- 20 - whether they had been presented to the grand jury. In re Grand Jury Matter, 697 F.2d 511, 513 (3d Cir. 1982). In view of the foregoing, we hold that petitioners have not shown that respondent's deficiency determination was based upon matters before the grand jury. Moreover, even if the determination had been based upon matters occurring before a grand jury, these matters were disclosed in the later criminal proceedings against petitioner and thus were no longer subject to the secrecy requirements of rule 6(e). Since we have held that respondent's use of exhibit 3 did not violate rule 6(e), we have no occasion to consider whether shifting the burden of proof as to the deficiencies at issue would be an appropriate remedy for a violation of that rule. See DiLeo v. Commissioner, 959 F.2d at 21. Respondent's Motion On January 30, 2003, respondent filed the second motion now before us, seeking leave to file an amendment to the answer to the amended petition. Respondent's motion refers to an alleged statement of petitioners' counsel during a telephone conference call with this Court. In that statement, petitioners' counsel allegedly indicated that the $2.8 million of unreported income which petitioner admitted in the allocution of his criminal case was not the same unreported income which is set forth in the notice of deficiency for petitioners' taxable year 1986.Page: Previous 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Next
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