CPA Disbarred From Practicing Before IRS

Count I

Alleges that Respondent's disbarment from practice as a Certified Public Accountant ("CPA") by the Oregon Board of Accountancy on or about May 19, 2010, constitutes incompetence and disreputable conduct pursuant to 31 C.F.R. § 10.51(a)(10) (2008).

Count II

Alleges that Respondent's conviction in the U.S. District Court for the District of Oregon on or about April 12, 2010, for the federal criminal offense of bank fraud involved dishonesty or breach of trust that constitutes incompetence and disreputable conduct pursuant to 31 C.F.R. § 10.51(a)(2) (2008).

Count III

Alleges that Respondent's conviction for bank fraud, based in part upon the submission of fabricated federal tax returns, constitutes incompetence and disreputable conduct rendering Respondent unfit to practice before the IRS pursuant to 31 C.F.R. § 10.51(a)(3) (2008).

Count IV

Alleges that Respondent's conviction in the U.S. District Court for the District of Oregon on or about April 12, 2010, for the federal criminal offense of money laundering involved dishonesty or breach of trust that constitutes incompetence or disreputable conduct pursuant to 31 C.F.R. § 10.51(a)(2) (2008).

Count V

Alleges that Respondent's voicemail message to an IRS agent on or about July 19, 2007, attempted to influence the official action of an IRS employee by the use of threats, false accusations, duress, or coercion in a manner that constitutes incompetence and disreputable conduct pursuant to 31 C.F.R. § 10.51(h) (2005).

Count VI

Alleges that Respondent's voicemail message to an IRS agent on or about July 19, 2007, included profane language and the making of false accusations that constitutes contemptuous conduct in connection with practice before the IRS pursuant to 31 C.F.R. § 10.51(k) (2005).

Count VII

Alleges that Respondent falsely identified himself as a CPA or a retired CPA on documents submitted to the IRS in or around September 2009, during a time when the Oregon Board of Accountancy had suspended his CPA license and that conduct constitutes incompetence and disreputable conduct pursuant to 31 C.F.R. § 10.51(a)(4) (2008).

Count VIII

Alleges that Respondent willfully failed to make a timely tax return for tax year 2007 on or before April 15, 2008, which constitutes incompetence and disreputable conduct pursuant to 31 C.F.R. § 10.51(a)(6) (2008).

Count IX

Alleges that Respondent willfully failed to make a timely tax return for tax year 2008 on or before April 15, 2009, which constitutes incompetence and disreputable conduct pursuant to 31 C.F.R. § 10.51(a)(6) (2008).

Count X

Alleges that Respondent willfully failed to make a timely tax return for tax year 2009 on or before April 15, 2010, which constitutes incompetence and disreputable conduct pursuant to 31 C.F.R. § 10.51(a)(6) (2008).

Based upon the alleged violations of 31 C.F.R. § 10.51 (2005 & 2008) described in these counts, as well as the aggravating factors set forth in the Complaint, the Complainant requests that Respondent be disbarred from practice before the IRS.

In response to the Complaint, Respondent, appearing pro se, filed a document on July 18, 2012, entitled "Complaint by Respondent and Response to Allegations" ("July 18 filing"). According to his cover letter, the enclosed document represented a "partially completed Retort to the Complaint" and Respondent intended to have a "completed response" mailed by July 20, 2012. More than a month later, on August 24, 2012, Respondent filed a "completed Rebuttal to the Complaint," along with lengthy attachments ("August 24 filing").

Thereafter, on September 7, 2012, Complainant filed two dispositive motions: (1) a Motion for Decision by Default, and (2) a Motion for Summary Adjudication. In accordance with 31 C.F.R. § 10.68, Respondent was provided with an opportunity to file responses within 30 days following his receipt of these motions. See Amended Scheduling Order (dated Sept. 10, 2012).

Respondent subsequently wrote two letters to this tribunal, filed on September 21, 2012 ("September 21 filing") and October 9, 2012 ("October 9 filing"). However, neither of his letters responded to any of the arguments or analysis contained in the respective motions. In his October 9 filing, Respondent wrote that he could not afford to hire the attorney he had consulted and described his appeal as being at a "dead-end." He explained that he was "not educated in your legalese" and could not meet the "time constraints" set forth, but thanked this tribunal for the opportunity to do so. See October 9 filing. The deadline for responding to Complainant's motions expired the next day, on October 10, 2010. See Amended Scheduling Order (dated Sept. 10, 2012).

About a month later, Respondent filed a copy of a letter sent to Counsel for Complainant, dated November 7, 2012, and received on November 13, 2012, ("November 13 filing"), purporting to dispute allegations in the Complainant's exhibits and attaching various newspaper clippings related to Countrywide mortgages and other political issues. On November 16 and 23, 2012, this tribunal received additional newspaper clippings related to vacancies in President Obama's administration and deficit reduction efforts along with handwritten commentary by Respondent.

Throughout this process, Respondent has been provided with ample time and sufficient opportunity to respond to the motions requesting a decision by default and a summary adjudication. Respondent has failed to respond directly to those motions in a timely manner. Given that the deadline for responding has expired, the motions are now ripe for consideration.

In the Complaint, served on June 20, 2012, Respondent was notified of his responsibility to file an answer within thirty (30) calendar days from the date of service. The Complaint explained that failure to do so could result in a decision by default. See Complaint at 1-2. As noted in the regulations, an answer must be filed within the time frame specified in the Complaint, 31 C.F.R. § 10.64(a), and failure to file an answer within the time prescribed constitutes an admission of the allegations in the Complaint and a waiver of hearing. Id. § 10.64(d); see also Dir., Office of Prof'l Responsibility v. Koenig, Complaint No. 2008-19 (Decision on Appeal, May 16, 2010) (concurring in ALJ's default decision entered after striking an untimely answer).³

Not only must an answer be filed within the time frame specified in the Complaint, it must also comply with the requirements set forth in 31 C.F.R. § 10.64(b). In particular, "the respondent must specifically admit or deny each allegation set forth in the complaint" or "state that the respondent is without sufficient information to admit or deny a specific allegation." Id. Every allegation that is not denied in the answer "is deemed admitted and will be considered proved." Id. § 10.64(c). The regulations also require that the answer be signed by the Respondent or his representative and include "a statement directly above the signature acknowledging that the statements made in the answer are true and correct and that knowing and willful false statements may be punishable under 18 U.S.C. 1001." Id. § 10.61(e).

Given that the Complaint was served on June 20, 2012, the deadline for filing an answer was July 20, 2012 (30 days after service). Respondent's July 18 filing was the only timely response to the Complaint, and that filing did not meet the requirements to affirmatively admit or deny the allegations in the Complaint nor did it contain the requisite signed acknowledgement. 31 C.F.R. § 10.64(b), (e). However, the filing did contain a partial, but incomplete, discussion of some of the issues raised by the Complaint and offered reasoning that could be construed as affirmative defenses.

On August 24, 2012, Respondent filed a "completed Rebuttal to the Complaint" along with numerous enclosures totaling more than 200 pages (many of which contained handwritten comments and explanations). This filing did not cure the deficiencies in the July 18 filing because it was not filed within 30 days of service, it lacked the requisite acknowledgement, and it failed to specifically admit or deny each allegation in the Complaint.

Following receipt of Complainant's motion for a decision by default on September 7, 2012, this tribunal informed Respondent that he had 30 days within which to respond. See Amended Scheduling Order (dated Sept. 10, 2012). Respondent failed to file any document responsive to this motion, and therefore, is deemed not to oppose it. See 31 C.F.R. § 10.68(b).

Even though Respondent has provided no opposition to the Motion for Decision by Default and his letters fail to meet the regulatory requirements set forth in 31 C.F.R. § 10.64, Complainant has also filed a Motion for Summary Adjudication on the same issues. Given that this will allow for a decision on the merits, the Motion for Decision by Default is hereby denied as moot. Nevertheless, to the extent that allegations in the Complaint have not been specifically denied (nor directly opposed by Respondent) they will be deemed admitted and considered proved for purposes of the Motion for Summary Adjudication. See 31 C.F.R. § 10.64(c).

A motion for summary adjudication is analogous to a motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure ("FRCP"); therefore, federal court rulings provide additional guidance when ruling on motions for summary adjudication in administrative proceedings. Dir., Office of Prof'l Responsibility v. Craft, Complaint No. 2010-12 at 4 (Decision and Order on Motion for Summary Judgment, Jan. 13, 2011) (citing Puerto Rico Aqueduct and Sewer Auth. v. Envtl. Prot. Agency ("EPA"), 35 F.3d 600, 607 (1^st Cir. 1994), cert. denied, 513 U.S. 1148 (1995)), sanction modified by (Decision on Appeal, Oct. 12, 2011). Federal courts recognize that the moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

Once the moving party has met its burden, the burden then shifts to the non-moving party to establish the presence of a genuine issue of material fact or that legally, the moving party is not entitled to judgment. T.W. Elec. Serv. Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9^th Cir. 1987). In making this showing, the non-moving party must set forth specific facts showing that there is a genuine issue for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). "An issue is 'genuine' only if there is sufficient evidence for a reasonable fact finder to find for the non-moving party." Far Out Prods., Inc. v. Oskar, 247 F.3d 986, 992 (9^th Cir. 2001). "A fact is 'material' if the fact may affect the outcome of the case." Id. When evaluating a motion for summary judgment, all factual inferences must be viewed in the light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co., 475 U.S. at 587.

A failure to respond to a summary judgment motion does not mean that the motion will automatically be granted. Mullen v. St. Paul Fire and Marine Ins., 972 F.2d 446, 452 (1^st Cir. 1992); see also Champion v. Artuz, 76 F.3d 483, 486 (2^nd Cir. 1996). Rather, this tribunal must still review the motion and the record to ascertain whether the moving party has demonstrated the absence of any genuine issues of material fact and that a decision may be rendered as a matter of law. 31 C.F.R. § 10.76(a)(2); see also Mullen, 972 F.2d at 452.

Although the current version of the procedural rules, 31 C.F.R. §§ 10.60-10.82, governs proceedings before this tribunal, an evaluation of past conduct, including whether a practitioner has engaged in incompetent and disreputable conduct which may be sanctioned, must be reviewed in accordance with the regulations in effect at the time the conduct occurred. See 31 C.F.R. § 10.91; 31 C.F.R. § 10.51(b) (2008 & 2011). Respondent's conduct, as alleged in Counts I-X, occurred prior to the most recent 2011 regulatory revisions. Therefore, Respondent's conduct is judged in accordance with the regulations applicable during the relevant time period.

According to the Complaint, Counts I-IV and Counts VII-X relate to conduct that allegedly occurred after the Department last amended § 10.51 on September 26, 2007. See 72 Fed. Reg. 54540, 54550-54551 (Sept. 26, 2007). The September 26, 2007, revisions to § 10.51 remained in effect until the 2011 amendments became effective on August 2, 2011. See 76 Fed. Reg. 32286, 32308 (June 3, 2011). Thus, all discussions relating to conduct under Counts I-IV and Counts VII-X will cite the 2007 regulatory amendments as codified in the 2008 code of federal regulations.

Counts V-VI involve conduct that allegedly occurred in July of 2007, about two months before the 2007 regulatory amendments. At that time, § 10.51 had been last amended in 2002. See 67 Fed. Reg. 48760, 48774-48775 (July 26, 2002). Although § 10.51 remained unchanged between July 26, 2002, and September 26, 2007, surrounding regulatory provisions governing practice before the IRS were modified again in 2004. 69 Fed. Reg. 75839 (Dec. 20, 2004). Thus, to avoid confusion, all discussions relating to conduct under Counts V-VI will contain citations to the pre-2007 version of § 10.51 codified in the 2005 code of federal regulations.

Having established jurisdiction, this analysis next turns to the ten separate counts of misconduct set forth in the Complaint. For the reasons discussed in detail below, Complainant has demonstrated, based upon the undisputed evidence of record, that Respondent engaged in disreputable conduct within the meaning of 31 C.F.R. § 10.51 (2005 & 2008) by clear and convincing evidence as alleged in Counts I, II, VII, VIII, IX, and X of the Complaint. As there are no genuine issues of material fact related to these six counts, Complainant's Motion for Summary Adjudication is granted, in part, as to Counts I, II, VII, VIII, IX, and X.

As set forth in the applicable regulation, incompetence and disreputable conduct for which a practitioner may be sanctioned includes:

Respondent's initial July 18 filing makes no mention of the suspension or revocation of his CPA license in Oregon. Respondent's August 24 filing, received after the time for filing an answer had expired, does appear to challenge some of the conduct leading to his initial suspension by the Oregon Board of Accountancy. See August 24 filing at 7, 11-14. However, none of his arguments dispute or otherwise contradict the evidence showing that his CPA license was suspended and ultimately revoked in Oregon by the Oregon Board of Accountancy.

Thus, Complainant has established the fact of Respondent's disbarment from practice as a CPA in Oregon by clear and convincing evidence based upon the undisputed record. Disbarment by a state authority constitutes incompetent and disreputable conduct under 31 C.F.R. § 10.51(a)(10) (2008). On this basis, Respondent is subject to disciplinary sanction under Count I. See, e.g., Dir., Office of Prof'l Responsibility v. Ross, Complaint No. 2011-01 at 7 (Order Granting Complainant's Motion for Summary Judgment, June 7, 2011) (finding that a suspension of a CPA certificate by the state board constituted disreputable conduct warranting discipline).

In his July 18 and August 24 filings, Respondent attempts to re-argue the circumstances of his conviction. According to the Indictment, Respondent fraudulently misrepresented his income to obtain a bank loan by fabricating and submitting a false income tax return to the bank that reflected inflated income figures. Complaint Ex. 17 at 3 (Indictment related to Counts 2-6). Respondent disagrees, explaining that he filed the paperwork with Countrywide Financial using

However, this is not the forum to re-litigate the earlier conviction. According to the applicable regulations, incompetence and disreputable conduct for which a practitioner may be sanctioned includes:

Complainant has proven, based upon the undisputed evidence, that Respondent entered a voluntary guilty plea and was convicted of bank fraud and money laundering. Thus, the only outstanding question is whether the criminal offenses underlying those convictions involved dishonesty or breach of trust.

According to the statutory language, the Federal crime of bank fraud, for which Respondent pled guilty, requires a finding of fraud. And fraud, by definition, involves dishonesty.

The U.S. Code defines the crime of bank fraud and the applicable penalties as follows:

Moreover, "defraud" means "to cause injury or loss to (a person) by deceit." Black's Law Dictionary (9^th ed. 2009). The term "fraud" includes:

Thus, according to the undisputed facts, Respondent was convicted of bank fraud which is a criminal offense that inherently involves dishonesty. This showing, by clear and convincing evidence, establishes disreputable conduct under 31 C.F.R. § 10.51(a)(2) (2008) as alleged in Count II for which Respondent may be sanctioned. Complainant's additional arguments under Counts III and IV, alleging that the bank fraud and related money laundering convictions also constitute disreputable conduct under 31 C.F.R. § 10.51(a)(2), (3) (2008), are rendered moot by this determination as well as the other findings of misconduct made as part of this decision which support the sanction imposed. Consequently, Complainant's additional allegations under Counts III and IV need not be considered further.

The Complaint alleges that this voicemail message violates 31 C.F.R. §§ 10.51(h), 10.51(k) (2005) which defines incompetence and disreputable conduct to include:

In his letters responding to the Complaint, Respondent makes a number of statements about Mr. Kindred, presumably by way of defense, including the following:

In a subsequent letter, filed after the deadline for answering, Respondent wrote:

Finally, in a letter filed more than 30 days after the time for responding to Complainant's motions, Respondent wrote:

Nowhere among those various submissions does Respondent deny leaving the voicemail message nor does he dispute the content of his message. As Complainant correctly points out as part of the Motion for Summary Adjudication, Respondent has not specifically denied the allegations set forth in Count V.

However, whether Respondent was attempting to influence SA Kindred through the use of threats under 31 C.F.R. § 10.51(h) (2005) requires further information not available in the record. Respondent's letters can be construed as raising genuine issues about SA Kindred's interactions with Respondent such that it is not possible to rule as a matter of law how this voicemail should be interpreted absent additional context about the surrounding circumstances.

In regards to the allegations of contemptuous conduct in connection with practice before the IRS, 31 C.F.R. § 10.51(k) (2005), the excerpts from Respondent's letters exhibit a level of disrespect for IRS agents, and SA Kindred in particular, which raise doubts about Respondent's professionalism. Nevertheless, the charge in the Complaint relates solely to the July 2007 voicemail message. According to the Complaint, Count VI rests on Respondent's use of profane language and a false accusation that SA Kindred was "harassing" his client. Absent information about SA Kindred's interactions with that client, which have not been fully developed as part of the record, it is not possible to reach a decision as a matter of law that Respondent demonstrated contemptuous conduct by making a false accusation.

Thus, genuine issues of material fact preclude entry of a summary adjudication with respect to Counts V and VI.

The Complaint alleges that after this suspension, on September 17, 2009, and then again on September 24, 2009, Respondent submitted forms to the IRS, including a 1040X for clients. Complaint Ex. 15-16. He signed the 1040X which listed Respondent under the preparer block as "Mort Bohn, CPA" and listed his firm name as "Mort Bohn, CPA Retired." Complaint Ex. 16. The Complaint further alleges that at the time he submitted these forms, Respondent knew, or should reasonably have known, that the Oregon Board of Accountancy had suspended his license. Complaint at 19. In doing so, the Complaint alleges that Respondent falsely represented to the IRS that he was a CPA in good standing. Id.

According to the applicable regulations, incompetence and disreputable conduct for which a practitioner may be sanctioned includes:

Respondent's initial response to the Complaint made no mention of the license suspension. See generally July 18 filing. Later, Respondent offered a confused explanation for his actions:

According to the Oregon Board of Accountancy meeting minutes, Respondent attended the meeting when the Board voted to suspend his license for three years on May 18, 2009. Complaint Ex. 8 at 6. As such, Respondent had knowledge of his suspension and he offered no evidence or argument to suggest otherwise. Even so, Respondent continued to cite his CPA credentials (albeit with the qualification that he was "retired") on official forms submitted to the IRS. In fact, Respondent has continued to use the "Retired CPA" designation on documents submitted to this tribunal even after his CPA license was revoked. See July 18 filing at 1; see also August 24 filing at 1.

Thus, the undisputed facts establish that Respondent gave false or misleading information to the IRS regarding his CPA status during a time when he knew his license had been suspended. This showing establishes disreputable conduct under 31 C.F.R. § 10.51(a)(4) (2008) by clear and convincing evidence as alleged in Count VII for which Respondent may be sanctioned.

 Tax Year            Return Due Date                 Date IRS Received Return

Under the applicable regulation, incompetence and disreputable conduct includes:

Having demonstrated that Respondent made untimely returns for tax years 2007, 2008, and 2009, Complainant must also show that Respondent's actions were "willful" in order to warrant discipline. Case law has defined "willful" to mean "a voluntary, intentional violation of a known duty." Dir., Office of Prof'l Responsibility v. Ohendalski, Complaint No. 2007-10 at 5 (Decision on Appeal, June 2008); see also Cheek v. U.S., 498 U.S. 192, 201 (1990). As a CPA engaged in practice before the IRS, Respondent knew he had a legal duty to file timely income tax returns. As noted by the appellate decision-maker in Ohendalski:

None of the arguments propounded by Respondent raise genuine issues of material fact that would excuse his untimeliness. Specifically, Respondent's claim that he attempted to file client returns by the "recommended date," while delaying his own filings, only further demonstrates his awareness of the applicable statutory deadline and his intentional decision to not comply. Respondent's additional comments in his November 13 filing also fail to provide any legal justification for his untimeliness.⁵ In that letter he noted that a taxpayer can request an automatic extension by filing a form 4868 and argued that over 22 million taxpayers fail to file their returns by April 15^th each year. Whether or not other taxpayers file untimely returns does not excuse or justify Respondent's failure to comply with Federal tax laws. In addition, Respondent never submitted any documentation or other evidence showing that he requested any extensions for the relevant tax years nor does the record reflect that any extensions were ever filed. These types of unsupported assertions are insufficient to overcome a properly supported motion for summary adjudication. See Podobnik v. U.S. Postal Serv., 409 F.3d 584, 594 (3d Cir. 2005) (noting that a party cannot rely on bare assertions or conclusory allegations to show the existence of a genuine issue).

Accordingly, Respondent's willful failure to file timely tax returns for 2007, 2008, and 2009, has been established by clear and convincing evidence based upon the undisputed factual record. These actions demonstrate disreputable conduct under 31 C.F.R. § 10.51(a)(6) (2008) as alleged in Counts VII, IX, and X for which Respondent may be sanctioned.

When determining the sanction to be imposed, "all relevant facts and circumstances" shall be taken into account. 31 C.F.R. § 10.50(d) (2008), 31 C.F.R. § 10.50(e) (2011). Although the regulations do not provide any more specific standards for determining when to impose one particular sanction (censure, suspension, or disbarment) as opposed to another, prior adjudications in other disciplinary proceedings offer useful guidance. In addition, this tribunal may consider any mitigating factors proven by the Respondent or aggravating factors proven by Complainant.

Under the circumstances presented here, the Oregon Board of Accountancy revoked Respondent's CPA license after previously issuing a three-year suspension based upon a pattern of professional misconduct. Complaint Exs. 8, 9, 12, 13, 14. Revocation is a more severe state agency penalty than suspension and reflects upon the seriousness of Respondent's actions. Consequently, the revocation of Respondent's CPA license by the Oregon Board of Accountancy supports imposition of the sanction of disbarment from practice before the IRS.

When considering Respondent's criminal conviction, both the seriousness of the offense as well as the fraudulent nature of his crime warrant a more severe sanction. See, e.g., Dir., Office of Prof'l Responsibility v. Everett, Complaint No. 2009-27 at 4-8 (Order on Complainant's Renewed Motion for Summary Adjudication Regarding Sanctions, July 22, 2010). In Everett, the ALJ imposed the sanction of disbarment on an attorney who had been convicted of the felony crimes of making a false declaration, bankruptcy fraud, and money laundering and concealment for which he was disbarred from the practice of law in Arizona. Id. at 7-8. Respondent's criminal conviction for bank fraud is similarly serious and likewise involved dishonesty. Thus, Respondent's conviction, coupled with his license revocation, lends further support to the sanction of disbarment from practice before the IRS.

The failure to timely file returns has been characterized as a serious offense by other ALJs who have adjudicated similar conduct. According to the U.S. Supreme Court, tax deadlines are essential to the proper functioning of government:

The appropriate sanction for failing to file timely tax returns varies depending upon the circumstances. See, e.g., Dir., Office of Prof'l Responsibility v. Ohendalski, Complaint No. 2007-10 at 9 (Decision on Appeal, June 2008) (suspension of 48 months for failing to file timely returns for four years); Dir., Office of Prof'l Responsibility v. Baldwin, Complaint No. 2010-08 (Decision on Appeal, June 2, 2011) (suspension of 24 months for failure to file timely returns for three years and failure to file for one year); Dir., Office of Prof'l Responsibility v. Bujan, Compliant No. 2009-07 (Decision on Motion for Default Judgment, July 1, 2009) (disbarment imposed for failure to timely file returns for five years); Dir., Office of Prof'l Responsibility v. Guthrie, Complaint No. 2007-20 (Decision on Motion for Summary Judgment, May 9, 2008) (suspension for 48 months for failure to timely file returns for five years); Dir. Office of Prof'l Responsibility v. Barr, Complaint No. 2009-09 (Decision on Appeal, June 16, 2011) (suspension of 40 months for failure to file for two years and failure to timely file for one year). Thus, Respondent's willful failure to file timely returns for three years would warrant a significant period of suspension even absent any other incidents of disreputable conduct.

As discussed herein, Complainant's Motion for Summary Adjudication has been granted with respect to six separate counts of disreputable conduct. His criminal conviction for bank fraud and the revocation of his state CPA license alone would warrant the sanction of disbarment. In addition, Respondent also made false and misleading statements about his status as a CPA during a time when he knew his license had been suspended and willfully failed to file timely returns for 2007, 2008, and 2009. Based upon the adjudications in other similar proceedings, this conduct collectively warrants the sanction of disbarment.

Nevertheless, his letters could be construed as requesting a lesser sanction based upon several alleged factors, including: (1) his age (72 or 73 years of age), (2) his health conditions (congestive heart failure, a pacemaker, a trial fibrillation, and neck cancer), (3) his competent representation of tax payers for over 37 years, (4) the fact that he has already served his allotted period of incarceration for the crimes he committed; and (5) the instability in the economy. See generally July 18 filing; August 24 filing; September 21 filing; October 9 filing. Upon a thorough review of the entire record, these unsupported allegations do not warrant mitigation of the sanction of disbarment.

As to age and health, Respondent failed to submit any evidence documenting the described medical conditions. Assuming his health problems are as reported, those conditions as well as his age could potentially be mitigating factors. However, Respondent has not alleged or demonstrated in any way how those conditions (or his age) led to, resulted in, or should excuse any of the disreputable conduct proven herein. While this tribunal is not unsympathetic, merely claiming poor health and advanced age, without supporting evidence or argument, does not raise a genuine issue of material fact regarding the appropriate level of sanction to be imposed.

With respect to his representation of clients over the last 37 years, Respondent also failed to submit any evidence or documentation to substantiate the quality of his representation. Instead, he relies solely on his own general assertions which are conclusory and generally inadequate to overcome a properly supported motion for summary adjudication. See, e.g., Podobnik, 409 F.3d at 594 (noting that a party cannot rely on bare assertions or conclusory allegations to show the existence of a genuine issue). Moreover, Respondent's disreputable conduct, as established by clear and convincing evidence, relates to recent behavior over the last several years showing a pattern of misconduct. Absent any supporting evidence, Respondent has not demonstrated a genuine issue of material fact about the appropriate type or length of the sanction that should be imposed based upon his prior history of client representation.

Respondent also argues that a disciplinary sanction in this proceeding will punish him yet again for a crime that has already resulted in his incarceration. However, IRS proceedings do not exist solely to punish. Sanctions also serve to protect the public interest and to deter future incompetent and disreputable conduct. Respondent's incarceration reflects the seriousness of his crime and the conviction for bank fraud demonstrates his dishonesty in dealings with others. Assuming that Respondent's previous incarceration is an appropriate mitigating factor, Respondent has failed to raise a genuine issue showing how his incarceration is material to the sanction imposed in this disciplinary proceeding -- a sanction that rests upon multiple counts of disreputable conduct of which only one count relates directly to his incarceration.

Finally, Respondent has argued generally about the state of the economy and the actions of various financial institutions as reported in the national media. While he supplied numerous newspaper clippings with handwritten comments and analysis, he has failed to raise a genuine issue showing how the state of the economy or the actions of large financial institutions are material to any of the issues in this disciplinary proceeding which is necessarily focused on the individual actions of Respondent.

Respondent had ample opportunity to respond directly to Complainant's motions which requested the sanction of disbarment, and he chose not do so. The unsupported assertions contained in Respondent's letters fail to raise genuine issues of material fact that would justify modification of the sanction of disbarment.

In further support of its request for disbarment, Complainant offers evidence of other aggravating factors, including Respondent's history of tax filings and a report prepared by the U.S. Treasury Inspector General for Tax Administration ("TIGTA report"). See Complaint Exs. 30-32. Events preceding the counts set forth in the Complaint may be considered as aggravating factors if substantiated by clear and convincing evidence. See generally Dir., Office of Prof'l Responsibility v. Coston, Complaint 2010-19 at 7 (Decision on Appeal, Oct. 14, 2011). However, based upon Respondent's failure to raise a genuine issue of material fact that would mitigate the sanction of disbarment, it is unnecessary to consider Complainant's assertions regarding aggravating factors or Respondent's arguments related thereto.

See page 30 for distribution.

Distributed

² The 2011 revisions to the procedural rules governing disciplinary proceedings set forth at 31 C.F.R. §§ 10.60-10.82, apply to administration of this Complaint which was filed on May 30, 2012. See also Treasury Department Circular No. 230 (Rev. 8-2011) (available online at www.irs.gov). As such, citation will be to the 2011 version of the procedural rules unless otherwise specified. Because past conduct is governed by the regulatory provisions in effect at the time the conduct occurred, citations to those non-procedural regulations will include reference to the applicable version of the code of federal regulations ("C.F.R.")

³ Copies of final agency decisions in disciplinary cases are available on the internet at: http://www.irs.gov/Tax-Professionals/Enrolled-Agents/Final-Agency-Decisions-in-Disciplinary-Cases.

⁴ Although Respondent also held a CPA license in California at one time, the undisputed evidence of record shows that it expired in 1994. Complaint Ex. 10.

⁵ Notably, this letter, received more than a month after the deadline for responding to Complainant's motions, is itself untimely and indicative of Respondent's lack of concern for deadlines.