- 21 - 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.Page: 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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