Opinion
14485-22R
11-03-2023
J&L EXCAVATION, INC. DEFINED BENEFIT PENSION PLAN AND TRUST, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Kathleen Kerrigan, Chief Judge.
On October 5, 2023, petitioner's counsel-Robert K. Dowd-filed a Motion to Withdraw as Counsel. On October 30, 2023, Mr. Dowd filed a First Amended Motion to Withdraw as Counsel and a Memorandum in Support thereof. For the following reasons, we will direct Mr. Dowd to file a supplement as set forth below.
This case concerns the qualification of a retirement plan. The Petition suggests that the case has been brought by petitioner as the plan administrator, although the determination attached to the Petition appears to have been addressed to the employer, Attn: James Burkhart, whom Mr. Dowd has identified as one of his clients. See I.R.C. § 7476(b)(1) (setting forth who may serve as petitioner in the Tax Court in cases involving the qualification of a retirement plan). It is therefore not clear whether Mr. Dowd has filed the Petition on behalf of the plan administrator or the employer.
In relevant part, Rule 24(c)(4)(A) of the Tax Court Rules of Practice and Procedure requires that a motion to withdraw as counsel include a statement that counsel provided prior notice of the motion to the client and whether there is any objection to the motion. Rule 24(c)(4)(B) requires that a motion to withdraw as counsel include the party's current mailing address, email address (if any), and telephone number.
Mr. Dowd's First Amended Motion to Withdraw as Counsel does not include the current contact information for petitioner (i.e., the plan administrator, or possibly the employer); rather, it provides contact information for an individual named Russell Gordon. The Motion explains Mr. Gordon's relationship to Mr. Burkhart, but Mr. Gordon's relationship to petitioner, if any, is not clear, and it is therefore not clear whether Mr. Gordon has the capacity under our Rules to engage in litigation in this Court on behalf of petitioner. See Rules 60, 210, and 211, Tax Court Rules of Practice and Procedure. Relatedly, although the First Amended Motion to Withdraw as Counsel states that Mr. Gordon has directed Mr. Dowd to withdraw from this case, because Mr. Gordon's relationship to petitioner is not clear, it not clear whether petitioner has an objection to the Motion.
Upon due consideration of the foregoing, it is
ORDERED that Mr. Dowd's Memorandum in Support of First Amended Motion to Withdraw as Counsel is recharacterized as an Exhibit to First Amended Motion to Withdraw as Counsel. It is further
ORDERED that, on or before November 27, 2023, Mr. Dowd shall file a supplement to his First Amended Motion to Withdraw as Counsel and provide to the Court all the information required by Rule 24(c)(4) of the Tax Court Rules of Practice and Procedure. The supplement shall also clarify whether Mr. Dowd filed the Petition on behalf of the plan administrator or the employer and shall address Russell Gordon's relationship, if any, to the plan administrator or the employer.