¶1concurring: I agree with the majority opinion up to the point where it dismisses the procedural effect derived from the removal of the presumption of correctness of respondent’s determination because it was founded on tainted evidence. Under the peculiar circumstances of this case, wherein it is stipulated that respondent’s determination is based entirely on illegally obtained evidence, I think the majority is justified in holding that the burden of going forward has shifted to the respondent. Where such is not the case, however, and respondent may also have support for his determination of petitioners’ taxable income with legally obtained evidence, I do not believe petitioner should be relieved of his burden of showing that his income tax returns are accurate even though he has been the victim of a constitutional violation. If petitioner establishes a prima facie case, respondent should then be required to prove his case with untainted evidence.
¶2The majority does not hold that the notice of deficiency is invalid, even where it is based entirely on tainted evidence. If it were otherwise this Court would have no jurisdiction to proceed. John W. Heaberlin, 34 T.C. 58. Nor has the majority shifted the burden of proof with respect to the underlying deficiency to respondent, which it would be hard pressed to do under the law and the rules of this Court, absent some affirmative allegations by respondent. Petitioner filed a petition asking tills Court to redetermine the correct amount of his tax liability. The Court would not be able to do this without some evidence concerning his correct taxable income. The presumption of correctness normally attaching to respondent’s determination having been removed, the issue before the Court would be in equilibrium unless some evidence is presented. Petitioner, being the moving party, should provide sufficient evidence to make a prima facie case; otherwise his petition will fail from inertia. Unless the respondent has the burden of proof, I see little reason for him to move forward.
¶3The dual need to protect the integrity of the Court’s procedures and the need to discourage constitutional violations are both adequately met by removing the presumption of correctness of respondent’s determination and by excluding the tainted evidence.
¶4I cannot agree with the implications of Judge Simpson’s dissenting opinion that the application of the exclusionary rule in civil tax cases will necessarily permit those engaged in illegal activities to avoid paying a tax on their income because a court determines that the police acted improperly in securing evidence. The Internal Revenue Service has a variety of methods for determining a taxpayer’s taxable income without reliance on tainted evidence or the fruits thereof.