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 purposes4 As such, I believe that James Bailey's criminal conviction is not contrary to the Double Jeopardy Clause. However, payment of the CSET assessed would constitute a second punishment of Bailey 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).
. 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, i.e., when evidence was first presented to a trier of fact in Bailey's contest of the assessment. If that occurred prior to jeopardy attaching in Bailey's criminal prosecution, then the result would be the same as the majority reaches here.