Can't Do That, Attorney Tells Tax Board
LOS ANGELES (CN) - An attorney sued California's Franchise Tax Board, claiming its plan to publish his name as one of the state's top tax scofflaws would unconstitutionally threaten his law license and driver's license.
Ernest J. Franceschi Jr. sued Franchise Tax Board President John Chiang et al., in Federal Court.
Franceschi, who has been an attorney since 1984, claims that state law requires the Franchise Tax Board "to publicly disclose at least twice each calendar year a list of the 500 largest state income tax delinquencies."
Names on the list must owe more than $100,000 and have been given notice of a state tax lien.
"A taxpayer's inclusion on this list would cause the denial or suspension of occupational and professional licenses issued by state licensing agencies, including the taxpayer's driver's license," Franceschi says in the complaint, which he filed pro se.
Worse, he says, putting him on the list could threaten his law license.
"Plaintiff Ernest J. Franceschi Jr. has received an official Notice from the Franchise Tax Board (hereinafter referred to as 'FTB') ...that plaintiff's name will be included and published in the next edition of the 500 largest tax delinquents, which plaintiff alleges on information and belief will occur in April 2014," the complaint states.
It continues: "Plaintiff became licensed to practice law in the state of California in 1984 and has practiced continuously, without any history of discipline.
"Plaintiff is informed and believes and thereon alleges that the State Bar of California has serious reservations as to the constitutionality of the statutory scheme and is debating whether or not to suspend licenses of its members who are on the list. Plaintiff is informed and believes and thereon alleges that since the effective date of Business & Professions Code § 494.5 to the present, no active member of the State of Bar of California has been suspended by reason of inclusion on the FTB list. For these reasons, plaintiff has not joined the State Bar of California as a defendant in this action, but will seek leave of court to do so should the State Bar of California ultimately decide to suspend its members who are on the FTB list.
"Plaintiff alleges that absent an injunction issued by this Court, the California Department of Motor Vehicles will suspend plaintiff's California driver's license after the publication of the next edition of the 500 largest tax delinquencies.
"Plaintiff first became obligated to the FTB in or about 1995. The amount now claimed by the FTB, which includes interest and penalties, is alleged to be the sum of $242,276.73."
Franceschi claims that suspension of either license would violate his constitutional right to due process and equal protection. He claims his tax dispute with the state began in 1995, but Section 494.5 of the state's Business and Professions Code, which would affect him, was enacted in 2012, so application of it would be an unconstitutional ex post facto action and a bill of attainder.
He also claims the collection action is time-barred, and that he has reduced his liability to below the $100,000 threshold.
He seeks an injunction and costs.