Ongoing Tax Problems Do Not Prevent Reinstatement

The Oklahoma Supreme Court has reinstated an attorney despite his ongoing tax problems

the record…revealed that, as of November 19, 2014, Petitioner owed $133,263 in personal federal taxes, penalties, and interest. That amount included taxes owed for calendar years 2012 and 2013, despite Petitioner’s monthly salary of $5,500.00. In essence, Petitioner failed to withhold sufficient funds over the years, resulting in an arrearage.

The court

 To be clear, it is incumbent upon all Oklahoma Bar members to satisfy their tax obligations. It is not only the law, but a moral obligation this Court takes seriously. But, this Court must apply this duty “fairly and consistently to achieve justice, to rehabilitate errant members of the bar, and to protect the public.” Id. ¶ 5,240 P.3d 668.

The mere fact that Respondent took issue with Petitioner’s statements-believed to be made in good faith-in the Offer in Compromise, cannot preclude Petitioner from reinstatement. From this Court’s review of the record, it is clear that Petitioner followed the established procedures and is taking steps to resolve his tax liability. The IRS code contains provisions that allow a taxpayer, as here, to enter into negotiations to either settle or establish a payment plan in resolving an outstanding tax debt. Form 656 contemplates a taxpayer’s offer of settlement despite the taxpayer’s financial profile where full payment of the tax amount might impair one’s ability to provide for oneself and one’s family. This criteria alone, requires the taxpayer to tender his subjective belief of his ability to pay and produce supporting documentation. The ultimate decision on the Offer in Compromise rests with the IRS, not with this Court.

After considering the matter de novo, this Court concludes that Petitioner’s reinstatement is warranted. Aside from Petitioner’s tax arrearage, Petitioner has overcome the heightened standard for reinstatement. The record demonstrates, by clear and convincing evidence, that Petitioner has satisfied all the procedural requirements necessary for reinstatement. In addition, more than two years have passed since Petitioner was suspended. And, the underlying misdemeanor offense that led to Petitioner’s discipline has been dismissed. Since Petitioner’s suspension, Petitioner worked as a paralegal, timely filed his annual tax returns, and made substantial payments-in essence greatly reducing his tax obligations. The record also supports Petitioner’s compliance with the IRS procedures and his continued cooperation in resolving the matter.

He had been suspended for two years and a day for a criminal scheme

The Respondent was a partner, along with Josh T. Welch, in the law firm Ogle & Welch, located in Oklahoma City. The Respondent’s nephew, Robert Samuel Kerr, IV, joined the firm as a legal intern and then as an associate after being admitted to the Oklahoma Bar Association in 2006. In 2007, Ogle & Welch represented a client charged with the misdemeanor crime of driving under the influence of alcohol. Kerr was to represent the client before the Department of Public Safety (DPS). The firm actively took part in a series of transactions that led to an Edmond police officer receiving money as a bribe so that he would not appear at the DPS hearing. The firm made contact with a former Edmond police officer, Chris Caplinger, to assist in the bribe offer. An account of the facts appears in State ex rel. Oklahoma Bar Ass’n v. Kerr, 2012 OK 108, 291 P.3d 198.

This led to a misdemeanor conviction for obstruction of a public officer. (Mike Frisch)