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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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