Opinion
33632-21
02-28-2023
RICHARD E. METAYER & DOLORES C. METAYER, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Kathleen Kerrigan, Chief Judge
On October 22, 2021, the Court filed the petition to commence this case. The petition did not bear the original signatures of petitioners or the original signature of a practitioner admitted to practice before the Tax Court, as required by the Tax Court Rules of Practice and Procedure. The petition appeared to have been filed by Franklin Metayer on behalf of petitioners as petitioners' Power of Attorney. The Tax Court does not recognize powers of attorney. See Rules 24(a), 200; see also Ruggere v. Commissioner, 78 T.C. 979, 989 (1982).
Tax Court Rule 60(a) requires that a case be brought by and in the name of the person against whom the Commissioner determined the deficiency, or by the fiduciary entitled to institute a case on behalf of such person. In the case of an incompetent person with a representative, such as a guardian, conservator, or like fiduciary, the representative may bring a case in this Court on behalf of the incompetent person. Rule 60(d). 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.
Given that scenario, the Court by Order served May 26, 2022, directed Franklin Metayer, on or before June 16, 2022, to file a Report or Motion To Be Recognized as Next Friend as described therein. However, nothing further has been filed to date. Accordingly, the premises considered and to provide an opportunity to avoid dismissal of this case, it is
ORDERED that the time within which Franklin Metayer shall file a Report with the Court stating whether petitioners are incompetent and have a duly appointed representative, such as a guardian, conservator, or other like fiduciary and, if so, provide the name and address of the fiduciary and attach to the Report a copy of an order from a court of competent jurisdiction appointing the fiduciary, is hereby extended to March 28, 2023. It is further
ORDERED that, if petitioners are incompetent without a duly appointed representative, the time within which Franklin Metayer or another individual having a significant relationship with petitioner shall file a Motion To Be Recognized as Next Friend for each incompetent petitioner seeking to have the Court recognize him as next friend for petitioner, setting forth that (1) petitioner is incompetent and cannot prosecute a case without assistance, (2) the individual will represent petitioner's best interests, and (3) individual has a significant relationship with petitioner, is hereby extended to March 28, 2023. A doctor's letter regarding petitioner's disability and inability to conduct petitioner's own business and financial affairs should also be attached to any motion to be recognized as next friend. It is further
ORDERED that if no Report or Motion To Be Recognized as Next Friend as described above is filed, respondent shall, on or before April 28, 2023, file an appropriate motion.