[weishaupt1776]

Respondent, however, submitted no evidence tending either to demonstrate that the assessment was incorrect or to show the correct amount of wagering tax liability, if any, on his part.* In the usual situation, one might well argue, as the Government does, that the District Court then could not properly grant judgment for the respondent on either aspect of the suit.* But the present case may well not be the usual situation.* What we have is a "naked" assessment, without any foundation whatsoever if what was seized by the Los Angeles police cannot be used in the formulation of the assessment.* The determination of tax due then may be one "without rational foundation and excessive," and not properly subject to the usual rule with respect to the burden of proof in tax cases.* Helvering v. Taylor, 293 U.S. 507, 514-515 (1935).* See 9 J. Mertens, Law of Federal Income Taxation § 50.65 (1971).
*
*There appears, indeed, to be some debate among the [428 U.S. 442] Federal Courts of Appeals, in different factual contexts, as to the effect upon the burden of proof in a tax case when there is positive evidence that an assessment is incorrect.* Some courts indicate that the burden of showing the amount of the deficiency then shifts to the Commissioner.* Others hold that the burden of showing the correct amount of the tax remains with the taxpayer.* However that may be, the debate does not extend to the situation where the assessment is shown to be naked and without any foundation.* The courts then appear to apply the rule of the Taylor case.* See United States v. Rexach, 482 F.2d 10, 16-17, n. 3 (CA1), cert. denied, 414 U.S. 1039 (1973); Pizzarello v. United States, 408 F.2d 579 (CA2), cert. denied, 396 U.S. 986 (1969); Suarez v. Commissioner, 58 T.C. 792, 814-815 (1972).* But cf. Compton v. United States, 334 F.2d 212, 216 (CA4 1964).
*Certainly, proof that an assessment is utterly without foundation is proof that it is arbitrary and erroneous.* For purposes of this case, we need not go so far as to accept the Government's argument that the exclusion of the evidence in issue here is insufficient to require judgment for the respondent or even to shift the burden to the Government.* We are willing to assume that, if the District Court was correct in ruling that the evidence seized by the Los Angeles police may not be used in formulating the assessment (on which both the levy and the counterclaim were based), then the District Court was also correct in granting judgment for Janis in both*aspects of the present suit.* This assumption takes us, then, to the primary issue.** U.S. v Janis, 428 U.S. 433,*442-3
*
The primary issue was the state*police officer obtain a warrant under false*pretenses, thus the evidence was suppressed, and the police complained to the IRS to put pressure and*the penalty on the Janis.* The issue was, does the 4th amendment right of exclusion in this case*extend to federal civil proceedings to collect information to*establish a basis to wagering*tax, penalty and interest.* In other words to convert the naked assessment into an assessment under an established*foundation of fact.**This*is called the "Silver*Platter" doctrine where the feds could*use state officers to violate the amendments then use the information obtained to prosecute in federal court even though the same evidence had been excluded from state court by the abuse of the officer.**