It is well established that ordinarily this Court will not look behind a statutory notice of deficiency to examine the evidence used or the propriety of respondent's motives or conduct in determining the deficiency. Scar v. Commissioner, 81 T.C. 855 (1983); Riland v. Commissioner, 79 T.C. 185, 201 (1982); Llorente v. Commissioner, 74 T.C. 260, 264 (1980), affd. in part and rev'd. in part 649 F.2d 152 (2d Cir. 1981); Jackson v. Commissioner, 73 T.C. 394, 400 (1979); Greenberg's Express, Inc. v. Commissioner, 62 T.C. 324, 327 (1974). We have recognized two possible exceptions to the general rule: (1) where there is substantial evidence of unconstitutional conduct by respondent in determining the deficiency, Riland v. Commissioner, supra, 79 T.C. at 207; Greenberg's Express, Inc. v. Commissioner, supra, 62 T.C. at 328; Suarez v. Commissioner, 58 T.C. 792, 814 (1972), overruled in part, Guzzetta v. Commissioner, 78 T.C. 173, 184 (1982), and (2) in the so-called “naked assessment” cases “involving unreported income where the respondent introduced no substantive evidence but rested on the presumption of correctness and the petitioner challenged the notice of deficiency on the grounds that it was arbitrary.”

It is well established that ordinarily this Court will not look behind a statutory notice of deficiency to examine the evidence used or the propriety of respondent's motives or conduct in determining the deficiency. Scar v. Commissioner, 81 T.C. 855 (1983); Riland v. Commissioner, 79 T.C. 185, 201 (1982); Llorente v. Commissioner, 74 T.C. 260, 264 (1980), affd. in part and revd. in part 649 F.2d 152 (2d Cir. 1981); Jackson v. Commissioner, 73 T.C. 394, 400 (1979); Greenberg's Express, Inc. v. Commissioner, 62 T.C. 324, 327 (1974). We have recognized two possible exceptions to the general rule: (1) Where there is substantial evidence of unconstitutional conduct by respondent in determining the deficiency (Riland v. Commissioner, 79 T.C. at 207; Greenberg's Express, Inc. v. Commissioner, 62 T.C. at 328; Suarez v. Commissioner, 58 T.C. 792, 814 (1972), overruled in part, Guzzetta v. Commissioner, 78 T.C. 173, 184 (1982)), and (2) in the so-called "naked assessment" cases "involving unreported income where the respondent introduced no substantive evidence but rested on the presumption of correctness and the petitioner challenged the notice of deficiency on the grounds that it was arbitrary."

Nevertheless, respondent points out, although unconstitutional conduct is an exception to the principle that we will not look behind the notice of deficiency, we have not declared a notice of deficiency void as a sanction for such conduct. See, e.g., Riland v. Commissioner, 79 T.C. 185, 207 (1982); Greenberg's Express, Inc. v. Commissioner, 62 T.C. at 328; Suarez v. Commissioner, 58 T.C. at 814; Cristo v. Commissioner, T.C. Memo. 2017-239, at *7 n.7. Near the conclusion of the trial in this case, the Court asked the parties whether there is any caselaw addressing the application of the Greenberg's Express principle to rights enunciated in the TBOR.

I. Presumption of Correctness As a general rule, the Court will not look behind a notice of deficiency to examine the evidence used, the propriety of the Commissioner's motives, or administrative policy or procedure used in making the determination. Riland v. Commissioner, 79 T.C. 185, 201 (1982); Greenberg's Express, Inc. v. Commissioner, 62 T.C. 324, 327 (1974). The rationale for this rule is that a trial before the Tax Court is a de novo proceeding, and our decision is based on the merits of the record before us and not on the merits of the administrative record.

We have questioned whether this Court may apply the exclusionary rule in our civil tax proceedings. See Riland v. Commissioner, 79 T.C. 185, 207 (1982). Even though we expressed reservations about the application of the rule in 1982, we have considered motions to suppress under the exclusionary rule.

We have questioned whether this Court may apply the exclusionary rule in our civil tax proceedings. See Riland v. Commissioner, 79 T.C. 185, 207 (1982). Even though we expressed reservations about the application of the rule in 1982, we have considered motions to suppress under the exclusionary rule.

Welch v. Helvering, 290 U.S. 111, 115 (1933), and the Court will not look behind it. Riland v. Commissioner, 79 T.C. 185 (1982); Greenberg's Express Inc. v. Commissioner, 79 T.C. 185 (1982); Greenberg's Express Inc. v. Commissioner, 62 T.C. 324 (1974); Suarez v. Commissioner, 58 T.C. 792 (1972), overruled on other grounds, United States v. Janis, 428 U.S. 433 (1976). This is true even where the record discloses procedural irregularities.

Moreover, this Court has on numerous occasions recognized its authority to inquire into the question of admissibility of evidence. See e. g., Riland v. Commissioner, 79 T.C. 185, 208 (1982); Guzzetta v. Commissioner, 78 T.C. 173, 174-184 (1982); Perillo v. Commissioner, 78 T.C. 534, 537-541 (1982); Black Forge, Inc. v. Commissioner, 78 T.C. 1004, 1010-1013 (1982); Nicholas v. Commissioner, 70 T.C. 1057, 1062-1063 (1978); Gordon v. Commissioner, 63 T.C. 51, 63-72 (1974), affd. per curiam, on this point 572 F.2d 193 (9th Cir. 1977); Suarez v. Commissioner, 58 T.C. 792, 801-814 (1972). It is therefore clear that this Court has jurisdictional authority to entertain questions concerning the admissibility of evidence in proceedings pending before it, as a necessary incident to its statutory power to redetermine proposed income tax deficiencies.

Such a procedure would fly in the face of the long-established principle that this Court will ordinarily not look behind a deficiency notice. Riland v. Commissioner, 79 T.C. 185, 201 (1982); Greenberg's Express, Inc. v. Commissioner, 62 T.C. 324, 327 (1974). Clearly, no constitutional considerations are involved herein which might justify an exception to this general rule.

The Commissioner's grounds for making the adjustments in Sealy's FPAA, unlike the erroneous explanation and imposition of an arbitrary tax rate in Scar, do not reveal that the Commissioner failed to make a "determination" for purposes of the Tax Court's jurisdiction.See Riland v. Commissioner, 79 T.C. 185, 199-201, 1982 WL 11130 (1982) (notice valid despite Commissioner's violation of internal procedures); Estate of Brimm v. Commissioner, 70 T.C. 15, 22-23, 1978 WL 3330 (1978) (notice valid even though taxpayer argued that Commissioner perfunctorily performed review functions and used flawed procedures); Greenberg's Express, Inc. v. Commissioner, 62 T.C. 324, 327-30, 1974 WL 2624 (1974) (notice valid despite allegation that Commissioner discriminatorily selected taxpayer for audit). Sealy also refers to our decision in Pearce v. Commissioner, No. 91-4178 (5th Cir. 1991) (unpublished opinion), in which we held that the Tax Court lacked jurisdiction because the notices were void ab initio.