By Del Quentin Wilber and Nikita Stewart
Washington Post Staff Writers
Thursday, January 29, 2009; B04
D.C. Council member Marion Barry (D-Ward 8) has again failed to file his tax returns.
The former District mayor has not submitted federal or city tax forms for 2007 -- the second instance in which he has not filed required returns while on probation for tax offenses, said two sources familiar with the situation.
Two years ago, federal prosecutors failed to convince a federal judge that Barry should be jailed for violating the terms of his probation, which was ordered in 2006, because he did not file 2005 tax returns. The probation expires in March.
Barry declined last night to discuss the matter or say when he might file his taxes.
"As with any American citizen, my tax status is a matter between the IRS and the taxpayer and not The Washington Post," he said. His attorney, Frederick D. Cooke Jr., and Channing Phillips, a spokesman for the U.S. attorney's office, also declined to comment.
The sources said they did not know whether Barry owed taxes in 2007. The D.C. government withholds a portion of his $92,530 salary, and Barry might be owed a refund, the sources said. He filed his 2006 returns, said the sources, who spoke on condition of anonymity because they are not authorized to discuss tax matters.
Barry's current trouble stems from a guilty plea in 2005 to two misdemeanor tax charges. He admitted not filing federal or D.C. tax returns from 1999 through 2004 and said that he did not pay most of the taxes he owed on more than $500,000 in income. U.S. Magistrate Judge Deborah A. Robinson sentenced him to three years of probation in March 2006.
In less than a year, federal prosecutors returned to court and asked Robinson to revoke Barry's probation and send him to jail because he had failed to file 2005 returns. Prosecutors said at the time that the judge should send Barry to jail to make "clear to this defendant that he is not above the law."
Barry eventually filed the required forms, and Robinson allowed him to remain on probation because, she said, she did not think the prosecutor proved that Barry had "intentionally" and "willfully" failed to file the returns.
In light of Robinson's previous ruling and the fact that Barry filed his 2006 returns, prosecutors might be reluctant to seek sanctions again, legal experts said.
"I don't think they will have any more luck proving their case this time around," said Steven Levin, a criminal defense lawyer and former federal prosecutor in Baltimore who focused on white-collar offenses.
Barry, who has served as a D.C. Council member since 2005, did not list any additional income on his most recent financial disclosure form.
According to campaign finance records, he has not listed extra income on such forms since 2005, when he acknowledged earning in excess of $1,000 from M.R. Beal & Co., a minority-owned investment firm that specializes in corporate and municipal finance.