Opinion
946-20L
06-07-2023
ERIC J. GEPPERT & MARY L. GEPPERT, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Alina I. Marshall Judge
Petitioners Eric J. and Mary L. Geppert, commenced this collection due process (CDP) case pursuant to section 6330, seeking review of respondent's proposed levy action. Since the inception of the case, attorneys for Petitioner Eric J. Geppert have filed numerous motions on his behalf. Respondent has also filed multiple motions in this matter. For the reasons discussed below, we will order Petitioner Mary L. Geppert to advise the Court of her position on the pending motions.
Unless otherwise indicated, all statutory references are to the Internal Revenue Code, Title 26 U.S.C., in effect at all relevant times, and all regulatory references are to the Code of Federal Regulations, Title 26 (Treas. Reg.), in effect at all relevant times.
Background
I. Initial Counsel
The Petition in this case was filed on January 15, 2020, by Mr. Howard S. Levy who signed as, "Attorney for Petitioners Eric J. Geppert and Mary L. Geppert." On May 12, 2020, respondent filed a Motion for Summary Judgment. (Index 4). Respondent included with the Motion for Summary Judgment a Declaration of Stephen J. McCarrick (McCarrick Declaration), the Settlement Officer who conducted petitioners' CDP hearing.
On June 1, 2020, petitioners filed a motion titled, "Motion for Extension of Time to Respond." (Index 6). Therein, petitioners expressed the view that Mr. Levy had been named as a fact witness in the McCarrick Declaration, potentially raising a conflict of interest. Accordingly, they requested additional time to respond to respondent's Motion for Summary Judgment, "to address and resolve any conflict in representation so that counsel may be able to act as a possible witness if required." Petitioners' Motion for Extension of Time was signed by Mr. Levy as "Attorney for Petitioners Eric J. Geppert and Mary L. Geppert." The Court granted the Motion for Extension of Time to Respond. (Index 7).
II. Entries of Appearance on Behalf of Petitioner Eric J. Geppert
On June 30, 2020 and July 10, 2020, respectively, Joseph A. DiRuzzo III and Daniel M. Lader filed Entries of Appearance. (Index 8 and 11). Each stated that Messrs. DiRuzzo and Lader, appear as counsel for petitioner Eric J. Geppert. Other than the caption, neither entry mentions Petitioner Mary L. Geppert.
The Docket Record shows that Messrs. DiRuzzo, Lader, and Levy are listed as counsel for Petitioner Eric J. Geppert. Only Mr. Levy is listed as counsel for Petitioner Mary L. Geppert.
III. Filings on Behalf of Petitioner Eric J. Geppert
Since entering their appearances, documents filed by Messrs. DiRuzzo and Lader have consistently been filed on behalf of only Mr. Geppert, referencing him either by name or as "Petitioner," singularly.
A. Second Motion for Enlargement of Time
On the same day that he entered his appearance, Mr. DiRuzzo filed a motion titled, "Unopposed Motion for Enlargement of Time." (Second Motion for Enlargement of Time) (Index 9). The first line states in relevant part, "Petitioner ERIC J. GEPPERT, by and through undersigned counsel, hereby files this motion for an enlargement of time." The Court granted the Second Motion for enlargement of Time. (Index 10).
B. Third Motion for Enlargement of Time
On August 28, 2020, Messrs. DiRuzzo and Lader filed a motion titled, "Unopposed Motion for Enlargement of Time." (Third Motion for Enlargement of Time) (Index 12). The first line states in relevant part, "Petitioner ERIC J. GEPPERT, by and through undersigned counsel, hereby files this motion for an enlargement of time." The Court granted the Third Motion for Enlargement of Time. (Doc. 13).
C. Opposition to Respondent's Motion for Summary Judgment and Declaration of Eric J. Geppert in Support of Opposition
On September 14, 2020, Messrs. DiRuzzo and Lader filed a document titled, "Petitioner's Opposition to Respondent's Motion for Summary Judgment." (Opposition) (Index 14). The opening sentence of the Opposition declares that "Petitioner ERIC J. GEPPERT ('Petitioner'), by and through undersigned counsel, hereby files this opposition to Respondent's Motion for Summary Judgment."
On the same day that Messrs. DiRuzzo and Lader filed the Opposition, the "Declaration of Eric J. Geppert" (Index 15) was filed by or on behalf of Mr. Geppert. Therein, Mr. Geppert attested to a number of statements under penalty of perjury. No such document was filed by or on behalf of Mrs. Geppert. On the following day, September 15, 2020, the "Declaration of Howard Levy, Esq." was filed in support of the Opposition.
D. Motion to Delay Consideration of Respondent's Motion for Summary Judgment and Supporting Declarations
Also on September 14, 2020, Messrs. DiRuzzo and Lader filed a motion titled, "Motion to Delay Consideration of Respondent's Motion for Summary Judgement [sic]." (Motion to Delay) (Index 16). The opening sentence of the Motion to Delay declares that "Petitioner, ERIC J. GEPPERT, by and through undersigned counsel, hereby moves to stay consideration of Respondent's motion for summary judgment until after discovery has been completed."
On the same day that he filed the Motion to Delay, Mr. DiRuzzo filed a declaration sworn under penalty of perjury. (Index 17). Mr. DiRuzzo attested that he is "the attorney of record for Eric J. Geppert."
E. Motion to Depose
On September 15, 2020, Messrs. DiRuzzo and Lader filed a motion titled, "Motion to Depose." (Index 20). The first line states in relevant part, "Petitioner, ERIC J. GEPPERT, by and through, [sic] undersigned counsel, hereby moves the Court pursuant to Tax Ct. R. 74 for an order permitting the Petitioner to depose certain IRS employees in order to fully respond to Respondent's Motion for Summary Judgment (the 'MSJ') and, if necessary, in advance of trial."
In its conclusion, the Motion to Depose states, "Wherefore, for the reasons stated above, Petitioner prays that this motion is granted in full.".
F. Motion to Disqualify
On September 18, 2020, Messrs. DiRuzzo and Lader filed a motion titled, "Petitioner's Motion to Disqualify & Motion to Declare 26 U.S.C. §7443(f) Unconstitutional." (Motion to Disqualify) (Index 21). The opening sentence of the Motion to Disqualify states in relevant part, "Petitioner, ERIC J. GEPPERT, by and through undersigned counsel, hereby files this Motion to Disqualify & Motion to Declare 26 U.S.C. §7443(f) Unconstitutional."
In its conclusion, the Motion to Disqualify states that "Petitioner asks this Court to declare 26 U.S.C. §7443(f) unconstitutional and disqualify all the judges of the Tax Court until such time as §7443(f)'s constitutional infirmity is cured." Neither the opening nor concluding sentences of the Motion to Disqualify refer to "Petitioners" or Mrs. Geppert.
G. Motion to Remand
On September 23, 2020, Messrs. DiRuzzo and Lader filed a motion titled, "Petitioner's Motion To Declare IRS Independent Office of Appeals, Appeals Officer(s) an 'Officer of the United States' & Remand to the IRS Independent Office of Appeals." (Motion to Remand) (Index 22). The cover page of the motion lists Messrs. DiRuzzo and Lader as "Counsel for the Petitioner" and the opening sentence refers only to "Petitioner" without specifically identifying Mr. or Mrs. Geppert.
H. Separation of Powers Motion
On September 24, 2020, Messrs. DiRuzzo and Lader filed a motion titled, "Motion to Declare IRS Independent Office of Appeals Unconstitutional as Violating Separation of Powers & Set Aside IRS Independent Office of Appeals Actions." (Separation of Powers Motion) (Index 23). The cover page of the motion lists Messrs. DiRuzzo and Lader as "Counsel for the Petitioner."
The opening sentence of the Separation of Powers Motion states in relevant part, "Petitioner, ERIC J. GEPPERT, by and through undersigned counsel, hereby moves the Court to declare the IRS Independent Office of Appeals to be an unconstitutional office as a violation of the separation of powers requirement of the Constitution and, thus, set aside all action by the IRS Independent Office of Appeals as ultra vires, pursuant to the United States Constitution." Petitioner Eric J. Geppert is referenced repeatedly throughout the motion, including in the closing sentence, which states that "the Petitioner respectfully requests that this Court grant the instant motion and set aside all actions taken by the Independent Office of Appeals."
I. Joint Status Report
On October 22, 2021, there was filed a Joint Status Report signed by Messrs. DiRuzzo and Lader and by Mr. Gary R. Schuler, Jr. on behalf of respondent. There was no signature by or on behalf of Mrs. Geppert. The Joint Status Report stated "given that Mrs. Geppert has not had an attorney appear on her behalf, counsel for Mr. Geppert believes the Court must take her pro se status into account." There is no filing, however, in which Mr. Levy has sought to withdraw as counsel.
J. Petitioner's Replies to Respondent's Objections
Respondent has filed objections to above-referenced motions by petitioner Eric J. Geppert. Messrs. DiRuzzo and Lader have filed replies on behalf of petitioner Eric J. Geppert. None of these filings are signed by Mr. Levy or purport to represent the views of petitioner Mary L. Geppert.
K. Hearing
On March 14, 2022, the Court conducted a hearing on the pending motions. Mr. DiRuzzo appeared "on behalf of Mr. Geppert." Similarly, Mr. Lader appeared "on behalf of Petitioner Geppert as well." Mr. Schuler appeared on behalf of respondent.
Discussion
Messrs. DiRuzzo and Lader have entered appearances and filed motions, briefs, and oppositions on behalf of Petitioner Eric J. Geppert. Generally, these filings speak only of Mr. Geppert as the petitioner who is seeking the requested action. Mr. Levy does not appear as counsel of record on any of these filings.
Because Messrs. DiRuzzo and Lader do not appear to represent Petitioner Mary L. Geppert, it is unclear what Mrs. Geppert's position is on the motions that remain pending before the Court.
Upon due consideration, it is
ORDERED that, on or before July 28, 2023, Petitioner Mary L. Geppert shall advise the Court of her position on the following:
1. Motion for Summary Judgment (Index 4)
2. Motion to Delay (Index 16)
3. Motion to Depose (Index 20)
4. Motion to Disqualify (Index 21)
5. Motion to Remand (Index 22)
6. Separation of Powers Motion (Index 23)
7. Any other pending motion, filing, or relevant matter that she wishes to address. It is further
ORDERED that in addition to regular service of this Order, the Clerk of the Court shall serve a copy of this Order on petitioner Mary L. Geppert individually at her address of record.