Sam F. and Ingrid D. Ford - Page 20
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whether they had been presented to the grand jury. In re Grand
Jury Matter, 697 F.2d 511, 513 (3d Cir. 1982).
In view of the foregoing, we hold that petitioners have not
shown that respondent's deficiency determination was based upon
matters before the grand jury. Moreover, even if the
determination had been based upon matters occurring before a
grand jury, these matters were disclosed in the later criminal
proceedings against petitioner and thus were no longer subject to
the secrecy requirements of rule 6(e).
Since we have held that respondent's use of exhibit 3 did
not violate rule 6(e), we have no occasion to consider whether
shifting the burden of proof as to the deficiencies at issue
would be an appropriate remedy for a violation of that rule. See
DiLeo v. Commissioner, 959 F.2d at 21.
On January 30, 2003, respondent filed the second motion now
before us, seeking leave to file an amendment to the answer to
the amended petition. Respondent's motion refers to an alleged
statement of petitioners' counsel during a telephone conference
call with this Court. In that statement, petitioners' counsel
allegedly indicated that the $2.8 million of unreported income
which petitioner admitted in the allocution of his criminal case
was not the same unreported income which is set forth in the
notice of deficiency for petitioners' taxable year 1986.
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