Judge Christian N. (“Speedy”) Weiler finds the Section 6663 fraud chops do not subject Albert S. N. Hee to double jeopardy, notwithstanding Albert already went down for seven (count ’em, seven) counts of tax fraud in USDCDHI.

It seems Albert used his wholly-owned C Corp to write off “the college tuition of his eldest child, the purchase of a home for approximately $1.3 million that was primarily used by his children while attending college, and $92,000 of personal massage payments.” Order, at p. 3, footnote 2. Must’ve been quite a massage.

Btw, the case is Albert S.N. Hee & Wendy R. Hee, et al, Docket No. 24068-22, filed 11/27/28.

Judge Speedy Weiler, true to his cognomen, disposes of the double jeopardy argument quickly. “The double jeopardy clause protects ‘only against the imposition of multiple criminal punishments for the same offense.’ Hudson v. United States, 522 U.S. 93, 99 (1997). The clause does not prevent the imposition of both a criminal punishment and a civil sanction for the same act or omission. Helvering v. Mitchell, 303 U.S. 391, 398–99 (1938). Section 6663 is a civil sanction for tax fraud and is therefore not barred by the double jeopardy clause even when a prior criminal conviction for the same act or omission has occurred and restitution has been paid. Morse v. Commissioner, T.C. Memo. 2003-332, 86 T.C.M. (CCH) 673, 677, aff’d, 419 F.3d 829 (8th Cir. 2005). Accordingly, we conclude petitioners cannot rely on the double jeopardy clause to shield them from the section 6663 fraud penalties in these cases.” Order, at p. 7.

Criminal tax defense counsel should note the impact of Marinello v. United States, 584 U.S. 1 (2018). Albert went down for a Section 7212(a) obstruct-and-impede count for a series of phony returns between 2002 and 2015. IRS wants to bootstrap this into a noncooperation-with-IRS badge of fraud. But Marinello put paid to this catch-all, by requiring that defendant knew of a specific audit or investigation which s/he obstructed or impeded. Hence change-in-law knocks out issue preclusion on this point. As for whether obstructing or impeding is the same as not cooperating even in post-Marinello cases, Judge Speedy Weiler leaves that for another day. No summary J on that issue to IRS.

A docket search shows Albert was pro se. He gets a Taishoff “Good Job, Third Class.”