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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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