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MOORE v. UNITED STATES

Nos. 9895, 9896.

360 F.2d 353 (1965)

Jerome H. MOORE and Mildred V. Moore, Appellees, v. UNITED STATES of America, Appellant. Jerome H. MOORE and Mildred V. Moore, Appellants, v. UNITED STATES of America, Appellee.

United States Court of Appeals Fourth Circuit.

Decided December 7, 1965.

Modification of Decision of December 7, 1965.

Filed April 29, 1966.

Attorney(s) appearing for the Case

Burton Berkley, Attorney, Dept. of Justice (Louis F. Oberdorfer, Asst. Atty. Gen., and Lee A. Jackson and David O. Walter, Attys., Dept. of Justice, and Thomas B. Mason, U. S. Atty., on brief), for appellant in No. 9895 and appellee in No. 9896.

James H. Michael, Jr., and Robert M. Musselman, Charlottesville, Va., for appellees in No. 9895 and appellants in No. 9896.

C. Moxley Featherston, Acting Asst. Atty. Gen., Lee A. Jackson, David O. Walter and Burton Berkley, Attys., Dept. of Justice, and Thomas B. Mason, U. S. Atty., on supplemental brief for United States.

James H. Michael, Jr. and Robert M. Musselman, Charlottesville, Va., on supplemental brief, for Mildred V. Moore.

Before HAYNSWORTH, Chief Judge, and SOBELOFF and BOREMAN, Circuit Judges.

SOBELOFF, Circuit Judge:

The principal question before us is whether a criminal conviction for tax evasion works a collateral estoppel on the issue of fraud in a subsequent civil suit over a fraud penalty.

The point arises in a suit for refund filed by Mr. and Mrs. Jerome H. Moore for taxes paid in 1960 for the years 1955-58. The Commissioner filed a counterclaim for additional taxes and fraud penalties assessed pursuant to 26 U.S.C.A. § 6653(b)

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