concurring: I agree with the result which the majority reaches but deem it advisable to append certain observations along two principal lines.
First, I think it should clearly be understood that the majority opinion in no way impinges on the validity of respondent’s deficiency notice as such. Section 6212 provides for the issuance of a notice of deficiency where the Commissioner determines that there is a deficiency in respect of certain taxes. Nowhere in the Code is there a provision which specifies the nature and quality of the evidence which the tax administrator must gather to support his determination. The absence of statutory guidelines suggests that Congress intended that the Internal Revenue Service should have great latitude in making determinations of liability.
Cases such as Helvering v. Taylor, 293 U.S. 507 (1935), and its progeny, which encompass a holding that a determination is “arbitrary,” “capricious,” “excessive,” or “invalid” are beside the point. A deficiency notice, supported by factually reliable, albeit illegally obtained, evidence is not properly subject to any of these characterizations. The troublesome aspects of illegally obtained evidence relate not to its lack of probative value but to the way it was acquired. Thus, the relevant inquiry, in a situation such as is involved herein, is directed to the limitations which should be imposed upon the respondent at the trial (including, but not limited to, the question of what evidence he may introduce) ag.d not to an evaluation of his determination in light of the evidence upon which it is based.1
This brings me to the second point. Illegal action in the context of a criminal investigation may enable the authorities to determine that someone has committed a crime. But, the prosecution has and must carry its burden of proof without the use of the fruits-of-law violations by public officials in order to obtain a conviction. Thus, as the majority opinion points out, in the realm of the criminal law where the exclusionary rule was born, the mere suppression of tainted evidence has been deemed an adequate and effective disincentive.
In a civil tax case, however, the knowledge that illegally obtained evidence will be inadmissible at trial may not'be a sufficient disincentive due to the fact that the taxpayer, not the Commissioner, has the burden of proof. A large number of tax cases are decided almost exclusively on the basis of the taxpayer’s failure to carry his burden. The majority opinion recognizes that fashioning an appropriate disincentive for law violations in the preparation of a civil tax case thus presents a much more difficult problem. The majority’s solution is to impose the further sanctions of destroying the presumption of correctness of the respondent’s determination and shifting the burden of going forward to him. However, it still leaves the burden of proof upon the petitioner.
Clearly the majority action is in the right direction. But I am not satisfied that such judicial sanctions will always fully implement the policy of deterrence and the need to protect the integrity of the judicial process which the courts have articulated as the foundation for the exclusionary rule. For example, there can be a situation where the respondent makes extensive use of illegally obtained evidence to develop a net worth statement and to make a determination based upon such statement. In Holland, v. United States, 348 U.S. 121 (1954), the Supreme Court clearly indicated its chary regard for such statements. Thus, it stated (348 U.S. at 125) that “careful study indicates that it [a net worth statement] is so fraught with danger for the innocent that the courts must closely scrutinize its use.” And it pointed out that “bare figures have a way of acquiring an existence of their own, independent of the evidence which gave rise to them.” See 348 U.S. at 128. To be sure, these comments were made in the context of a case involving a criminal jury trial where caution is the accepted order of the day, but I am convinced that similar caution is demanded where courts are confronted with evidence that a taxpayer’s rights have been transgressed through law violations by public officials and where there are indications that such violations may well have provided the underpinning for the net worth statement and the resulting deficiency.
1 believe that, in some instances, it may be necessary to go further than the majority, e.g., where there is a complicated or reconstructed factual situation such as a net worth case, or where there are substantial difficulties in determining what evidence is “tainted” and what is not. In such situations, a shift to the respondent of the burden of persuasion may be justified2 in order to prevent the respondent from constructing a deficiency notice behind which he may hide, leaving the taxpayer to sustain this usual burden of proof. I recognize that it is a rare tax case in which the mind of the trier of the facts is in equilibrium and that, in this context, the location of the burden of persuasion, as distinguished from the burden of going forward with the evidence, is usually of little consequence. But such situations can occur and I do not think this Court should abandon, under all circumstances,3 an additional judicial sanction that could otherwise be available to it.4
I am not impressed with the argument that applying the protection of the fourth amendment and of accompanying judicial sanctions which may be found advisable will hamper the courts through delays in proceedings and increased litigation. A taxpayer, in order to invoke that protection, must establish that illegal means of obtaining evidence were used. See, e.g., Alderman v. United States, 394 U.S. 165, 183 (1969); United States v. Wade, 388 U.S. 218, 240, fn. 31 (1967); Nardone v. United States, 308 U.S. 338, 341 (1939). A mere allegation that such action took place is insufficient. Moreover, the courts can accept a statement by the Government that its files reveal no evidence of any such action. See United States v. Hauff, 461 F. 2d 1061 (C.A. 7, 1972).
Nor is it material that the respondent’s agents themselves did not conduct the illegal raid. It is enough that the evidence was acquired by them from local government officials who seized it in violation of the petitioners’ constitutional rights. Ker v. California, 374 U.S. 23 (1963); Mapp v. Ohio, 367 U.S. 643 (1961); Elkins v. United States, 364 U.S. 206 (1960); Weeks v. United States, 232 U.S. 383 (1914).
Any analogy to grand jury proceedings is beside the point. A comparison of such proceedings to the process by which the respondent arrives at his determination ignores the cardinal fact that, after an indictment, the burden of persuasion remains with the Government — • a 'burden which is measured by a very high standard of proof, i.e., beyond a reasonable doubt — while, in the case of a determination by respondent, the burden of proof as to the underlying deficiency remains with the taxpayer. Similarly, in respect of sentencing and parole proceedings, the question is merely the measure of the penalty which the defendant should pay after the Government has first satisfied its burden of proof that a penalty should in fact be imposed.
I find the contention that the majority decision will benefit persons with unclean hands by relieving them from the responsibility of paying their share of taxes completely unacceptable. The fact of the matter is that respondent is afforded many weapons by means of which he can require such, persons to pay the taxes they owe. He has the power of subpoena and he has available to him various broad techniques for developing a person’s taxable income, e.g., net worth, bank deposits, and cash expenditures. The question in this case is not whether we are depriving respondent of the means of requiring petitioners to bear their share of the tax burden, but whether we should add a further weapon to respondent’s arsenal at the expense of petitioners’ constitutional rights. The choice between constitutional protections and the conveniences of litigation to the Government seems to me to be obvious, particularly in light of the fact, as the majority points out, that “The costs to society of applying the exclusionary rule to civil tax cases are substantially less than in the criminal area.”
The essence of a democratic society demands that the protection of law be accorded to all of its citizens, irrespective of any particular characterization which may be applicable to them. As I said in my dissenting opinion in Hugo Romanelli, 54 T.C. 1448, 1467 (1970):
Our democratic institutions, including our judicial system, can survive the present onslaught upon them only if they are tempered with qualities of respect and understanding for the rights of the individual. This does not mean that we should confer an open-ended license for each person to do as he wants and to ignore his obligations to his fellow citizens, including the payment of taxes. Similarly, it does not mean that the Government, in the name of law and order, should be able to discharge its responsibilities to enforce its civil claims for taxes free of the procedural requirements of due process.
The continued concern that our citizens be protected from violations of law by public officials in the area of illegally obtained evidence is reflected in the enactment of the Omnibus Crime Control and Safe Streets Act of 1968 (82 Stat. 211) and the recent implementation of section 802 thereof (18 U.S.C. sec. 2515) in permitting a person to invoke its provisions as a defense against a contempt charge for failure to testify before a grand jury. See Gelbard v. United States, 408 U.S. 41 (1972).
Neither the articulation of that concern in resolving the issues in this case, nor the characterization of that articulation as rhetoric, should obscure or change the fundamental constitutional demand that the fourth amendment be applied in a fashion which will meaningfully implement the objectives which it was designed to achieve.
Featheeston and Goeee, //., agree with this concurring opinion.Compare United States v. Blue, 384 U.S. 251 (1966), where defendant was charged criminally with attempting to evade income taxes. Blue challenged the validity of the indictment, claiming that he was compelled to incriminate himself due to the necessity of filing petitions for review of jeopardy assessments in the Tax Court. Mr. Justice Harlan, speaking for the Court, held:
“Even if we assume that the Government did acquire incriminating evidence in violation of the Fifth Amendment, Blue would at most he entitled to suppress the evidence and its fruits if they were sought to be used against him at trial. * * * Our numerous precedents ordering the exclusion of such illegally obtained evidence assume implicitly that the remedy does not extend to barring the prosecution altogether. So drastic a step might advance marginally some of the ends served by exclusionary rules, but it would also increase to an intolerable degree interference with the public interest in having the guilty brought to book. [Id. at 255 (dictum).]”
The case was remanded to the District Court for proceedings on the merits, leaving Blue free to pursue his fifth amendment claim through motions to suppress and objections to evidence.
I am not unaware of tlie fact tliat the exercise of judicial discretion to shift the burden of proof may be inhibited by the fact that Rule 32 of the Court’s Rules of Practice categorically places that burden on the petitioner and by the opposite inferences as to legislative intent which can be drawn from the fact that the Internal Revenue Code specifically places that burden on respondent in well-defined situations. See secs. 534, 6902(a), and 7454. But, compare Helvering v. Taylor, 293 U.S. 507 (1935).
I note that, given respondent’s stipulation herein as to the sources of his evidence, the majority action may -well have the same practical effect as a shift in the burden of proof.
I recognize that civil tas cases involving the use of illegally obtained evidence may also involve a determination of additions to tax for fraud as to which the respondent has the burden of proof. But the instant litigation bears mute witness to the fact that this is not always the case. Moreover, it cannot be gainsaid that the concomitant placing of the burden of proof as to the basic deficiency upon the taxpayer can result in a decision against him for a susbtantlal amount even though respondent fails to carry his burden of proof as to the fraud issue. See Drieborg v. Commissioner, 225 F.2d 216, 218 (C.A. 6, 1955), reversing on other grounds a Memorandum Opinion of this Court.