Department of Revenue of Mont. v. Kurth Ranch, 511 U.S. 767, 17 (1994)

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Cite as: 511 U. S. 767 (1994)

Opinion of the Court

The Montana tax is exceptional for an additional reason. Although it purports to be a species of property tax—that is, a "tax on the possession and storage of dangerous drugs," Mont. Code Ann. 15-25-111 (1987)—it is levied on goods that the taxpayer neither owns nor possesses when the tax is imposed. Indeed, the State presumably destroyed the contraband goods in this case before the tax on them was assessed. If a statute that amounts to a confiscation of property is unconstitutional, Heiner v. Donnan, 285 U. S. 312, 326 (1932); Nichols v. Coolidge, 274 U. S. 531, 542 (1927), a tax on previously confiscated goods is at least questionable.23 A

tax on "possession" of goods that no longer exist and that the taxpayer never lawfully possessed has an unmistakable punitive character. This tax, imposed on criminals and no others, departs so far from normal revenue laws as to become a form of punishment.

Taken as a whole, this drug tax is a concoction of anomalies, too far removed in crucial respects from a standard tax assessment to escape characterization as punishment for the purpose of double jeopardy analysis.24

and dual sovereign proceedings also is borne out by our cases holding that the Constitution does not prohibit successive prosecutions by different sovereigns based on the same conduct. See, e. g., Bartkus v. Illinois, 359 U. S. 121 (1959) (state prosecution after federal); Abbate v. United States, 359 U. S. 187 (1959) (federal prosecution after state).

23 Curiously, one of two alternative measures of the tax is the market value of a substance that cannot legally be marketed.

24 Courts—including this Court in United States v. Sanchez, 340 U. S. 42 (1950)—have frequently commented on the punishing and deterrent nature of drug taxes. See, e. g., Sims v. State Tax Comm'n, 841 P. 2d 6, 13 (Utah 1992); Rehg v. Illinois Dept. of Revenue, 152 Ill. 2d 504, 515, 605 N. E. 2d 525, 531 (1992); State v. Gallup, 500 N. W. 2d 437, 445 (Iowa 1993); State v. Roberts, 384 N. W. 2d 688, 691 (S. D. 1986); State v. Berberich, 284 Kan. 854, 811 P. 2d 1192, 1200 (1991); State v. Durrant, 244 Kan. 522, 769 P. 2d 1174, 1181, cert. denied sub nom. Dressel v. Kansas, 492 U. S. 923 (1989).

783

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