Richard L. Bennett - Page 9

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                  It is unnecessary, however, to decide whether an exception                            
            to the principle of Greenberg's Express, Inc. v. Commissioner,                              
            supra, applies in this case.  In response to petitioner's                                   
            discovery request, respondent interposed the principle of                                   
            Greenberg's Express and contended that petitioner was attempting                            
            to go behind the deficiency notice.  Petitioner was seeking to                              
            obtain information about the valuation of the subject films.                                
            Greenberg's Express and its principle are directed to the                                   
            question of what issues are justiciable before the Court.  So,                              
            for example, it would generally make no difference to the Court                             
            what the position of the Commissioner’s agent was on a particular                           
            issue, even if that view was different from the one set forth in                            
            the notice of deficiency.  That is so because the Commissioner's                            
            determination is set forth in the notice, and a trial de novo is                            
            provided to decide whether that determination is in error.  The                             
            question of whether petitioner is entitled to respondent's expert                           
            report is one, in this setting, to be judged on the basis of                                
            discovery rules of this Court and not on the question of the                                
            admissibility of the expert report.  We note that the pleadings                             
            do not raise an issue of whether the notice issued to petitioner                            
            is arbitrary or capricious.                                                                 
                  The standards governing discovery of documents are set out                            
            in Rule 70.  Rule 70(b) provides that "The information or                                   
            response sought through discovery may concern any matter not                                





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