Opinion
7056-19
01-05-2022
Betty W. Curtis Petitioner v. Commissioner of Internal Revenue Respondent
ORDER
David Gustafson Judge
Now before us in this case is a motion (Doc. 23) to withdraw as counsel. We will order that the motion be supplemented.
This case involves a deficiency, as determined by the Internal Revenue Service, of about $55,000, plus additions to tax. The case is set for trial at the Tax Court's trial session in New York City beginning March 28, 2022. On December 29, 2021, the Commissioner filed two motions (Docs. 21-22) to compel petitioner Betty Curtis to produce information. The same day, counsel for petitioner Ms. Curtis filed a motion (Doc. 23) to withdraw as counsel, explaining that, "[a]ccording to Petitioner's ex-daughter-in-law, the caregiver and power of attorney for Petitioner ("Caregiver"), Petitioner does not have the means to continue this matter", and stating that "Caregiver . . . has no objections to the withdrawal."
We assume that the caregiver is a "power of attorney" in the sense that Ms. Curtis has presumably executed a Form 2848, "Power of Attorney", in favor of the caregiver, so that the caregiver can correspond with the IRS on behalf of the Ms. Curtis. It appears possible that Ms. Curtis's counsel and caregiver expect that the caregiver will handle this case after counsel's intended departure. It is certainly commendable when friends and relatives assist elderly persons in handling their affairs.
However, a Form 4828 does not enable an individual to represent another person in litigation. We infer that the caregiver is not admitted to practice in the Tax Court, and our record does not show any entry of appearance by the caregiver. So far, the caregiver is, strictly speaking, a stranger to this litigation. Consequently, it is unclear whether the reported non-objection to the motion to withdraw--a litigation matter--is actually that of Ms. Curtis.
If and when counsel's motion is granted, Ms. Curtis would represent herself. One of her first responsibilities would be to respond to the Commissioner's two motions to compel. If Ms. Curtis were not capable of handling this case, then either she would need to hire new counsel or she might possibly be represented by a "next friend". Current counsel should discuss with Ms. Curtis (and, if appropriate, her caregiver) the possibility of someone filing a Motion to Be Recognized as Next Friend. Where Tax Court Rule 60(d) applies, the prosecution of a case in this Court may be undertaken through a "next friend" recognized by the Court. See Campos v. Commissioner, T.C. Memo. 2003-193. A motion to be so recognized should recite and explain, if correct:
1. that the person making the motion would like to be recognized as next friend and would represent the petitioner's best interests;
2. that the petitioner cannot prosecute this case without assistance;
3. that the person making the motion has a significant relationship with the petitioner; and
4. that there is no other person better suited to serve as next friend for the petitioner.
A person making such a motion should present with his or her motion a statement from the petitioner's personal physician (or some equivalent documentary support) showing that the petitioner is not competent to prosecute this case by herself. The person making the motion should also state whether anyone (including the petitioner) is known to have an objection to the Court's recognizing that person as the petitioner's "next friend".
We cannot tell whether Ms. Curtis might be "incompetent" within the meaning of Rule 60(d), whether the caregiver or someone else could qualify as a next friend, whether an otherwise appropriate person would be willing to serve in that capacity, nor whether Ms. Curtis or anyone else would object. It is therefore
ORDERED that, no later than January 28, 2022, petitioner's counsel shall file a supplement to his motion to withdraw as counsel, which supplement shall state whether he has discussed with Ms. Curtis her plans for the further conduct of this case, her position as to the motion to withdraw, her competence to represent herself hereafter, and the possibility of having a "next friend" represent her. It is further
ORDERED that any individual intending to file a motion to be recognized as next friend shall file that motion no later than January 28, 2022. It is further
ORDERED that petitioner's responses to the motions to compel (Docs. 21-22) shall be filed no later than February 11, 2022, and that the Commissioner's reply to that response (or, if no response has been filed, then a status report) shall be filed no later than February 25, 2022.