(concurring).
As the majority writing notes, the Department of Revenue assessed Simpson for delinquent sales taxes, penalties, and interest for perpetrating fraud on the State of South Dakota. Simpson collected sales tax without a license, as depicted below. Furthermore, he never remitted all of these collected revenues to the State.
There is a key difference from my special concurrence in Matter of Discipline of Simpson, 467 N.W.2d 921, 923 (S.D.1991), as I shall mention. At the time of that writing, collecting and not remitting sales tax, had not been established. It has now been established in subsequent legal proceedings that he did, in fact, collect some sales tax and retain it, yet failed to deliver it to the State of South Dakota. Simply put, additional evidence now exists that was not known before. In the above reported case, Simpson pleaded guilty thereinbefore to one count of engaging in a “business” without a sales tax license. SDCL 10-45-48.1(9).
According to the Findings of Fact:
6. When investigated in 1989, Simpson admitted that he did not have a sales tax license.
10. Simpson charged sales tax for probates in 1971, 1976 and 1982.
21. An audit of Simpson’s customer billing statements showed that he had charged sales tax during the 1960s. Simpson admitted that he did not always prepare billing statements, but when he did, he did charge sales tax.
28. Prior to 2/16/89, Simpson had never filed any sales tax returns nor remitted any sales tax to the State.
For the above reasons, the hearing examiner held that Simpson committed a fraud by collecting sales tax on behalf of the State and did not remit those funds. The Sixth Judicial Circuit affirmed the Findings of Fact and Conclusions of Law.
Simpson does not now deny that he is liable for certain sales tax deficiencies or complain that the amount of tax owed is in error. Rather, he claims that the statute of limitations for collecting the back taxes has run and is thereby uncollectible. In light of the newly developed evidence in Findings of Fact 10 and 21 above, it appears that there has been some fraud. Further, the record would now substantiate the fraudulent concealment.
*628The statute of limitation for fraud does not begin to run .. until the aggrieved party discovers, or has actual or constructive notice of, the facts constituting the fraud.” SDCL 15-2-3. Here, the cause of action against Simpson did not begin until December 29, 1988 when revenue agent Magdanz canvassed Simpson’s office. Before that time, there was no evidence that the State was cognizant of Simpson’s failure to be properly licensed and remit sales tax. See also Tri-State Refining v. Apaloosa Company, 431 N.W.2d 311, 314 (S.D.1988). Attorneys in South Dakota add sales tax to the fees charged to their clients by virtue of SDCL 10-45-22. By applying these facts to precedent, the attorney remains ultimately liable for payment of the tax, whether he collects the tax from his client or not. Loel Lust Chevrolet Co. v. Commissioner of Revenue, 83 S.D. 285, 158 N.W.2d 603 (1968).
By an unreported judgment dated March 10, 1993, Supreme Court of South Dakota, John Simpson was immediately reinstated to practice law in all courts in this state. It was further provided, however, that such reinstatement be conditioned upon, essentially: (1) making restitution to the State of South Dakota of sales tax, penalty and interest as finally determined by the South Dakota Supreme Court; (2) submitting a plan of payment therefore, to be approved by the South Dakota Supreme Court, thereby achieving complete restitution; (3) submitting a sworn financial statement to this Court of relevant factors concerning his ability to pay the aforesaid amount, to include a recitation of his assets and liabilities; (4) repaying all costs and expenses associated with his reinstatement.