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spent to investigate and prosecute the petitioner's case are no
longer in existence or are unretrievable.
Petitioner does not contest his liability for the 1976,
1977, and 1978 deficiencies. Nor does he contest his liability
for the section 6653(b) additions to tax for fraud for those
years on the merits. He instead contends that the section
6653(b) additions to tax violate the double jeopardy provisions
of the Fifth Amendment and the excessive fines provisions of the
Eighth Amendment.2
Section 6653(b) provides that "If any part of the
underpayment * * * of tax required to be shown on a return is due
to fraud, there shall be added to the tax an amount equal to 50
percent of the underpayment."3 The Double Jeopardy Clause of the
Fifth Amendment to the United States Constitution states, "nor
shall any person be subject for the same offence to be twice put
in jeopardy of life or limb."
2 As to 1976, decision will necessarily have to be entered
for respondent regardless of the other 2 years, since the Fifth
and Eighth Amendment arguments apply only to the sanctions
imposed in the prosecutions, which related solely to 1977 and
1978. See Miller v. Commissioner, T.C. Memo. 1994-249 (to
trigger double jeopardy analysis conduct must be subject of civil
and criminal punishment).
3 The revised fraud addition to tax now appears in secs.
6663 and 6651(f). Omnibus Budget Reconciliation Act of 1989,
Pub. L. 101-239, secs. 7721(a), 7741(a), 103 Stat. 2106, 2395,
2404. Current sec. 6663(a) states that "If any part of any
underpayment of tax required to be shown on a return is due to
fraud, there shall be added to the tax an amount equal to 75
percent of the portion of the underpayment which is attributable
to fraud."
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Last modified: May 25, 2011