Aldrich H. Ames - Page 21




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          are to be considered in relation to the “statute on its face”,              
          and “only the clearest proof” will suffice to override                      
          legislative intent that a remedy be civil in nature.  Id. at 100.           
               After considering the “guidepost” factors, we hold that the            
          accuracy-related penalty for negligence and/or the civil tax                
          liability on the forfeited espionage income are not so punitive             
          as to overcome clear congressional intent that they be civil                
          rather than criminal in nature.  The imposition of a tax                    
          liability, or a civil tax penalty, does not amount to an                    
          affirmative disability or restraint, nor has it historically been           
          regarded as punishment.  See Louis v. Commissioner, 170 F.3d at             
          1235 (for penalties); Murillo v. Commissioner, T.C. Memo. 1998-13           
          (for tax liability).  The Court of Appeals for the Ninth Circuit            
          has applied the Hudson test in Louis and held that the addition             
          to tax for fraud and its purpose were remedial.11  Louis v.                 
          Commissioner, supra.  The fraud penalties “are provided primarily           
          as a safeguard for the protection of the revenue and to reimburse           


               11 The Court of Appeals for the Ninth Circuit, in holding              
          that the civil fraud penalty was not punitive within the meaning            
          of Hudson v. United States, 522 U.S. 93 (1997), noted that the              
          civil fraud penalty contained some of the guideposts, such as               
          intent.  See Louis v. Commissioner, 170 F.3d 1232, 1235-1237 (9th           
          Cir. 1999), affg. per curiam T.C. Memo. 1996-257.  In that                  
          regard, the negligence penalty does not require specific intent             
          and thus has less coincidence with the guideposts.  In addition,            
          the negligence penalty is 20 percent of the affected portion of             
          the underpayment, whereas the fraud penalty is 75 percent of the            
          same portion.                                                               




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