Department of Revenue of Mont. v. Kurth Ranch, 511 U.S. 767, 19 (1994)

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

Rehnquist, C. J., dissenting

Chief Justice Rehnquist, dissenting.

Without giving any indication that it is doing so, the Court's opinion drastically alters existing law. We have never previously subjected a tax statute to double jeopardy analysis, but under today's decision a state tax statute is struck down because its application violates double jeopardy. The Court starts off on the right foot. It correctly recognizes that our opinion in United States v. Halper, 490 U. S. 435 (1989), says nothing about the possible double jeopardy concerns of a tax, as opposed to a civil fine like the one confronted in Halper. Ante, at 777. I agree with the Court's rejection of the Halper mode of analysis, which, with its effort to determine whether a penalty statute is remedial or punitive, simply does not fit in the case of a tax statute. Ante, at 783. But the Court then goes astray and the end result of its decision is a hodgepodge of criteria—many of which have been squarely rejected by our previous decisions—to be used in deciding whether a tax statute qualifies as "punishment."

The Court cites the case of Helvering v. Mitchell, 303 U. S. 391 (1938), as one in which a tax statute was subjected to double jeopardy analysis. But I agree with the Court's statement that the "penalty at issue in Mitchell is arguably better characterized as a sanction for fraud than a tax." Ante, at 779, n. 16.1 All of our other cases in this area of

1 I disagree with the Court's statement that the Mitchell Court alternately characterized the penalty there in question as a tax. Ante, at 779, n. 16. The only language which was used by the Mitchell Court to which we are referred for this proposition is 303 U. S., at 398, where the Court uses the word "tax" three times, but only in the context of summarizing the parties' arguments. As for the first two times, the word "tax" is mentioned only in discussing the Government's argument that the indictment of Mitchell for willful evasion of the tax in question did not raise the same issue as did the civil proceeding for the fraud penalty for purposes of res judicata. The Court simply said: "Since there was not even an adjudication that Mitchell did not wilfully attempt to evade or defeat the tax, it is not necessary to decide whether


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