At a hearing of the disciplinary tribunal held in public
on 14 and 15 June 2007, at which the member was in attendance and not represented by counsel, in the first set
of charges and particulars, Noel Donald Sulzberger, a chartered accountant of Wellington, admitted particular (d) and denied particulars (a), (b), (c) and (e) and pleaded not guilty to charges (1), (2) and (3), and in the second set of charges and particulars admitted particulars (a), (b) and (c) and pleaded not guilty to charges (1), (2) and (3) and pleaded guilty to charge (4).
The charges and particulars set out in the notice to the member were as follows.
First set of charges
THAT in terms of the Institute of Chartered Accountants of New Zealand Act 1996 and the Rules made thereunder, and in particular Rule 21.30, the member is guilty of:
(1) conduct unbecoming an accountant; and/or
(2) breaching the institute’s Code of Ethics 2003
(in particular, the fundamental principles of integrity and quality performance, and/or Rules 2 and/or
10 and/or 14); and/or
(3) supplying the institute with information which is false or misleading.
First set of particulars
IN THAT being a chartered accountant in public practice, and in relation to a complaint, the member:
(a) failed to complete tax returns for the A Family
Trust, the B Family Trust, and the A & B Family Trust Partnership for the year ended 31 March 2005 (“the tax returns”) in a timely manner, in breach of the fundamental principle of quality performance and/or Rule 10 of the Code of Ethics; and/or
(b) provided false or misleading information to the complainants as to whether or not the tax returns
had been completed and/or filed with the Inland
Revenue Department, in breach of the fundamental principle of integrity and/or Rule 2 of the Code of the Ethics; and/or
(c) provided false or misleading information to the professional conduct committee in his letters
dated 5 September 2006 and/or 10 October 2006
and/or 23 January 2007 and at his final determination
on 8 February 2007 by stating that the tax returns were filed in February 2006 when he had previously advised the institute and his documentation indicates that they had not been filed as at 31 July 2006, in breach of Rule 21.30(g) of the Rules, and/or the fundamental principle of integrity; and Rule 2 of the Code of Ethics; and/or
(d) failed to provide copies of completed tax returns to the complainants in a timely manner despite giving numerous assurances to the complainants that this would be
done, in breach of the fundamental principle of integrity, and/or Rules 2 and/or 10 and/or 14 and/or paragraph 30 of the Code of Ethics; and/or
(e) failed to respond and/or failed to respond in a timely manner to correspondence dated 7 April 2006 and/or
2 June 2006 and/or 24 July 2006 from the complainants, in breach of Rules 10 and/or 14 of the Code of Ethics.
Second set of charges
THAT in terms of the Institute of Chartered Accountants of New Zealand Act 1996, and the Rules made thereunder, and in particular Rule 21.30, the member is guilty of:
(1) conduct unbecoming an accountant; and/or
(2) negligence and/or incompetence in a professional capacity, and that this has been of such a degree or so frequent as to tend to bring the profession into disrepute; and/or
(3) breaching the Rules (in particular, Rule 21.2) and/or the institute’s Code of Ethics 2003 (in particular, the fundamental principles of quality performance
and professional behaviour, and/or Rules 9 and/or
10 and/or 14); and/or
(4) failing to respond promptly to communications from the institute to the member.
Second set of particulars
IN THAT being a chartered accountant in public practice, and in relation to a complaint, the member:
(a) failed to meet his personal statutory obligations to the Inland Revenue Department and as a consequence,
the Inland Revenue Department has applied to the
High Court to adjudge him bankrupt and seek to
recover a debt of approximately $360,000.00 in breach of the fundamental principles of quality performance and/or professional behaviour and/or Rules 9 and/or
10; and/or
(b) failed to ensure the statutory obligations of his accountancy practice to the Inland Revenue Department were met and as a consequence, the Inland Revenue Department has applied to the High Court to put his practice into liquidation and seek to recover a debt of approximately $90,000.00, in breach of the fundamental principles of quality performance and/or professional behaviour and/or Rules 9 and/or 10; and/or
(c) failed to respond and/or failed to respond in a timely manner to correspondence dated 26 March 2007 and/or 17 April 2007 and/or 26 April 2007 and/or 7 May 2007 from the complainant, in breach of Rule 21.2 of the Rules and/or Rule 10 and/or 14 of the Code of Ethics.
Reasons
The member has admitted particular (d) in the first set of particulars, and admitted particulars (a), (b) and (c) in the second set of particulars.
Particulars (a), (b), (c) and (e) in the first set of particulars have been found to be proven.
The member has pleaded guilty to charge (4) in the second set of charges and has been found guilty of charges (1), (2) and (3) in the first set of charges and charges (1), (2) and (3) in the second set of charges.
The essence of the charges and particulars are two-fold, whether the returns in question were filed in February 2006 or not until August 2006 and his persistent failure to respond to his clients and the professional conduct committee.
In his evidence, the member pointed to his post book
record of the dispatch of the tax returns, the absence of any late filing fee, the fact that the accounts supplied by the Inland Revenue Department to the complainants contains a disclaimer dated February 2006 and that his time records record no time after January 2006.
The evidence of the three witnesses called by the professional conduct committee was logical, consistent
and credible while the member’s evidence was inconsistent to such a degree that the tribunal did not accept his version of events.
Accordingly, the tribunal found the member guilty of all charges and all particulars in the first set of charges and particulars.
In the second set of charges and particulars, the member has admitted all the particulars and pleaded guilty to charge (4).
Tax practitioners being publicly pursued for substantial income tax and GST tends to not only bring the profession into disrepute but also constitutes conduct unbecoming an accountant.
The member was therefore found guilty of all the charges
in the second set of charges.
Orders of the Tribunal
(a) Pursuant to Rule 21.31(b) of the Rules of the Institute of Chartered Accountants of New Zealand, the disciplinary tribunal ordered that Noel Donald Sulzberger be suspended from membership of the institute for three years.
(b) Pursuant to Rule 21.31(c) of the Rules of the Institute of Chartered Accountants of New Zealand, the disciplinary tribunal ordered that Noel Donald Sulzberger pay a monetary penalty of $10,000.00.
(c) Pursuant to Rule 21.31(d) of the Rules of the Institute of Chartered Accountants of New Zealand, the disciplinary tribunal ordered that the certificate of public practice held by Noel Donald Sulzberger be suspended for three years.
(d) Pursuant to Rule 21.33 of the Rules of the Institute of Chartered Accountants of New Zealand, the disciplinary tribunal ordered that Noel Donald Sulzberger pay to the institute the sum of $15,614.00 (inclusive of GST) in respect of the costs and expenses of the hearing before the disciplinary tribunal and the investigation by the professional conduct committee.
In accordance with Rule 21.35 of the Rules of the Institute of Chartered Accountants of New Zealand, the disciplinary tribunal directed that the decision of the tribunal be published in the Chartered Accountants Journal, the New Zealand Gazette, the Dominion Post and on the institute’s website with mention of the member’s name and locality.
The publicity in the Chartered Accountants Journal, the
New Zealand Gazette and on the website will be the full version of the notice of decision, the version in the Dominion Post will be an abbreviated version of the notice of decision with reference to the full decision being on the institute’s website.
Right of Appeal
Pursuant to Rule 21.41 of the Rules of the Institute of Chartered Accountants of New Zealand, which were in force at the time of the original notice of complaint, the member may, not later than 14 days after the notification of this tribunal to the member of the exercise of its powers, appeal in writing to the appeals council of the institute against the decision.
No decision other than the direction as to publicity shall take effect while the member remains entitled to appeal or while any such appeal by the member awaits determination by the appeals council.
Dated this 20th day of June 2007.
R. J. O. HOARE, Chairman, Disciplinary Tribunal.