concurring: Referring to the civil use of grand jury materials giving rise to these proceedings, the majority states:
The information upon which Respondent determined the deficiencies and fraud additions was based on or gleaned from documents, testimony, and other information secured by agents of the Internal Revenue Service from these grand jury proceedings.
The majority then assumes for purposes of this case that these grand jury materials were improperly acquired by the Service pursuant to a rule 6(e) order issued under criteria disapproved in two Supreme Court decisions that are fully applicable. The majority also assumes that the rule 6(e) orders issued by the District Court do not preclude us from examining respondent’s use of the grand jury materials and the appropriate consequences.
I have several reservations about the majority’s approach. The grand jury is peculiarly a creature of the District Court that created it, and both by history and Federal rule, it is closely supervised by that court. The Federal Rules of Criminal Procedure, pursuant to rule 6(e), specifically allocate responsibility for determining the propriety of using grand jury material for civil purposes to the District Court. Where the District Court supervising a particular grand jury has issued an order permitting the civil use of grand jury materials, that should end the matter for the Tax Court. Our jurisdiction is carefully circumscribed by statute and includes only civil matters; we certainly have no experience with, or responsibility for, grand juries. It is therefore wholly inappropriate for the Tax Court to reexamine the propriety of a District Court order under rule 6(e), even if that order appears to be inappropriate to us. Since there was a rule 6(e) order issued in the instant case, that ends the matter for me.
This seems to be the only course of action that recognizes the diverse responsibilities of the Tax Court and U.S. District Courts, particularly the U.S. District Court that has responsibility for a specific grand jury. For these reasons and also to avoid duplicative proceedings, it is imperative that the Tax Court honor a rule 6(e) order issued by a District Court having specific responsibility for a specific grand jury, even though we may have misgivings about the wisdom of that order.
Even more to the point, no purpose would be served by denying the Government use of grand jury materials — either in preparing the statutory notice or at trial — where a rule 6(e) order has been issued. Whether evidence is suppressed before or at trial, the exclusionary rule is principally designed to deter improper behavior by investigative personnel. No after-the-fact sanction in a potential later lawsuit will deter use of grand jury material that has been specifically provided, after careful deliberation, by order of a U.S. District Court judge specifically charged with that responsibility. Access has been obtained in good faith by the only procedure available — the one established by Congress. It is impossible to ask any more of the Government official, and second guessing the District Court judge on Monday morning can never change the outcome on the previous Saturday.
And the same rationale applies if the rule 6(e) order would not have been issued under the standard subsequently articulated by the Supreme Court in United States v. Sells Engineering, Inc., 463 U.S._(1983), and United States v. Baggot, 463 U.S._(1983). While these cases undoubtedly provide the criteria for Courts — either District Courts or Appellate Courts — that have rule 6(e) orders under consideration as a live issue, nothing in these opinions suggests that material obtained in good faith pursuant to earlier rule 6(e) orders issued in due course should now be suppressed. To do so could not affect investigative behavior in any way, and is directly contrary to the criteria the Supreme Court has articulated for invoking the exclusionary rule in civil proceedings. See Janis v. United States, 428 U.S. 433 (1976), specifying the criteria applicable in deciding whether the exclusionary rule should be applied in a civil case. As the Second Circuit recently stated in deciding that illegally seized evidence should not be excluded in the Tax Court proceeding under review:
The Supreme Court has made it plain that the principal, if not the only, justification for excluding illegally seized evidence from governmental proceedings is to deter future governmental misconduct. United States v. Janis, supra, 428 U.S. at 446; see Stone v. Powell, 428 U.S. 465, 486 (1976); United States v. Calandra, 414 U.S. 338, 347-48 (1974). The exclusionary rule is "calculated to prevent, not to repair”; its purpose is "to compel respect for the constitutional guaranty in the only effectively available way — by removing the incentive to disregard it.” Elkins v. United States, 364 U.S. 206, 217 (1960). Current doctrine does not, however, take this principle to its furthest implication, which would require the exclusion of evidence whenever even a remote prospect of deterrence exists. * * * [Tirado v. Commissioner, 689 F.2d 307, 309, 310 (2d Cir. 1982); fn. ref. omitted.]
The majority assumes for purposes of this case that the Government’s case was constructed essentially from improperly acquired grand jury materials in violation of two directly applicable Supreme Court decisions. But the majority leaves the import of these circumstances to another day, since petitioner’s counsel has technically selected the wrong remedy — asking for invalidation of the statutory notice, rather than shifting the burden of going forward with untainted evidence and precluding the respondent from introducing at trial the evidence improperly acquired.
Given the importance of grand jury secrecy that the Supreme Court has emphasized over and over, and the abuse represented by the utilization of grand jury material for civil purposes, this disposition solely on the basis of form (something analogous to election of remedy) is questionable. In any routine suppression case, two questions are presented: (1) Was the information improperly acquired — (Is it tainted?), and (2) if so, what is the appropriate remedy. Both of these issues are present in this case and were addressed by the parties. The first issue is the principal issue — there must be a wrong in order to merit a remedy. I would address the first question and hold that the evidence "taint” tainted. The only result of ducking the principal issue, a pressing issue involved in many other cases currently before the Court, will be to delay the proceedings on many of our calendars until the matter is inevitably decided at a later date. Additionally, avoiding the principal issue will only add to the pile of motions raising this issue, most of them involving material procured pursuant to a rule 6(e) order. I would simply say our inquiry ends when we encounter a timely rule 6(e) order that has not been procured by fraud sufficient to justify collateral attack.1
Whitaker, J., agrees with this concurring opinion.Where no rule 6(e) order has been issued or one has been procured by fraud or deception, exclusion of the materials at a civil trial may be an effective and appropriate remedy. See Cohen v. Commissioner, a Memorandum Sur Order of this Court, 42 T.C.M. 312, 50 P-H Memo T.C. par. 81,901 (1981); Goldfein & Pisem, "Tax Court Expands Exclusionary Rule to IRS Violations of Grand Jury Secrecy,” 55 J. Tax. 312 (November 1981).