Nicholson, Matter of

• Decision Date: 27 June 1979
• Docket Number: Nos. 6,7 and 20,s. 6
• Citation: 243 Ga. 803,257 S.E.2d 195
• Parties: In the Matter of NICHOLSON.
• Court: Georgia Supreme Court

Page 195

257 S.E.2d 195

243 Ga. 803

In the Matter of NICHOLSON.

Nos. 6, 7 and 20.

Supreme Court of Georgia.

June 27, 1979.

Charles W. Boyle, Jr., Atlanta, for Nicholson.

Omer W. Franklin Jr., Gen. Counsel State Bar, Robert H. Davis, Jr., Asst. Gen. Counsel State Bar, James E. Spence, Jr., Asst. Gen. Counsel State Bar, Atlanta, for State Bar of Georgia.

PER CURIAM:

On November 8, 1974, respondent Thomas F. Nicholson, a member of the State Bar of Georgia, was convicted in the United States District Court for wilful failure to file Federal Income Tax Returns for each of the years 1968, 1969, and 1970, in violation of Title 26, U.S.C. § 7203.

Based on this conviction, the State Disciplinary Board of the State Bar instituted a proceeding against him specifically alleging that his conviction for these offenses was a violation of Rule 4-102, in part IV, Chapter 1 of the Rules and Regulations for the Organization and Government of the State Bar of Georgia as they existed in the year of his conviction. Disbarment from the practice of law is authorized under this rule upon "final conviction of any felony or misdemeanor involving moral turpitude."

A Special Master appointed under the rules to hear the matter concluded as a matter of law that the wilful failure to file federal income tax returns in violation of the Internal Revenue Code was not an offense involving "moral turpitude." On January 23, 1979, the State Disciplinary Board reversed the Special Master's ruling and concluded that the respondent was guilty of a "misdemeanor involving moral turpitude," and recommended in its report to this court that the respondent be suspended from the practice of law for a period of six months.

To this report, the respondent filed his exceptions. While admitting that he was convicted for failing to file income tax returns for the years involved, he contends that such failure is not an offense involving moral turpitude and, therefore, he is not subject to discipline under the rules of the State Bar of Georgia. Respondent admits a tax liability of $49,008.30, and admits that a portion of this liability was incurred in the tax years 1968, 1969 and 1970.

1. A violation of 26 U.S.C. § 7203 is a misdemeanor, punishable by a fine of not more than $10,000 or imprisonment of not more than one year, or both, for each offense. In construing the predecessor of this code section the United States Supreme Court has determined that "evil motive is the constituent element of the crime." That opinion went on to say, "Congress did not intend that a person, by reason of a bona fide misunderstanding as to his liability for a tax, as to his duty to make a return, or as to the adequacy of the records he maintained, should become a criminal by his mere failure to measure up to the prescribed standard of conduct." U. S. v. Murdock, 290 U.S. 389 at 395, 396, 54 S.Ct. 223, at 225-226, 78 L.Ed. 381 (1933).

More recently, in U. S. v. Bishop, 412 U.S. 346, at 360-361, 93 S.Ct. 2008 at 2017, 36 L.Ed.2d 941 (1973) the Supreme Court said:

"The Court, in fact, has recognized that the word 'willfully' in these statutes generally connotes a voluntary, intentional violation of a known legal duty. It has formulated the requirement of willfulness as 'bad faith or evil intent,' (U. S. v.) Murdock, 290 U.S. at 398, 54 S.Ct. at 226, or 'evil motive and want of justification in view of all the financial circumstances of the taxpayer,' Spies (Spies v. United States ), 317 U.S. (492), at 498, 63 S.Ct. (364), at 368 (87 L.Ed. 418), or knowledge that the taxpayer 'should have reported more income than he did'. Sansone, (Sansone v. United States ), 380 U.S. (343), at 353, 85 S.Ct. (1004), at 1011 (13 L.Ed.2d 882) (Further citations omitted) "This longstanding interpretation of the purpose of the recurring word 'willfully' promotes coherence in the group of tax crimes. In our complex system, uncertainty often arises even among taxpayers who honestly wish to follow the law . . . The Court's consistent interpretation of the word 'willfully' to require an element of Mens rea implements the pervasive intent of Congress to construct penalties that Separate the purposeful tax violater from the well-meaning, but easily confused, mass of taxpayers. (Emphasis supplied)

"Until Congress speaks otherwise, we therefore shall continue to require, both in tax felonies and tax misdemeanors that must be done 'wilfully' the bad purpose or evil motive described in Murdock, supra . . ."

We conclude from the court's opinion in U. S. v. Bishop, supra, that a taxpayer cannot be convicted for violation of 26 U.S.C. § 7203 unless his conduct is wilful, and that the offense requires an element of mens rea. While mens rea is not synonymous with moral turpitude it does denote a specific intent to violate the law.

Many states have considered a similar question, but because of varying definitions prevailing in the several states as to what constitutes moral turpitude, and even more varying disciplinary rules that are applicable to attorneys at law, a variety of results has been reached. The following state decisions appear to hold definitely that a wilful failure to file federal income tax returns involves moral turpitude: In Re Bass, 49 Ill.2d 269, 274 N.E.2d 6 (1971). (Also, Re Lambert, 47 Ill.2d 223, 265 N.E.2d 101 (1970)); Rheb v. Bar Assn. of Baltimore City, 186 Md. 200, 46 A.2d 289 (1946); Re Moon, 310 S.W.2d 935 (1958 Mo.); Re MacLeod, 479 S.W.2d 443, cert. den. 409 U.S. 979, 93 S.Ct. 312, 34 L.Ed.2d 243 (1972 Mo.); Re Kline, 156 Mont. 177, 477 P.2d 881 (1970); State ex. rel. Nebraska State Bar Assn. v. Fitzgerald, 165 Neb. 212, 85 N.W.2d 323 (1957); State ex. rel. Nebraska State Bar Assn. v. Tibbels, 167 Neb. 247, 92 N.W.2d 546 (1958); Re Walker, 240 Or. 65, 399 P.2d 1015 (1965) (Per specific facts of case); State Board of Law Examiners v. Holland, 494 P.2d 196 (1972 Wyo.) (failure to file for four years); Dayton Bar Assn. v. Prear, 175 Ohio St. 543, 26 Ohio Op.2d 220, 196 N.E.2d 773 (1964); Re Reardon, 369 A.2d 666 (Del.Supr.) Committee on Professional Ethics & Conduct of Iowa State Bar Assn. v. Bromwell, Iowa, 221 N.W.2d 777 (1974); Matter of Fosaaen, N.D., 234 N.W.2d 867; Committee v. Jones, 256 Ark. 1106, 509 S.W.2d 294 (1974).

Other states have reached the opposite conclusion, although in many of these the reasons for doing so are varied: Committee on Legal Ethics of West Virginia State Bar v. Scherr, 149 W.Va. 721, 143 S.E.2d 141 (1965); Kentucky State Bar Assn. v. Brown, 302 S.W.2d 834 (1957 Ky.) (no fraudulent intent); Kentucky State Bar Assn. v. McAfee, 301 S.W.2d 899 (1957 Ky.); Cincinnati Bar Ass'n v. Leroux, 16 Ohio St.2d 10, 45 Ohio Op.2d 259, 242 N.E.2d 347 (1968) (no intent to evade); Re Corcoran, 215 Or. 660, 337 P.2d 307 (1959) (absence evil/fraudulent intent, may or may not be based on facts); Re Cochrane, 92 Nev. 253, 549 P.2d 328 (1976) (no personal return filed but partnership returns filed); Re Weisensee, S.D., 224 N.W.2d 830 (1975) (involved only one year return).

It is noted that in almost every instance the attorney charged with the offense was disciplined in some fashion. Thus, whatever the underlying basis for the decision, state courts have seldom looked with favor on such conduct. ¹

The specific charge against respondent in this instance is based on the premise that his conviction for these specific crimes involves moral turpitude under the definition of moral turpitude as contained in the various decisions of our appellate courts. See, Lewis v. State, 243 Ga. 443, 254 S.E.2d 830 (1979).

Decisions from some states have considered a totality of the circumstances test in regard to the failure of the taxpayer to file. It seems important for us to consider whether or not there were taxes due for the years in question. As independent as most Americans are, it would be difficult for us to accept a theory that turpitude is involved in not filing a tax return in a year for which there were no taxes due, although the statute involved mandates filing if there is gross income in certain minimum amounts.

It is the attorney's duty to uphold the law. When he fails to do so he seriously impairs the public confidence in the entire profession, and especially so when his conduct extends over a prolonged period of time. While failure to file is not an act of commission, if it is intentionally neglected for the purpose of avoiding tax liability when there are taxes due, it is as culpable as an overt act of filing a false return, although the punishments in each instance may vary.

The primary purpose in State Bar discipline is to protect the public from one unqualified to practice law due to...