# Graham v. Commissioner

> United States Tax Court · February 27, 1984 · 82 T.C. 299

URL: https://www.frixlaw.com/law-library/cases/4485139

## Case

- **Full name:** Thomas A. Graham and Elizabeth Graham v. Commissioner of Internal Revenue, Respondent Meridian Engineering, Inc. of Pennsylvania v. Commissioner of Internal Revenue
- **Court:** United States Tax Court
- **Decided:** February 27, 1984
- **Citations:** 82 T.C. 299; 82 T.C. No. 25; 1984 U.S. Tax Ct. LEXIS 104
- **Precedential status:** Published
- **Opinion:** Concurrence by Nims
- **Judges:** Chabot, Wiles, Clapp, Hamblen, Agree, Cohen, Kórner, Parker, Goffe, Sterrett, Dawson, Whitaker, Swift, Shields, Nims, Wilbur
- **Cited by:** 37 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4485139

## Opinion text

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 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, Riland v. Commissioner, 79 T.C. 185, 199 (1982), where petitioners sought the invalidation of a deficiency notice on the ground that it was the product of agency action unreasonably delayed in violation of the mandate of 5 U.S.C. section 555 (b) (1976).
Petitioners attack the deficiency notice on the ground that it was based on tainted evidence (the evidence obtained under the challenged rule 6(e) order). It would be surprising, indeed, if this or any other court, whether of limited or more general jurisdiction, were to deny its own jurisdiction solely on evidentiary grounds. But since petitioners have put the case in this posture, jurisdiction is basically the sole issue which the Court has addressed in declining this case. I feel that the extended discussion of rule 6(e) orders by the majority and other concurring opinions, without deciding any rule 6(e) questions, may serve to send mixed signals to other litigants as to how we may be expected to deal in the future with rule 6(e) orders.
The foregoing is not to say that petitioners here were without appropriate remedies in this Court had they chosen to use them. In Scar v. Commissioner, 81 T.C. 855 (1983), petitioners attacked a facially unmeritorius deficiency notice on the jurisdictional ground that the Commissioner had failed to determine a deficiency as required under section 6212(a). We found jurisdiction, but pointed out a remedy which the taxpayer there might have pursued as an alternative to seeking invalidation of the deficiency notice. See also Estate of DiRezza v. Commissioner, 78 T.C. 19 (1982). In the case before us, a motion to suppress the rule 6(e) evidence under the Fourth Amendment exclusionary rule would squarely have presented the rule 6(e) question for appropriate deliberation by this Court. However, for reasons best known to themselves, petitioners persisted in their single-minded attack on the deficiency notice. A direct answer by the majority to the jurisdictional question thus raised, and nothing more, might have been a more clear-cut response.
Dawson, Goffe, Wiles, Kórner, Shields, Hamblen, and Clapp, JJ., agree with this concurring opinion.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4485139. Public record. Not legal advice.