STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BOARD OF ACCOUNTANCY, )

)

Petitioner, )

)

vs. ) CASE NO. 79-183

)

MARK FINKEL, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James R. Bradwell, held a public hearing in this case on June 20, 1979, in Miami, Florida.

APPEARANCES

For Petitioner: Samuel Hankin, Esquire

Clayton, Duncan, Johnston,

Quincey, Ireland, Felder and Gadd Commerce Building

226 South Main Street Gainesville, Florida 32602

For Respondent: Mark Finkel

6321 93rd Court

Miami, Florida 33193 1/

ISSUE

At issue herein is whether or not the Respondent's certificate to practice as a certified public accountant in the State of Florida should be revoked based on conduct which will be set forth hereinafter in detail for alleged violations of Chapter 473, Florida Statutes, and the rules and regulations promulgated and adopted thereunder in Chapter 21A, Florida Administrative Code.

FINDINGS OF FACT

1. Based on the testimony of witnesses and their demeanor while testifying, the documentary evidence introduced at the hearing, and the entire record compiled herein, the following relevant facts are found.

   
   

2. Mark Finkel, Respondent, is the holder of certificate No. 2327 as a certified public accountant in the State of Florida. As such, the Respondent is subject to the provisions of Chapter 473, Florida Statutes, and the rules and regulations promulgated in Chapter 21A, Florida Administrative Code. The Respondent has been so registered as a certified public accountant since 1968.

3. During early 1973, Respondent was engaged by David E. Wells, M.D., P.A., to prepare and file individual and corporate tax returns for the entity, David E. Wells, M.D., P.A., for the three years ending June 30, 1975. Respondent's engagement stamped from a referral of Dr. Wells' former C.P.A., Tom Williams, who relocated from Florida during late 1972. At the outset of his engagement by Dr. Wells, Respondent was briefed on the nuances of Dr. Wells' cardiology practice by Tom Williams. Respondent, according to Dr. Wells, was told that his duties would include those of filing corporate and individual tax returns and proper accounting for the administration and payment of pension plan taxes.

   
   

4. During 1973, Respondent made quarterly visits to Dr. Wells' office to review records and billing information.

   
   

5. The record reveals that Respondent filed quarterly payroll tax returns through September of 1976 and individual income tax returns for the years ending 1973 and 1974.

   
   

6. Respondent failed to file individual income tax returns for the year ending December, 1975, or corporate returns for the years ending June 30, 1973, through 1976, and pension tax returns for the years ending 1973 through 1976. However, Respondent represented to Dr. Wells that all necessary returns were filed with the Internal Revenue Service and the other governmental agencies charged with the collection of taxes.

   
   

7. For the years 1973 through 1976, Dr. Wells received inquiries from the Internal Revenue Service requesting information as to why corporate tax returns had not been filed for his corporation for the three years ending June 30, 1975.

   
   

8. Based on the correspondence received from the Internal Revenue Service, Dr. Wells attempted to communicate with Respondent to either get the necessary forms filed or to request a return of Respondent's working papers which would assist another C.P.A. in preparing and filing the pertinent returns, to no avail.

   
   

9. In this regard, after repeated calls, Dr. Wells obtained what records Respondent had which were of little use to his newly retained accountant, Myron Kahn, a certified public accountant who, since 1959, has been licensed in Florida and North Carolina. Messr. Kahn was retained by Dr. Wells in December of 1976 and established that the Respondent had only filed an individual income tax return for Dr. Wells for the calendar year 1973, plus quarterly payroll tax returns filed which were current. (See Petitioner's Exhibits 1 and 2.)

   
   

10. Based on the available records, Messr. Kahn reconstructed the necessary accounting data based on cash receivables and disbursement vouchers for the prior four-year period. Messr. Kahn, after diligent search, found no control sheets, financial summaries, analyses, etc., which would have been kept if the pertinent income tax returns had been filed as required. Because Messr. Kahn had to reconstruct the necessary accounting data, he spent an inordinate amount of time compiling the returns he needed to file.

    
    

11. Evidence reveals that due to Dr. Wells' late filing of tax returns for the fiscal year ending June 30, 1974, he incurred an additional penalty of

    $12,600, plus approximately $2,700 in interest and for his state corporate return, a penalty of $1,700 was assessed, plus $325 for interest. For the year ending June 30, 1975, Dr. Wells paid a Federal penalty of $5,618, plus $878 in interest, and a state penalty of $1,052, plus $132 in interest.

12. Douglas H. Thompson, Jr., the Board's Executive Director, has been a certified public accountant since April, 1968. Director Thompson is the Board's chief administrative officer and custodian of records. On approximately December 16, 1976, Director Thompson received a complaint from David E. Wells, M.D., based on Respondent's "failure to file requested corporate returns and to return certain documents."

    
    

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Subsection 120.57(1), Florida Statutes.

    
    

14. The authority of the Board is derived from Chapter 473, Florida Statutes, and Rules 21A-3.02, 21A-4.01, and 21A-7.01, Florida Administrative Code.

    
    

15. The parties were duly noticed pursuant to the notice provisions of Section 120.57, Florida Statutes.

    
    

16. The Respondent, a certified public accountant, is subject to the provisions of Chapter 473, Florida Statutes, and the rules and regulations promulgated and adopted thereunder.

    
    

17. Respondent, by misrepresenting to Dr. Wells that he filed corporate tax returns for the entity, David E. Wells, M.D., P.A., for the three years ending June 30, 1975, knowingly misrepresented facts, committed acts discreditable to his profession, neglected his duties to his client, David E. Wells, and undertook an engagement which he failed to complete with professional competence. As such, Respondent violated the provisions of Sections 473.04 and 473.251(1)(g), Florida Statutes, and the provisions of Rules 21A-3.02, 21A-4.01, and 21A-7.01, Florida Administrative Code.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, and in the absence of any effort on Respondent's part to refute or otherwise mitigate the evidence presented, it is hereby,

RECOMMENDED:

That the Respondent's license to practice as a certified public accountant (certificate No. 2327) be REVOKED.

DONE and ENTERED this 6th day of August, 1979, in Tallahassee, Florida.

JAMES E. BRADWELL

Hearing Officer

Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

ENDNOTE

1/ Although properly noticed, the Respondent failed to appear or to otherwise be represented during the hearing.

COPIES FURNISHED:

Samuel Hankin, Esquire

Clayton, Duncan, Johnson, Quincey, Ireland, Felder & Gadd

Commerce Building

226 South Main Street Gainesville, Florida 32602

Mark Finkel

6321 SW 93rd Court Miami, Florida 339193

Docket for Case No: 79-000183

Orders for Case No: 79-000183