dissenting:
The majority recognizes the principles established in Attorney Grievance Commission v. Walman, 280 Md. 458, 374 A.2d 354 (1977), that the crime of willful failure to file income tax returns does not, in and of itself, involve moral turpitude, and that whether moral turpitude exists depends upon the particular facts of the individual case. The majority holds that under the facts of this case, the crime involved moral turpitude and that in the absence of compelling extenuating circumstances, disbarment is the appropriate sanction. In my view, while paying deference to the principles of Walman, the majority has undermined them to such an extent that the case has, in effect, been overruled. I respectfully dissent.
In Walman, the government discovered that an attorney had failed to pay Federal income taxes for three years. In the Federal District Court for the District of Maryland, he pled guilty to one count of “wilfully and knowingly” failing to file a Federal income tax return for 1968, and was sentenced to one month in jail and 23 months probation. Subsequently, he was disbarred from practice before that Court.
In a disciplinary action in Maryland, before a panel of three judges, evidence was presented to show the facts and *482circumstances surrounding the failure to file. At the time of his conviction, Walman had been a member of the Maryland Bar for nine years. He suffered from various physical ailments and had pressing financial responsibilities including the support of his grandparents as well as a brother and his two sons. He explained that he failed to file his tax returns because he did not have the money to pay. Indeed, he conceded that on one occasion he wrote a check for the balance due on his income tax, but did not mail it because, as a result of paying his nephew’s college tuition, he no longer had sufficient funds. In addition, he conceded that when he failed to file, he knew that he was required to file and that he would not be criminally prosecuted if he failed to pay the money owed at that time. At the time of his conviction, he had not yet satisfied all his tax obligations. The panel recommended a one year suspension.
Before this Court, the Attorney Grievance Commission claimed that the crime involved moral turpitude and therefore required a greater sanction. Walman contended that because the crime had been committed without fraudulent intent, a reprimand was the appropriate sanction. Judge Levine, speaking for the majority of this Court, said:
“Here, as we have intimated, no evidence has been presented to show that respondent’s failure to file the returns was accompanied by a fraudulent or dishonest intent. Nor does the record reflect an intent to avoid the ultimate payment of taxes. There is no suggestion, for example, that respondent falsified records, made deceptive statements to Internal Revenue agents, testified untruthfully, committed any other act of dishonesty, or was guilty of further misconduct. No evidence has ever been uncovered by either the I.R.S. or petitioner to refute respondent’s explanation for his conduct: that it resulted from his inability to pay. In short, there is no further showing, beyond the bare fact of conviction for failure to file his returns, to indicate that respondent’s conduct was infected with moral *483turpitude, as we have defined that term.” [ Walman, 280 Md. at 462, 374 A.2d at 360.]
The Court held that Walman, who had not voluntarily-disclosed his failure to file, had not committed a crime involving moral turpitude. This case establishes that whether moral turpitude exists depends upon the totality of circumstances. The fact that an attorney has not voluntarily disclosed his failure to file is insufficient, in and of itself, to show the existence of moral turpitude.
In a dissenting opinion, the minority agreed with the principle that a willful failure to file is a crime which does not, in and of itself, involve moral turpitude, and that whether moral turpitude exists depends upon the facts of the case. The minority found that under the facts of the case, Walman’s crime involved moral turpitude. In reaching that result, Chief Judge Murphy pointed out, in language strikingly similar to that of the majority opinion here, that:
“Walman’s failure to file federal tax returns for 1967, 1968 and 1969 was not discovered by reason of any voluntary disclosure on his part, but rather as a result of governmental investigation. His failure to file state income tax returns for 10 years was revealed, for the first time, on his cross-examination at the remand hearing. That Walman knew that he was required to file tax returns but need not then remit the tax due is conceded — indeed at one time Walman was employed by H & R Block Company as a tax specialist. These are facts and circumstances which shed light on, and lend meaning to, Walman’s purposeful conduct in not filing his income tax returns; they spell out, in my judgment, a deliberate and unmistakable intention to cheat the government.
“I conclude that Walman’s conviction for wilful failure to file his 1968 federal income tax return, considered in the light of the total circumstances revealed by the record, involved moral turpitude since his intention was to cheat the government out *484of taxes justly due.” (Emphasis added.) [ Walman, 280 Md. at 468, 470, 374 A.2d at 863, 364.]
The evidence relied upon by the dissent to show moral turpitude consisted of the fact that Walman failed to file despite Ms knowledge that he was required to and could do so without paying, and the fact that he did not voluntarily disclose Ms crime. While Walman’s knowledge supports an inference that he willfully failed to file, it does not support an inference that he intended to cheat the government, and therefore is not material to the question whether moral turpitude exists. Thus, Walman’s failure voluntarily to disclose was the only evidence to show an intention to cheat, and therefore to show the existence of moral turpitude. Patently, the minority believed that the single factor of failure voluntarily to disclose was sufficient to establish moral turpitude.
In the instant case, the majority reaches the same result. The evidence upon which it relies to establish moral turpitude consists of the fact that, despite his personal difficulties, Barnes was able to function professionally, and the fact that he did not voluntarily disclose his crime. With respect to the latter, the majority says:
.. Barnes’ failure to file was not discovered by reason of any voluntary disclosure on his part; indeed it must be inferred that by going to the LR.S. in 1972 for an extension of time to file his 1971 return, without disclosing his earlier failures to file, that Barnes intended to conceal his crime, and thus avoid the ultimate payment of his 1969 and 1970 taxes. We think that Barnes’ misconduct, considered in the light of the total circumstances revealed by the record, involved moral turpitude since his intention was to cheat the government....” (Emphasis added.)
While Barnes’ ability to function professionally supports an inference that he willfully failed to file, it does not support an inference that he intended to cheat the government, and therefore is not material to the question whether moral *485turpitude exists. Thus, an inference drawn from Barnes’ alleged failure to make a voluntary disclosure is the only evidence to show an intention to cheat and therefore to show
the existence of moral turpitude. Patently, the majority now holds that the single factor of failure voluntarily to disclose is sufficient to establish moral turpitude. I cannot agree.
There is no evidence in the record to show that Barnes did not voluntarily disclose his failure to file to the IRS. The majority states:
“That Barnes did not voluntarily disclose to the I.R.S. that he had failed to file Ms 1969 and 1970 tax returns was conceded by Mm at the hearing. Barnes admitted that his crime was discovered by the I.R.S. in 1972 when he sought an extension of time to file Ms Í971 tax return.”
At the hearing, Barnes appeared and testified. He explained his reasons for failing to file. He did not testify, on either direct or cross-examination, about any of the circumstances under which the IRS became aware of his failure to file. Indeed, at no time was he asked a question relating to this issue. Barnes himself did not admit that his crime was discovered by the IRS.
Furthermore, there was nothing at the hearing, other than the unsworn statements of Barnes’ attorney, to support an inference that Barnes did not make a voluntary disclosure. At the hearing, in argument, Barnes’ attorney said:
“When Mr. Barnes filed his tax return he asked for an extension, and he received a letter back from the Internal Revenue that they couldn’t locate his last year’s tax returns.
“Judge JEtasin: What year was that?
“Mr. Chian: That vms in 1972. He brought the letter to me and told me he had not filed the ’69 and ’70 tax returns. We went down to the Internal Revenue Department, and he told them he had not filed. This was back in 1972, and we had a conference with them and agreed to do everything they asked, *486and provided all they asked, and we did file the return in 1972, and paid all of the assessments and damages.”
In my view, given the well-known investigative techniques of the IRS, the fact that Barnes filed a request for an extension of time in which to file his 1971 return supports an inference that he was attempting to straighten out his tax affairs, including those of past years.
Indeed, later in argument, Barnes’ attorney, in distinguishing Bar Association of Baltimore City v. McCourt, 276 Md. 326, 347 A.2d 208 (1975), pointed out that McCourt was arrested and “didn’t come in on his own voluntarily,” whereas Barnes “went up there and turned himself in.” Still later, in response to a question from the bench concerning the effect of Barnes’ guilty plea, Barnes’ attorney said that “we went in and told them [IRS] we did wrong.”
Moreover, in oral argument before this Court, Barnes’ attorney denied a suggestion from the bench that Barnes would never have filed his 1969 and 1970 tax returns if the IRS had not discovered independently that those returns had not been filed. In addition, he affirmatively asserted that Barnes’ request for an extension of time within which to file his 1971 return included a request for an extension for his 1969 and 1970 returns as well. In response to further direct questions, Barnes’ attorney conceded that the record was unclear and that he did not know whether Barnes had told the IRS or whether the IRS itself had discovered that Barnes had failed to file his 1969 and 1970 returns. He emphasized, however, that when he, on Barnes’ behalf, told the IRS that Barnes had failed to file for 1969 and 1970, the IRS gave no indication that it already had this information. Finally, at oral argument before this Court, Bar Counsel conceded, in response to questions, that there was nothing in the record to show that Barnes had failed to inform the IRS that he had not filed his returns for 1969 or 1970.
Barnes’ attorney’s unsworn statements are not evidence, and even if they were, they would not, based upon the record here, support an inference that Barnes had not voluntarily *487disclosed Ms failure to file. Accordingly, the unsworn statements by Barnes’ attorney cannot be regarded as either a concession or admission by Barnes that he failed voluntarily to disclose his crime. In my view, in the absence of such an admission or concession, there is no evidence to show that Barnes failed voluntarily to disclose his crime.
Moreover, even if Barnes had not voluntarily disclosed his failure to file, that fact, as recognized by the majority in Walman, does not support an inference that he intended to cheat the government. In the absence of such an inference, there is no evidence to show moral turpitude.
Notwithstanding the majority’s deference to the principles of Walman, it is holding that sinless an offender voluntarily disclosed to the IRS his willful failure to file, that willful failure to file is, in and of itself, a crime involving moral turpitude. This result so substantially erodes the principle of Walman that the existence of moral turpitude depends upon the totality of circumstances, and not on the single factor of failure voluntarily to disclose, that Walman, in effect, becomes meaningless.
Here, the facts show circumstances more compelling than those in Walman. At the time of their respective convictions, Barnes had been a member of the Bar for 85 years, and Walman for nine. Barnes had failed to file Federal income taxes for two years, and Walman for three. Walman never contacted the IRS or made any effort to resolve his tax difficulties and had not paid any of his back taxes before he was indicted. Barnes, on the other hand, contacted the IRS and settled all of the tax claims against him before he was indicted. The judge who sentenced Barnes in the Federal District Court for the District of Maryland stated that he was certain Barnes would never break the law again. Walman was disbarred by the Federal District Court for the District of Maryland.
Both Walman and Barnes were under considerable stress. Walman’s difficulties were confined to heavy financial demands made upon him by his family. Barnes’ marital, family, and social difficulties were considerably more extensive. Both Walman and Barnes had physical problems. *488While Walman’s physician could not testify to a relationship between Walman’s physical problems and his behavior, Barnes’ physician testified that Barnes’ variety of physical ailments were responsible for impairing his memory and his ability to function. There was no evidence to suggest that Walman suffered any psychiatric disability, but a psychiatrist testified that Barnes suffered from a character disorder. He was anxious and chronically depressed and exhibited some attributes of a passive-aggressive individual. He feared for his life and that of his family, and, given all his problems, the payment of taxes held a very low priority. The psychiatrist concluded that at the time of the offense Barnes was incapable of forming a criminal intent.
Barnes explained that his failure to pay was due to his constellation of problems including a loss of his records. Walman explained that his failure to pay resulted from his deliberate decision to divert to personal or family use the very funds with which he might have paid his taxes.
Finally, here as in Walman, there is no evidence to show that Barnes’ failure to file was accompanied by a fraudulent or dishonest intent, or an intent to avoid .the ultimate payment of taxes. There is no suggestion that Barnes falsified records, made deceptive statements to Internal Revenue agents, testified untruthfully, committed any other act of dishonesty, or was guilty of further misconduct. No evidence has ever been uncovered by the IRS or the Attorney Grievance Commission to refute Barnes’ explanation that his conduct resulted from the stress and constellation of problems by which he was besieged. In short, there is no showing, beyond the bare fact of conviction for failure to file a return, to indicate that Barnes’ conduct was infected with moral turpitude.
If the “particular facts of the individual case” here under consideration do not establish the absence of moral turpitude, the facts in no case ever will. The principle of Walman, that the crime of willful failure to file income tax returns does not, in and of itself, involve moral turpitude, no longer exists.
Based upon the totality of circumstances in this case, I would hold that Barnes did not commit a crime involving *489moral turpitude, but did engage in “conduct prejudicial to the administration of justice” to which the sanctions of Maryland Rule BV11 apply. With respect to an appropriate sanction, Judge Levine said in Walman:
“In addition to the two reported decisions we mentioned earlier, Rheb v. Bar Ass’n of Baltimore, [186 Md. 200, 46 A.2d 289 (1946)] and Bar Ass’n of Balto. City v. McCourt, [276 Md. 326, 347 A.2d 208 (1975) |... we have dealt with the crime charged here in two unreported cases since 1970, the year in which we assumed original and complete jurisdiction over disciplinary proceedings. In each of those two cases we adopted the recommendation of a three-judge panel that a one-year suspension be imposed. We subsequently did likewise in McCourt, where more extensive mitigating circumstances were established. The ultimate sanction of disbarment was imposed in Rheb, but there, as we have noted, the misconduct of the attorney extended well beyond his failure to file.1 *3
“Respondent concedes not only that he diverted to personal or family use the very funds with which he might have paid part, if not all, of the taxes which he owed, but also that he could have avoided criminal prosecution, in any event, by merely filing his returns as required by law. This case therefore lacks the mitigating circumstances found in Bar Ass’n of Balto. City v. McCourt, 276 Md. at 330, in which the testimony of a psychiatrist revealed that the criminal conduct was related to a ‘passive-aggressive’ neurotic personality disorder.
“On this record, we agree with the panel below that disbarment is not warranted, but we conclude that the purposes to be served by these disciplinary proceedings will be met by a suspension of three *490years----” (Footnote omitted.) [ Walman, 280 Md. at 465-66, 374 A.2d at 361-62.]
On the record before me, because the facts are more compelling than those in Walman, and contain the mitigating circumstances found in MeCourt, I would conclude that a suspension of one year would be appropriate.
Judge Cole has authorized me to state that he concurs with the views expressed herein. ,. In Rheb, the attorney had, in addition to failing to file for 12 years, failed to keep proper tax records, engaged in the fraudulent sale of stock, and obtained money and real property fraudulently.