- 21 - 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 penaltyPage: Previous 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Next
Last modified: May 25, 2011