Crop Associates-1986, Frederick H. Behrens, Tax Matters Partner - Page 32




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          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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