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Matter of Garcia

Decided: May 18, 1990.

IN THE MATTER OF MARY C. GARCIA, AN ATTORNEY AT LAW


On an order to show cause why respondent should not be disbarred or otherwise disciplined.

For public reprimand -- Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. Opposed -- None.

Per Curiam

[119 NJ Page 86] This matter arises from a report and recommendation of the Disciplinary Review Board that respondent be suspended from the practice of law for a period of six months on account of her willful failure to file federal income tax returns for the tax years 1980, 1981, and 1982. Respondent argues that she has not been convicted of violating 26 U.S.C. ยง 7203, which makes a

willful failure to file federal income tax returns a criminal misdemeanor, and would not be so convicted in a trial by jury. Hence, she contends that she cannot be subject to the almost invariable suspension that attends a conviction for the willful failure to file federal income tax returns.

We disagree with respondent's underlying premise -- that her action did not constitute willful failure to file federal income tax returns -- but we refrain from imposing the discipline recommended because we have not heretofore made it clear that a finding of willful failure to file income tax returns would merit the same discipline absent a criminal conviction. See In re Hollendonner, 102 N.J. 21, 504 A.2d 1174 (1985) (refraining from imposition of Wilson sanction in respect of escrow accounts because principle had not previously been stated).

Despite a complex background, the facts are quite simple. Respondent and Frances Antonin were minority applicants for an FM radio station to be located in Jersey City. During the course of the Federal Communications Commission (FCC) licensing proceedings, a competitor discovered a 1984 tax lien against respondent filed in Hudson County. The competitor then requested a reopening of the FCC proceeding, which had theretofore been progressing favorably for respondent as the sole Jersey City applicant. The purpose of the reopening was to elicit further evidence on respondent's fiscal capacity to operate the station. During the course of that proceeding, the details of respondent's failure to have filed the returns became painfully apparent. Although her initial response to the FCC inquiry about the matter was that only a financial shortfall was the reason for the deficiency, it soon became clear that it was more than a failure-to-pay case. In response to cross-examination concerning her failure to file the return, although she was obliged only to pay $372 in taxes for 1980, she said:

And it was also -- yes, that is my testimony. And additionally, if you have a dollar bill and you've got two expenses, it's where you take that dollar and

where you put it, that's your choice. I chose to put it elsewhere, not to send it to the government.

And, further, she was asked:

Q: Is it your testimony that with net income of over $18,000, you couldn't have afforded to pay the $372 that were outstanding from 1980?

A: That is not my testimony.

Q: Well, then why didn't you ...


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