Aldrich H. Ames - Page 18




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          they are mutually exclusive.  See sec. 6662(b).  The accuracy-              
          related penalties and the fraud penalty may, however, be asserted           
          in the alternative.  Where the fraud penalty is not in issue or             
          where a court decides fraud is not applicable, the negligence               
          penalty may be considered and/or found.  It is rather obvious               
          that fraudulent concealment goes far beyond and is inclusive of             
          “negligence or disregard of rules or regulations.”  Here,                   
          petitioner was convicted of conspiracy to defraud the Government            
          under 18 U.S.C. sec. 371, and he admits that he intentionally               
          concealed his unlawful espionage income.  Additionally, his                 
          constructive receipt argument falls far short of the legal                  
          standard.  We hold that petitioner is liable for the section                
          6662(a) negligence penalty in each of the taxable years 1989,               
          1990, 1991, and 1992.                                                       
          IV.  Is Petitioner Constitutionally Protected by the Double                 
          Jeopardy Clause of the Fifth Amendment From the Assessment of Any           
          Tax or Civil Penalties Based Upon His Unlawful Espionage Income?            
               Petitioner contends that imposing an income tax liability on           
          the income he received from his espionage activities and/or                 
          imposing a negligence penalty under section 6662 violates the               
          Double Jeopardy Clause of the Fifth Amendment to the U.S.                   
          Constitution that no person shall “be subject for the same                  
          offence to be twice put in jeopardy of life or limb”.10  In                 


               10 Petitioner argues that the requirement that he pay the              
                                                             (continued...)           




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