Appeal from the Circuit Court Du Page County. No. 93--CF--1531. Honorable Eugene A. Wojcik, Judge, Presiding.
Released for Publication December 17, 1996.
Presiding Justice McLAREN delivered the opinion of the court. Bowman and Thomas, JJ., concur.
The opinion of the court was delivered by: Mclaren
The Honorable Justice McLAREN delivered the opinion of the court:
Defendant, Yung S. Kim, brings this interlocutory appeal (145 Ill. 2d R. 604(f)) from the circuit court's denial of his motion to dismiss, on the basis of former jeopardy, the multiple-count indictment against him for filing fraudulent retailer's occupation tax returns (35 ILCS 120/13 (West 1992)). Defendant claims that the State's criminal prosecution against him is barred on double jeopardy grounds because, in February 1994, the State also issued against him a civil tax assessment and 10-day demand for payment of taxes in the amount of $306,200.90. Of this amount, $123,129.90 is for penalties and interest. (The penalty amounts to $54,921, and the interest amounts to $68,208.90.) He contends that he has been previously "punished" since the demand is a "final" notice for payment, and, should the defendant refuse to make payment within 10 days, the State may take execution upon the assessment or take other actions including, inter alia, the garnishment of his wages, the filing of a tax lien against his property, the seizure and sale of his assets, the revocation of various licenses, and the nonrenewal of his corporate charter. We affirm and remand for further proceedings.
The State has maintained both here and in the trial court that the purportedly "final" assessment does not amount to a criminal punishment for double jeopardy purposes, because the State has not yet made any attempt to enforce the tax against defendant or have a judgment entered against him, and defendant has not yet paid any tax. The State points out that defendant did not avail himself of the statutory procedures to protest the tax assessment, or request a hearing, or obtain judicial review. See 35 ILCS 120/4, 5 (West 1992); 735 ILCS 5/3--101 (West 1992). In sum, the State argues that no jeopardy has yet attached and the tax assessment does not constitute "punishment" for double jeopardy purposes. We find merit in the State's position.
The constitutional protections against double jeopardy are designed to protect against three distinct abuses by government: (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense when sought in separate proceedings. People v. Krizek, 271 Ill. App. 3d 533, 536, 207 Ill. Dec. 857, 648 N.E.2d 313 (1995). The bar against multiple punishments is the subject of the present appeal. It is obvious that there can be no double jeopardy without a former jeopardy. People v. Delatorre, 279 Ill. App. 3d 1014, 1019, 216 Ill. Dec. 865, 666 N.E.2d 33 (1996).
Here, although the threat of punishment may be said to exist in the form of a final assessment and demand, no punishment has in fact been imposed. For example, in a civil in rem forfeiture proceeding, the initial seizure of a defendant's property, where there is no final judgment of forfeiture, does not constitute punishment for double jeopardy purposes. See Krizek, 271 Ill. App. 3d at 537, quoting United States v. Stanwood, 872 F. Supp. 791, 799 (D. Or. 1994) ("Common sense compels the conclusion that punishment occurs when meted out by the court, not before").
We recognize that a tax proceeding is not quite analogous to a civil in rem forfeiture proceeding. However, the principle that a punishment must in fact be imposed in order for jeopardy to attach is the same in each instance when the question of multiple punishments is considered. This is so particularly where, as here, the defendant still has the opportunity to challenge the tax in a civil proceeding and no final judgment has been entered. Despite defendant's attempt to characterize the final notice of assessment and demand for payment as a punishment, we do not believe this notice has sufficient indicia of finality to qualify as a former jeopardy based on a theory of multiple punishments--particularly where defendant has not appeared in the administrative proceedings, no exaction or sanction has yet been imposed, and defendant still has the opportunity to challenge the tax and the penalties.
II. TAX ASSESSMENT WAS NOT CRIMINAL PUNISHMENT
In attempting to characterize the tax assessment as a criminal punishment, defendant's reliance on Wilson v. Department of Revenue, 169 Ill. 2d 306, 662 N.E.2d 415, 214 Ill. Dec. 849 (1996), is misplaced. That case is readily distinguishable. Following the analysis of Department of Revenue v. Kurth Ranch, 511 U.S. 767, 128 L. Ed. 2d 767, 114 S. Ct. 1937 (1994), our state supreme court in Wilson concluded that a large tax imposed on an alleged "dealer" of contraband drugs violated the constitutional protection against double jeopardy because of the tax's obvious punitive aspects and because it was conditioned on the commission of a crime. In that case, the defendant pleaded guilty to the criminal charges and was sentenced. He also filed a protest in the tax proceeding after he received a notice of assessment and intent to seize his assets. When the Department of Revenue proceeded to levy on his property without affording him the hearing he had requested, Wilson commenced an action for declaratory and injunctive relief on the basis that the tax could not be enforced against him because he had already been prosecuted and sentenced on the criminal charges. Wilson, 169 Ill. 2d at 308-09. It is clear that, in Wilson, the defendant had already been punished once by the imposition of the criminal sentence. The tax could not be enforced because of its unmistakable punitive characteristics under the Kurth Ranch analysis. Wilson, 169 Ill. 2d at 317. As we shall explain, those punitive characteristics are not present here.
In Kurth Ranch, the Supreme Court concluded that a Montana tax imposed on the defendants for the possession of illegal drugs after the state imposed a criminal penalty on the defendants amounted to a successive punishment in violation of the constitutional protection against double jeopardy. In determining whether the tax could be fairly characterized as punitive rather than as remedial, the Court first observed that "neither a high rate of taxation nor an obvious deterrent purpose automatically marks [a tax] as a form of punishment." 511 U.S. at , 128 L. Ed. 2d at 779, 114 S. Ct. at 1946; see People v. Dvorak, 276 Ill. App. 3d 544, 548, 213 Ill. Dec. 120, 658 N.E.2d 869 (1996). In Dvorak, we summarized the factors leading to this conclusion as follows:
"Among the features the Court found unusual were these: (1) the tax was conditioned on the commission of a crime; (2) it was exacted only after the taxpayer had been arrested for the conduct which gave rise to the tax obligation and had paid all related State or Federal fines and all forfeitures had been satisfied; and (3) the tax was levied on goods that the taxpayer neither owned nor possessed when the tax was imposed (because presumably the contraband was destroyed by the State) so that it had 'an unmistakable punitive character.' (511 U.S. at , 128 L. Ed. 2d at 781, 114 S. Ct. at 1947-48.) The Court explained: 'Taken as a whole, this drug tax is a concoction of anomalies, too far-removed in crucial respects from a standard tax assessment to ...