Opinion
25059-22
03-10-2023
ROSEMARIE A. GIBILARO, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Kathleen Kerrigan Chief Judge
On January 24, 2022, the petition in this case was filed. Among other things, that petition seeks review of the notice of deficiency dated October 3, 2022, issued to petitioner Rosemarie A. Gibilaro for tax year 2020. That petition does not bear petitioner's original signature or the original signature of a practitioner admitted to practice before the Court, as required by the Tax Court Rules. The petition bears the signature of Linda Constantine who is petitioner's daughter (power of attorney).
The Tax Court is separate and independent from the IRS. The Court also does not recognize powers of attorney. Unless a petition is filed by the taxpayer, or by someone lawfully authorized to act on the taxpayer's behalf, the Court lacks jurisdiction over the matter, See Fehrs v. Commissioner, 65 T.C. 346, 348-349 (1975); Rule 60(a) Tax Court Rules of Practice and Procedure (available at ww.ustaxcourt.gov). Although the Court does not recognize powers of attorney, other procedures may be available to permit someone to act on behalf of petitioner in this Tax Court case. The Court has prepared Q&A's on the subject "Representing a Taxpayer Before the U.S. Tax Court. A copy of these Q&A's are attached to this order.
A fiduciary duly appointed under State law, such as a guardian or conservator, may bring a case in this Court. Rule 60(c), Tax Court Rules of Practice and Procedure. In the event an individual is duly appointed to serve as a conservator or guardian, that individual may file with the Court a Motion To Substitute Party and attach thereto, a copy of any documents providing proof of the appointment. In the alternative, Rule 60(d), Tax Court Rules of Practice and Procedure (available at www.ustaxcourt.gov), provides in relevant part that an incompetent person may prosecute a case in this Court through a duly appointed representative or by a "next friend" recognized by the Court, See Campos v. Commissioner, T.C. Memo. 2003-193. Before an individual may be recognized by the Court as "next friend" in this case, the individual must submit to the Court a Motion To Be Recognized as Next Friend reciting and explaining: (1) that petitioner cannot prosecute this case without assistance; (2) that individual would like to be recognized as petitioner's next friend, and the individual has a significant relationship with petitioner, and would represent petitioner's best interests; and (3) that there is no other person better suited to serve as next friend; and (4) a list of the names and addresses of persons (e.g., spouse, parent, children, or siblings) who may have an interest in this matter. A doctor's letter establishing that petitioner is incapable of managing his own business and financial affairs and showing that petitioner himself is not competent to prosecute this action would also be helpful.
Under the circumstances the Court will direct petitioner to file a report concerning the present status of this case, including (1) whether petitioner is of incompetent person, (2) whether petitioner has a duly appointed fiduciary, such as a guardian or conservator, and (3) whether Linda Constantine, or any other family member of petitioner would like to file a motion to have her/him recognized as next friend for petitioner in this case.
Upon due consideration and for cause, it is
ORDERED that, on or before April 10, 2023, petitioner shall file a report with the Court concerning the present status of this case, including the aforementioned matters discussed above. It is further
ORDERED that, on or before April 10, 2023, petitioner shall file a proper ratification of petition (see form attached) bearing his original signature (a "wet ink" signature, not a photocopy), preferably in blue ink, in which petitioner states, if such be the case, that petitioner has read the petition filed on November 9, 2022, and ratify and affirms the filing of said document. 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 the Clerk of the Court shall serve a copy of this Order on Linda Constantine at the address of record in this case.