Internal Revenue Bulletin:  2008-37 

September 15, 2008 

Announcement of Disciplinary Sanctions From the Office of Professional Responsibility


Table of Contents

The Office of Professional Responsibility (OPR) announces recent disciplinary sanctions involving attorneys, certified public accountants, enrolled agents, enrolled actuaries, enrolled retirement plan agents, and appraisers. These individuals are subject to the regulations governing practice before the Internal Revenue Service (IRS), which are set out in Title 31, Code of Federal Regulations, Part 10, and which are published in pamphlet form as Treasury Department Circular No. 230. The regulations prescribe the duties and restrictions relating to such practice and prescribe the disciplinary sanctions for violating the regulations.

The disciplinary sanctions to be imposed for violation of the regulations are:

Disbarred from practice before the IRS—An individual who is disbarred is not eligible to represent taxpayers before the IRS.

Suspended from practice before the IRS—An individual who is suspended is not eligible to represent taxpayers before the IRS during the term of the suspension.

Censured in practice before the IRS—Censure is a public reprimand. Unlike disbarment or suspension, censure does not affect an individual’s eligibility to represent taxpayers before the IRS, but OPR may subject the individual’s future representations to conditions designed to promote high standards of conduct.

Monetary penalty—A monetary penalty may be imposed on an individual who engages in conduct subject to sanction or on an employer, firm, or entity if the individual was acting on its behalf and if it knew, or reasonably should have known, of the individual’s conduct.

Disqualification of appraiser—An appraiser who is disqualified is barred from presenting evidence or testimony in any administrative proceeding before the Department of the Treasury or the IRS.

Under the regulations, attorneys, certified public accountants, enrolled agents, enrolled actuaries, and enrolled retirement plan agents may not assist, or accept assistance from, individuals who are suspended or disbarred with respect to matters constituting practice (i.e., representation) before the IRS, and they may not aid or abet suspended or disbarred individuals to practice before the IRS.

Disciplinary sanctions are described in these terms:

Disbarred by decision after hearing, Suspended by decision after hearing, Censured by decision after hearing, Monetary penalty imposed after hearing, and Disqualified after hearing—An administrative law judge (ALJ) conducted an evidentiary hearing upon OPR’s complaint alleging violation of the regulations and issued a decision imposing one of these sanctions. After 30 days from the issuance of the decision, in the absence of an appeal, the ALJ’s decision became the final agency decision.

Disbarred by default decision, Suspended by default decision, Censured by default decision, Monetary penalty imposed by default decision, and Disqualified by default decision—An ALJ, after finding that no answer to OPR’s complaint had been filed, granted OPR’s motion for a default judgment and issued a decision imposing one of these sanctions.

Disbarment by decision on appeal, Suspended by decision on appeal, Censured by decision on appeal, Monetary penalty imposed by decision on appeal, and Disqualified by decision on appeal—The decision of the ALJ was appealed to the agency appeal authority, acting as the delegate of the Secretary of the Treasury, and the appeal authority issued a decision imposing one of these sanctions.

Disbarred by consent, Suspended by consent, Censured by consent, Monetary penalty imposed by consent, and Disqualified by consent—In lieu of a disciplinary proceeding being instituted or continued, an individual offered a consent to one of these sanctions and OPR accepted the offer. Typically, an offer of consent will provide for: suspension for an indefinite term; conditions that the individual must observe during the suspension; and the individual’s opportunity, after a stated number of months, to file with OPR a petition for reinstatement affirming compliance with the terms of the consent and affirming current eligibility to practice (i.e., an active professional license or active enrollment status). An enrolled agent or an enrolled retirement plan agent may also offer to resign in order to avoid a disciplinary proceeding.

Suspended by decision in expedited proceeding, Suspended by default decision in expedited proceeding, Suspended by consent in expedited proceeding—OPR instituted an expedited proceeding for suspension (based on certain limited grounds, including loss of a professional license and criminal convictions).

OPR has authority to disclose the grounds for disciplinary sanctions in these situations: (1) an ALJ or the Secretary’s delegate on appeal has issued a decision on or after September 26, 2007, which was the effective date of amendments to the regulations that permit making such decisions publicly available; (2) the individual has settled a disciplinary case by signing OPR’s “consent to sanction” form, which requires consenting individuals to admit to one or more violations of the regulations and to consent to the disclosure of the individual’s own return information related to the admitted violations (for example, failure to file Federal income tax returns); or (3) OPR has issued a decision in an expedited proceeding for suspension.

Announcements of disciplinary sanctions appear in the Internal Revenue Bulletin at the earliest practicable date. The sanctions announced below are alphabetized first by the names of states and second by the last names of individuals. Unless otherwise indicated, section numbers (e.g., §10.51) refer to the regulations.

City and State Name Professional Designation Disciplinary Sanction Effective Date(s)
Alaska        
Juneau Clark, James F. Attorney Suspended by default decision in expedited proceeding under §10.82 (suspension of attorney license) Indefinite from July 28, 2008
California        
Hollywood Busch, Steven M. Attorney Suspended by default decision in expedited proceeding under §10.82 (suspension of attorney license in Florida) Indefinite from July 28, 2008
Connecticut        
Greenwich Russell, Phillip Attorney Suspended by default decision in expedited proceeding under §10.82 (conviction under 18 U.S.C. §4, misprison of a felony) Indefinite from August 1, 2008
Florida        
Atlantic Beach Berry, Jr., Michael L. Attorney Suspended by default decision in expedited proceeding under §10.82 (suspension of attorney license) Indefinite from July 28, 2008
  Busch, Steven M., See California      
Jacksonville Clance, Wayne D. Attorney Suspended by default decision in expedited proceeding under §10.82 (attorney disbarment) Indefinite from July 28, 2008
Indiana        
Wabash Smith, Michael J. Attorney Suspended by default decision in expedited proceeding under §10.82 (suspension of attorney license in New York) Indefinite from August 5, 2008
Kentucky        
Pikeville Linton, Jr., Robert F. CPA Suspended by default decision in expedited proceeding under §10.82 (suspension of CPA license) Indefinite from August 1, 2008
Louisville Smith, Jr., Louis M. Attorney Suspended by decision in expedited proceeding under §10.82 (suspension of attorney license) Indefinite from August 1, 2008
Louisiana        
Shreveport McGinn, Desmond E. Attorney Suspended by default decision in expedited proceeding under §10.82 (attorney disbarment) Indefinite from August 5, 2008
Maryland        
Catonsville Antlitz, Ronald E. CPA Suspended by consent for admitted violations of §10.51 (failure to timely file Federal income tax returns) Indefinite from July 25, 2008
Massachusetts        
Needham Crossen, Gary C. Attorney Suspended by default decision in expedited proceeding under §10.82 (attorney disbarment) Indefinite from August 5, 2008
Winchester Curry, Kevin P. Attorney Suspended by default decision in expedited proceeding under §10.82 (attorney disbarment) Indefinite from August 5, 2008
Cambridge Peraner, Robert A. Enrolled Agent Censured by consent for admitted violations of §10.51 (failure to file Federal income tax returns) Indefinite from May 12, 2008
Wakefield Tamagani, Jr., James E. Attorney Suspended by default decision in expedited proceeding under §10.82 (attorney disbarment) Indefinite from August 5, 2008
Springfield Viscito, Leonard CPA Suspended by decision in expedited proceeding under §10.82 (suspension of CPA license) Indefinite from August 1, 2008
Michigan        
Marion Yoder, Daniel L. Enrolled Agent Suspended by decision after hearing for violation of §10.51(failure to file and timely file Federal income tax returns) May 15, 2008 through May 14, 2010
Minnesota        
Rochester Djonne, Terry L. Attorney Suspended by default decision in expedited proceeding under §10.82 (attorney disbarment) Indefinite from August 5, 2008
  Overboe, David J., See North Dakota      
New York        
New York Cherry, Gwenerva D. Attorney Suspended by default decision in expedited proceeding under §10.82 (attorney disbarment) Indefinite from August 5, 2008
Flushing Manela, Rapheal CPA Suspended by default decision in expedited proceeding under §10.82 (conviction under New York law, offering a false instrument for filing) Indefinite from August 1, 2008
Old Brookville Moshell, Stuart R. Attorney Suspended by default decision in expedited proceeding under §10.82 (attorney disbarment) Indefinite from August 5, 2008
  Smith, Michael, J., See Indiana      
North Carolina        
Henderson Alston, D. Bernard Attorney Suspended by default decision in expedited proceeding under §10.82 (suspension of attorney license) Indefinite from August 5, 2008
Cary O’Rourke, Neil G. Attorney Suspended by decision in expedited proceeding under §10.82 (attorney disbarment) Indefinite from August 1, 2008
North Dakota        
Fargo Overboe, David A. Attorney Suspended by default decision in expedited proceeding under §10.82 (suspension of attorney license in Minnesota) Indefinite from August 1, 2008

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