Opinion
8691-19
06-30-2021
KRISTEN PULLEN, Petitioner v. Commissioner of Internal Revenue, Respondent
ORDER RE: RULE 60(d)
Richard T. Morrison Judge
All references to Rules are to the Tax Court Rules of Practice and Procedure.
Where a party attempts to represent himself or herself and, in the opinion of the Court there is a serious question as to such party's competence to do so, the Court, if it deems justice so requires, may continue the case until appropriate steps have been taken to obtain an adjudication of the question by a court having jurisdiction to do so, or may take such other action as it deems proper.
Respondent stated in his status report of June 2, 2021, that respondent believes petitioner is a person described in Rule 60(d), i.e., that petitioner is incompetent. Respondent's opinion is based on respondent's conversation with petitioner's sister. While we are not required to credit respondent's evaluation of the mental state of a petitioner, respondent's observation and the Court's prior experience with petitioner leads the Court to conclude that there is a serious question as to whether petitioner is mentally competent to represent herself within the meaning of Rule 60(d).
Rule 60(d) determines the effect of our opinion that there is a serious question whether petitioner is incompetent. Rule 60(d) provides that in such a case "the Court, if it deems justice so requires, may continue the case until appropriate steps have been taken to obtain an adjudication of the question by a court having jurisdiction to do so, or may take such other action as it deems proper."
We believe that no further action is appropriate under Rule 60(d). We have previously attempted to determine if petitioner has a "duly appointed representative", i.e., if someone has already been appointed by a state court as petitioner's general representative. See Rule 60(d) (providing that a duly appointed representative of an incompetent person may prosecute a Tax Court case on that person's behalf). We have also previously attempted to determine if someone would be willing to show that petitioner was incompetent and act as next friend for petitioner in this case. See Rule 60(d) (when an incompetent person does not have a duly appointed representative, that person may act by a next friend). These efforts turned up neither a duly appointed representative nor someone willing to act as petitioner's next friend. Our efforts to find such persons were motived by our concern, based on behavior by petitioner during this case, that petitioner may not be competent. Therefore, these efforts are, within the meaning of Rule 60(d), "such action as it [the Court] deems appropriate." The Court would also be authorized under Rule 60(d) to alternatively "continue the case until appropriate steps have been taken to obtain an adjudication of the question by a court having jurisdiction to do so". We do not believe such a continuance is warranted at this time. One reason we do not believe that a continuance is warranted under Rule 60(d) is that the court papers in this case do not reflect an expert medical opinion, or the judgment of another court, or similar objective evidence, that petitioner is mentally incompetent. We observe that Rule 17(c)(2) of the Federal Rules of Civil Procedure (FRCP) imposes a mandatory duty on a U.S. District Court to appoint a guardian ad litem (or issue another appropriate order) to protect an incompetent person who is unrepresented. Under case law interpreting FRCP 17(c)(2), this mandatory duty is not triggered merely by bizarre litigation behavior by the party. Rather, this mandatory duty is triggered when the District Court is aware of an expert medical opinion, or the judgment of another court (such as the judgment of a criminal court that the person is incompetent to stand criminal trial), or similar objective evidence, that a party is mentally incompetent. Powell v. Symons, 680 F.3d 301, 303, 307 (3d Cir. 2012). We are not aware of such evidence regarding petitioner's mental state in this case. Although FRCP 17(c)(2) is not binding on the Tax Court, we find its standards instructive in determining the circumstances under which we should act to protect a potentially incompetent party under Rule 60(d). Under Rule 60(d), we do not believe that justice requires us to continue the case until appropriate steps have been taken to obtain an adjudication of petitioner's medical condition by a state court. Although we do not believe at this time that justice requires a continuance of this case until appropriate steps have been taken to obtain an adjudication of petitioner's medical condition by a state court, future events may cause us to reconsider.
In the meantime, we will return this case back to the general docket, a status that means that in due course, it will be assigned to a future trial session for trial.
It is ORDERED that this case is restored to the general docket for trial or other disposition.