Opinion
25703-22L
08-30-2023
JANICE LORRAINE SEWELL, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Peter J. Panuthos Special Trial Judge
On July 28, 2023 a document on behalf of petitioner and titled, First Amendment to Entry of Appearance for Respondent, was filed by petitioner's daughter Starsha M. Sewell. For reasons set forth herein the Court will recharacterize that document.
Rule 60(d) of the Tax Court Rules of Practice and Procedure provides for the prosecution of a case in this Court through a "next friend" recognized by the Court, if the petitioner is not "competent to represent himself." See Campos v. Commissioner, T.C. Memo. 2003-193. It may be (but we do not yet know) that petitioner Janice Lorraine Sewell is "incompetent" and would therefore warrant the filing of a "Motion to Be Recognized as Next Friend", if one is filed by an appropriate person (such as an adult son or daughter or another relative).
The Court is willing to entertain such a motion, which should recite and explain: (1) that the person making the motion would like to be recognized as petitioner's next friend and would represent their best interests; (2) that petitioner cannot prosecute this case without assistance; (3) that the person making the motion has a significant relationship with petitioner; and (4) that there is no other person better suited to serve as next friend for petitioner.
The person making such a motion should present with his or her motion a statement from petitioner's personal physician (or some equivalent documentary support) showing that she is not competent to prosecute this case by herself. The person making the motion should also state whether anyone (including petitioner) is known to have an objection to the Court's recognizing that person as petitioner's "next friend". If petitioner intends that this person also speak on her behalf with IRS Counsel, then such person shall also execute a Form 2848, Power of Attorney and Declaration of Representative, authorizing that person to do so.
The Court will recharacterize the filing on July 28, 2023 (docket entry #12) as Motion to be Recognized as Next Friend. Consistent with this the Court will deny the Motion to Change or Correct Docket Entry (docket entry #13). The Court will provide Ms. Starsha M. Sewell an opportunity to supplement the motion in order to satisfy the conditions described above including a physician's statement that petitioner is not competent to prosecute this case.
The Court also notes that the petition in this case was filed in response to a notice of determination concerning collection action proposed by the Internal Revenue Service. Attachments to the notice of determination dated November 23, 2022 (Exhibit 7-R of the administrative record) assert that no supporting documents were provided to challenge the liability and that neither petitioner nor any representative participated in the administrative hearing with respect to either collection alternatives or with respect to the liability.
The Court has some concerns about the assertions made by Starsha M. Sewell. The allegations and assertions do not appear to be relevant to this collection review matter. Assuming that Starsha M. Sewell seeks to pursue acting as Next Friend, the parties are cautioned that the Court may not accept such representation if the Court concludes that such appointment is not in the best interest of petitioner in the prosecution of this case.
The Court also notes that a Motion to Strike was filed August 7, 2023, relating to the administrative record. The Court does not see any sound basis to strike the administrative record filed by respondent. The Court will deny the motion filed August 7, 2023. Premise considered it is hereby
ORDERED that the document filed July 28, 2023 (docket entry #12) is recharacterized as Motion to be Recognized as Next Friend. It is further
ORDERED that the Motion to Change or Correct Docket Entry filed July 29, 2023 (docket entry #13) is denied as moot. It is further
ORDERED that if Starsha M. Sewell desires to pursue her Motion to be Recognized as Next Friend, that on or before September 22, 2023, she shall supplement said motion as described herein. It is further
ORDERED that the Motion to Strike, filed August 7, 2023, is denied.