Ash v. Commissioner

CHABOT, J., concurring in the result: I agree with the majority’s ruling denying petitioner’s motion for a protective order regarding certain administrative summonses.

My concern is that there seems to be a search for reasons to exclude information developed through administrative summonses while at the same time courts accept information developed through violations of people’s constitutional rights. Respectfully, I suggest that we are standing public policy on its head when we approach the lawful statutory administrative summons with as much, or more, suspicion than we do violations of constitutional rights.

In dealing with disputes about excludability of evidence obtained in violation of people’s rights under the United States Constitution, the Supreme Court has frequently stressed the undesirability of excluding from evidence information that may be reliable and important in enabling the triers of fact to decide correctly the cases that are before them. 1 The Supreme Courthas nevertheless concluded that it is desirable to exclude otherwise admissable, reliable, and persuasive evidence where such exclusion would serve to deter future violations of rights guaranteed by the United States Constitution. Even then, limitations have been placed on the circumstances in which such exclusions will be authorized. (See, e.g., our recent discussion in Houser v. Commissioner, 96 T.C. 184 (1991).)

Another area in which evidence is excludable, even though it may be highly reliable and persuasive, is under Rule 6(e), Fed. R. Crim. Proc. In those situations, the greater benefit that is sought to be obtained is that which is understood to lie in the secrecy of the grand jury.

When we get beyond these situations, we find another command. This is the command in the Federal Rules of Evidence, as enacted by the Congress, that “All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority.” Rule 402, Fed. R. Evid.

Historically, this Court’s approach to discovery has been to insist on the parties’ exchanging the relevant information informally and agreeing to inclusions of evidence (where parties’ disputes are not settled) by the stipulation process. This Court has not been willing to institute the bulk of the formal discovery procedures that appear to cause such extraordinary expenses, gamesmanship, and injustices in some courts. Accordingly, except for the procedures in titles VII and VIII of the Tax Court Rules of Practice & Procedure, this Court has not afforded the parties the right of Court-enforced nonconsensual discovery. By the same token, this Court has not ordinarily sought to interfere with the opportunities of the parties to obtain information. On the contrary, this Court’s focus on the stipulation process has been designed to push the parties to voluntarily provide each other with information relevant to the case at hand.

Accordingly, as I see it, it should be an unusual circumstance for this Court to forbid a party to acquire information or use information that it has acquired unless the information has come from constitutional violations, violations of grand jury secrecy, or violations of some other public policy which is of such importance that it overrides the importance of facilitating the presentation of reliable, persuasive, and otherwise admissible evidence to the trier of fact.

The administrative summons, the effects of which petitioner seeks to insulate herself from in the instant case, is not a creature of court rules but is, rather, authorized specifically by statute. The Congress has prescribed respondent’s statutory authority and has specified the tribunals in which that statutory authority is to be tested. Those tribunals do not include this Court.

There may be circumstances in which we may conclude that there has been such an abuse with regard to an administrative summons that we might restrict the use of information obtained thereby. However, the fact that the information was obtained by an administrative summons surely should not itself be a ground for restriction or even a ground for suspicion. The administrative summons is a tool specifically authorized by the Congress. The policy considerations of the administrative summons have been examined and reexamined by the Congress on many occasions. The Congress has changed its mind on many occasions. Whatever the policy balances may be at any particular time, they are for the Congress to determine. I submit that, for our purposes, we are obligated to take the administrative summons as a fact of life; we should do so not because we agree with the Congress’ policy but, rather, because the Congress has exercised its constitutional authority and we must follow it (just as we must follow the Congress’ decisions as to inclusion of income, deductions of expenses, allowances of credits, and the 90-day period for petitioning the Tax Court).

Respectfully, I suggest that those who are concerned about “a level playing field” should take their legitimate concerns to a different forum — the U.S. Congress. In the meanwhile, I would approach respondent’s use of the administrative summons with no more suspicion than any party’s use of any method of gathering information that does not require this Court’s compulsory process. I would be vigilant to prevent abuse, but I would require the complaining party to explain where the abuse lies, especially if the complaining party seems to be reluctant to provide relevant information as part of this Court’s stipulation process.

Parker, Swift, and Ruwe, JJ., agree with this concurring opinion. Justice Powell summarized many concerns in Stone v. Powell, 428 U.S. 465, 489-491 (1976), as follows:

The costs of applying the exclusionary rule even at trial and on direct review are well known: the focus of the trial, and the attention of the participants therein, are diverted from the ultimate question of guilt or innocence that should be the central concern in a criminal proceeding. Moreover, the physical evidence sought to be excluded is typically reliable and often the most probative information bearing on the guilt or innocence of the defendant. As Mr. Justice Black emphasized in his dissent in Kaufman:

“A claim of illegal search and seizure under the Fourth Amendment is crucially different from many other constitutional rights; ordinarily the evidence seized can in no way have been rendered untrustworthy by the means of its seizure and indeed often this evidence alone establishes beyond virtually any shadow of a doubt that the defendant is guilty.” 394 U.S., at 237.

Application of the rule thus deflects the truthfinding process and often frees the guilty. The disparity in particular cases between the error committed by the police officer and the windfall afforded a guilty defendant by application of the rule is contrary to the idea of proportionality that is essential to the concept of justice. Thus, although the rule is thought to deter unlawful police activity in part through the nurturing of respect for Fourth Amendment values, if applied indiscriminately it may well have the opposite effect of generating disrespect for the law and administration of justice. 30 * * *

[Some fn. refs, omitted.]

In a different context, Dallin H. Oaks has observed:

“I am criticizing, not our concern with procedures, but our preoccupation, in which we may lose sight of the fact that our procedures are not the ultimate goals of our legal system. Our goals are truth and justice, and procedures are but means to these ends. . . .

“Truth and justice are ultimate values, so understood by our people, and the law and the legal profession will not be worthy of public respect and loyalty if we allow our attention to be diverted from these goals.” Ethics, Morality and Professional Responsibility, 1975 B.Y.U.L. Rev. 591, 596.