ON PETITION FOR REVIEW
SHEPARD, Chief Justice.The Indiana Department of State Revenue assessed over eleven million dollars in drug taxes against a couple who illegally possessed some 300 pounds of marijuana. The couple now seeks to avoid that tax liability by claiming the assessment was a second jeopardy for the same offense. We conclude that they may not.
I. History of the Case
On February 12, 1998, police entered and searched the home of petitioners Keith and Mary Hall. During their inspection of the Halls' property, police discovered a bale of marijuana weighing approximately 300 pounds. They arrested the Halls and charged them with felony possession of marijuana. |
Four days later, appellee Indiana Department of State Revenue assessed the Controlled Substances Excise Tax (CSET) against the Halls in the amount of $5,691,-320.1 The Department also assessed a 100 percent penalty because the Halls' did not pay the CSET when they first possessed the drug. Ind.Code Ann. § 6-7-8-11(a) (West Supp.1994). The Halls total CSET Hability was thus $11,882,640.2 On the same day, the Marion County Sheriffs Department garnished Mary's wages and seized the Halls property as partial payment of their CSET liability. Appellant's Petition to Set Aside Final Determination, I 2.
Subsequent to the assessment, Keith pled guilty to the charge of possessing marijuana and was convicted of a class D felony. The State dismissed the criminal charge against Mary.
The Halls sent a letter of protest to the Department, contesting their tax lability. The Department held a hearing and denied the Halls' protest. Subsequently, the Halls petitioned the Indiana Tax Court for review of the assessment, claiming the CSET violated their privileges against self-inerimination, as well as their double jeopardy, due process *321and equal protection rights afforded by the United States and Indiana Constitutions.3
On October 11, 1994, the Tax Court issued its opinion in this action and three companion cases addressing the same issues. Hall v. Indiana Dep't of State Revenue (1994), Ind.Tax, 641 N.E.2d 694; Bailey v. Indiana Dep't of State Revenue (1994), Ind.Tax, 641 N.E.2d 695; Clift v. Indiana Dep't of State Revenue (1994), Ind.Tax, 641 N.E.2d 682; Hayse v. Indiana Dep't of State Revenue (1994), Ind.Tax, 641 N.E.2d 698. The court ruled that the CSET did not violate the Halls' privileges against self-inerimination or their rights to equal protection and procedural due process. The court did conclude, however, that the CSET was Keith's second jeopardy, imposed in violation of the Fifth Amendment, and set aside his tax Hability. It held further that no violation of Mary's right against double jeopardy occurred because she had suffered no criminal sanction before or after her CSET assessment.
Both the Halls and the Department petitioned this Court for review, which we granted. The following issues are presented:
1. Whether the CSET assessment was a second jeopardy in violation of the Halls' double jeopardy rights under the Fifth Amendment to the U.S. Constitution;
Whether the CSET compels self-incrimination in violation of the Fifth Amendment to the U.S. Constitution; and,
Whether the CSET assessment abrogated the Halls' procedural due process rights afforded by the Fourteenth Amendment to the U.S. Constitution.
IIL Constitutionality of the CSET
Like the taxpayer in today's case of Bryant v. State (1995), Ind., 660 N.E.2d 290, the Halls claim their CSET assessment was the second jeopardy imposed against them for the same offense. In Bryant, we followed the U.S. Supreme Court's recent analysis in Montana Dep't. of Revenue v. Kurth Ranch, - U.S. --, 114 S.Ct. 1937, 128 L.Ed.2d 767 (1994), and concluded that a CSET assessment is a jeopardy. We reached this decision only after evaluating the CSET's deterrent purpose, high rate of taxation, prerequisite of the commission of a crime and penal nature objectives. Ultimately, we concluded that, when combined with the CSET's criminal sanction, Bryant had indeed been twice placed in jeopardy.
Because the nature of the Halls claim mirrors that of Bryant, our Bryant analysis is applicable. We note that Mary was subjected to neither eriminal prosecution nor punishment, and therefore conclude the CSET was her only jeopardy. Her Fifth Amendment rights were not offended. By contrast, Keith was convicted for felony drug possession after the Department's CSET assessment. The CSET was therefore his first jeopardy and the criminal action a second jeopardy in violation of the Double Jeopardy Clause.4
The Halls also argue that the CSET unconstitutionally compels self-inerim-ination and that the tax assessment denied their rights to procedural due process. We addressed issues identical to these in today's decision in Clifft v. Indiana Dep't. of State Revenue (1995), Ind., 660 N.E.2d 310. The analysis emerging from Cliff? leads us to hold that the CSET violates neither the Halls' privilege against self-incrimination nor their rights to procedural due process afforded by the Fifth and Fourteenth Amendments.
III. Conclusion
We affirm the decision of the Tax Court with respect to the Halls' self-incrimination *322and due process claims. We affirm the Tax Court's denial of Mary's double jeopardy claim. We reverse as to Keith's double jeopardy claim and reinstate the CSET assessment.5
DICKSON and SELBY, JJ., concur. DeBRULER, J., concurs in result and dissents with separate opinion to follow. SULLIVAN, J., concurs and dissents with separate opinion.ON PETITION FOR REVIEW
. The Department calculated the CSET by multiplying the weight of the marijuana, roughly 142,-283 grams, by the statutorily prescribed amount of $40 per gram. Ind.Code Ann. § 6-7-3-6 (West Supp.1994).
. Interest immediately began accruing at the rate of $1,091.49 per day.
. The Halls do not question the constitutional validity of the CSET under the Indiana Constitution in their appeal to this Court. Moreover, they presented no cogent state constitutional claim before the Tax Court.
. Keith lost his $40,000 in the wake of a jeopardy assessment just as Bryant suffered seizure of assets including his home in the immediate aftermath of the jeopardy assessment issued to him. Such is characteristic of the jeopardy assessment. It constitutes a civil judgment and may lead to seizure as payment just as a conviction in criminal court may lead to fines and incarceration. It is this similarity that leads us to conclude that assessment is the point at which jeopardy attaches for Fifth Amendment purposes.
. Keith's criminal conviction is not before us in this tax appeal therefore not subject to disposition here.