- 15 -
punishment. Ianniello v. Commissioner, 98 T.C. 165 (1992).
Moreover, where the addition to tax is assessed following a
conviction under section 7206(1) for willfully making a false
return, the addition to tax under section 6653(b) does not relate
to the same offense. See McNichols v. Commissioner, T.C. Memo.
1993-61, affd. 13 F.3d 432 (1st Cir. 1993). Consequently, we
conclude that the Gilchrists' contention is without merit.
Finally, the Gilchrists contend that the criminal proceeding
determined that they owe no more than $115,564.30 and that
respondent is collaterally estopped to collect tax, including
additions to tax, in excess of that amount. At the Gilchrists'
sentencing hearing, the presiding judge carefully explained that
the amount of tax ultimately assessed could exceed $115,564.30
and that the Gilchrists would be obligated to pay the additional
amount. The judge explained as follows:
THE COURT: * * * if, for example, you have your
contest with the Internal Revenue Service and it is
determined that you owe $80,000, then the total
restitution you would have to pay would be $80,000. If
it is $180,000, you would still owe the Government
$180,000, 115 of which would be this restitution; do
you understand?
MRS. GILCHRIST: Yes, sir.
MR. GILCHRIST: (Nods.)
As a result, we conclude that the U.S. District Court did not
determine that the tax owed, including additions to tax, could
not exceed $115,564.30, and respondent is not collaterally
estopped.
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