Appeals Court Affirms Disbarment of Attorney by Tax Court

(Parker Tax Publishing May 2017)

The District of Columbia Court of Appeals held that it had jurisdiction to review the Tax Court's order disbarring an attorney, and it affirmed the order. The attorney's arguments that the Tax Court violated his procedural and substantive due process rights were rejected. Aka v. U.S. Tax Court, 2017 PTC 181 (D.C. Cir. 2017).

In 2009, Wilfred Aka was hired by Martin Kyere to challenge the amount the IRS said Kyere owed in unpaid taxes. Aka filed a petition for redetermination of the notice of deficiency on Kyere's behalf. Aka then failed to appear for a discovery conference, failed to give opposing counsel key documents, and did not appear at the trial. Aka's response to the Tax Court's order to show cause why he should not be disciplined was that he believed he no longer represented Kyere after Kyere failed to pay him on time. The Tax Court rejected that argument and reprimanded Aka for failing to uphold his duties to his client, to opposing counsel, and to the court. The Tax Court decided not to disbar him at that time because he had no prior disciplinary record, showed no bad faith, and was cooperative in the disciplinary proceedings.

Three years later, the Tax Court again ordered Aka to show cause why he should not be disciplined after Aka was accused of similar misconduct in seven other cases. Aka disputed no material facts but blamed his clients for hampering his work on their behalf. The Tax Court found that even if his clients were uncooperative, Aka was still at fault for shirking his duties to opposing counsel and the court. The Tax Court disbarred Aka for willfully violating the Tax Court's orders and rules, and a month later, the Tax Court denied his motion to vacate or modify its disbarment order.

Aka appealed his disbarment to the D.C. Circuit Court, arguing that the disbarment order should be vacated or, in the alternative, that the Tax Court should be compelled to offer steps Aka could take to be reinstated. Aka said the Tax Court's disbarment order violated his procedural and substantive due process rights. The Appeals Court rejected these arguments and affirmed the Tax Court.

First, the court considered whether it had jurisdiction to review the Tax Court's disbarment order and concluded that it did. Code Sec. 7482 gives federal courts of appeals jurisdiction over decisions of the Tax Court. In determining what constitutes a Tax Court decision, the court noted that Code Sec. 7459, which explains how to determine the date of entry of a Tax Court decision, mentions only declaratory judgments and orders specifying how much a taxpayer owes. The Court of Appeals found that Code Sec. 7459 was not intended to limit appellate jurisdiction. It also noted that it had previously held that Code Sec. 7482 was the controlling provision for appellate review. Under Code Sec. 7482, finality of a Tax Court order is the test for jurisdiction, and in the court's view, a disbarment order was a final order.

Next, the court considered and rejected Aka's due process arguments. The D.C. Circuit said that due process requires a court pursuing disbarment to give attorneys fair notice and a chance to be heard, and to follow its published rules for disbarment proceedings. Aka did not deny that the court satisfied these requirements, but argued that the Tax Court deprived him of due process by failing to lay out steps for his reinstatement. The D.C. Circuit found that due process did not require such guidance, and further, that the Tax Court has in fact published general conditions for reinstatement. Aka's substantive due process claim was that the Tax Court violated his rights by disbarring him absent evidence that he had committed any crime. The court determined that substantive due process protects fundamental liberties and held that there is no substantive due process right to bar membership or against unduly harsh disbarment.

For a discussion of the Tax Court's authority to disbar an attorney, see Parker Tax ¶274,120.

Disclaimer: This publication does not, and is not intended to, provide legal, tax or accounting advice, and readers should consult their tax advisors concerning the application of tax laws to their particular situations. This analysis is not tax advice and is not intended or written to be used, and cannot be used, for purposes of avoiding tax penalties that may be imposed on any taxpayer. The information contained herein is general in nature and based on authorities that are subject to change. Parker Tax Publishing guarantees neither the accuracy nor completeness of any information and is not responsible for any errors or omissions, or for results obtained by others as a result of reliance upon such information. Parker Tax Publishing assumes no obligation to inform the reader of any changes in tax laws or other factors that could affect information contained herein.

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