Opinion
692-22SL
09-13-2023
VIRGINIA M. BENNETTER, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Adam B. Landy, Special Trial Judge.
This case is calendared for trial at the Court's New York, New York, trial session scheduled to commence on September 18, 2023.
On July 10, 2023, the Commissioner filed a Motion to Substitute Parties and Change Caption. The Commissioner seeks to have Marguerite K. Kircher recognized as the next friend of petitioner Virginia M. Bennetter, pursuant to Rule 63. The Motion states that on June 20, 2021, Ms. Bennetter filed with the IRS Form 2848, Power of Attorney and Declaration of Representative appointing Ms. Kircher, as power of attorney, with authority to represent Ms. Bennetter regarding her income tax issues for tax years 2014 through 2020. The Motion also states that Ms. Bennetter is a resident of a long-term care facility and does not have the cognitive capacity to represent herself before this Court. By Status Report filed August 28, 2023, the Commissioner and Ms. Kircher notified the Court that a basis for settlement has been reached.
Unless otherwise indicated, Rule references are to the Tax Court Rules of Practice and Procedure.
The Tax Court, unlike the IRS, does not recognize powers of attorney. Rule 60(d) provides that whenever an incompetent person has a legal representative, such as a guardian, conservator, or other similar fiduciary, that representative may prosecute a case in this Court on behalf of the incompetent person. In the alternative, an incompetent or incapacitated person who does not have a duly appointed legal representative may act by a next friend. Campos v. Commissioner, T.C. Memo. 2003-193, 2003 WL 21500019.
For Ms. Kircher to serve as a next friend, the Court must be satisfied that (1) Ms. Bennetter is incompetent and cannot prosecute a case without assistance, (2) Ms. Kircher, as the person seeking to be recognized as next friend for Ms. Bennetter, will represent Ms. Bennetter's best interests, and (3) Ms. Kircher has a significant relationship with Ms. Bennetter. The attached Form 2848 Power of Attorney does not resolve the Court's concerns. There is no evidence that Ms. Bennetter has a legally appointed conservator or guardian, but it remains possible for Ms. Kircher to serve as Ms. Bennetter's next friend.
Upon due consideration of the Commissioner's Motion, and for cause, it is
ORDERED that this case is stricken from the above-referenced trial session, and the parties are excused from appearing at the calendar call on September 18, 2023. It is further
ORDERED that the Commissioner's Motion to Substitute Parties and Change Caption is recharacterized as a Motion to Be Recognized as Next Friend. It is further
ORDERED that, on or before October 27, 2023, Ms. Kircher, as the prospective next friend, shall file a response to this Order and state therein that (1) she would like to be recognized as Ms. Bennetter's next friend and would represent her best interests; (2) Ms. Bennetter cannot prosecute this case without assistance; (3) she has a significant relationship with Ms. Bennetter; and (4) there is no other person better suited to serve as next friend for Ms. Bennetter. Ms. Kircher shall also attach a doctor's letter supporting any claims regarding Ms. Bennetter's incompetence and inability to conduct her own business and financial affairs. It is further
ORDERED that, in addition to regular service, the Clerk of Court shall serve a copy of this Order on Marguerite K. Kircher at the address listed on Form 2848 attached to the Commissioner's Motion to Substitute Parties and Change Caption as Exhibit D.
ORDERED that jurisdiction of this case is retained by the undersigned.