- 6 -
of their fraudulent underpayments of tax."); Barnette v.
Commissioner, 95 T.C. 341, 347-348 (1990).
Petitioner relies heavily upon the Supreme Court's recent
opinion in Department of Revenue of Montana v. Kurth Ranch, 511
U.S. , 114 S. Ct. 1937 (1994), a case that does not involve
Federal income taxes, but is concerned with a Montana forfeiture
provision relating to dangerous drugs. Petitioner argues that
Kurth Ranch has called into question the conclusion reached in
Mitchell and the cases following it. Petitioner contends,
relying upon Kurth Ranch, that since he has already been
convicted under section 7201, paid $10,000 in fines, and served 1
year in jail and 5 years of probation, imposition of the section
6653(b) additions to tax for the years at issue would violate the
Double Jeopardy Clause. However, Kurth Ranch did not overrule
Mitchell, and until the Supreme Court does so, we must treat Mr.
Justice Brandeis' opinion in Mitchell as the law of the land,
notwithstanding petitioner's unfair characterization of Mitchell
as "superannuated".
The purported applicability of Kurth Ranch to the section
6653(b) additions to tax has already been considered by this
Court. In Ward v. Commissioner, T.C. Memo. 1995-286, it was held
that Kurth Ranch did not change the status of the addition for
fraud as remedial. "Thus, the imposition of a civil fraud
penalty following the criminal conviction does not violate the
Double Jeopardy Clause of the Fifth Amendment to the U.S.
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