- 32 -
and consent that they might be used against the taxpayers in a
civil tax controversy. See id. at 27. We considered the cost to
the Court’s truth-finding function of suppressing the documents
and evidence in question and concluded: “This cost is not
warranted here due to factors of remoteness and unsuitability of
the sanction as it relates to the violation of the rights and the
use of the fruits of such violation.” Id.
C. Discussion
For a taxpayer to prevail in his claim that the Commissioner
violated his Fourth Amendment rights by obtaining evidence by
fraud, trickery, or deceit, the taxpayer must show an affirmative
act of misrepresentation by the Commissioner. See United States
v. McKee, supra; United States v. Peters, supra; Jones v.
Commissioner, supra at 28.6 He must also show some resulting
prejudice to his rights, see United States v. Grunewald, supra at
534, and that evidence actually was obtained as a result of the
alleged deception; see United States v. McKee, supra at 542.
Petitioner bears the burden of proof, see supra sec. V., and, as
we said in Jones v. Commissioner, supra at 28: “To prevail,
petitioners must show by clear and convincing evidence the fraud
6 Petitioner asks us to suppress documents voluntarily
disclosed to respondent. He does not appear to be making a Fifth
Amendment claim with respect to those documents. In any event,
petitioner has no Fifth Amendment privilege to protect against
the compelled production of incriminating documents that have
been disclosed voluntarily to respondent and are in respondent’s
possession. See Fisher v. United States, 425 U.S. 391 (1976).
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