Howard and Linda Levine - Page 4

                                        - 4 -                                         
               On November 27, 1995, petitioner met with respondent’s                 
          special agents and was advised that he and his wife were under              
          investigation for possible criminal violation of the Federal                
          income tax laws regarding their failure to file Federal income              
          tax returns for 1990 through 1993.  At that meeting, petitioner             
          represented falsely to respondent’s representatives that he was a           
          college graduate and a C.P.A.                                               
               On January 5, 1996, petitioners filed late their joint                 
          Federal income tax returns for 1990, 1991, 1992, and 1993.                  

               The basis for petitioner’s contention is that, during a                
          subsequent criminal tax prosecution of petitioner, the Government           
          did not give to petitioner a copy of the revenue agent’s written            
          summary of the statement petitioner had made during the January             
          1994 conversation with the revenue agent.  Petitioner alleges               
          that the Government’s failure during the criminal proceeding to             
          produce to petitioner this document constitutes a violation of              
          Fed. R. Crim. P. 16(a)(1)(A) and that we should exercise our                
          discretion in this civil tax proceeding to exclude the testimony            
          of the revenue agent.  Petitioner notes that, in appropriate                
          circumstances, courts may exclude in civil proceedings evidence             
          where the evidence was obtained in violation of an individual’s             
          Fourth Amendment rights.  See Tirado v. Commissioner, 689 F.2d              
          307, 308 (2d Cir. 1982), affg. 74 T.C. 14 (1980); Houser v.                 
          Commissioner, 96 T.C. 184, 195 (1991).                                      
               In this case, we decline to apply the exclusionary rule to             
          the revenue agent’s testimony.  Fed. R. Crim. P. 16 is intended             
          to encourage full discovery and eliminate unfair surprise at                
          trial.  Because petitioner pled guilty, there was no criminal               
          trial.  Any prejudice to petitioner’s plea negotiations that                
          occurred as a result of petitioner’s failure to receive the                 
          revenue agent’s summary of petitioner’s January 1994 statements             
          should have been dealt with in the criminal proceedings.  Prior             
          to the trial herein, petitioner was advised of the substance of             
          the revenue agent’s testimony, and petitioner had ample time to             
          prepare for that testimony.  The revenue agent’s testimony is               

Page:  Previous  1  2  3  4  5  6  7  8  9  10  Next

Last modified: May 25, 2011