Kevin J. Morse - Page 16

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               Imposing the fraud penalty under section 6663 on petitioner            
          for the years at issue does not violate the Double Jeopardy                 
          Clause.  Barnette v. Commissioner, 95 T.C. 341 (1990); Starling             
          v. Commissioner, T.C. Memo. 1989-392, affd. 954 F.2d 729 (11th              
          Cir. 1992).                                                                 
               Finally, petitioner argues that he has paid the $61,000                
          restitution ordered by the District Court and that the Government           
          cannot be permitted to recover twice on the same tax liability.             
          This Court has jurisdiction to determine whether a deficiency or            
          overpayment exists.  Should it ultimately be determined that                
          petitioner has made payments in excess of any redetermined tax              
          liability, this Court has jurisdiction to decide the correct                
          amount of any overpayment in the taxable years before the Court.            
          Sec. 6512(b).  That is so whether payments were made under the              
          District Court’s restitution order or for any other reason.  See            
          M.J. Wood Associates, Inc. v. Commissioner, supra.                          
          Issue 3. Whether, Pursuant to Section 6501, the Period for                  
                    Assessing Tax Has Expired for the Years at Issue                  
               Generally, the Commissioner must assess tax within 3 years             
          after the due date of a timely filed return.  Sec. 6501(a).                 
          However, if the return is false or fraudulent with the intent to            
          evade tax, the tax may be assessed at any time.  Sec. 6501(c)(1).           
          Since the notice of deficiency was mailed to petitioner more than           
          3 years after the due dates of the 1991-94 returns, respondent              
          bears the burden of proving that an exception to the 3-year limit           





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