- 20 - civil sanction into a criminal penalty. Id. at 99 (quoting United States v. Ward, 448 U.S. 242, 248-249 (1980)). Congress intended the penalty for negligence to be a civil, not a criminal, sanction. See Helvering v. Mitchell, 303 U.S. 391, 402 (1938); Louis v. Commissioner, 170 F.3d at 1235. The statutory language reflects that the section 6662 accuracy- related penalty for negligence is a penalty in connection with civil tax liability (addition to the tax). See also Louis v. Commissioner, 170 F.3d at 1235, where the same conclusion was reached by the Court of Appeals concerning the civil fraud penalty. Having decided that a civil penalty was intended, we now consider the following “useful guideposts” provided in Hudson to determine whether the statutory scheme is punitive in either purpose or effect: (1) “[w]hether the sanction involves an affirmative disability or restraint”; (2) “whether it has historically been regarded as a punishment”; (3) “whether it comes into play only on a finding of scienter”; (4) “whether its operation will promote the traditional aims of punishment--retribution and deterrence”; (5) “whether the behavior to which it applies is already a crime”; (6) “whether an alternative purpose to which it may rationally be connected is assignable for it”; and (7) “whether it appears excessive in relation to the alternative purpose assigned.” Hudson v. United States, supra at 99-100 (quoting Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-169 (1963)). These factorsPage: Previous 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Next
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