Tax Disclosure Boilerplate and the Confidentiality Conundrum

Tax practitioners have liberally applied tax sunshine language to a variety of contracts to avail their clients of the safe harbor provided by the registration, reporting, and list-keeping regulations. According to Spencer, tax sunshine language may pose significant dangers to the confidentiality of information, such as specific pricing information or the existence of negotiations between named parties, that clients intended to remain confidential.

The regulations unfortunately do not endorse an explicit carveout of this type of information from tax sunshine language, although arguments may be made that such a carveout has no substantive effect on the existence of conditions of confidentiality. Spencer suggests that Treasury and the IRS could focus the regulations without reducing their effectiveness by allowing such a carveout and by making other modifications.