Opinion
14045-21S
10-14-2021
Teresita A. Heineman & Richard W. Heineman Petitioners v. Commissioner of Internal Revenue Respondent
ORDER
Maurice B. Foley, Chief Judge
The petition to commence this case was filed on April 23, 2021. As petitioner did not file a request for place of trial, by Order issued July 15, 2021, the Court designated Columbia, South Carolina as the place of trial in this case. However, petitioners reside in Montana. Therefore, Columbia, South Carolina appears to have been erroneously designated as the place of trial.
The petition bears the signature of petitioner Teresita A. Heineman, but not that of petitioner Richard W. Heineman. Unless the petition is filed by the taxpayer, or by someone lawfully authorized to act on the taxpayer's behalf, the Tax Court does not have jurisdiction. See Fehrs v. Commissioner, 65 T.C. 346, 348-349 (1975). Accordingly, by Order issued July 16, 2021, the Court directed petitioner Richard W. Heineman to file a ratification of petition. On August 9, 2021, the Court received a ratification of petition signed by Richard W. Heineman.
On September 13, 2021, petitioner Teresita A. Heineman filed a Letter, along with a document which the Court filed as a Motion for Leave to File First Amended Petition Embodying First Amended Petition. Based on information included in that letter and motion, it appears that petitioner Richard W. Heineman may possibly be incompetent and in need of assistance in prosecuting this case. Furthermore, such information causes the Court to question whether Mr. Heineman could have effectively ratified the petition filed in this case. 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. Such representative may file a motion to substitute parties and change caption.
If an incompetent person does not have a duly appointed legal representative, the incompetent person may act by a next friend. Campos v. Commissioner, T.C. Memo 2003-193. In that connection, an appropriate motion to be recognized as next friend may be filed. Any such motion should set forth 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 regarding petitioner's disability and inability to conduct petitioner's own business and financial affairs should also be attached to a motion to be recognized as next friend.
Upon due consideration, it is
ORDERED that, on the Court's own motion, the place of trial is changed to Billings, Montana. It is further
ORDERED that petitioners' Motion for Leave to File First Amended Petition Embodying First Amended Petition, filed September 13, 2021, is granted. It is further
ORDERED that, on or before November 12, 2021, the parties shall confer concerning the following: (1) whether Mr. Heineman is an incompetent person who needs assistance to prosecute this case, (2) whether Mr. Heineman has a duly appointed legal representative, such as a guardian, conservator, or other similar fiduciary, (3) if Mr. Heineman does not have a duly appointed legal representative, whether Ms. Heineman or another individual is willing to serve in this case as next friend for Mr. Heineman, and (4) whether any individual intends to file an appropriate motion to substitute parties and change caption or a motion to have the Court recognize an individual as next friend for Mr. Heineman. It is further
ORDERED that, on or before November 19, 2021, respondent shall file a status report concerning the then-current status of this case, including the information referenced in the paragraph above.