*104 Decisions will be entered for the respondent.
R determined deficiencies and fraud additions against Ps based upon documents, testimony, and other information secured by R's agents from grand jury proceedings. These grand jury materials were obtained under Federal District Court orders under
*299 OPINION
Respondent has determined the following deficiencies in and additions to these petitioners' Federal income taxes:
| Docket No. | Year | Deficiency | 1 Sec. 6653(b) |
| 7603-80 | 1969 | $ 34,301 | $ 17,151 |
| 7603-80 | 1970 | 62,689 | 31,345 |
| 7603-80 | 1971 | 64,849 | 32,425 |
| 7603-80 | 1972 | 28,513 | 14,256 |
| 7604-80 | 1969 | 36,344 | 18,172 |
| 7604-80 | 1970 | 58,905 | 31,603 |
| 7604-80 | 1971 | 74,700 | 37,350 |
| 7604-80 | 1972 | 71,291 | 35,646 |
Respondent's statutory notices of deficiency to these petitioners were based upon information respondent secured from *300 grand jury proceedings. We must decide whether respondent's use of these grand jury materials to determine deficiencies and additions against these petitioners*106 invalidates the statutory notices.
These cases were submitted fully stipulated under
Petitioners Thomas A. Graham and Elizabeth Graham (the Grahams), husband and wife, resided in Gwynedd Valley, Pa., at the time they filed their petition herein. The Grahams timely filed their joint Federal income tax returns for the taxable years 1969, 1970, 1971, and 1972, using the cash receipts and disbursements method of accounting.
Petitioner Meridian Engineering, Inc. of Pennsylvania (Meridian) is a corporation and its last address, effective at the time it filed its petition herein, was in Philadelphia, Pa. Meridian timely filed its corporate*107 income tax returns for the calendar years 1969, 1970, 1971, and 1972, using the accrual method of accounting. Petitioner Thomas A. Graham was president, chairman of the board, and principal shareholder of Meridian.
In September 1971, a Federal grand jury, sitting in Philadelphia, began an investigation of certain purchases and contracts between various vendors and contractors and the city of Philadelphia. The investigation was to determine possible Federal criminal violations, including extortion, racketeering, bribery, mail fraud, and conspiracy. On October 4, 1971, the U.S. attorney for the Eastern District of Pennsylvania and a Justice Department attorney filed an ex parte motion with the District Court, pursuant to
3. The investigation requires careful meticulous analysis of an extremely large volume of business records, of the contractors and *108 vendors involved, and also of the City of Philadelphia.
4. The above-named attorneys of the Government have sought the assistance of agents, special agents, and employees of the Internal Revenue Service to conduct the necessary analysis of records and to provide the necessary supportive investigative personnel, all under the aegis of the said attorneys for the government.
5. To utilize the said assistance of agents, special agents, and employees of the Internal Revenue Service it is necessary that the said attorneys for the Government be authorized to disclose to the agents, special agents and employees of the Internal Revenue Service books, records, documents and transcripts of testimony before the United States Grand Jury.
6. It is necessary for the said agents, special agents and employees of the Internal Revenue Service, upon receipt of such matter to use it in their official duties, for both civil and criminal purposes, in order to both assist the Grand Jury and the attorneys for the Government in a complete manner, and to fulfill the obligations of their offices. [Emphasis added.]
*109 On October 4, 1971, District Court Judge Edward R. Becker entered an order granting the ex parte motion, providing as follows:
ORDER
And Now, This 4th day of October, 1971, upon consideration of the Ex Parte Motion pursuant to [Criminal]
ORDERED
that the United States Attorney and Special Attorneys of the United States Department of Justice are authorized to utilize the assistance of agents, special agents and employees of the Internal Revenue Service in this Grand Jury Investigation, and may give access to such persons of books, records, *302 documents and transcripts of testimony before the Grand Jury in this investigation, and the said agents, special agents, and employees shall not be prohibited from utilizing such material in the course of their official duties, for either criminal or civil purposes, provided that the subpoenaed material shall remain at all times under the aegis of attorneys for the Government. [Emphasis added.]
On January 15, 1973, the grand jury issued a subpoena directing Meridian to produce*110 the following records:
Sales, Journals, Sales Invoices, Accounts Payable, Ledgers General Journals, General Ledgers, Payroll Records, Invoices, Purchase Orders, Notes Payable, Loans Payable (Contracts and Records), Articles of Incorporation, Stock Transfer Book, Minutes Book, Cash Receipts Book, Cash Disbursement Book, Bank Ledger Statements, Check Stub Registers, Cancelled Checks, Duplicate Deposit Tickets, Petty Cash Book, Petty Cash Vouchers, Purchase Journals, Purchase Invoices, Memoranda, Correspondence, and all other supporting documents relating to all business transactions, income, expenses, and balance sheet items shown on filed tax returns; all for calendar years or fiscal years ended 1969, 1970, and 1971.
The subpoena directed Meridian to deliver the subpoenaed records to the Internal Revenue Service in Philadelphia, Pa. Meridian complied with the subpoena.
On October 25, 1973, another Federal grand jury was convened in Philadelphia to investigate possible Federal criminal violations, including interference with commerce, conspiracy to defraud the Government, interstate travel in aid of racketeering, and tax evasion.
On November 20, 1973, the U.S. attorney filed an ex*111 parte petition under
2. In connection with this investigation, information and evidence has been obtained by the Grand Jury that could be of material assistance to the Internal Revenue Service with respect to official criminal investigations being conducted by that agency, and the disclosure of such evidence to the *303 Internal Revenue Service would enable that agency to be of invaluable assistance to the Grand Jury in the investigation being conducted by the Grand Jury.
3. The Grand Jury has requested the assistance of Federal agents who possess the requisite expertise to assist them in analyzing the notes of testimony of witnesses*112 who testify and the books and records subpoenaed before them.
The U.S. attorney's prayer in his petition also asked that "agents, officials and employees of the Internal Revenue Service * * * shall not be prohibited from utilizing such [grand jury] material in the course of their official duties for civil purposes." (Emphasis added.)
On November 20, 1973, District Court Judge A. Leon Higginbotham, Jr., entered an order granting the ex parte petition, providing as follows:
ORDER
And Now, this 20th day of November, 1973, upon consideration of the Ex Parte Motion pursuant to
ORDERED
that the United States Attorney is authorized to utilize the assistance of agents, special agents and employees of the Internal Revenue Service in this Grand Jury Investigation, and may give access to such persons of books, records, documents and transcripts of testimony before the Grand Jury in this investigation, and the said agents, special agents and employees shall not be prohibited from utilizing such material in the course of their official*113 duties, for either criminal or civil purposes, provided that the subpoenaed material shall remain at all times under the aegis of the attorneys for the Government. [Emphasis added.]
On April 4, 1974, District Court Judge Daniel H. Huyett III, approved the granting of immunity to petitioner Thomas A. Graham in connection with his testimony before the October 25, 1973, grand jury. On April 24, 1974, Graham was subpoenaed to appear before the grand jury and to produce --
(1) All cancelled checks drawn on any individual joint or trustee bank account for the period from 1969 through 1973 inclusive; (2) All bank statements drawn on any individual joint or trustee bank account for the period from 1969 through 1973 inclusive; (3) All bank deposit slips drawn on any individual joint or trustee bank account for the period from 1969 *304 through 1973 inclusive; and (4) All diaries, appointment books, schedule books, calendars reflecting appointments or meetings for the year 1973.
Graham moved to quash the subpoena, or alternatively, for a protective order directing that no documents produced pursuant to the subpoena be turned over to Internal Revenue agents for their civil investigation. *114 In support of his motion, Graham argued, inter alia, that the
In response to Graham's motion, the U.S. attorney represented that Graham's testimony and production of documents were necessary to the grand jury's criminal investigation. In his memorandum in opposition to Graham's motion, the U.S. attorney argued, inter alia: (1) That there was no bad faith or improper motive in the issuance of the grand jury subpoena; (2) that the issue of the civil use of the subpoenaed material was not presently before the District Court, specifically stating:
It is submitted that the appropriate time to raise any issues regarding the civil use of material subpoenaed by the grand jury is when and if the materials are used for a civil purpose. Furthermore, it is submitted that all questions regarding the use of subpoenaed materials for civil *115 tax purposes should properly be addressed to the Tax Court in accordance with the usual procedures for contesting civil tax questions;
and (3) that in any event, the November 20, 1973,
On June 3, 1974, Judge Daniel H. Huyett III, issued the following order:
ORDER
And Now, this 3rd day of June, 1974, upon consideration of Thomas A. Graham's Motion to Quash Subpoena Or, in the Alternative, Motion For Protective Order and the Government's Response thereto, after consideration *305 of the memoranda of law filed by both parties and after hearing oral argument by both parties, it is hereby Ordered that the motion to quash the subpoena duces tecum to Thomas A. Graham be and is hereby Denied and it is further Ordered that the alternative motion for a protective order with respect to documents produced pursuant to said subpoena be and is hereby Denied.
On February 20, 1980, respondent issued and mailed to the Grahams and to Meridian statutory notices of deficiency covering the taxable*116 years 1969 through 1972. The primary adjustment to the Grahams' income for the taxable years 1969 through 1972 was for unreported dividend income received from Meridian. The primary adjustment to Meridian's income for the taxable years 1969 through 1972 was for disallowed business expenses. Most of the constructive dividends to the Grahams are the business expenses disallowed to Meridian. 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.
Petitioners allege that the Internal Revenue Service's use of these grand jury materials constituted misuse and abuse of those proceedings, requiring invalidation of the statutory notices of deficiency. Respondent, while admitting his use of the grand jury materials, denies that such use was improper or that the statutory notices are invalid. Petitioners declined the opportunity for a trial and have stipulated 3 as follows:
5. Petitioners Thomas A. Graham and Elizabeth Graham agree that if it is finally determined that the notice of deficiency issued*117 to them for the years in issue is not invalid the deficiencies in income tax and additions to tax determined therein, although not admitted, are uncontested so that decision may be entered in accordance with respondent's determinations contained in the statutory notice of deficiency * * * without the necessity for the introduction of any evidence by petitioners or respondent.
10. Petitioner Meridian Engineering, Inc. of Pennsylvania agrees that if it is finally determined that the notice of deficiency covering the years in issue is not invalid the deficiencies in income tax and additions to tax determined therein are correct, although not admitted, are uncontested so that decision may be entered in accordance with respondent's determinations contained *306 in the statutory notice of deficiency * * * without the necessity for the introduction of any evidence by petitioner or respondent.
*118 The parties devoted most of their argument to the question of whether respondent's use of the grand jury materials to determine deficiencies and the fraud additions against these petitioners was proper. However, in two recent cases addressing the parameters of
*119
Thus, while the full scope of the Supreme Court's holdings in Sells Engineering and Baggot may be the subject of continuing disagreement and debate, 5 it is clear that an IRS civil tax audit cannot be considered as "preliminary to or in connection with a judicial proceeding" within the meaning of (C)(i). The present case involves
*121 In his supplemental brief addressing the impact of the Supreme Court's Baggot and Sells Engineering cases, respondent appears to concede, as he must, that a civil tax audit is no longer a permissible ground for granting access to grand jury materials under
Petitioners argue that respondent's improper use of the grand jury materials to determine deficiencies and additions against them renders the statutory notices of deficiency null and void, requiring that we invalidate these notices and enter decision for petitioners. We do not agree.
It is well established that ordinarily this Court will not look behind a statutory notice of deficiency to examine the evidence used or the propriety of respondent's motives or conduct in determining the deficiency.
Wholly apart from the question of the remedy to be afforded, petitioners may not invoke the so-called "naked assessment" rule in this case. See
*127 In presenting their argument, petitioners apparently fail to recognize that the existence of a legal wrong (improper use of grand jury materials) is a completely separate question from the remedy to be afforded upon proof of that legal wrong. On brief, petitioners seem to argue that invalidation of the statutory notices automatically follows from a finding of improper use by respondent of the grand jury materials. Thus, at times, petitioners seem to argue that their stipulation, quoted above, conditionally conceding the deficiencies and additions, becomes effective only upon our finding that respondent's use of the grand jury materials in this case was legal and proper. However, on brief prepared by counsel, petitioners demonstrate an understanding of the legal principles discussed above. Petitioners never adequately addressed respondent's argument on brief, which we have accepted, that invalidation of the statutory notice of deficiency is not the appropriate remedy even if we find improper use of grand jury materials. Moreover, at no time have petitioners sought to be relieved of their stipulation.
Thus, even assuming the illegality of respondent's use of the grand jury materials*128 in this case, such use does not render the statutory notices null and void, requiring invalidation of the statutory notices. 8*129 Since petitioners have conceded the deficiencies and fraud additions absent invalidation of the statutory notices, we leave to another day the determination of the appropriate remedy in this Court where respondent has improperly used grand jury materials in preparing a statutory notice of deficiency. 9 We simply hold that invalidation of the *311 statutory notice is not that remedy. 10
*130 Since we hold that the statutory notices are not invalid,
Decisions will be entered for the respondent.
Wilbur, J., 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
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*131 Criminal Procedure, pursuant to
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
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
And the same rationale applies if the
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.
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 *135 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 *314 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*136 this issue, most of them involving material procured pursuant to a
Nims, J., concurring: I agree with the result in this case, but I think it is of the utmost importance to stress that even if there is use of illegal evidence in constructing a deficiency notice, such use will not invalidate the notice. This is what the majority holds, and none of*137 the other concurring opinions disagree.
By attacking the validity of the deficiency notice the petitioners are, in effect, attacking this Court's jurisdiction. But the Court's jurisdiction is both prescribed and circumscribed by the provisions of the Internal Revenue Code, and historically we have not gone beyond these provisions to ascertain the limits of our jurisdiction. See, for example,
Petitioners attack the deficiency notice on the ground that it was based on tainted evidence (the evidence obtained under the challenged
The foregoing is not to say that petitioners here were without appropriate remedies in this Court had they chosen to use them. In
Whitaker, J., concurring: As is frequently true with a difficult case, opinions tend to proliferate. While generally that may be unfortunate, I feel it better serves our judicial responsibility to set forth our views on important and continuing issues as those created by Baggot1 and Sells. 2 As Judge Wilbur points out, unless and until a majority of this Court is willing to react to Baggot and Sells either generally or in the several situations in which the issue will arise, each of us *316 individually will suffer the added burden of multiple motions without the guidance of the unified voice of this Court.
In my judgment, there is nothing in the particular facts before us *140 which would warrant our treating the grand jury material obtained by respondent under the court orders described in the majority opinion as tainted, whether used by respondent in connection with this statutory notice or in preparation for trial of this case or in the trial itself. And I would be of the same opinion even if these petitioners presented us with a subsequent order of that U.S. District Court which recognized, on the basis of Baggot and Sells, that its earlier orders were improperly issued.
Moreover, I think it important that we emphasize, as Judge Wilbur does, that we are not required to decide, now or at any other time, whether Baggot and Sells should be applied retroactively or prospectively, as to
In addition, the majority goes too far in seeming to hold that a statutory notice has such sanctity that we would never go behind it as a result of any misuse or abuse of the grand jury process. See Judge Nims' concurring opinion. I am not prepared to accept such a blanket rule. While I agree with the result reached by the majority, both the public and this Court would be better served, I suggest, if the Court had simply held that under the stipulated facts, respondent's use of the grand jury materials in preparing the statutory notice was fully warranted. Not only would there be an obvious implication in such a holding with respect to further proceedings in the case at bar, but the opinion would stand as a useful analogy in similar cases.
*317 Cohen, J., concurring: I agree with the judicial restraint used by the majority and with the result reached in this case. Regardless of our conclusions on the merits of those several important issues not*142 decided at this time, 1 I do not believe that we should foreclose the possibility that there may be circumstances brought to our attention in some case that would require us to exercise our independent judgment by, among other things, controlling the evidence, in order to maintain the integrity of proceedings before us. See, e.g.,
I am not suggesting that, in every case, or in many cases, or in any particular type of case, we should review the propriety of an extant order*143 issued by a District Court. I would seldom, if ever, consider that possibility. In the context of allegations of improper access to grand jury materials, however, the issue will seldom be ripe for consideration prior to that time that evidence is tendered in a civil proceeding. At that time, the particular grand jury probably will have been discharged, and the District Court that made the order will be heavily engaged in its then-existing criminal and civil case load and will not welcome the additional chore of deciding evidentiary questions for us. Requiring the parties to seek relief in the District Court will in any event delay our proceedings, even if that Court were inclined to review an order made many years before and no longer involved in any matter there pending. Many relevant factors must be considered before this Court adopts a policy for all cases in which respondent has received grand jury materials pursuant to an order made under
At the time a case is presented to us in which the parties seek a remedy other than invalidation of the notice of deficiency, such as suppression of the evidence or shifting the burden of *144 going forward, we must determine the appropriate *318 response. We cannot and should not do so on the record in the case now before us.
Footnotes
1. Unless otherwise indicated, all section references are to the Internal Revenue Code of 1954 as amended and in effect during the taxable years in question.↩
2. Prior to 1977,
rule 6(e) provided as follows:Rule 6 . The Grand Jury* * * *
(e) Secrecy of Proceedings and Disclosure. Disclosure of matters occurring before the grand jury other than its deliberations and the vote of any juror may be made to the attorneys for the government for use in the performance of their duties. Otherwise a juror, attorney, interpreter, stenographer, operator of a recording device, or any typist who transcribes recorded testimony may disclose matters occurring before the grand jury only when so directed by the court preliminarily to or in connection with a judicial proceeding or when permitted by the court at the request of the defendant upon a showing that grounds may exist for a motion to dismiss the indictment because of matters occurring before the grand jury. No obligation of secrecy may be imposed upon any person except in accordance with this rule. The court may direct that an indictment shall be kept secret until the defendant is in custody or has given bail, and in that event the clerk shall seal the indictment and no person shall disclose the finding of the indictment except when necessary for the issuance and execution of a warrant or summons.↩
3. There are slight differences in the wording of these two paragraphs of the stipulation, but the parties have not suggested that these differences are meaningful. We attach no significance to the different wording.↩
4.
Rule 6(e)(2) and(3) , as discussed by the Supreme Court and without certain amendments effective as of Aug. 1, 1983, read as follows:(e) Recording and Disclosure of Proceedings.
* * * *
(2) General Rule of Secrecy. -- A grand juror, an interpreter, a stenographer, an operator of a recording device, a typist who transcribes recorded testimony, an attorney for the government, or any person to whom disclosure is made under paragraph (3)(A)(ii) of this subdivision shall not disclose matters occurring before the grand jury, except as otherwise provided for in these rules. No obligation of secrecy may be imposed on any person except in accordance with this rule. A knowing violation of
Rule 6 may be punished as a contempt of court.(3) Exceptions.
(A) Disclosure otherwise prohibited by this rule of matters occurring before the grand jury, other than its deliberations and the vote of any grand juror, may be made to --
(i) an attorney for the government for use in the performance of such attorney's duty; and
(ii) such government personnel as are deemed necessary by an attorney for the government to assist an attorney for the government in the performance of such attorney's duty to enforce federal criminal law.
(B) Any person to whom matters are disclosed under subparagraph (A)(ii) of this paragraph shall not utilize that grand jury material for any purpose other than assisting the attorney for the government in the performance of such attorney's duty to enforce criminal law. An attorney for the government shall promptly provide the district court, before which was impaneled the grand jury whose material has been so disclosed, with the names of the persons to whom such disclosure has been made.
(C) Disclosure otherwise prohibited by this rule of matters occurring before the grand jury may also be made --
(i) when so directed by a court preliminarily to or in connection with a judicial proceeding; or
(ii) when permitted by a court at the request of the defendant, upon a showing that grounds may exist for a motion to dismiss the indictment because of matters occurring before the grand jury.
If the court orders disclosure of matters occurring before the grand jury, the disclosure shall be made in such manner, at such time, and under such conditions as the court may direct.↩
5. See the dissenting opinions in both cases. See also Bender & Bender, "Supreme Court in Sells and Baggot Lays Down Tests for Disclosing Grand Jury Materials,"
59 J. Tax. 138-141 (1983) ; Miller, "Civil Tax Audit Access to Grand Jury Materials -- United States v. Baggot,"51 U.S.L.W. 5075">51 U.S.L.W. 5075 (June 30, 1983); Tax Management Memorandum, TMM 83-21, at 3-8 (Oct. 17, 1983); Garbis, Struntz & Saltzman, "What the Tax Practitioner Should Know About the Supreme Court's Baggot and Sells↩ Decisions," Fed. Taxes (Dec. 28, 1983).6. Respondent's argument to this point is not entirely clear. He has phrased the basis for nonreviewability on (1) comity, (2) res judicata (District Court orders are not reviewable collaterally in these proceedings), and (3) apparently a variation of a "good faith" exception to the exclusionary rule.↩
7. The deficiencies in this case largely result from disallowed deductions to the corporation resulting in constructive dividends to the shareholder. Although the stipulated documents hint at alleged bribery and extortion by petitioners, the record does not indicate the exact source or nature of the disallowed payments by Meridian resulting in constructive dividends to the Grahams. It is not clear that such payments would in any event be within the "naked assessment" rule, since cases applying that "rule" have uniformly involved unreported income from illegal sources, such as gambling or narcotics. See cases cited in text above. We express no opinion regarding the parameters of the "naked assessment" rule as applied by the various circuit courts. See
Jackson v. Commissioner, 73 T.C. 394">73 T.C. 394 , 404-405 (1979). See alsoKarme v. Commissioner, 673 F.2d 1062">673 F.2d 1062 (9th Cir. 1982), affg.73 T.C. 1163">73 T.C. 1163↩ (1980).8. Petitioners' reliance upon Cohen v. Commissioner, a Memorandum Sur Order of this Court unofficially reported at
42 T.C.M. (CCH) 312">42 T.C.M. 312 , 50 P-H Memo T.C. par. 81,901 (1981), is misplaced. In Cohen, the Government did not securerule 6(e) orders before the IRS obtained access to grand jury materials. Moreover, in Cohen, we denied the taxpayers' motions to dismiss and for summary judgment. We also denied their motion to shift the burden of proof to the respondent. In view of the narrow issue presented for our decision in this case, particularly in light of the parties' stipulation, we have no occasion to consider the remedy afforded the taxpayers in Cohen↩.9. In particular, we decline to express any opinion in regard to the application of the so-called "exclusionary rule" in Tax Court proceedings. See
Black Forge, Inc. v. Commissioner, 78 T.C. 1004 (1982) ;Guzzetta v. Commissioner, 78 T.C. 173">78 T.C. 173 , 175 n. 2 (1982);Tirado v. Commissioner, 74 T.C. 14">74 T.C. 14 , 29 (1980), affd. on other grounds689 F.2d 307">689 F.2d 307 (2d Cir. 1982);Proesel v. Commissioner, 73 T.C. 600">73 T.C. 600 , 610 (1979). See alsoUnited States v. Janis, 428 U.S. 433">428 U.S. 433 , 456↩ (1976).10. Because of the apparent widespread IRS access to grand jury materials for its civil tax audits prior to Sells Engineering and Baggot, it might be useful to expound upon the ramification of these decisions in this Court, specifically the questions of reviewability, retroactivity, and remedy. Since our views on these questions would not affect the result in this case, we decline to address them. This judicial restraint, by no means unique to this Court, is based upon certain overlapping doctrines of judicial administration (including ripeness, mootness, and advisory opinions), doctrines reflecting "a sound principle of judicial administration that courts will not gratuitously decide complex issues that cannot affect the disposition of the case before them."
LTV Corp. v. Commissioner, 64 T.C. 589">64 T.C. 589 , 595 (1975). See alsoRoderick v. Commissioner, 57 T.C. 108">57 T.C. 108 , 112-113↩ (1971).1. 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 thisCourt, 42 T.C.M. (CCH) 312">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) .1.
United States v. Baggot↩, 463 U.S. (1983) .2.
United States v. Sells Engineering, Inc↩., 463 U.S. (1983) .3. See note 1 in Judge Wilbur's concurring opinion.↩
1. For example, Judge Wilbur seems to be applying a good-faith exception to the exclusionary rule, an idea frequently proposed and debated but not yet mandated by the Supreme Court or by Congress. While much could be said for the merits of such a rule, it does not seem to be part of the law in its current state.↩