1067-CC1068 - An exchange of two emails among Deborah Harrington, Donna Marie Young, Horace Howells, William O'Shea, Heather Maloy, and Dianna Miosi on April 17, 2003, suggesting changes to the language

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in the draft regulations. The two emails in this document are included in Bates Nos. CC0036-CC0039. The Service asserts executive privilege for the same portions for the same reason asserted for that duplicate document. Bates Nos. CC1069-CC1074Meeting Confirmation Form with attached charts setting forth the alternative treatments under three approaches, prepared by Horace Howells and distributed to Gary Wilcox, Cary Pugh, Matthew Stevens, Heather Maloy, William O'Shea, Donna Marie Young, and Dianna Miosi, for a meeting scheduled for March 25, 2003, to discuss the approach that should be taken on a particular issue arising in the draft § 752 regulations. The Service claims executive privilege for the entire document because it consists of the author's opinions, analyses, and recommendations for what approach should be included in the draft NPRM not yet issued. Bates Nos. CC1075-CC1077 -This is a duplicate of Bates Nos. CC1053CC1055, with the addition of Horace Howells' signature. The Service's assertion of executive privilege, and the reason therefor, is the same as stated for that duplicate document. Bates Nos. CC1078-CC1083 - Meeting Confirmation Form and attached briefing memorandum prepared by Horace Howells for the signature of Heather Maloy, and distributed to B John Williams, Gary Wilcox, Emily Parker, Heather Maloy, Cary Pugh, Matthew Stevens, William O'Shea, Donna Marie Young, and Dianna Miosi for a meeting on December 17, 2002, to discuss the treatment of certain contingent liabilities under the draft § 752 regulations. The Service claims executive privilege for the entire document because it consists of the author's opinions, analyses, and recommendations regarding treatment of certain contingent liabilities under the draft regulations not yet issued. The document raised two issues and offers recommended answers, for the attendees' consideration at the December 17thmeeting. Bates Nos. CC1084-CC1087 - Undated PowerPoint slides prepared by Horace Howells that present the application of the draft proposed regulations under § 752 to a set of hypothetical facts. The Service claims executive privilege for the entire document because it consists of the author's analyses and conclusions, reflected in the slides, regarding the application of suggested draft language for the NPRM. Bates No. CC1088 - First page of an exchange of two emails among Deborah Harrington, Horace Howells, Dianna Miosi, Donna Marie Young, William O'Shea, and Heather Maloy, on December 16 and 17, 2002, discussing revisions to language from the December 16, 2002, version of the draft regulations, with handwritten annotations by Mr. Howells. Except for the handwritten annotation, this is a duplicate of Bates No. CC0014 and the Service's assertion of executive privilege for portions of this document is the same as the reason for that duplicate document. The Service also claims executive privilege for Mr. Howell's

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handwritten comment because it reflects the author's opinions and reactions to Ms. Young's comments on the suggested language for the draft regulations. Bates Nos. CC1089-CC1090This is a duplicate of the email correspondence under Bates Nos. CC0104-CC0105, and the Service's assertion of executive privilege, and the reason therefor, is the same as stated for that duplicate document. Bates Nos. CC1091-CC1092 -An email from Deborah Harrington to Horace Howells, Dianna Miosi, Donna Marie Young, William O'Shea, and Heather Maloy, dated September 27, 2002, containing an explanation of substantive changes that Ms. Harrington suggests be made to the August 9, 2002, version of the draft regulations, with handwritten notations by Mr. Howells. The Service claims executive privilege for the entire document because it consists of suggested draft language and the respective authors' opinions and recommendations concerning the draft language of the regulations not yet issued. Bates Nos. CC1093-CC1094- An exchange of three emails among Deborah Harrington, Sharon Kay, attorney, OTP, Audrey Nacamuli, William O'Shea, Dianna Miosi, Donna Marie Young, and Heather Maloy, on September 12, 2002, and October 1,2002, discussing the definition of liability that should be included in the draft § 752 regulations. The Service claims executive privilege for the entire document because it reflects the views of the respective authors, as well as others, regarding the language for the draft regulations not yet issued. Bates Nos. CC1095-CC1096This is a duplicate of the email correspondence under Bates Nos. CC0008-CC0009, and the Service's assertion of executive privilege, and the reason therefor, is the same as stated for that duplicate document. Bates Nos. CC1097-CC1098 -This is a duplicate of the email correspondence under Bates Nos. CC0093-CC0094, and the Service's assertion of executive privilege, and the reason therefor, is the same as stated for that duplicate document. Bates Nos. CC1099-CC1101 -This is a duplicate of the email correspondence under Bates Nos. CC0086-CC0087, and the Service's assertion of executive privilege for portions of this document, and the reason therefor, is the same as stated for that document. Bates Nos. CCl102-CC1103 - Handwritten notes prepared by Horace Howells on May 28, 2002, memorializing a meeting with other PSI attorneys regarding revisions they recommended be made for the § 752 draft regulations. The Service claims executive privilege for the entire document because it consists of suggested draft language and the analysis and recommendations of the author and others for the § 752 draft regulations not yet issued.

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Bates No. CC1104 - Handwritten notes prepared by Horace Howells on May 8, 2002, titled "752", that appear to be a checklist of changes to be made to, and issues to be discussed with, Deborah Harrington about the current version of the § 752 draft regulations. The Service claims executive privilege for the entire document because it consists of the author's analysis and recommendations for the § 752 draft regulations not yet issued. Bates Nos. CCl105-CCl106Typewritten outline prepared by Horace Howells on January 16, 2002, with handwritten notes by Horace Howells, providing proposal for implementing a change consistent with § 358(h) in the draft § 752 regulations under development. The Service claims executive privilege for the entire document because it consists of the author's recommendations for the draft regulations not yet issued. Bates Nos. CCl107-CCl108Undated handwritten notes prepared by Horace Howells listing items to do with regard to the §§ 358/752 regulations project. The Service claims executive privilege for the entire document because it consists of the author's recommendations for changes to be made to, and issues to be discussed with Deborah Harrington about, the current version of the draft regulations not yet issued. Bates No. CCl109 -An email from Deborah Harrington to Horace Howells and copied to Dianna Miosi, Stephanie Robinson, Jeffrey Paravano, Eric Solomon, Audrey Nacamuli, and Donna Marie Young, dated February 26, 2002, suggesting changes to the tentative approach of the draft regulations, with Mr. Howells' handwritten notes. The Service claims executive privilege for the entire document because it consists of suggestions and comments for further revisions of the draft regulations, in light of certain concerns raised by OTP attorneys. Bates No. CCll 10 -This is a duplicate of the email correspondence under Bates No. CC0083, and the Service's assertion of executive privilege, and the reason therefor, is the same as stated for that duplicate document. Bates No. CC1111 - An email from Dianna Miosi to Horace Howells and copied to Dianna Miosi, dated March 7, 2002, providing additional comments on the draft regulations language. The Service claims executive privilege for the entire document because it consists of the author's recommendations for the draft regulations not yet issued. Bates Nos. CCll 12-CC1113 - Undated typewritten outline prepared by Horace Howells comparing two alternative approaches for regulations under §§ 358/752. The Service claims executive privilege for the entire document because it consists of the author's opinions and analyses for two approaches which could be implemented in the § 752 draft regulations, which had not yet been issued.

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Bates No. CC1114- Undated page of typewritten notes, probably from Horace Howells to himself, regarding issues remaining to be researched and resolved for the § 752 draft regulations. The Service claims executive privilege for the entire document because it reflects the author's thoughts about certain aspects of the draft regulations that needed to be researched, addressed, and resolved before the draft regulations could be finalized. Bates No. CC1115 - Undated typewritten outline of three possible examples for use in § 358(h) regulations, probably prepared by Horace Howells to himself. The Service claims executive privilege for the entire document because it consists of suggested draft language for the examples section of the draft regulations not yet issued. Bates Nos. CClll 6-CCl117 - Undated typewritten outline highlighting alternative approaches for regulations under §§ 358/752, probably prepared by Horace Howells to himself. The Service claims executive privilege for the entire document because it consists of the author's opinions and analyses concerning certain aspects of the draft regulations that need to be considered and resolved before the draft regulations could be finalized. Bates No. CC1118 - Handwritten outline of items to address in the §§ 358/752 regulations, prepared by Horace Howells on January 16, 2002. The Service claims executive privilege for the entire document because it consists of the author's opinions, analyses and recommendations for issues that needed to be addressed before the § 752 draft regulations could be finalized. Bates No. CC1119 - Handwritten outline of items to address in the §§ 358/752 regulations, prepared by Horace Howells on January 16, 2002. The Service claims executive privilege for the entire document because it consists of the author's opinions, analyses and recommendations for issues that needed to be addressed before the § 752 draft regulations could be finalized. Bates No. CC1120 - Handwritten notes from a meeting with Paul Kugler listing items to address in the §§ 358/752 regulations, and discussing Treasury's and Monte Jackers respective current models for the draft regulations, prepared by Horace Howells on February 11,2002. The Service claims executive privilege for the entire document because it consists of the opinions, analyses and recommendations of the author and others concerning the treatment of several particular issues for the § 752 draft regulations not yet issued. Bates No. CCl121 - Undated handwritten "to do" list for revising the § 752 draft regulations, prepared by Horace Howells. The Service claims executive privilege for the entire document because it raises questions, and reflects the author's thoughts, about several aspects of the draft regulations that needed resolution before they could be finalized.

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Bates No. COl 122 - Handwritten notes listing items to address in the next draft of the §§ 358/752 regulations, prepared by Horace Howells on January 30, 2002. The Service claims executive privilege for the entire document because it consists of the opinions and analyses of the author and others regarding several aspects of the draft regulations that needed resolution before they could be finalized. Bates No. CC1123 - Undated handwritten notes regarding an issue arising under § 752 draft regulations, prepared by Shannon Cohen with a brief handwritten notation by Horace Howells. The Service claims executive privilege for the entire document because it raises a question about, and reflects the author's thoughts on, an aspect of the draft regulations that needed resolution before they could be finalized. Bates No. CC1124 - Undated handwritten notes regarding issues under § 357 prepared by Horace Howells for his use in drafting the § 752 regulations. The Service claims executive privilege for the entire document because it consists of the author's opinions and analyses for development of several aspects of the § 752 draft regulations not yet issued. Bates No. CCl125Undated handwritten notes prepared by Horace Howells providing a basic outline for him to use as he began drafting the §§ 358/752 regulations. The Service claims executive privilege for the entire document because it consists of the author's opinions, analyses, and recommendations regarding development of several aspects of the § 752 draft regulations not yet issued. Bates Nos. CC1126-CCl131 - Undated typewritten notes to file regarding issues under §§ 357, 358(h), 752, probably prepared by Horace Howells for his use in drafting the regulations. The Service claims executive privilege for the entire document because it consists of the author's opinions, analyses, and recommendations regarding development of several aspects of the § 752 draft regulations, including some examples, not yet issued. Bates Nos. CC1132-CC1133 - This is a duplicate of the email correspondence under Bates Nos. CC0067-CC0068, and the Service's assertion of executive privilege, and the reason therefor, is the same as stated for that duplicate document. Bates Nos. CCl134-CCl136This is a duplicate of the email correspondence under Bates Nos. CC0064-CC0066, and the Service's assertion of executive privilege, and the reason therefor, is the same as stated for that duplicate document. Bates Nos. CC1137-CC1138 -This is a duplicate of the email correspondence under Bates Nos. CC0067-CC0068 (with handwritten editing and underscoring of

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certain points of the unknown author's reaction to Ms. Harrington's email), and the Service's assertion of executive privilege, and the reason therefor, is the same as stated for that duplicate document. Bates Nos. CCl139-CCl141 -This is a duplicate of the email correspondence under Bates Nos. CC0064-CC0066, and the Service's assertion of executive privilege, and the reason therefor, is the same as stated for that duplicate document. Bates Nos. CC1142-CC1147 -This is a duplicate of the document under Bates Nos. CC1126-CC1131, and the Service's assertion of executive privilege, and the reason therefor, is the same as stated for that duplicate document. Bates No. CCl148Undated, handwritten language for draft regulations under § 752, prepared by Horace Howells. The Service claims executive privilege for the entire document as it is contains suggested draft language for regulations not yet issued. Bates No. CCl149 - Undated handwritten notes regarding draft regulations under § 752 prepared by Horace Howells in preparation for drafting the § 752 regulations. The Service claims executive privilege for the entire document because it consists of suggested draft language and the author's opinions and analyses for development of draft language for the § 752 regulations not yet issued. Bates No. CC1149A- Undated handwritten notes regarding issues under the §§ 1.355-3 and 1.707-5 regulations, prepared by Horace Howells for his use in drafting the § 752 regulations. The Service claims executive privilege for the entire document because it consists of the author's opinions and analyses for the § 752 draft regulations not yet issued. Bates No. CC1149B - Handwritten notes prepared by Horace Howells, memorializing a meeting with PSI and OTP attorneys on August 13, 2001, outlining the approach for the §§ 358/752 and 357 regulations projects. The Service claims executive privilege for the entire document because it raises issues that need to be addressed, and reflects the opinions and