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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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