- 24 -
is admitted by the court, it is irrelevant whether it
is the same evidence that the Service relied upon in
originally making its assessment. * * * [Id. at 114;
citations omitted.]
See also Dellacroce v. Commissioner, 83 T.C. 269, 284 (1984)
(stating that in case appealable to Court of Appeals for the
Second Circuit, deficiency notice based on hearsay must be held
arbitrary unless we can find admissible evidence in the record to
support it); Rosano v. Commissioner, 46 T.C. 681, 687 (1966) (“we
know of no rule of law calling for a review of the materials that
were before the Commissioner in order to ascertain whether he
relied upon improper evidence so that the burden of proof might
be shifted to him”); cf. Suarez v. Commissioner, 58 T.C. 792
(1972) (notice not entitled to presumption of correctness where
it was stipulated that notice was based entirely on
constitutionally inadmissible evidence).9
Petitioner’s proposed rule, if accepted, would require
courts to discover and examine the information actually used by
the Commissioner in determining a deficiency, whenever a taxpayer
challenged the validity of a notice. Such routine inquiries
would violate the well-settled rule that we do not, except in
exceptional circumstances, “look behind” a deficiency notice. In
9 We also note that in one of the cases cited by petitioner,
Hardy v. Commissioner, supra at 1005, the Court of Appeals in
part relied on the taxpayer’s stipulations in deciding that the
predicate evidence requirement was satisfied.
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