                  FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,               
                 Plaintiff-Appellant,         No. 06-55915
                 v.
                                               D.C. No.
                                            CV-05-08796-DDP
WEALTH AND TAX ADVISORY
SERVICES, INC.,                                OPINION
                Defendant-Appellee.
                                        
        Appeal from the United States District Court
           for the Central District of California
        Dean D. Pregerson, District Judge, Presiding

                   Argued and Submitted
            April 8, 2008—Pasadena, California

                     Filed May 15, 2008

   Before: Cynthia Holcomb Hall, Thomas G. Nelson, and
            Barry G. Silverman, Circuit Judges.

                     Per Curiam Opinion




                             5683
       UNITED STATES v. WEALTH AND TAX ADVISORY SVCS      5685
                         COUNSEL

Eileen J. O’Connor, Robert W. Metzler, and Gretchen M.
Wolfinger, United States Department of Justice, Washington,
D.C., for the plaintiff-appellant.

David Jacobs and Deanna L. Ballesteros, Epstein Becker &
Green, Los Angeles, California, for the defendant-appellee.


                         OPINION

PER CURIAM:

   We hold today that a 29-page “draft opinion letter” sent by
the taxpayers’ accountants to the taxpayers’ tax lawyers, con-
taining extensive legal authority and analysis of a complicated
tax transaction, constitutes a “memorandum.” Therefore, even
though the letter was characterized as a “draft,” it was never-
theless subject to disclosure pursuant to the taxpayers’ agree-
ment to provide to the IRS “[a]ll opinions and memoranda
that provide a legal analysis” of the transaction in question.

   The United States appeals from the district court’s order
denying the government’s petition to enforce a summons
issued by the Internal Revenue Service. We have jurisdiction
pursuant to 28 U.S.C. § 1291, and we reverse.

   In December 2001, the Internal Revenue Service released
Announcement 2002-2, announcing a “disclosure initiative”
that invited taxpayers “to disclose their tax treatment of cer-
tain tax shelters.” 2002-1 C.B. 304. For any item voluntarily
disclosed under this initiative, the IRS agreed to waive the
accuracy-related penalty that would otherwise be triggered by
the underpayment of taxes. Id. The Announcement specified
that in order to benefit from the initiative, a taxpayer would
need to submit, among other things:
5686    UNITED STATES v. WEALTH AND TAX ADVISORY SVCS
      a statement agreeing to provide, if requested, copies
      of all of the following: (a) All transactional docu-
      ments, including agreements, contracts, instruments,
      schedules, and, if the taxpayer’s participation in the
      transaction was promoted, solicited or recommended
      by any other party, all material received from that
      other party or that party’s advisor(s); (b) All internal
      documents or memoranda used by the taxpayer in its
      decision-making process, including, if applicable,
      information presented to the taxpayer’s board of
      directors; and (c) All opinions and memoranda that
      provide a legal analysis of the item, whether pre-
      pared by the taxpayer or a tax professional on behalf
      of the taxpayer.

Id. (emphasis added).

   In response, Henry and Susan Samueli submitted a volun-
tary disclosure statement that included, among the other
required sections, their agreement to provide “[a]ll opinions
and memoranda that provide a legal analysis of the item,
whether prepared by the taxpayer or a tax professional on
behalf of the taxpayer.” The disclosure statement also stated
that “[d]isclosure of the above information is not intended to
constitute a subject matter waiver of the attorney-client privi-
lege or the work product doctrine with respect to other docu-
ments addressing the same, or any other, subject matter.”

   The IRS initiated an audit of the Samuelis, and in March
2004, the IRS issued a summons to Wealth and Tax Advisory
Services, the successor to Arthur Andersen and the Samuelis’
tax advisors, seeking copies of documents associated with a
particular deduction claimed by Dr. and Mrs. Samueli on their
2001 tax return.1 Wealth and Tax Advisory Services produced
all responsive, non-privileged documents, and provided a
  1
    The item in question concerned a leveraged bond transaction entered
into by a trust created by the Samuelis.
        UNITED STATES v. WEALTH AND TAX ADVISORY SVCS                 5687
privilege log in which it identified four documents that it was
withholding on the grounds of attorney-client privilege, work
product, and the tax practitioner-client privilege set forth in 26
U.S.C. § 7525(a).2 The government filed a petition to enforce
the summons in district court, asserting that even if the docu-
ments were privileged on any of the claimed grounds (which
the government disputed), the Samuelis had waived privilege
by submitting their voluntary disclosure statement in April
2002.

   After reviewing the documents in camera, the district court
ruled that three of the four documents3 were privileged and
did not fall into any of the three categories of documents for
which privilege was waived: they were not “transactional doc-
uments” or “internal documents used by the taxpayer,” nor
did they contain any legal analysis of the investment. The
government does not challenge these rulings on appeal.

   The fourth document is described as a “draft opinion let-
ter,” and was written by an Arthur Andersen accountant. The
draft was sent to McDermott Will & Emery, a law firm repre-
senting the Samuelis. After McDermott Will & Emery tax
lawyers reviewed the draft and communicated with the Arthur
Andersen accountants about it, the draft never ripened into a
final opinion letter. It is undisputed that Arthur Andersen
  2
   26 U.S.C. § 7525(a) provides that:
     [w]ith respect to tax advice, the same common law protections of
     confidentiality which apply to a communication between a tax-
     payer and an attorney shall also apply to a communication
     between a taxpayer and any federally authorized tax practitioner
     to the extent the communication would be considered a privi-
     leged communication if it were between a taxpayer and an attor-
     ney.
  3
    These three documents are described in the privilege log as follows: (1)
an internal Arthur Andersen memo written for the file; (2) an email from
Keegan Stroup, an Arthur Andersen employee, to other Arthur Andersen
employees; and (3) communications between Arthur Andersen and
McDermott Will & Emery LLP, the law firm representing the Samuelis.
5688   UNITED STATES v. WEALTH AND TAX ADVISORY SVCS
never issued a finalized tax opinion letter and that the Sam-
uelis never received one. The district court ruled that although
subsection (c) of the disclosure statement does cover “opin-
ions” that provide a legal analysis, “because the document is
a draft, it does not rise to the level of a tax opinion letter.”

  Now on appeal, the government contends that the draft,
even though it is characterized as a draft, is nonetheless a
“memorandum that provides legal analysis,” and therefore
within a category of documents the Samuelis agreed to pro-
vide. We agree.

   [1] Announcement 2002-2 required taxpayers to turn over
“[a]ll opinions and memoranda that provide a legal analysis
of the item, whether prepared by the taxpayer or a tax profes-
sional on behalf of the taxpayer.” There is no debate that the
draft opinion provides a “legal analysis of the item,” and that
it was “prepared by . . . a tax professional on behalf of the tax-
payer.” Thus, the only issue is whether the document is a
memorandum.

   [2] Both lay and legal dictionaries define memorandum as
an informal record designating something to be remembered.
See WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 1408-
09 (3d ed. 2002) (“an informal record of something that one
wishes to remember or preserve for future use.”); BLACK’S
LAW DICTIONARY 984 (6th ed. 1990) (“[a]n informal record,
note or instrument embodying something that the parties
desire to fix in memory by the aid of written evidence” and
an “[i]nformal office communication”). We see no reason
why this definition should not govern here. Courts often turn
to dictionaries to determine the plain, unambiguous, and com-
mon meaning of terms. See, e.g., Atari Corp. v. Ernst &
Whinney, 981 F.2d 1025, 1031-32 (9th Cir. 1992) (relying on
Black’s Law Dictionary to find the “plain, unambiguous
meaning of [the term] ‘indemnify’ ”); Avery Dennison Corp.
v. Allendale Mut. Ins. Co., 310 F.3d 1114, 1116 (9th Cir.
2002) (“The plain meaning associated with ‘tangible prop-
        UNITED STATES v. WEALTH AND TAX ADVISORY SVCS               5689
erty’ is [the dictionary definition.]”); see also Rousey v.
Jacoway , 544 U.S. 320, 326 (2005) (common understanding
of terms determined by dictionary definition). In addition, the
Webster’s and Black’s definitions of memorandum comport
with the meanings that other courts have ascribed to the term.
See Taylor v. Worrell Enterprises, Inc., 409 S.E. 2d 136, 143
(Va. 1991) (Hassell, J., dissenting) (relying on Black’s Law
Dictionary to define memorandum as an “informal record,
note or instrument . . . .”); Reusswig v. Erie Ins., 49 Pa. D. &
C. 4th 338, 347 (Pa. D. & C. 2000) (same), Miller v. John
Hancock Mut. Life Ins. Co., 155 S. W. 2d 324, 327 (Mo. Ct.
App. 1941) (“ ‘memoranda’ . . . is an informal record of
something which it is desired to remember”); Patterson v.
Beard, 288 N.W. 414, 416 (Ia. 1939) (“A ‘memorandum,’ in
common parlance, is an informal record, often of something
one desires to remember or to preserve for future use.”).

   [3] The term “memoranda” includes informal documents
by its very definition. Moreover, the disclosure initiative
requires taxpayers to turn over “all opinions or memoranda,”
and the use of the term “all” is inclusive of any type of opin-
ion or memorandum, regardless of whether in draft or final
form. Indeed, while the IRS could have inserted the term
“draft” into the announcement, it is more telling that the IRS
did not insert the term “final” into the announcement, but
rather included “all” such documents. See Atari, 981 F.2d at
1032 (“Atari could have limited its obligation to compensate
Federated officers to actions brought by third parties, but it
did not. Instead, it agreed to indemnify the officers against
‘all acts and omissions’ to the extent permitted by law.”)
(emphasis added).

   [4] Accordingly, “memoranda” in the disclosure agreement
refers to informal records designating something to be remem-
bered.4 This definition clearly encompasses the Arthur Ander-
  4
   Interpreting memoranda to include informal documents does not mean
that the disclosure initiative would cover every document remotely related
5690     UNITED STATES v. WEALTH AND TAX ADVISORY SVCS
sen opinion letter, which, though it was never formally
finalized, spanned twenty-nine pages and included extensive
legal analysis of the leveraged bond transaction the Samuelis
entered into through their trust. Thus, the district court should
have enforced the government’s summons and required the
Samuelis to turn over the draft opinion letter. The court’s
order to the contrary is REVERSED, and the case
REMANDED for further proceedings consistent with this
opinion.




to the tax shelter transaction at issue. To the contrary, the very language
of Announcement 2002-2 limits the relevant documents to “[a]ll opinions
and memoranda that provide a legal analysis of the item.” Thus, the gov-
ernment’s reach only includes documents that contain a legal analysis of
the transaction. In this case, there is no dispute that the opinion letter pro-
vides a legal analysis.
