Ohio State Bar Ass'n v. Hart, 86

• Decision Date: 26 June 1968
• Docket Number: No. 86,86
• Citation: 238 N.E.2d 560,15 Ohio St.2d 97
• Parties: , 44 O.O.2d 67 OHIO STATE BAR ASSN. v. HART. D. D.
• Court: Ohio Supreme Court

Page 97

15 Ohio St.2d 97

238 N.E.2d 560, 44 O.O.2d 67

OHIO STATE BAR ASSN. v. HART.

D. D. No. 86.

Supreme Court of Ohio.

June 26, 1968.

James F. Shumaker, Nelsonville, and John R. Welch, Columbus, for relator.

James C. Justice and Gordon Bolon, Columbus, for respondent.

PER CURIAM.

On March 10, 1966, an information was filed against respondent in the United States District Court for the Southern District of Ohio, Western Division, charging that respondent 'did wilfully and knowingly fail to make and file' federal income tax returns for the calendar years of 1960, 1961 and 1962 in violation of Section 7203, Title 26, U.S. Code. Respondent was charged with having received a gross income of $29,874.70 in 1960, $28,804.28 in 1961 and $36.669.16 in 1962. Section 6012(a)(1), Title 26, U.S. Code, requires an individual having a gross income of $600 or more for the taxable year to file a federal income tax return.

To this information, respondent entered a plea of nolo contendere. Respondent was sentenced to two years imprisonment and was fined $2,000. The sentence of imprisonment was suspended and respondent was placed on probation for two years. The $2,000 fine has been paid.

In defense to the charged misconduct respondent admits his failure to file the federal income tax returns, but denies that such conduct violates the Canons of Professional Ethics. Respondent contends that prior to the taxable years in question, he made certain loans totaling $16,700 to a dairy which were not paid, that he decided to write the bad debts off against his taxable income for the years 1960, 1961 and 1962, and that the aggregate of his otherwise net taxable income for those years was less than $16,700. Respondent claims further that he believed that he was under no obligation to file a federal income tax return if his exemptions and deductions exceeded his gross income.

The record indicates that, while respondent did not specialize in the practice of tax law, he had prepared numerous income tax returns for his clients during his professional career and that he was entitled to practice before the Internal Revenue Service.

The evidence supports the charge that respondent violated Canons 29 and 32 of the Canons of Professional Ethics.

The question for determination is whether the discipline of suspension for an indefinite period from the practice of law recommended by the Board of Commissioners on Grievances and Discipline is warranted.

This court in Cleveland Bar Ass'n v. Bilinski (1964), 177 Ohio St. 43, 201 N.E.2d 878, and Dayton Bar Ass'n v. Prear (1964), 175 Ohio St. 543, 196 N.E.2d 773, held that the continued and totally unjustified failure of an attorney at law to file income tax returns is sufficient grounds to warrant a suspension for an indefinite period from the practice of law regardless of whether any 'moral turpitude' is involved. In light of these authorities, respondent's wholly unwarranted failure to file federal income tax returns for three consecutive years supports the board's recommendation of suspension for an indefinite period from the practice of law.

The case of Doelker v. Accountancy Board (1967), 12 Ohio St.2d 76, 232 N.E.2d 407, relied on by respondent, is not controlling.

The objections to the recommendation of the board are overruled, and the recommendation of the board is confirmed.

Report confirmed and judgment accordingly.

TAFT, C. J., and ZIMMERMAN, MATTHIAS, C. WILLIAM O'NEILL, SCHNEIDER and PAUL W. BROWN, JJ., concur.

PAUL M. HERBERT, J., dissents because he is of the opinion that a public reprimand would be sufficient.

TAFT, Chief Justice, concurring.

The instant case is clearly distinguishable from Doelker v. Accountancy Board (1967), 12 Ohio St.2d 76, ...