Opinion
23205-21
10-04-2021
Martire Leyba Javier Petitioner v. Commissioner of Internal Revenue Respondent
ORDER
Maurice B. Foley Chief Judge
On June 22, 2021, a petition was filed commencing this case. That petition does not bear petitioner's original signature or the original signature of counsel admitted to practice before the Tax Court, as required by the Tax Court Rules of Practice and Procedure. The petition bears the signature of Carolina Leyba Castillo, who is petitioner's power of attorney (Mr. Leyba). 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, the Tax Court does not have jurisdiction. See Fehrs v. Commissioner, 65 T.C. 346, 348-349 (1975). The Tax Court, unlike the Internal Revenue Service, does not recognize powers of attorney. 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.
As possibly relevant in this case, however, 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. An incompetent person who does not have a duly appointed legal representative 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 and for cause, it is
ORDERED that, on or before November 11, 2021, petitioner shall file a proper ratification of petition (see form attached) bearing his original signature (a "wet ink" signature, not a photocopy). It is further
ORDERED that, if petitioner is unable to file a ratification of petition, Carolina Leyba Castillo shall file either a Response to this Order or a motion to be recognized as petitioner's next friend. If filing a response, Ms. Castillo shall advise the Court as to (a) whether petitioner is an incompetent person, (b) whether petitioner has a duly appointed legal representative, such as a guardian, conservator, or other similar fiduciary, and if not (c) whether Ms. Castillo or another individual intends to file an appropriate motion to have the Court recognize someone as next friend for petitioner. If filing a motion to be recognized as next friend for petitioner, any such motion shall include the required information discussed above. 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 on Carolina Leyba Castillo at the address listed for her in the petition.
RATIFICATION OF PETITION
_____, have read the Ratification of Petition filed with the Court on ______ and do hereby ratify and affirm the filing of said document by affixing my signature hereto.
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.