John R. Louis - Page 5

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               In Helvering v. Mitchell, 303 U.S. 391 (1938), the Supreme             
          Court in an income tax case held that civil fraud penalties are             
          remedial in nature when imposed upon a taxpayer who has been                
          tried, but not convicted, of criminal tax evasion.  The Supreme             
          Court subsequently held that "under the Double Jeopardy Clause a            
          defendant who already has been punished in a criminal prosecution           
          may not be subjected to an additional civil sanction to the                 
          extent that the second sanction may not fairly be characterized             
          as remedial, but only as deterrent or retribution."  United                 
          States v. Halper, 490 U.S. 435, 448-449 (1989).  However, Halper            
          involved medicare fraud under the Civil False Claims Act, and the           
          First Circuit has made clear that "To use Halper as a base for              
          vaulting into the tax arena would be to misapply the case and               
          distort its holding."  McNichols v. Commissioner, 13 F.3d 432,              
          435 (1st Cir. 1993), affg. T.C. Memo. 1993-61.  And this Court              
          has held that the imposition of section 6653(b) fraud additions             
          after a taxpayer has been criminally convicted pursuant to                  
          section 7201 does not violate the Double Jeopardy Clause.                   
          Ianniello v. Commissioner, 98 T.C. 165, 183-185 (1992) ("The                
          additions to tax for fraud are a stated percentage of the dollar            
          amount of the tax deficiencies, and are therefore tailored to the           
          severity of the violation.  * * *  Thus, unlike United States v.            
          Halper, supra, the additions imposed against petitioners are                
          rationally related to the governmental costs incurred by reason             






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