Fassinger v. State

656 N.E.2d 1163, 1995 Ind. App. LEXIS 1338, 1995 WL 616528

• Court: Indiana Court of Appeals
• Decided: October 23, 1995
• Docket: No. 64A04-9503-CR-107
• Status: Published

Opinions

OPINION

CHEZEM, Judge.

Case Summary

gDefendant-Appellant, James Fassinger ("Fassinger"), appeals from the denial of his motion to dismiss. We affirm.

Issue

The question presented to us is whether Article 1 § 14 of the Indiana Constitution and/or the 5th Amendment to the U.S. Constitution bar criminal prosecution under I.C. 35-48-4-10 when a tax lability under I.C. 6-7-3 has been assessed and partially paid.

Facts and Procedural History

Fassinger was charged by Information with three counts of Delivery of Marijuana, class D felonies. Before trial, Fassinger filed a motion to dismiss, contending further erim-inal prosecution was barred on double jeopardy grounds under Article 1 § 14 of the Indiana Constitution and the 5th Amendment of the U.S. Constitution. Fassinger claimed the Indiana Department of State Revenue ("Dept. of Revenue"), acting under the Controlled Substances Excise Tax ("CSET"), had assessed and he had partially paid, the tax imposed on the controlled substances referenced in the criminal information filed against him. The trial court denied his motion to dismiss the Delivery of Marijuana charges, and certified his question for interlocutory appeal.

Discussion and Decision

The issue before us today is whether double jeopardy bars criminal conviction for possession of the controlled substance when a defendant has voluntarily agreed to pay the tax assessed against him under the CSET. We confine our analysis to the specific facts before us today. Fassinger argues that prosecution for Delivery of Marijuana violates concepts of double jeopardy because he agreed to pay the tax assessed under the CSET. It is Fassinger's position that the assessment constituted a first jeopardy for purposes of double jeopardy. Our Tax Court held that the CSET was a "punishment" for purposes of double jeopardy, and therefore, CSET could not be collected unless it was imposed during the first prosecution of the person in possession. Clifft v. Indiana Dept. of State Revenue (1994), Ind.Tax, 641 N.E.2d 682, trans. granted (see also Hall v. Indiana Dept. of State Revenue (1994), Ind.Tax, 641 N.E.2d 694, trans granted; Bailey v. Indiana Dept. of State Revenue (1994), Ind. Tax, 641 N.E.2d 695, trans. granted; Hayse v. Indiana Dept. of State Revenue (1994), Ind.Tax, 641 N.E.2d 698, trans. granted).¹ The Indiana Tax Court arrived at this determination in comparing the CSET to a similar statute examined by the U.S. Supreme Court in Department of Rev. v. Kurth Ranch (1994), -- U.S. --, 114 S.Ct. 1987, 1945, 128 L.Ed.2d 767.

The threshold issue is the determination of when jeopardy first attached in Fassinger's tax case, because without a first jeopardy, there can be no second. In Kurth Ranch, the first time the U.S. Supreme Court held a tax statute was subject to double jeopardy analysis, no guidance was provided to determine when jeopardy attaches in a tax case. As our Tax Court noted in Clifft, however, the date of assessment is not controlling. In both Kurth Ranch and Clifft, the chronology of relevant official actions was: (1) arrest; (2) assessment; (8) guilty plea on the underlying possession charge with all, or virtually all, tax Hability still outstanding. There has been no guilty plea or conviction on Fassinger's underlying drug charges, nor has Fas-singer been criminally charged with failure to pay the CSET. The chronology of relevant official actions in Fassinger's situation is: (1) arrest; (2) assessment; (8) voluntary partial or token payment towards assessment, with most of the tax liability still outstanding. The facts presented by Fassinger were not applied in Cliff? or in Kurth Ranch. Our Tax Court was careful to note, "This appeal, like Kurth Ranch, 'does not raise the question whether an ostensibly civil proceeding that is designed 'to inflict punishment may bar a subsequent proceeding that is admittedly criminal in character' Kurth Ranch, 114 S.Ct. at 1947, n. 21 (Scalia, J. dissenting)." Such are the facts as presented by Fassinger today.

Fassinger argues that assessment of the tax alone triggers a jeopardy attachment. The relevant case law cannot be applied directly to Fassinger's situation because the facts differ significantly. The cases relied upon by Fassinger, with the exception of Clifft, contain facts wherein the defendants have failed to pay the CSET and they have been charged with failure to pay CSET, a class D felony. ILC. 6-7-8-ll1(b). In Whitt v. State (1995), Ind.App., 645 N.E.2d 677, trans. granted, and Charley v. State (1995), Ind.App., 651 N.E.2d 300, the defendants failed to pay the CSET and were prosecuted for failure to pay contemporaneously to being prosecuted for the possession offense. We held that double jeopardy was thus not violated. However, under similar facts in Collins v. State (1995), Ind.App., 645 N.E.2d 1089,² we held that double jeopardy was violated with the contemporaneous prosecution of failure to pay CSET and possession of cocaine. The holdings in these cases are inconsistent.

The U.S. Supreme Court held in Kurth Ranch that Montana's Dangerous Drug Tax (DDT) was "a second punishment within the contemplation of [the Fifth Amendment]. ..." Id. The plaintiffs in Kurth and Clifft pleaded guilty to the controlled substances crimes before any challenge to the tax assessment occurred. It was held in Kurth Ranch that Montana could collect the tax either contemporaneous with, or in lieu of, the criminal punishment. Id., 114 S.Ct. at 1945. The tax in Kurth Ranch was unconstitutional as applied to the Kurths only because it was a second punishment, and not contemporaneously imposed. Id., 114 S.Ct. at 1948. We subsequently held in Anderson v. State (1995), Ind.App., 649 N.E.2d 1060, that:

[tlhe general assembly meant the CSET and underlying drug offenses to work independently. This is evidenced in several provisions of the act. First, an arrest or eriminal conviction is not needed for the tax to become due. IC. § 6-7-8-8; Clifft, supra. Second, the tax raises revenue for drug abuse prevention programs. I.C. § 6-7-3-16. Third, paying the tax does not confer immunity from eriminal prosecution. IC. § 6-7-3-7. Forth, safeguards protect the identity of the payor and ensure that information gained from payment does not lead to a criminal prosecution. 1C. § 6-7-8-8, -9.

We, therefore, conclude the legislature intended to impose the tax in addition to the punishment for the underlying drug offense. It follows, then, that the State can prosecute for failure to pay the tax without foregoing contemporaneous prosecution for the underlying offense. We construe statutes to prevent absurdity and to give effect to the legislature's probable intent. Baker v. State (1985), Ind.App., 483 N.E.2d 772, 774, trans. denied. The legislature did not intend the State to chose between enforcing the CSET or the criminal drug laws. If this were so, enforcing the CSET would reduce the sancetion for some drug offenders. This is an absurd construction of legislative intent as, whatever else might be said about it, the CSET is clearly not meant to reduce the penalty for drug erimes. Thus, contemporaneous punishment for failing to pay the CSET and the underlying drug offense does not violate double jeopardy. See Clifft, supra; Kurth Ranch, supra.

Id. at 1063; see also Whitt, 645 N.E.2d 677; Charley, 651 N.E.2d 300).

The question becomes, then, whether an unchallenged assessment constitutes a punishment for the purpose of determining that the first jeopardy has attached in a double jeopardy analysis.³ Fassinger has made payments toward the tax due and has failed to protest the imposition of the CSET. Fassinger is entitled to the full protection of due process regarding the assessment. He is entitled to either not pay the tax and suffer criminal penalty, or to seek injunctive relief from the tax imposed. Clifft, 641 N.E.2d at 691. He chose instead to voluntarily partially comply with the tax assessment. He has committed no crime with regard to the CSET. To that extent, he has not been subjected criminally as a result of the CSET. Because he has chosen to pay the tax, he can assert that defense in the event he were to be charged criminally under the CSET. See, eg., Collins, 645 N.E.2d at 1094. The Dept. of Revenue has made no attempt to collect the assessed tax, beyond accepting Fassinger's voluntary payments toward the assessment. To that extent, there has been no first jeopardy.

In order for first jeopardy to attach, Fassinger must have suffered a punishment in the truest sense. The State, relying on Malone v. State (1913), 179 Ind. 184, 100 N.E. 567, argues that because a de novo review of the assessment is available, jeopardy has not attached. Indeed, any review by the Indiana tax court is de novo. I.C. § 6-8.1-9-1(d). While it is true that Fassinger failed to protest the assessment under Indiana Code § 6-8.1-5, he is not without the opportunity to seek de novo review in the Tax Court. His choice not to protest the assessment does not render the fact that an assessment has been issued a "jeopardy" for double jeopardy purposes. Rather, not until the challenge to the validity of the assessment has been rejected does the first jeopardy attach. Fassinger has suffered no punishment as a result of the assessment until he loses the opportunity to be refunded or the opportunity to escape liability via a tax protest.

In other words, "collection" for purposes of jeopardy attachment has not commenced until its challenge has been denied. Voluntary compliance with the CSET does not trigger jeopardy. Such a rule would lead to the absurd result that a criminal defendant can choose his penalty. It is unlikely the legislature intended for such a result. The CSET may be viewed as a lesser penalty, as compared to the prospect of a lengthy prison term. While we agree that the ideal approach is to assess the CSET and the criminal charge in the same proceeding, unless a person assessed under the CSET fails to pay, such cannot be accomplished because the CSET is not a criminal charge, applicable in criminal court contemporaneous with the underlying drug charge. Conceivably, no defendant who had voluntarily complied with the CSET would face eriminal punishment for the drug charge.

Another alternative for Fassinger to obtain attachment of the first jeopardy is to pay the tax in the full amount and file a claim for refund from the Dept. of Revenue under 1.C. § 6-8.1-9-1(a). Any denial of the claim for refund would be subject to the de novo review of the Tax Court. As of yet, Fassinger has not made significant payment toward the assessment and is in no position to file a claim for refund. Should he pay the assessed tax, he will have three years from the payment of the entire tax lability within which to file an original tax appeal in the Tax Court.

Jeopardy does not attach when review de movo is available. This follows the more commonly known rules as to when jeopardy attaches-when the jury is sworn in a jury trial, Livingston v. State (1989), Ind., 544 N.E.2d 1864, when the first witness is sworn in a bench trial, Burton v. State (1987), Ind.App., 510 N.E.2d 228, reh. denied, trans. denied, or when a plea of guilty is accepted by the court, State v. Keith (1985), Ind.App., 482 N.E.2d 751, reh. denied. An assessment follows none of those events; the review de movo in the Tax Court will follow receipt of evidence. Collection by instituting an action in court under I.C. § 6-8.1-8-4 will likewise involve the receipt in court of evidence of the liability and of the failure to satisfy the tax obligation. Until and unless there is either a denial of an original tax appeal or a denial of a claim for refund from the Tax Court, there is no jeopardy resulting from the duty to pay the tax.

Thus, jeopardy does not attach in a tax case until a party's tax protest has been rejected by the Tax Court or the request for a tax refund has been similarly denied by the Tax Court. While we agree with our Tax Court that an assessment under the CSET is punitive, the jeopardy resulting from that assessment does not attach until the party has lost official recourse. Unless the defendant protests the tax assessment via an original tax appeal, or until the tax has been paid and a claim for refund has been denied by the tax court, no jeopardy has occurred. Even in cases of forfeiture, where an individual's property has been physically confiscated, or there is a threat of physical confiscation, a judicial claim must be filed and judgment on the claim must be entered in order for jeopardy to attach. Seq, eg., U.S. v. Ursery (6th Cir.1995), 59 F.8d 568 (Jeopardy attaches in a nontrial forfeiture proceeding when the court accepts the stipulation of forfeiture and enters the judgment of forfeiture)»; U.S. v. Tames (B.D.Wash.1995), 881 F.Supp. 460 (Jeopardy attached to stipulated civil forfeiture when court entered the decree of fqrfeiture).

Additionally, Fassinger was not convicted criminally on the drug charge, unlike the defendant in Clifft, who appealed the Dept. of Revenue's tax levy because she had already pleaded guilty to the drug charge. The first jeopardy in CHlifft was the guilty plea on the underlying drug charge. Unlike the situation in CHifft, there has been no first jeopardy for Fassinger.

Conceivably, if the outcome of this case were to go the way Fassinger would have it, he could suffer no criminal or tax repercussions whatsoever, based solely on principles of double jeopardy. In a "Catch-22" maneuver, Fassinger applies principles of double jeopardy when there has been no first jeopardy, let alone a second jeopardy. He could be found innocent of the eriminal charges against him, thereby eliminating any Clifft-type argument of double jeopardy against future collection of the tax assessment (CSET does not require criminal arrest or conviction).⁴ Or, if we reverse the denial of his motion to dismiss, Fassinger would suffer no eriminal punishment on the drug charge and he could later protest his tax assessment or file a claim for refund and prevail, thereby eliminating all punishment. Likewise, he could be convicted of the criminal drug offense and escape liability for the assessment via a tax protest because there was a first jeopardy in the criminal conviction.

In any event, Fassinger's failure to challenge the assessment is, in essence, a waiver of the opportunity to claim the assessment as a jeopardy. The U.S. Supreme Court held that double jeopardy is a personal constitutional right that can be waived. U.S. v. Broce (1989), 488 U.S. 563, 109 S.Ct. 757, 102 L.Ed.2d 927. Because Fassinger at his own choosing did not file a claim or respond to the assessment, payment of the tax does not mean jeopardy has attached. In United States v. Torres (7th Cir.1994), 28 F.3d 1463, cert. denied, -- U.S. --, 115 S.Ct. 669, 130 LEd.2d 608, Renato Torres attempted to have the administrative forfeiture of the $60,-000 seized from him on the date of his arrest adjudicated as a prior jeopardy barring his criminal conviction and imprisonment. As in this case, Torres received notice but chose not to make a claim in the civil forfeiture proceeding. The Seventh Cireuit held that because Torres was a non-party, he was not at risk of a determination of guilt in the forfeiture proceeding and therefore, Jeopardy did not attach. Id. at 1465.

The Seventh Cireuit also found that Kurth Ranch was inapplicable because Torres failure to make a claim in the forfeiture proceedings meant he did not own or have any interest in the currency. Similarly, there was time for Fassinger to have refuted the CSET. As a result, he was not placed in jeopardy nor "punished" in a constitutional sense. -It does not offend constitutional principles to find that failure to file a claim [for refund] or to respond to a CSET is an effective waiver to a subsequent double jeopardy challenge. To hold otherwise, would allow criminal defendants to choose their punishment. A criminal defendant could decide to monetarily pay the assessment in lieu of going to prison. We doubt the legislature intended to substitute excise taxing for criminal punishment.

We remand back for trial.

DARDEN, J., concurs. STATON, J., dissents with opinion.

1 . On March 9, 1995, our supreme court granted transfer of Clifft. The Court heard argument on March 1, 1995, before granting the petition to transfer. A decision is forthcoming. Transfer was also granted on Hall, Bailey, and Hayse. Decisions are forthcoming.

2 . Our supreme court accepted transfer of this case on March 31, 1995. An opinion is forth coming.

3 . The first jeopardy must actually attach, whereas the second jeopardy must only be imminent to justify dismissal on the grounds of double jeopardy. That a first jeopardy might attach is not sufficient to warrant dismissal on grounds of double jeopardy.

4 . Our tax court held in Clifft:

The CSET, however, is a punishment for double jeopardy purposes. Therefore, the Department may not collect the tax from Mrs. Clifft, who has already pled guilty to Class A misdemeanor possession. On the other hand, because jeopardy has not attached in any criminal action against Mr. Clifft, double jeopardy does not bar collection of the tax from him.

Clifft, 641 N.E.2d at 691-692. In other words, until there is a collection or a conviction, no jeopardy has attached.