58 T.C. 792 (1972), 4196-67, Suarez v. Commissioner of Internal Revenue

Docket Nº:4196-67.
Citation:58 T.C. 792
Opinion Judge:HOYT, Judge:
Attorney:Martin J. Nash, for the petitioners. Glen W. Gilson II, for the respondent.
Judge Panel:DRENNEN, J;, concurring: STERRETT, J., agrees with this concurring opinion. TANNENWALD, J., concurring: FEATHERSTON and GOFFE, JJ., agree with this concurring opinion. SIMPSON, J., dissenting: RAUM, J., agrees with this dissent.
Case Date:August 10, 1972
Court:United States Tax Court

Page 792

58 T.C. 792 (1972)




No. 4196-67.

United States Tax Court

August 10, 1972

Martin J. Nash, for the petitioners.

Glen W. Gilson II, for the respondent.

The petitioners filed several pretrial motions in which they alleged the respondent based his determination in the statutory notice upon evidence which was obtained from the petitioner, Efrain T. Suarez, in violation of his constitutional rights. Held:

1. The protections encompassed in the fourth amendment to the United States Constitution are applicable in a civil tax proceeding.

2. The order of a Federal District Court in a habeas corpus proceeding that a new trial be granted to petitioner, Efrain T. Suarez, was not a final and binding determination that evidence used against petitioner in a State criminal proceeding was seized in violation of his constitutional rights. An ‘ independent inquiry’ must be made by this Court to ascertain the legality of the seizure.

3. Evidence employed by the respondent in making his determination was obtained as the result of an unreasonable search and seizure proscribed by the fourth amendment to the United States Constitution; State officials, in conducting a raid, failed to obtain warrants and failed to make an announcement as to purpose. Such evidence is suppressed and may not be used at trial.

4. Because the respondent's determination in his statutory notice was based solely on constitutionally tainted evidence, the presumption of correctness normally attached to such determination is destroyed. The burden of producing and going forward with proof shifts to the respondent who must present independent, untainted evidence to sustain his asserted deficiency.

HOYT, Judge:

The respondent has determined the following deficiencies in the petitioners' income tax and has imposed the following penalties:

Taxable year Penalty

ended Deficiency (sec. 6653(a))

Dec. 31, 1963 $354,959.96 $17,748.00

Dec. 31, 1964 358,649.62 17,932.48

Page 793 The petitioners filed several motions in advance of trial in which they alleged that the respondent based his determination upon evidence which was obtained from them in violation of their rights under the United States Constitution.[1] A hearing was held on these motions at Miami, Fla., and, subsequently, briefs were filed by the parties relating to the issues presented. Basically, the motions present the issues of (1) whether fourth amendment protections[2] are applicable in a civil tax proceeding, (2) whether the evidence employed by the respondent in making his determination was obtained as the result of an unreasonable search and seizure, and (3) whether the existence of constitutionally tainted evidence affects the respondent's determination and the proceedings in this Court relating thereto. Additionally, we must consider what effect, if any, should be given herein to a prior determination of the U.S. District Court for the Southern District of Florida in a habeas corpus proceeding involving the petitioner, Efrain T. Suarez. FINDINGS OF FACT Some of the facts have been stipulated and are found accordingly. The stipulation of facts and exhibits thereto are incorporated herein by this reference. The petitioners, Efrain T. Suarez and Zenaida Suarez, husband and wife, resided at 2710 Natoma Street, Miami, Fla., when they filed the Page 794 petition herein. They filed joint Federal income tax returns for the years 1963 and 1964 with the district director of internal revenue, Miami, Fla. In early 1964, an information was returned against Efrain and several other individuals, charging them with conspiracy to perform an abortion and charging Efrain with an attempt to procure a miscarriage of a woman, which alleged crimes are felonies under Florida law. (See Fla. Stat. Ann., secs. 797.01 and 775.08.[3] ) These charges grew out of a raid conducted on January 3, 1964, by officials of the State attorney's office of Dade County, Fla., and of the City of Miami, Fla. the raid took place at the premises of the Ayala Clinic. The parties have stipulated that Efrain has standing to contest the legality of the search and seizure of evidence following his arrest as a result of the aforementioned raid. In the middle of November 1963, the City of Miami Police Division and the State attorney's office decided that they would try to make a case against the Ayala Clinic. An investigation took place for a period of 4 to 6 weeks prior to the raid. A general plan for the raid was developed, and two policewomen were enlisted to assist— Barbara Williams and Myrtle Ellison. Barbara came to Miami on December 27, 1963, and she received instructions from representatives of the State attorney's office. She was told to go to Tampa, Fla., and call the clinic to make an appointment for an abortion. Barbara contacted the Ayala Clinic on December 28, 1963, and made another call on January 2, 1964. She was able to make an appointment with Efrain to have an abortion performed on the morning of January 3, 1964. The price for the scheduled abortion was to be $1,000. After making the appointment, Barbara contacted the State attorney's office. She returned to Miami on the evening of January 2, 1964. In Miami, she executed an affidavit as requested by Arthur Huttoe, assistant State attorney. At that time in order to review the arrangements for the raid, she met with Glen L. Baron, assistant chief of the Miami Police Department, Michael Daugherty, special investigator from the State attorney's office, and Malcolm E. Gracey of the Miami Police Department, the commanding officer of the Internal Security Squad. Also present at this meeting was Myrtle Ellison. The participants discussed the general plans for the raid that had been formulated. As part of the plan, both policewomen— Barbara and Myrtle— would enter the premises of the Ayala Clinic and after money was paid over and arrangements made for the abortion, Myrtle would step outside Page 795 the building as a signal for the raiding officers to enter the building and make the arrests. In the event that the raiding officers were unable to get into the clinic, the participants agreed that Barbara would arrest the doctor who was to perform the abortion before he commenced the medical procedure. Barbara was a trained policewoman and had received normal police recruit training, including judo technique. She knew that the police officers would be at the back door of the Ayala Clinic, as well as at the front door. She knew that, when Myrtle left the clinic building, the raiding officers would enter, and that Myrtle's departure from the building would be a signal that the money had been paid over and the abortion was about to be performed. A female informant had given information to Barbara as to the floor plan of the clinic, and Barbara had received a diagram. In addition, she was told that a person inside the clinic would place a bar across the door. Barbara advised the raiding officers of what she had been told by the informant. Barbara was also aware that patients receiving abortions were put to sleep with an injection. She advised Daugherty that, as part of the ‘ abortion procedure,‘ she ‘ would be there for a period of an hour or two and would get a needle, and it would be all over and she could leave in a couple of hours.’ The raiding officers, prior to the raid, had investigated Efrain for attempted abortion. They had received information that Efrain was operating the Ayala Clinic (previously run by Dr. Ayala) and that he was using the cards and letterheads of the Ayala Clinic. The raiding officers had also read affidavits from people in New Jersey, who stated they had been to the clinic for abortions. In addition, Barbara executed an affidavit stating that she had contacted a person in the clinic for the purpose of obtaining an abortion. The persons who actually took part in the raid on the clinic on January 3, 1964, were Chief Baron, Gracey, Daugherty, Detective Jack Elmore, Barbara, and Myrtle. On the morning of January 3, 1964, the plan devised by the State attorney's office and the Miami police was implemented. Barbara was given $1,000. The serial numbers on these bills were read off by Chief Baron. Gracey and Myrtle recorded the numbers. Then Barbara and Myrtle were driven to the Ayala Clinic. The raiding party proceeded to follow their prearranged plan. Each of the raiding officers, including the policewomen, intended to arrest everyone in the clinic on abortion charges or on charges of conspiracy to commit abortion. However, the raiding officers had neither an arrest warrant nor a search warrant. Page 796 In carrying out her roles in the raid plan, Barbara ‘ intended to go as far as necessary.’ If the other officers were unable to arrest Efrain, she would arrest him herself if he started the abortion or attempted to give her an injection. Barbara and Myrtle entered the clinic at 8 a.m. on January 3, 1964, through an unlocked public front door which was marked ‘ open.’ The front door opened into a waiting room. Above the front door was a sign on which Efrain's name appeared. Gracey, Daugherty, and Baron parked about a block away. The police officers remained on station during the time that the policewomen were in the clinic. Barbara rang a bell which was located in the waiting room near an inner door. After she rang the bell, Barbara and Myrtle could hear a key unlocking the inner door. This inner door had a steel bar...

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