Patrick W. Healey and Nancy L. Marshall - Page 21

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               2.   Sections 6651(a)(1) and 6662(a) Do Not Punish the Same            
                    Conduct for Purposes of the Double Jeopardy Clause                
               The Double Jeopardy Clause applies only if a person is put             
          in jeopardy twice for the same conduct.  Conduct is different for           
          double jeopardy purposes if the two proceedings require proof of            
          different facts.  “[T]he test to be applied to determine whether            
          there are two offenses or only one, is whether each provision               
          requires proof of a fact which the other does not.”  Blockburger            
          v. United States, 284 U.S. 299, 304 (1932); see also Brown v.               
          Ohio, 432 U.S. 161, 166 (1977).  If each statutory provision                
          requires proof of a fact that the other does not, the Blockburger           
          test is met and the provisions are not the same for double                  
          jeopardy purposes.  Iannelli v. United States, 420 U.S. 770, 785            
          n.17 (1975).                                                                
               Section 6651(a)(1) and (2) applies to failure to timely file           
          a return and pay tax.  Section 6662(a) and (c) requires proof of            
          negligence.  Thus, conduct under section 6651(a)(1) and (2) and             
          section 6662(a) and (c) is not the same for double jeopardy                 
          purposes.  See sec. 1.6662-2(a), Income Tax Regs.  Petitioners              
          are liable for the addition to tax for failure to timely file               
          under section 6651(a)(1) for 1990 because they did not properly             
          estimate their tax liability on their Forms 4868, thus                      
          invalidating respondent’s consent based on those forms to extend            
          filing dates for those returns by 4 months.  See pars. A and B,             
          pp. 10, 14.  They are liable for the accuracy-related penalty               




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