The
Panel noted that "[r]espondent did nothing to rectify his tax situation
until he was caught red-handed and without a glimmer of a defense to felony
charges." In aggravation, the Panel commented on respondent's intent:
"Respondent's
failure to pay taxes was no accident. Nor was it the result of economic
distress. Respondent's annual income during the years when he chose not to pay
taxes ranged from $363,992 to $597,989. Respondent acknowledged that this
failure to file his tax returns and pay his taxes was not the result of an
inability to pay.
"Respondent
knowingly and intentionally did not file returns and pay taxes. He received
notices from the IRS, he read them, but he 'just didn't do anything further
with them.' The decade-long pattern of filing for extensions with which he did
not . . . comply, the calculated nature of respondent's actions, and
the fact that, when he was caught, he was able to come up with the money in very
short order—because it was tucked away in the bank, in the equity in his home
and in his pension account—speak to a greater culpability here than in other
failure-to-pay cases."
The
Panel concluded that the evidence of mitigation in this case was not substantial
while [*2]the evidence of aggravation was
substantial, and recommended an 18-month suspension as appropriate for
respondent's "willful and unexcused failure" to file five years'
worth of returns.
The
Hearing Panel's recommendation that respondent be suspended for 18 months is
disaffirmed. While the Panel seemed to criticize him for promptly paying the
money he owed and treating his charitable contributions of $160,000 as
aggravation, both of those circumstances could also be seen as mitigation, at
least in part. Moreover, respondent has practiced law for 36 years without
blemish, he fully cooperated with all investigating authorities, he accepted
responsibility for his actions and expressed remorse, he took corrective
actions to ensure his nonpayment never happens again, and he has continued with
counseling. A suspension from the practice of law for one year is appropriate
under the circumstances (see Matter of Howley,
70 AD3d 218 [1st Dept 2009]; Matter of Goldman,
71 AD3d 9 [1st Dept 2009]).
Accordingly,
the Committee's petition to confirm the recommendation of the Hearing Panel
should be denied, and respondent{**82 AD3d at 88}
is suspended from the practice of law for one year and until further order of
this Court.
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