Opinion
19877-22
02-24-2023
JAMES R. CALHAN, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Courtney D. Jones Judge
On August 30, 2022, a petition was filed commencing the above-docketed case. Subsequently, on February 14, 2023, respondent and Mary Susan Fuhrman Anderson moved, pursuant to Tax Court Rule 60(d), that the Court recognize Mary Susan Fuhrman Anderson as the next friend of petitioner.
The motion asserts that (1) petitioner is an incompetent person who requires assistance to prosecute this case, (2) petitioner executed a power of attorney appointing Mary Susan Fuhrman Anderson, as his attorney-in-fact, and (3) as Mary Susan Fuhrman Anderson is petitioner's attorney-in-fact, Ms. Anderson should be permitted by the Court to represent petitioner in this case. Attached to the motion are copies of the power of attorney and a doctor's letter stating that petitioner is incompetent and thus requires assistance in decision making.
The Tax Court, unlike the Internal Revenue Service, does not recognize powers of attorney. However, as relevant here, Rule 60(d) of the Tax Court Rules of Practice and Procedure 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.
Alternatively, 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. In order for someone to serve as a next friend, the Court must be satisfied that (1) petitioner is incompetent and cannot prosecute a case without assistance, (2) the person seeking to be recognized as next friend for petitioner will represent petitioner's best interests, and (3) the person seeking to be recognized as next friend has a significant relationship with petitioner. A doctor's letter supporting any claims regarding a petitioner's disability and inability to conduct petitioner's own business and financial affairs, which the movants attached to their motion, also is required. As indicated above, the Court does not recognize powers of attorney. However, as relevant here, if petitioner does not have a legally appointed conservator or guardian, it may be possible for Ms. Anderson to serve as petitioner's next friend.
Upon due consideration, it is
ORDERED that, on or before March 17, 2023, respondent and Mary Susan Fuhrman Anderson shall jointly file a supplement to their motion and therein state: (1) whether petitioner has a guardian, conservator, or similar court-appointed fiduciary, and (2) if so, the name and address of that person and whether that person is willing to represent petitioner in this case, and (3) a statement by Ms. Anderson that she has a significant relationship with petitioner and that she will represent petitioner's best interests. It is further
ORDERED that in addition to regular service, the Clerk of the Court shall serve a copy of this order on Mary Susan Fuhrman Anderson at her address provided in the Motion to be Recognized as Next Friend.