Opinion
2265-19
04-18-2023
CLARK RAYMOND & COMPANY PLLC, D. EDSON CLARK, CPA, PLLC, TAX MATTERS PARTNER, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
David Gustafson Judge
Pending in this case is the computation under Rule 155 following the issuance of our opinion in October 2022. Now before the Court is a motion by petitioner's counsel to withdraw from the case. We will grant the motion and will give instructions to the parties about their filings under Rule 155.
Representation of petitioner
In this case the Tax Court reviews an FPAA issued to the TEFRA partnership Clark Raymond & Co., PLLC ("CRC"). Counter-intuitively, the partnership CRC is not the petitioner in this casee. Rather, the petitioner is CRC's tax matters partner ("TMP"), which is the entity D. Edson Clark, CPA, PLLC ("Clark PLLC"). The petition was filed in January 2019 and was signed by the individual D. Edson Clark ("Mr. Clark"). Mr. Clark is a shareholder of Clark PLLC, the TMP/petitioner. See Docs. 26-27.
Attorney Sandra Veliz filed her appearance on behalf of petitioner Clark PLLC in October 2020, Doc. 25, and has served as counsel since then. On April 12, 2023, Ms. Veliz filed a motion (Doc. 50) to withdraw from the case. Neither party objects. We will grant the motion. This will leave petitioner Clark PLLC without counsel.
Unlike other courts, see Rowland v. California Men's Colony, 506 U.S. 194 (1993), the Tax Court does make allowance for a non-human petitioner to proceed without counsel. Tax Court Rule 24(b) ("Representation without counsel") provides as follows: "(1) . . . A party that is not represented by counsel may proceed as follows: . . . (B) an authorized officer may represent a corporation". Rule 24(b)(1) does not explicitly mention a "limited liability company" or a "professional limited liability company", but we construe the rule's allowance to extend to an LLC or a PLLC. That is, we will allow Clark PLLC to continue to prosecute this case without counsel and to be represented by its shareholder, Mr. Clark. Mr. Clark will have the responsibility of acting for Clark PLLC, the TMP of the partnership CRC.
Petitioner's submission
We issued our opinion in this case on October 13, 2022, as T.C. Memo. 2022-105, Doc. 45, and directed that decision would be entered under Rule 155. That rule calls for the parties to perform computation in accordance with the opinion. The parties have not been able to agree on a computation, so on February 27, 2023, we held a telephone conference with counsel for the parties (with Mr. Clark participating along with Ms. Veliz), and we ordered a schedule according to which the parties would submit separate proposals. Our order providing that schedule stated:
In light of some of the comments made by [Mr. Clark], we stressed that Rule 155 does not give an opportunity for reconsideration or correction of the opinion but rather for implementation of the opinion. Rule 155(c) provides:
Any argument under this Rule will be confined strictly to consideration of the correct computation of the amount to be included in the decision resulting from the findings and conclusions made by the Court, and no argument will be heard upon or consideration given to the issues or matters disposed of by the Court's findings and conclusions or to any new issues. This Rule is not to be regarded as affording an opportunity for retrial or reconsideration. [Doc. 48.]
Thus, Rule 155 does not provide an occasion for a party to request reconsideration of an opinion. Such a request would instead be filed under Rule 161 and would have been due 30 days after issuance of the opinion--in this case, by Monday, November 14, 2022--but no such motion was filed in this case. Instead, each party is now to submit a proposed computation that would give effect to the Court's opinion (whether or not they agree with that opinion).
If a party disagrees with that opinion, then it follows that the party will also disagree with the computation. He will disagree even with his own computation, since his computation must be based on an opinion that he thinks is incorrect. But nonetheless his task is to perform the computation according to that opinion; his task is not to perform a computation according to the opinion he thinks the Court should have issued but did not. If a party disagrees with the Court's opinion (and with the decision entered in accordance with it), then that party's remedy would be an appeal from the Court's decision, see Rule 190 and I.R.C. § 7482, after that decision has been entered.
Petitioner's deadline to file his computation is May 1, 2023, and we will not alter that date, since it is more than two weeks away. However, if our instructions here cause petitioner to realize that he needs time in order to revise what he had expected to submit, then he may file a motion for an extension of time. It is
ORDERED that Ms. Veliz's motion to withdraw (Doc. 50) is granted. It is further
ORDERED, as to petitioner's submission now due May 1, 2023, that petitioner shall (1) comment on any respect in which he believes the Commissioner submission (Doc. 49) is in error and shall explain why, with reference to the Court's opinion, (2) include a proposed "Decision" document (in the format used by the Commissioner in Doc. 49) and explain, with reference to the Court's opinion, each instance in which petitioner's computation differs from the Commissioner's, and (3) include above his signature a statement to this effect: "I believe that this submission reflects the computation of the amounts to be included in the decision resulting from the opinion of the Court. In this submission I do not take any position different from the Court's opinion. I understand that Rule 155 does not afford an opportunity for requesting reconsideration of the Court's opinion." It is further
ORDERED that, in the Commissioner's reply due June 30, 2023, he shall comment on any respect in which he believes petitioner's submission is in error and shall explain why, with reference to the Court's opinion.