Doelker v. Accountancy Bd.

• Decision Date: 13 December 1967
• Docket Number: No. 40698,40698
• Citation: 41 O.O.2d 328,232 N.E.2d 407,12 Ohio St.2d 76
• Parties: , 41 O.O.2d 328 DOELKER, Appellee, v. State of Ohio, ACCOUNTANCY BOARD of Ohio, Appellant.
• Court: Ohio Supreme Court

Page 76

12 Ohio St.2d 76

232 N.E.2d 407, 41 O.O.2d 328

DOELKER, Appellee, v. State of Ohio, ACCOUNTANCY BOARD of Ohio, Appellant.

No. 40698.

Supreme Court of Ohio.

Dec. 13, 1967.

Syllabus by the Court

1. A conviction under Section 7203, Title 26, U. S. Code, for willfully failing to make an income tax return, where such return is required by law, does not represent, within the meaning of Section 4701.16 (F), Revised Code, conviction of a crime, an element of which is dishonesty or fraud.'

2. On an appeal from an order of an agency revoking a license, the Common Pleas Court may affirm that order only 'if it finds, upon consideration of the entire record and such additional evidence as the court has admitted, that the order is supported by reliable, probative, and substantial evidence and is in accordance with law'; and this means that such evidence must not only exist but must be in the record in order to support an affirmance. (Section 119.12, Revised Code, construed.)

This proceeding originated with a letter of notice dated May 14, 1964, to Mrs. Doelker from the president and the executive director of the accountancy board notifying her that she could request a hearing within 30 days 'to determine whether or not' her 'certificate to practice as a certified public accountant * * * should be suspended or revoked in accordance with the authority vested in the * * * board * * * under Section 4701.16(D) for violation of Rule 2 of the Rules of Professional Conduct promulgated by the board and Section 4701.16(F) for the conviction of a crime under the laws of the United States, an element of which is dishonesty or fraud,' i. e., 'willful failure to file' a personal income tax return for the year 1955 'in violation fo Section 7203 of the Internal Revenue Code of 1954.'

So far as pertinent, Section 4701.16, Revised Code, reads:

'After notice and hearing as provided in sections 119.01 to 119.13, inclusive, of the Revised Code, the accountancy board may revoke, or suspend, any certificate issued under section 4701.06 of the Revised Code, or any registration granted under section 4701.07 of the Revised Code, or may revoke, suspend, or refuse to renew any permit issued under section 4701.10 of the Revised Code, or may censure the holder of any such permit, for any one or any combination of the following causes:

'* * *

'(D) Violation of a rule of professional conduct promulgated by the board under the authority granted by sections 4701.02 to 4701.19, inclusive, of the Revised Code;

'* * *

'(F) Conviction of any crime, an element of which is dishonesty or fraud, under the laws of any state or of the United States * * *.'

Rule 2 promulgated by the board reads:

'A certified public accountant * * * shall not commit an act discreditable to the profession.'

Section 7203, Title 26, U.S.Code, reads, so far as pertinent:

'Any person required under this title * * * to make a return * * * who willfully fails to * * * make such return * * * shall * * * be guilty of a misdemeanor * * *.'

After a hearing requested by Mrs. Doelker under the Administrative Procedure Act (Chapter 119, Revised Code), the board made an order that 'the certificate to practice as a certified public accountant * * * dated * * * 1941, issued to' Mrs. Doelker 'be revoked * * * effective on * * * receipt of this decision.'

Thereafter, Mrs. Doelker duly appealed from that order to the Common Pleas Court of Cuyahoga County pursuant to Section 119.12, Revised Code, which reads, in part:

'The court may affirm the order of the agency complained of in the appeal if it finds, upon consideration of the entire record and such additional evidence as the court has admitted that the order is supported by reliable, probative, and substantial evidence and is in accordance with law. In the absence of such a finding, it may reverse, vacate, or modify the order or make such other ruling as is supported by reliable, probative, and substantial evidence and is in accordance with law. The judgment of the court shall be final and conclusive unless reversed, vacated, or modified on appeal. Such appeals may be taken either by the party or the agency and shall proceed as in the case of appeals in civil actions as provided in sections 2505.01 to 2505.45, inclusive, of the Revised Code. * * *'

No evidence was offered in the Common Pleas Court in addition to that contained in the record as certified to the court by the board.

The judgment of the Common Pleas Court sustained the order of the Board of Accountancy.

On appeal from that judgment, the Court of Appeals rendered final judgment for Mrs. Doelker 'for the reason that the order of the accountancy board * * * is not supported by reliable, probative and substantial evidence.'

The cause is now before this court on appeal from the judgment of the Court of Appeals pursuant to the allowance of a motion to certify the record.

Davis & Young, Cleveland, and R. Brooke Alloway, Columbus, for appellee.

William B. Saxbe, Atty. Gen., Winifred A. Dunton, Columbus, and Edward F. Pelteson, for appellant.

TAFT, Chief Justice.

Section 4701.16(F) specifies, as a basis for the action taken by the accountancy board in the instant case, 'conviction of any crime, an element of which is dishonesty or fraud.' In our opinion, this statutory language would only include a crime where 'dishonesty or fraud' is an essential element of the crime, i. e., and element which would have to be proved in order to support a conviction.

The words of Section 7203, Title 26, U.S.Code, do not indicate that 'dishonesty or fraud' is an essential element of the crime of willfully failing to make a return, which is the only crime charged against Mrs. Doelker and the only crime for which she was convicted. Under the words of the statute, she could have been convicted of that crime even though she would have had no income tax liability if she had filed a return. We may take judicial notice of the fact that, to use the language of Section 7203, Title 26, U.S. Code, one 'required * * * to make a return' (i. e., one having more than $600 gross income) may have no tax liability at all. It is obvious, therefore, that there is no element of 'dishonesty or fraud' necessarily involved in the crime for which Mrs. Doelker was convicted unless something is read into the statute which is not there. Spies v. United States (1943), 317 U.S. 492, 63 S.Ct. 364, 87 L.Ed. 418; Lumetta v. United States (8 Cir.1966), 362 F.2d 644. But, see United States v. Murdock (1933), 290 U.S. 389, 54 S.Ct. 223, 78 L.Ed. 381; United States v. Vitiello (3 Cir.1966), 363 F.2d 240.

Therefore, we conclude that a conviction under Section 7203, Title 26, U.S. Code, for willfully failing to make an income tax return, where such return is required by...