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denying the taxpayers' discovery requests in the above-cited
instances, we reasoned that, because we will not look behind the
notice of deficiency to examine the evidence or procedures used
by the Commissioner in making the deficiency determination or the
Commissioner's motives for the determination, the documents were
not relevant or would not lead to relevant evidence. Those
holdings are based on the fact that the taxpayers in those cases
had placed in issue the question of whether the notices in those
cases were arbitrary or capricious.
The question of whether the deficiency notice is arbitrary
or capricious was not placed in issue in this case. Petitioner
made no allegation other than that respondent's valuation of the
donated films was in error. The principle of Greenberg's Express
is appropriate when taxpayers improperly seek to go behind the
deficiency notice. Due to our holding on this point, it is
unnecessary to consider whether petitioner's constitutional claim
is an exception to the Greenberg's Express general rule. A
request for production of an expert report obtained by the
Commissioner in the pre-deficiency-notice examination of a
taxpayer's return is not per se an attempt to go behind the
notice or a challenge to the basis for a deficiency
determination. The rule that we will not look behind the notice
of deficiency does not alone preclude discovery of pre-
deficiency-notice matter. Respondent’s use of the general rule
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