Opinion
14412-21
06-29-2022
ELAINE J. CLAY & DENNIS A. CLAY, DECEASED, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Kathleen Kerrigan, Chief Judge
The petition filed to commence this case seeks review of a Notice of Deficiency dated March 29, 2021, for taxable tear 2018 issued to Elaine J. Clay and Dennis A. Clay. That petition does not bear the original signatures of petitioners or the signature of a practitioner admitted to practice before the Tax Court, as required by the Tax Court Rules of Practice and Procedure. The petition was signed by Stanton J. Salkin who appears to be petitioners' non-attorney representative. The petition further states that Dennis A. Clay died before the petition was filed. However, Mr. Salkin failed to state whether he or any person has been duly appointed executor, personal representative, or fiduciary for the Estate of Dennis A. Clay, by a court of competent jurisdiction and failed to attach to the petition letters testamentary or letters of administration.
In general, Rule 60(a) of the Tax Court Rules of Practice and Procedure directs that a case shall be brought by the individual against whom a deficiency or liability has been asserted or by a fiduciary legally authorized to institute a case on behalf of such person. The burden of proving that the Court has jurisdiction is on the taxpayer, and unless the petition is filed by the taxpayer or someone lawfully authorized to act on his or her behalf, the Court lacks jurisdiction. Fehrs v. Commissioner, 65 T.C. 346, 348 (1975). Merely being named executor in a will is not sufficient.
Given the foregoing, this matter now raises the jurisdictional question of whether the case, insofar as it may purport to be an appeal by or on behalf of Dennis A. Clay, Deceased, or his estate, was filed by a fiduciary or personal representative duly appointed by a court of competent jurisdiction and or otherwise legally entitled to institute a case on behalf of Dennis A. Clay, Deceased, or his estate. Accordingly, the Court's jurisdiction over this matter is in question.
Upon due consideration and for cause, it is
ORDERED that, on or before August 29, 2022, petitioner Elaine J. Clay shall file with the Court in paper form a Ratification of Petition ratifying and affirming the filing of the Petition on her behalf (preferably in "wet ink" signature, not a photocopied signature). Ms. Clay should note that the ratification of petition may not be electronically filed. It is further
ORDERED that the Clerk of the Court is directed to attach to this Order a form that petitioner Elaine A. Clay may use to comply with this Order. It is further
ORDERED that, on or before August 29, 2022, petitioner Elaine J. Clay and Stanton J. Salkin shall file a report advising whether they or any other person has been duly appointed the executor, personal representative, or fiduciary for the Estate of Dennis A. Clay, Deceased, by a court of competent jurisdiction, attaching thereto the corresponding letters of administration or letters testamentary. Failure to comply with this Order may result in dismissal of the instant case as to Dennis A. Clay, Deceased, or other appropriate action by this Court. It is further
ORDERED that the Clerk of the Court is directed to attach to the copy of this Order the Court's Q&As on the subject "Representing a Taxpayer Before the U.S. Tax Court". It is further
ORDERED that, in addition to regular service, the Clerk of the Court shall serve a copy of this Order served on Stanton J. Salkin at the address listed for him in the petition.
RATIFICATION OF PETITION
____, have read the Petition filed with the Court on _____ and do hereby ratify and affirm the filing of said document by affixing my signature hereto.
United States Tax Court
REPRESENTING A TAXPAYER BEFORE THE U.S. TAX COURT
The United States Tax Court, which is separate and independent from the Internal Revenue Service (IRS), has certain requirements that must be met before someone can represent another person or entity before the Court. Unlike the IRS, the Court does not recognize powers of attorney.
Who can represent me in my Tax Court case?
• You may represent yourself or hire an attorney or other person who is admitted to practice before the Court. You will know that a person is admitted to practice before the Court because that individual will have a Tax Court bar number. All representatives who practice before the Tax Court are subject to the American Bar Association's Model Rules of Professional Conduct.
What if the person I want to represent me is not admitted to practice before the Court?
• If your representative is an attorney, he or she may submit an application to seek admission to the Court's bar. Upon admission, the attorney will be assigned a Tax Court bar number and can then represent you in the case.
• If your representative is not an attorney, that person can only be admitted to practice before the Court by taking a written examination given every two years and by meeting other Court requirements. Information concerning the application for admission and the Court's nonattorney exam may be found on the Court's website, www.ustaxcourt.gov.
May I represent the estate or trust of a deceased taxpayer before the Court without hiring a representative?
• Yes, if you are a duly authorized fiduciary or representative of the deceased taxpayer. For example, a state court of competent jurisdiction may appoint an individual as an executor, administrator, or personal representative of a deceased person. If you are a fiduciary, you should file a “Motion for Substitution of Party and to Change Caption” and attach a copy of the state court-issued letters of administration or letters testamentary. The motion must list the case name and docket number.
May I represent an incompetent or incapacitated taxpayer before the Court?
• Yes, if you are a fiduciary duly appointed under state law, such as a guardian or conservator. If you have been appointed to serve as a conservator or guardian of the petitioner, you may file a Motion to Substitute Party and attach a copy of any documents providing proof of your appointment. The motion must list the case name and docket number.
In the alternative, the Court may permit you to be recognized as petitioner's “next friend” by filing a Motion to Be Recognized as Next Friend stating:
1. that petitioner cannot prosecute this case without assistance;
2. that the person seeking appointment as next friend would like to be recognized as petitioner's next friend, he or she has a significant relationship with petitioner, and would represent petitioner's best interests;
3. that there is no other person better suited to serve as next friend; and
4. the names and addresses of persons (e.g., spouse, parent, or siblings) who may have an interest in this matter.
You must include as an attachment to the motion a current statement from the petitioner's personal physician (or equivalent support) indicating that the petitioner is not competent to prosecute his or her case without assistance. You must also state in the motion whether anyone is known to have an objection to the Court's recognition of you as the petitioner's next friend. The motion must list the case name and docket number.
Please visit the Court's website, www.ustaxcourt.gov, for additional resources and information.