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filed a Supplemental Memorandum of Law posing a two-part position
to counteract respondent's "going behind the notice" defense to
discovery. In particular, petitioner raised a First Amendment
constitutional claim that respondent's disallowance of the
charitable contribution was based on a moral judgment due to the
pornographic nature of the films, and that there has been a
violation of his right to freedom of speech. In that same vein,
petitioner argued that respondent's determination was arbitrary
and capricious and that he was entitled to discovery of the
expert report to evaluate whether respondent's disallowance was
based on unconstitutional grounds.
As a general rule, this Court will not look behind a
deficiency notice to examine the evidence used by the
Commissioner in making the determination or respondent's motives,
administrative policy, or procedures. Id. at 327. The rationale
for this rule is that a trial before the Tax Court is a de novo
proceeding, and our decision is based on the merits of the record
before us and not on the merits of the administrative record.
Jackson v. Commissioner, 73 T.C. 394, 400 (1979); Greenberg's
Express, Inc. v. Commissioner, supra at 328. We recognize an
exception to this rule when there is substantial evidence of
unconstitutional conduct by respondent. Suarez v. Commissioner,
58 T.C. 792, 813 (1972).
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