T.C. Memo. 1997-216

UNITED STATES TAX COURT

KEVIN A. ROBERTS, Petitioner v.

 COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 7053-95. Filed May 7, 1997.

Kevin A. Roberts, pro se.

Michael D. Baker, for respondent.

MEMORANDUM FINDINGS OF FACT AND OPINION

TANNENWALD, Judge: Respondent determined deficiencies in

and additions to petitioner's Federal income taxes as follows: 
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1 These counts charged that petitioner "did willfully and

knowingly attempt to evade and defeat a large part of the income

tax due and owing by him * * * by failing to file an individual

income tax return" for the calendar years 1990 and 1991.

 Additions to Tax 

Year Deficiency Sec. 6651(f) Sec. 6654(a)

1990 $23,981 $17,986 $1,577

1991 22,695 17,021 1,306

Unless otherwise indicated, all section references are to the

Internal Revenue Code in effect for the taxable years at issue,

and all Rule references are to the Tax Court Rules of Practice

and Procedure.

The issue to be decided is whether respondent's

determination of the deficiencies in and additions to income tax

violates the Double Jeopardy Clause of the Fifth Amendment to the

U.S. Constitution. 

FINDINGS OF FACT

Some of the facts have been stipulated and are so found. 

The stipulations of facts and the exhibits attached thereto are

incorporated herein by this reference. Petitioner's mailing

address was Philadelphia, Pennsylvania, at the time he filed his

petition in this case. 

On January 12, 1993, petitioner was indicted on nine counts,

involving conspiracy to distribute cocaine, possession with

intent to distribute heroin, Federal income tax evasion for

failure to file returns for 1990 and 1991,1 money laundering and

aiding and abetting, including the knowing use of the proceeds of
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an unlawful activity with the intent to conceal and disguise the

proceeds by utilizing such proceeds to acquire designated

property. 

On February 5, 1993, petitioner pleaded guilty to all of the

above counts. As part of the plea agreement, petitioner also

consented to forfeit to the U.S. Government, under 21 U.S.C. sec.

853(a)(1994), all assets which were derived from proceeds of his

illegal drug activities, including but not limited to: $129,600

U.S. currency seized from petitioner at the time of his arrest,

bank deposits maintained in petitioner's name, and several

automobiles. 

On October 12, 1993, the U.S. District Court for the Eastern

District of Pennsylvania entered its judgment pursuant to said

guilty pleas. Petitioner was sentenced to prison for a term of 4

years. Upon his release from prison, he was to remain under

supervised release for varying periods of 3 to 5 years, which

were to run concurrently. The District Court assessed a $50 fine

against petitioner, in his criminal case, for each of the nine

counts to which he pleaded guilty. 

Respondent determined petitioner's gross income to be

$72,090 and $68,980 from the distribution of illegal drugs for

the taxable years 1990 and 1991, respectively, the same amounts

as listed in the counts of the indictment charging income tax

evasion. 
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2 The Double Jeopardy Clause of the Fifth Amendment provides

"nor shall any person be subject for the same offence to be twice

put in jeopardy of life or limb". U.S. Const. amend. V.

OPINION

 Petitioner does not contest the amounts of the

deficiencies or the additions to tax. Rather, petitioner

contends that respondent's determination violates the Double

Jeopardy Clause of the Fifth Amendment to the U.S. Constitution,2

in that he has already been punished for his actions through

imprisonment and forfeiture of all of the proceeds of his

illegally obtained income.

The Double Jeopardy Clause protects individuals against

multiple punishments for the same offense. United States v.

Halper, 490 U.S. 435, 440 (1989). "The Double Jeopardy Clause

does not bar 'a civil action by the Government, remedial in its

nature, arising out of the same facts on which the criminal

proceeding was based'." Ianniello v. Commissioner, 98 T.C. 165,

177 (1992) (quoting Helvering v. Mitchell, 303 U.S. 391, 397

(1938)).

The impact of the Double Jeopardy Clause on civil tax

disputes has been the subject of continuous scrutiny for many

years. The seminal case involving both a deficiency and an
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3 Liability for the fraud addition under sec. 6651(f)

involves the same elements as under former sec. 6653(b)(1) and

current sec. 6663(a). Clayton v. Commissioner, 102 T.C. 632,

652-653 (1994).

addition to tax for fraud3 is Helvering v. Mitchell, supra at

399-401, in which the Supreme Court stated:

Congress may impose both a criminal and a civil

sanction in respect to the same act or omission; for

the double jeopardy clause prohibits merely punishing

twice, or attempting a second time to punish

criminally, for the same offense. The question for

decision is thus whether section 293(b) [the

predecessor of section 6653(b)] imposes a criminal

sanction. That question is one of statutory

construction.

* * * * * * *

The remedial character of sanctions imposing additions

to a tax has been made clear by this Court in passing

upon similar legislation. They are provided primarily

as a safeguard for the protection of the revenue and to

reimburse the Government for the heavy expense of

investigation and the loss resulting from the

taxpayer's fraud. * * * [Citation and fn. ref.

omitted.]

See also Ianniello v. Commissioner, 98 T.C. at 176-185. 

Thus, unless the doctrine of Mitchell has been modified or

diluted, petitioner's contention should be rejected out of hand. 

Petitioner points to three Supreme Court cases: Department of

Revenue of Montana v. Kurth Ranch, 511 U.S. 767 (1994); Austin v.

United States, 509 U.S. 602 (1993); and United States v. Halper,

supra, as supporting his position that Mitchell no longer applies

in situations such as are involved herein.
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4 See also United States v. Brennick, 908 F. Supp. 1004 (D.

Mass. 1995), which sets forth an extensive analysis in respect of

the continued vitality of Mitchell. 

We disagree. None of those cases involved criminal and

civil liability under the Internal Revenue Code. Their impact in

the Federal income tax arena has been considered by the Court of

Appeals for the Sixth Circuit in United States v. Alt, 83 F.3d

779 (1996), and by the Court of Appeals for the Fourth Circuit in

Thomas v. Commissioner, 62 F.3d 97 (1995), affg. T.C. Memo. 1994-

128, and by this Court in several cases, see, e.g., Louis v.

Commissioner, T.C. Memo. 1996-257; Price v. Commissioner, T.C.

Memo. 1996-204. In each case, the respective court upheld the

additions to tax for fraud as remedial and ruled that the Supreme

Court cases relied upon by petitioner did not apply. See also

Gordon v. Commissioner, T.C. Memo. 1997-36, in which we reach the

same conclusion based on the above-quoted language from Helvering

v. Mitchell, supra.

We see no need to repeat the analysis set forth in the

opinions in those cases. It is enough to point out that each of

them accorded Helvering v. Mitchell, supra, continuing vitality

as the basic authority for their conclusion that the Double

Jeopardy Clause did not apply and distinguished the cases relied

upon by petitioner.4 Moreover, any doubt about their treatment

of Mitchell disappears when one takes into account the Supreme

Court's most recent pronouncement on the issue of double jeopardy
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in the forfeiture context, where the Court reaffirmed the basic

principle involved, namely, that the ultimate test is whether the

Congress intended the civil penalty to be punishment and held

that the forfeiture involved did not fall within the punishment

category with the result that the Double Jeopardy Clause did not

apply. United States v. Ursery, 518 U.S. , 116 S.Ct. 2135

(1996). In reaching that conclusion, the Supreme Court analyzed

in detail Austin v. United States, supra, United States v.

Halper, supra, and Department of Revenue of Montana v. Kurth

Ranch, supra, in the course of which it referred, without

qualification, to and quoted from Helvering v. Mitchell, supra. 

See United States v. Ursery, 518 U.S. at , 116 S.Ct. at 2148-

2149.

In sum, we hold that the Double Jeopardy Clause does not

preclude respondent from asserting the deficiencies and the

addition to tax for fraud. A fortiori, it does not preclude the

imposition of the addition to tax under section 6654, which does

not arise out of petitioner's criminal activity, and in any event

is properly characterized as remedial and not punishment. See

Hawkins v. Commissioner, T.C. Memo. 1994-441, affd. without

published opinion 66 F.3d 325 (6th Cir. 1995).

To reflect our holding herein and petitioner's concessions

in respect of the amounts set forth in the notice of deficiency,

Decision will be entered

for respondent.