Opinion
12034-23
08-21-2023
VIOLA GRAY ELLISON, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Kathleen Kerrigan Chief Judge.
The record indicates that this case is based upon a Notice of Deficiency issued to petitioner Viola Gray Ellison for the taxable year 2021. The Petition was filed on her behalf by Christie Thompson, who states in the Petition that Ms. Ellison is 90 years old and has dementia. Ms. Thompson further states that she is challenging the deficiency determination on Ms. Ellison's behalf pursuant to a power of attorney.
The United States Tax Court, which is separate and independent from the Internal Revenue Service (IRS), has certain requirements that must be met before an individual can be recognized as representing a taxpayer before the Court. Unlike the IRS, the Tax Court does not recognize powers of attorney and, consequently, a power of attorney does not provide Ms. Thompson with the requisite authority to represent Ms. Ellison in this proceeding.
In a deficiency action, Rule 60(a) provides that the case shall be brought by the person against whom the Commissioner determined the deficiency or by a fiduciary entitled to institute a case on behalf of such person. The burden of proving that the Court has jurisdiction is on the taxpayer, and it is well settled that, unless the petition is filed by the taxpayer, or by someone lawfully authorized to act on the taxpayer's behalf, this Court is without jurisdiction. See Fehrs v. Commissioner, 65 T.C. 346, 348-349 (1975). The capacity of a fiduciary or other representative to litigate in this Court is determined by state law. See Rule 60(c). When an infant or incompetent person has a duly appointed representative (e.g., a general guardian, committee, conservator, or other like fiduciary), the representative may bring a case on behalf of the infant or incompetent person; in the absence of such a representative, an infant or incompetent person may act by a next friend or by a guardian ad litem. See Rule 60(d); see also Campos v. Commissioner, T.C. Memo. 2003-193.
All Rule references are to the Tax Court Rules of Practice and Procedure.
Notwithstanding the foregoing, Rule 60(a) provides that a case timely brought shall not be dismissed on the ground that it is not properly brought on behalf of a party until a reasonable time has been allowed after objection for ratification by such party of the bringing of the case; and that such ratification shall have the same effect as if the case had been properly brought by such party.
In view of the foregoing, and because the Petition was not signed by Ms. Ellison, the Court issued an order on August 7, 2023, directing her to file a ratification of petition. To account for the possible capacity issues discussed above, we will further direct petitioner to file a report as set forth below.
Upon due consideration and for cause, it is
ORDERED that, on or before September 21, 2023, petitioner shall file a report regarding the following matters: (1) whether petitioner Viola Gray Ellison has a court-appointed fiduciary, such as a guardian or conservator (if so, petitioner shall attach a copy of the letters of guardianship, etc.); and (2) if not, whether Christie Thompson or any other individual intends to file a motion to be recognized as next friend for Ms. Ellison in this case. For the content of such a motion, petitioner is directed to the U.S. Tax Court's publication, "Representing a Taxpayer Before the U.S. Tax Court." It is further
ORDERED that the Clerk of the Court is directed to attach to the copy of this Order served on petitioner a copy of the U.S. Tax Court's publication, "Representing a Taxpayer Before the U.S. 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.