Clifft v. Indiana Department of State Revenue ( 1995 )

SULLIVAN, Justice,

concurring and dissenting.

As explained in part II of my dissent today in Bryant v. State (1995), Ind., 660 N.E.2d 290 (Sullivan, J., dissenting), I believe the majority errs in holding that an administrative assessment of a tax can constitute a first punishment for double jeopardy purposes.¹⁰ As such, I believe that Monica Clifft's criminal conviction is not contrary to the Double Jeopardy Clause. However, payment of the CSET assessed would constitute a second punishment of Monica Cliffé and would therefore be barred by Department of Revenue of Montana v. Kurth Ranch, - U.S. --, 114 S.Ct. 1937, 128 L.Ed.2d 767 (1994) (tax on the possession of illegal drugs assessed after the state has imposed a criminal penalty for the same conduct violated Double Jeopardy Clause).

I agree with the majority that no second jeopardy occurred in Kevin Clifft's case and that the CSET violates neither the Cliffts' privilege against self-incrimination nor their due process rights.

10 . If we were to proceed under the alternative approach I describe in part III of my Bryant dissent, I would remand to the Tax Court for determination of when jeopardy attached, Le., when evidence was first presented to a trier of fact in the Cliffts' contest of the assessment. If that occurred prior to jeopardy attaching in Monica Clifft's criminal prosecution, then the result would be the same as the majority reaches here.