Department of the Treasury (2006)

United States

Department of the Treasury

Director, Office of Professional Responsibility,

Complainant-Appellee (“C-A”)

v.

Complaint No. 2006-33

(b)(3)/26 USC 6103

, C.P.A.,

Respondent- Appellant (“R-A”)

Decision on Appeal

Authority

Under the authority of General Counsel Order No.9 (January 19, 2001)

and the authority vested in him as Assistant General Counsel of the Treasury

who was the Chief Counsel of the Internal Revenue Service, through a series of

Delegation Orders (most recently, an Order dated July 16, 2008) Donald L. Korb

delegated to the undersigned the authority to decide disciplinary appeals to the

Secretary of the Treasury filed under Part 10 of Title 31, Code of Federal

Regulations ("Practice Before the Internal Revenue Service," sometimes known

and hereafter referred to as "Treasury Circular 230"). This is such an Appeal

from a Decision entered in this proceeding by Administrative Law Judge

Michael A. Rosas (the "ALJ”)1 on December 20, 2007.2

Background

This proceeding was commenced on January 5, 2007 when Stephen A.

Whitlock, then the Acting Director, Office of Professional Responsibility, filed a

Complaint against R-A alleging that (i) R.A. had engaged in practice before the

Internal Revenue Service, (ii) R.A. was subject to the disciplinary authority of

the Secretary of the Treasury and the Office of Professional Responsibility, (iii)

(b)(3)/26 USC 6103

of Treasury

Circular 230 (Rev. 72002), and (v) such conduct was conduct for which R-A

could be censured, suspended or disbarred from practice before the Internal

Revenue Service.

1 The ALJ is an Administrative Law Judge of the National Labor Relations Board ("NLRB") and acted as the ALJ

in this proceeding under an inter-agency agreement between the Department of the Treasury and the NLRB.

2 A copy of the ALJ's Decision appears as Attachment 1 and is incorporated in this Decision on Appeal as if fully

set forth herein.

R-A filed his Answer (in the form of an "Answer to Opposition to Motion

to Dismiss") on March 7, 2007. In his answer, R-A did not contest that he had

practiced before the Internal Revenue Service [(i) above], nor did he contest

that he was subject to the disciplinary authority of the Secretary of the Treasury

or the Office of Professional Responsibility [(ii) above].3 With regard to (iii)

(b)(3)/26 USC 6103

above, R-A did not contest

In his Answer and/or later in the proceeding, R-A offered several

(b)(3)/26 USC 6103

explanations for why he had

Next, R-A indicated that, beginning in 2002

and continuing until her death in late 2003, R-A was caring and/or praying for

his gravely ill mother and his aged father. The prayers for his mother continued

following her death under the Jewish tradition of coddish [sic] (a mourner's

prayer vigil), as did the care he provided for his aged father. R-A also stated

that he had for some years suffered from visual impairments that prevented him

from practicing full time as a C.P.A., and which had prevented him from acting

as a C.P.A. without the assistance of his wife and, once they reached an age

where they too could be of help, of his children and "per diem workers"

(independent contractors) who had worked with him.

On October 30, 2007, a hearing was held in this proceeding before the

ALJ in New York, New York, at which R-A appeared pro se and C-A was

represented by Heather Southwell, Esquire. At the hearing, C-A presented one

witness, Elizabeth Ahn, and submitted exhibits that were accepted into

evidence. R-A also testified and submitted exhibits that were accepted into

3 Evidence in the Administrative Record confinns that R-A was both authorized to practice before the Internal

Revenue Service as a CPA licensed by the State of New York and that he had in fact practiced before the Internal

Revenue Service.

evidence. However, R-A was unwilling to submit certain other evidence to be

made part of the permanent administrative record (pairs of eye glasses and

contact lenses and a family photo) and offered no other evidence to corroborate

his own testimony on these points.4

Following the hearing, on December 20, 2007. the ALJ issued his

Decision in this proceeding, suspending R~A from practice before the Internal

Revenue Service for a period of twenty-four (24) months.5 On January 14, 2008,

R-A timely filed his Appeal from the Decision of the ALJ.6 On January 15, 2008.

R-A filed an Amended Appeal from the Decision of the ALJ, amending in certain

respects the third paragraph of Section 7 of his original Appeal.7 On February

11, 2008, C-A timely filed his Reply to R-A's Appeal.8

Role and Functions of the Appellate Authority

Before turning to the particular issues raised by R-A in his Appeal, let me

briefly describe the role and functions of the Appellate Authority in a Treasury

Circular 230 disciplinary proceeding.

The Appellate Authority reviews the entire Administrative Record in a

proceeding, and I have done so in this proceeding.9 One reason the Appellate

Authority does so is to determine whether the jurisdictional prerequisites

establishing the Director, Office of Professional Responsibility's jurisdiction

over a practitioner have been established. Here, the Administrative Record

reflects that, as a C.P.A. licensed by the State of New York, R-A is authorized to

4. R-A claimed that C-A had introduced as "evidence" correspondence R-A had submitted to C-A in the

course of the C-A's consideration of the case., [sic] apparently with the belief that anything R-A had made self­

serving statements in his correspondence with C-A that C-A had not specifically rebuffed should be deemed

admitted for the truth of the matter. I do not read the Administrative Record as supporting such a conclusion. I

view C-A's action in admitting R-A's correspondence to C-A as merely admissions that the correspondence as

only an admission that the Exhibits were accurate and true copies of the correspondence sent to OPR, not as an

admission of the truth of the statements contained in the correspondence.

5 The Decision of the ALJ is confusing in its discussion of the appropriate sanction to be imposed on R-A,

mentioning both a twenty-four (24) month suspension and disbarment. On balance, and in light of the Order

contained in the Decision, I construe the ALJ's Decision as intending to impose a twenty-four (24) month

suspension from practice as the sanction.

6 A copy of R-A's Appeal appears as Attachment 2 and is incorporated in this Decision on Appeal as if fully set

forth herein.

7 Given that R-A filed his Amended Appeal within the time period prescribed for filing an Appeal under §

10.77 of Treasury Circular 230 (Rev.6-2005), I will treat R-A's Amended Appeal as part of his original Appeal. A

copy of R-A's Amended Appeal appears as Attachment 3 and is incorporated in this Decision on Appeal as if

fully set forth herein. Both in his Appeal and in his Amended Appeal, R-A makes reference to other physical

(b)(6)

(b)(6)

that prevented him from normal functioning at

disabilities (including

certain times. There is no evidence to this effect in the Administrative Record and R-A did not subject himself to

cross-examination on this claim during his Hearing testimony, or to specify which periods these maladies affected

(b)(3)/26

(b)(3)/26 USC

USC 6103

his abilities

A copy of C-A's Reply to R-A's Appeal appears as Attachment 4 and is incorporated in this Decision on Appeal

as if fully set forth herein.

9 The ALJ's Certification of Record appears as Attachment 5 and is incorporated in this Decision on

Appeal as if fully set forth herein

practice before the Internal Revenue Service,10 and that R-A has in fact

practiced before the Internal Revenue Service.11 Itherefore find that these

jurisdictional prerequisites have been met.

In addition, the Appellate Authority examines the facts in the

Administrative Record and the law to determine whether the ALJ is correct that

Complainant has met each of his burdens of proof by the requisite evidentiary

standard of proof. Given the sanction initially sought by C-A and imposed by

the ALJ in his Decision, the requisite evidentiary standard that C-A must meet

in this proceeding is proof by clear and convincing evidence. § 10.76 of

Treasury Circular 230 (Rev. 6-2005).

Complainant's burdens of proof exist with respect to each element of

proof on each specific charge that remains in issue in a proceeding at the time

of an Appeal, as well as certain other evidentiary burdens imposed on the

Complainant based on the sanction Complainant sought to impose. Given the

specific charges alleged and the sanction initially sought to be imposed by C-A

in this proceeding, C-A must prove by clear and convincing evidence that R-A's

(b)(3)/26

violations were "willful." §§ USC

and 10.52(a)(1) of Treasury Circular 230

USC 6103

(Rev. 6-2005). As Appellate Authority, under the standards of review discussed

below, I have reviewed the Administrative Record and the Decision of the ALJ

to determine whether C-A has met each of these burdens by clear and

convincing evidence.

The Appellate Authority's standards of review differ depending on

whether the issue being reviewed involves (i) a purely factual question, (ii) a

mixed question of fact and law, or (iii) a purely legal question. The Appellate

Authority reviews the Administrative Law Judge's findings of fact and

conclusions of law on issues described in either category (i) or category (ii)

above under a "clearly erroneous" standard, whereas issues described in

category (iii) are reviewed by the Appellate Authority de novo. § 10.78 of

Treasury Circular 230 (Rev. 6-2005). As the Appellate Authority, I apply these

standards to issues raised in an Appeal and to other issues I deem appropriate

in view of my review of the Administrative Record.

Finally, the Appellate Authority reviews the sanction proposed by the ALJ

to determine its appropriateness in light of the charges proved and the other

"aggravating" or "mitigating" factors found present. The Appellate Authority

performs this function de novo and with the full authority of the Secretary of the

Treasury and the Internal Revenue Service (as the charging agency). The

Appellate Authority may increase, decrease, or affirm the sanction imposed by

the Administrative Law Judge.

10 R-A did not contest this fact in his Answer, and the Administrative Record contains a copy of his license

information from the New York State Office of Professions.

11 R-A did not contest this fact in his Answer, and the Administrative Record contains an official record from the

IRS Centralized Authorization file indicating that he has represented taxpayers before the Internal Revenue

Service.

Issues Raised By R-A on Appeal

The ALJ’s findings of fact and conclusions of law with respect to the

charges made by C-A and sustained against R-A are explained clearly and

concisely in the ALJ's Decision and will only be repeated here when necessary

to give context to the issues raised by R-A on Appeal.

Section # 1. In Section # 1 of his Amended Appeal, R-A made two distinct

claims.

First. R-A claimed that he

(b)(3)/26 USC 6103

This issue is discussed at pp. _

thru , infra. I find this claim to involve a mixed question of law and fact and

consequently is reviewable under a "clearly erroneous" standard of review. For

the reasons set forth at pp. _ thru , infra, I find this claim to be without merit.

Second, R-A contends that the ALJ erred by

(b)(3)/26 USC 6103

of Treasury Circular

230 (Rev. 7-2002). I also find this claim to be without merit. I find this claim to

involve solely a question of law, and I review it de novo. Both § 10.51(d) of

Treasury Circular 230 (Rev. 1994) and § 10.51(f) of Treasury Circular 230 (Rev. 72002) state that disreputable conduct includes a willful failure "to make a

Federal tax return in violation of the revenue laws of the United States ...." In

United States v., Boyle, 469 U.S. 241, 249-251 (1985), the United States Supreme

Court stated, in explaining the importance of the timely filing of Federal tax

returns:

"Deadlines are inherently arbitrary; fixed dates, however, are often

essential to accomplish necessary results. The Government has millions

of taxpayers to monitor, and our system of self-assessment in the initial

calculation of a tax simply cannot work on any basis other than one of

strict filing standards. Any less rigid standard would risk encouraging a

lax attitude toward filing dates. Prompt payment of taxes is imperative to

the Government, which should not have to assume the burden of ad hoc

determinations."

I find, therefore, that

(b)(3)/26 USC 6103

As noted above, the issue of whether R-A's violations were

"willful" is discussed at pp. _ thru _, infra. I find R-A's (b)(3)/26 USC 6103

to

have been "willful."

Section # 2. In Section 2 of his Amended Appeal, R-A claimed that he was

not given a fair "trial”12 or accorded the right to present a defense in a full and

proper manner.

R-A specifically alleged that the ALJ "made light of' his mother's illness

and his feelings for her. I have reviewed the entire Administrative Record,

including each page of the Hearing Transcript ("HT") and I do not view the

ALJ's conduct during the Hearing to have constituted error, let alone reversible

error, on this point. Having accepted as fact that R-A had responsibilities for his

mother both before her death and thereafter given his obligation to pray for her

under his Jewish faith, the ALJ did prohibit R-A from testifying in Hebrew to

explain in further detail his Jewish faith and the obligations it imposed on him,

or from introducing religious texts written in Hebrew to the same end. But I see

no evidence that he did so out of disrespect either for R-A's Jewish faith or for

his mother. Rather, I interpret the ALJ's actions as indicating that he viewed

that testimony as irrelevant given his acceptance of R-A's assertions

concerning his faith and his religious obligations to a mother for whom he

cared deeply.

To the extent the ALJ indicated impatience with R-A in connection with

his expressions of faith, he manifested it only when R-A continually sought to

testify in Hebrew, or introduce documents written in Hebrew into the Hearing

Record, and in his unwillingness to review pairs of glasses and contacts lens

offered as evidence of his visual impairment (because he would not leave the

glasses and contact lens to form a part of the evidentiary record) and a picture

of his family, some of the members of which R-A alleged prepared tax returns

for his clients, alone or under his supervision (again because R-A would not

leave the picture with the ALJ to allow it to be admitted into evidence and

become a part of the Administrative Record). Nor did R-A submit sworn

affidavits or even signed correspondence from his doctors indicating the nature

and extent of his visual impairment, or the period(s) of time to which they

related. Rather, given the C-A's line of argument, the ALJ repeatedly asked R-A

to explain how his religious obligations and duties to his mother caused his

(b)(3)/26 USC

USC 6103

, particularly given

that he seemed to have filed numerous Federal individual and Federal business

income tax returns for his clients during the years in issue, alone or with the

assistance of "per diem workers" or certain of his family members who had

assisted him with his clients' returns.13 Given the opportunity to respond to that

12

The proceeding before the AU at which witnesses testified and evidence was introduced was a "hearing," not a

"trial."

13

At the Hearing, Ms. Alm testified that: for the tax year 2002, business records of the Internal Revenue Service

reflected that 302 Federal individual income tax returns and 61 Federal business income tax returns were filed

bearing R-A's name and Social Security Number as Preparer; for the tax year 2003, business records of the

Internal Revenue Sendee showed that 375 Federal individual income tax returns and 74 Federal business income

tax returns were filed bearing R-A's name and Social Security Number as Preparer; and for the tax year 2004, the

business records of the Internal Revenue Service showed that 464 Federal individual income tax returns and 94

focused inquiry, R-A offered no explanation other than an explanation of how

he prepared returns for his clients with their assistance given his limited vision.

(HT, pp. 138-139.) But R-A did not indicate why, if he had enlisted the assistance

of others (including family members or "per diem workers") in preparing his

clients' returns, he had not followed the same procedure b)(3)/26 USC 6103

. R-A wanted to show the ALJ some proof supporting his position,

but indicated that he did not want to offer that proof into evidence. The ALJ

appropriately indicated that he did not want to review anything that R-A was

unwilling to submit into evidence. (HT, pp.129-130.) Further, R-A did not offer

into evidence at the Hearing any proof of the other health concerns he first

raised on Appeal. For these reasons, I find this claim to be without merit.

Section # 3. In Section 3, R-A alleged that, because the ALJ failed to give

him "proper chance to defend" himself, the ALJ made material errors in his

statements and opinions on the case and in his Decision, ignored relevant

facts, appeared not to have considered the evidence and to have read his brief,

had misstated material facts and had failed to comment upon or address other

material facts at all. As I have stated above, I find R-A's claim that he was

denied the opportunity to defend himself without merit. R-A was given the

opportunity to defend himself, but failed to do so. The ALJ obviously was of the

view that R-A lacked credibility on several relevant points, and from that

concluded that his testimony generally lacked credibility. Given my review of

the entire Administrative Record, I find that was a perfectly permissible

inference for the ALJ to draw, and certainly not an inference I would deem

inappropriate under a "clearly erroneous" standard of review.

First, I agree with the ALJ that R-A was not under a different and higher

(b)(3)/26 USC 6103

duty to

Federal business income lax returns were filed bearing R-A's name and Social Security number as Preparer. R-A

testified that his name and Social Security Number were imprinted by the company that provided his software,

and that the returns in question (or many of them) were prepared not by R-A but by either per diem workers or by

(b)(3)/26 USC 6103

his wife and children.

, leading me to conclude that the vast majority of the returns in issue

were prepared either by R-A or by members of his family operating at his direction. HT. pp. 25-26. R-A offered

(b)(3)/26 USC 6103

no explanation of why these same techniques could not have been

(b)(3)/26 USC 6103

With regard to R-A's alleged vision and other health problems, I note that

R-A presented no notes or testimony from his physicians, or from members of

his family or his "per diem" workers, attesting to his conditions during the

(b)(3)/26 USC 6103

relevant periods or on their effects on his ability to

. As mentioned above, if members of R-A's family or his

"per diem workers" were as involved in the preparation of his clients returns as

he claims (a claim that the AU found to lack credibility), R-A offered no

explanation of why the same individuals could not have been enlisted to help

(b)(3)/26 USC 6103

, nor did he explain his failure to have them supply

testimony to support his claims. Further, I note that R-A offered no testimony or

evidence at the Hearing concerning health problems other than his vision

problems, and even as to those claims was unwilling to leave as evidence for

the record the various eye glasses and contact lenses he had submitted to the

ALJ. I therefore find these claims to be without merit. With regard to R-A's

vision problems, I note that certain of his assertions related to periods that

either preceded or followed the periods here in issue.

R-A's allegations otherwise lack specificity, and are consequently

deemed to be without merit.

Section # 4. R-A alleged: "The Judge erred in allowing the OPR to

sending regulations after the case was over." As I find this allegation

unintelligible, I find it without merit.

Section # 5. R-A alleges that OPR was not formed until 2003, did not

issue regulations until 2005, and that the ALJ committed err by allowing OPR to

(b)(3)/26 USC 6103

retroactively apply of Treasury Circular 230

. Contrary to R-A's assertions, OPR was "in

business" long before 2003, under the name Office of the Director of Practice,

either as a part of the Internal Revenue Service or as a part of the Department of

the Treasury. Further, regulations have been issued that governed conduct by

practitioners for many years, for example: Treasury Circular 230 (Rev. 1994);

Treasury Circular 230 (Rev. 7-2002); Treasury Circular 230 (Rev. 6-2005); and

Treasury Circular 230 (Rev. 9-2007). While each of these Revisions of Treasury

Circular 230 are generally effective as of the day of their enactment to any

proceeding which has not been concluded on the date of their enactment, each

Revision contains a a "savings clause" assuring that a practitioner's conduct

would be judged under the provisions of Treasury Circular in effect on the date

the practitioner's conduct occurred. See, e.g., § 10.91 of Treasury Circular 230

(Rev. 6-2005). This claim is without merit.

Section # 6.14 Section 6 of R-A's Amended Appeal sets forth a

compendium of allegations respecting alleged errors and omissions by the

ALJ. Each of these allegations is set forth below, together with my response to

each.

First, R-A alleges that the ALJ erred in finding that hisabsence of willfulness, or

(b)(3)/26 USC 6103

alternatively mitigating circumstances, existed only

. The AIJ found that R-A lacked credibility on this

matter, one of a lengthy list of excuses that R-A asserted in a series of letters

filed with the Office of Professional Responsibility.15 These claims are

14 R-A's Amended Appeal contains two Section 6s, one on page 2 preceding and one on page 3 following the

version of Section 7 beginning on page 2 and continuing on page 3. Likewise, in addition to the Section 7

beginning on page 2 and continuing on page 3. R-A has also added another Section 7 beginning on page 3 and

continuing on page 4, as well as a new Section, following the repeated Section 7 which R-A referred to as Section

8. For purposes of this Decision on Appeal. I have renumbered the Sections following the original Section 7 as

Sections 8. 9 and 10.

15The first in this series of letters was a letter dated February 1. 2006. appears as Exhibit A-3 to the Hearing

Record, In that letter, the only mitigating or extenuating circumstances mentioned by R-A related to his Mother’s

suffering of a stroke in March. 2003, her subsequent death in late 2004. and his obligation to say a mourner’s

prayer several times each day for his mother after her death. He also expressed in that letter that he was an only

son. very close to his mother and thoroughly devastated by her loss. The next in the series of letters was a letter

dated July. 10 2006 [sic], which appeals as Exhibit A-6 in which R-A set forth the following additional mitigating

and extenuating circumstances: care for his aged father: care for his wife and 10+ children; obligations of his

devout Jewish faith (17.3% of his time each week plus three weeks each year in which he was prohibited from

(b)(6)

working each year); severe vision problems that he had sought to address through

R-A also stated in this letter as a factor m mitigation that each of

(b)(3)/26 USC 6103

. As noted above, R-

A submitted no evidence in support in support [sic] of any of these claims at the Hearing or elsewhere in the

Administrative Record.

unsupported by evidence contained in the Administrative Record and

consequently are without merit.

Section # 7. R-A again challenges the ALJ's findings and conclusions

that his (b)(3)/26 USC 6103 , both as a matter of law and on the facts given the

"mitigating factors" and "acts of G-d" described above. As a matter of law, R-A

again states that the ALJ added the concept of (b)(3)/26 USC to the literal language

6103

of Treasury Circular 230. For the reasons discussed above, I find this claim

without merit. As a matter of fact, many of the "mitigating facts" and "Acts of Gd" R-A alludes to were simply not submitted properly into evidence by R-A,

notwithstanding the ALJ's repeated attempts to assist R-A in doing so. Under

the standard of review I must apply to such matters (the "clearly erroneous

standard") when the issue involves issues involving facts or facts and law, I

find no basis for this claim by R-A. Indeed, even if I were to have found the

ALJ's actions to have involved error under a lesser standard (which I do not), I

would have considered it harmless error because R-A never explained why.

(b)(3)/26 USC 6103

even if he personally,

own testimony, assisted in the preparation of his clients' returns. I find these

claims to be without merit.

Section # 8. R-A again makes a claim that the fact that the ALJ erred by

(b)(3)/26 USC 6103

adding

of

Treasury Circular 230. Again, and tor the reasons mentioned above, I find this

claim to be without merit.

"Willfulness"

Treasury Circular 230 does not contain a regulatory definition of "willful."

However, Treasury Circular 230 in many respects proscribes and sanctions

conduct that is also sanctioned under the criminal tax provisions of the Internal

Revenue Code. See. e.g., Sections 7201 through 7212 of the Internal Revenue

Code of 1986, as amended and in effect during the years here in issue. See

(b)(3)/26 USC 6103

specifically

. In the

absence of a regulatory definition of "willfulness," I have adopted the case

precedents of the criminal tax provisions of the Internal Revenue Code to

interpret the term "willful" for Treasury Circular 230 purposes.

I have had many occasions to interpret the term "willful" in Treasury

Circular 230 proceedings. I first addressed this issue in a Decision on Appeal in

Director, Office of Professional Responsibility v. (b)(3)/26 USC 6103 , Complaint

No. 2003-2, a proceeding made public by mutual agreementof theparties.16 Of

particular relevance to this proceeding are cfour [sic] United States Supreme

16 Pages 40 through 52 of the Decision on Appeal in6

6103

to

appear

(b)(3)/26

this Decision

as Attachment

USC on Appeal

and is incorporated asif [sic] fully set forth herein

Court cases cited in Attachment 6 -Bishop,17 Pomponio,18 Cheek,19 and Boyle,20

As explained in [sic] greater detail in Attachment 6, the Bishop/Pomponio line

of cases establish that the term "willful" means a voluntary, intentional violation

of a known legal duty.

In Cheek, the issue was whether the defendant, an airline pilot, was

entitled to an instruction to the jury that it was a valid defense to a willful failure

to file charge if his beliefs that he was not required to file were honestly held

(subjectively) and entitled to be so treated even if they were not reasonable

(objectively). Cheek had two reasons for believing that he was not required to

file, one based on an objectively unreasonable interpretation of a substantive

provision of the Internal Revenue Code and the other based on his belief that

the income tax was unconstitutional. As to nthe [sic] former statutory claim, the

Supreme Court, per Mr. Justice White, held that the taxpayer was entitled to the

requested instruction. As to the latter Constitutional claim, the Supreme Court

found that he was not. The Court noted that there was a general rule deeply

rooted in the American legal system that ignorance of the law, or a mistake of

law, is no defense to a criminal prosecution based on the notion that the law is

definite and knowable, and the common law presumed that every person knew

the law. Mr. Justice White noted:

"Willfulness, as construed by our prior decisions in criminal cases,

requires the Government to prove that the law imposed a duty on the

defendant, that the defendant knew of this duty, and that he voluntarily

and intentionally violated that duty." 469 U.S. at 201.

With regard to the second of the three required proofs, Mr. Justice White noted

that, with respect to matters relating to the meaning of the substantive

provisions of the Internal Revenue Code, in enacting a "willfulness" standard,

Congress intended to depart law rule [sic] presuming knowledge of the law (a

rule of presumed general intent) and instead require the Government to prove

specific knowledge of the law on the part of the defendant (a rule requiring the

Government to prove specific subjective intent). This was the basis for the

Court's holding that Cheek was entitled to the requested instruction with regard

to his statutory claim, but not with respect to his Constitutional claim.

(b)(3)/26 USC

USC 6103

(b)(3)/26

and whether those questions are questions falling under the general common

law rule of presumed general intent or under a rule requiring the Government to

prove specific subjective intent on the part of the defendant,, [sic] I find that the

Supreme Court has also answered that question, albeit in a different context. In

Boyle, the issue was whether an estate fiduciary could avoid a penalty for

17 United States v. Bishop, 412 U.S. 346 (1973).

18 Unites States v. Pomponio. 429 U.S. 10 (1976).

19 Cheek v. United States. 498 U.S. 192 (1991).

20 United States v. Boyle. 469 U.S. 241 (1985).

failing to file a fiduciary income tax return by proving that he had engaged a tax

advisor to prepare and file the return for him. The Supreme Court upheld the

penalty against the fiduciary, finding that the obligation to file a tax return

imposed a non-delegable duty on the fiduciary (or, by analogy, any taxpayer).

The Court distinguished between situations where it was reasonable fro [sic] a

taxpayer to rely on an advisor, where a layman should not be presumed to

know the answer to the question (such as whether a tax liability existed) and

the question of whether and when a taxpayer had a duty to file a tax return

(questions the Court viewed as questions reasonably within the knowledge of a

taxpayer and consequently non-delegable. I therefore find the question of

(b)(3)/26 USC 6103

to fall under the presumptive common law

general intent rule. However, I note that even had I found that C-A needed to

prove specific subjective intent on the part of R-A, the Administrative Record is

replete with evidence supporting that conclusion, including (b)(3)/26 USC 6103

Sanction

The ALJ imposed as a sanction against R-A a twenty-four (24) month, or

two (2) year suspension from practice before the Internal Revenue Service. This

is the same sanction that OPR sought to impose. In case [sic] that involve

(b)(3)/26 USC 6103

, I typically impose a suspension from practice

before the Internal Revenue Service of twelve (12) months, or one (1) year for

each offense. I view R-A's conduct as involving three (3) separate offenses,

(b)(3)/26 USC 6103

each

. R-A argued that each of his offenses

constituted a victimless crime (my term, not his) because (b)(3)/26 USC 6103

But that hardly makes his offenses

"victimless." As the Supreme Court noted in Boyle with respect to the

importance of (b)(3)/26 USC

"Deadlines are inherently arbitrary; fixed dates, however, are often

essential to accomplish necessary results. The Government has millions

of taxpayers to monitor, and our system of self-assessment in the initial

calculation of a tax simply cannot work on any basis other than one of

strict filing standards. Any less rigid standard would risk encouraging a

law [sic] attitude toward filing dates. Prompt payment of taxes is

imperative to the Government, which should not have to assume the

burden of ad hoc determinations." 469 U.S. at 249-51.

That statement was true in 1985, and is even truer today. (b)(3)/26 USC 6103

require the Internal Revenue Service to needlessly expend resources

that could be better spent securing returns and collecting taxes due from other

taxpayers. These "lost opportunity costs" needlessly burden the Internal

(b)(3)/26 USC 6103

Revenue Service and compliant taxpayers.

and C-A reduced R-A's suspension in part for that reason. I am satisfied that the

(b)(3)/26 USC 6103

twenty-four (24) month, or two (2) year suspension

is an appropriate penalty for the charges made and proved.

Conclusion

For the reasons stated, I hereby AFFIRM the ALJ's findings of fact and

conclusions of law with respect to each of the three charges made against R-A,

and likewise AFFIRM R-A's twenty-four (24) month, or two (2) year, suspension

from practice before the Internal Revenue Service, commencing from the date

of this Decision on Appeal, which constitutes FINAL AGENCY ACTION in this

proceeding.

/s/

David F.P. O’Connor

Special Counsel to the Senior Counsel

Office of Chief Counsel

Internal Revenue Service

(As Authorized Delegate of Henry M. Paulson,

Secretary of the Treasury)

October 17, 2008 [by hand]

Washington, D.C.

CERTIFICATE OF SERVICE

I hereby certify that the Decision on Appeal in Complaint No. 2006-33 was

sent this day by Certified Mail/Return Receipt Requested and by First Class

United States Mail to the addresses listed below:

Honorable Michael A. Rosas

Administrative Law Judge

National Labor Relations Board, Division of Judges

Redacted

Washington, D.C. 2005-0001

(b)(3)/26 USC

USC 6103

6103 , CPA

Redacted

&

Brooklyn, New York Same

(b)(6)

Mr. Michael R. Chesman

Director, Office of Professional Responsibility

SE: OPR

Internal Revenue Service

Redacted

Redacted

Washington, D.C. 20224

/s/

David F.P. O’Connor

Special Counsel to the Senior Counsel

Office of Chief Counsel

Internal Revenue Service

(As Authorized Delegate of Henry M. Paulson,

Secretary of the Treasury)

October 17, 2008 [by hand]

Washington, D.C.

Heather Southwell, Esq.

Office of Chief Counsel (GLS)

Redacted

Redacted

New York, New York 10038