Department of Revenue of Mont. v. Kurth Ranch, 511 U.S. 767, 20 (1994)

Page:   Index   Previous  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  Next



Rehnquist, C. J., dissenting

the law involved claims of double jeopardy where a statute imposing what was denominated a "civil penalty" was invoked following a separate criminal proceeding based on an indictment for fraud. In Mitchell, supra, United States ex rel. Marcus v. Hess, 317 U. S. 537 (1943), and Rex Trailer Co. v. United States, 350 U. S. 148 (1956), the double jeopardy claim was rejected; in United States v. Halper, supra, a double jeopardy claim was upheld for the first time.

The Court, unlike the Court of Appeals below, wisely does not subject the Montana tax to the Halper analysis and it is thus unnecessary to determine whether Halper was correctly decided. See post, at 802-805 (Scalia, J., dissenting). This clearly is not the "rare case" contemplated by Halper, nor does this tax involve a "fixed-penalty provision." Halper, supra, at 449. In Halper, we held that the double jeopardy test was whether or not the penalty statute there enabled the Government to recover more than an approximation of its costs in bringing the fraudulent actor to book, because compensation for the Government's loss is the avowed purpose of a civil penalty statute. But here we are confronted with a tax statute, and the purpose of a tax statute is not to recover the costs incurred by the Government for bringing someone to book for some violation of law, but is instead either to raise revenue or to deter conduct, or both. See, e. g., Welch v. Henry, 305 U. S. 134, 146 (1938); Sonzinsky v. United States, 300 U. S. 506, 513 (1937). Thus, despite Justice O'Connor's attempt to view this case through the Halper lens, post, at 793, the reasoning quite properly employed in Halper to decide whether the exaction was reme-such an adjudication would be decisive also of this issue of fraud." Ibid. The word "tax" is mentioned a third time in setting out the respondent's argument that "this proceeding is barred under the doctrine of double jeopardy because the 50 per centum addition . . . is not a tax, but a criminal penalty intended as punishment for allegedly fraudulent acts." Ibid. It is telling to note that the Court immediately thereafter denotes the 50% addition as a "sanction," and not a tax. Id., at 398-399.

Page:   Index   Previous  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  Next

Last modified: October 4, 2007