Opinion
1559-22
11-16-2022
ELAINE H. ROSENFELD, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Kathleen Kerrigan Chief Judge
The petition to commence this case, filed January 13, 2022, does not bear petitioner's signature. On November 3, 2022, respondent filed a Motion to Substitute Parties and Change Caption. In that motion, respondent states that: (1) the petition was signed on petitioner's behalf by Jonathan Rosenfeld, (2) petitioner is elderly and Jonathan Rosenfeld, who is her son and attorney-in-fact under a durable power of attorney, represented petitioner in this case before the IRS Independent Office of Appeals after the petition was filed, and (3) Jonathan Rosenfeld should be appointed as petitioner's next friend to represent her before the Tax Court.
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 as to that taxpayer. 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. 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.
Alternatively, an incompetent or incapacitated 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 or incapacitated 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 also should be attached to a motion to be recognized as next friend. Respondent's motion filed November 3, 2022, appears to satisfy the requirements for such a motion, except that no doctor's letter regarding petitioner's need for assistance in conducting her business and financial affairs is attached.
Upon due consideration, it is
ORDERED that respondent's above-referenced motion is recharacterized as a Motion to Be Recognized As Next Friend. It is further
ORDERED that, on or before December 20, 2022, respondent shall file a supplement to his Motion to Be Recognized As Next Friend and attach thereto a doctor's letter regarding petitioner's need for assistance in conducting her business and financial affairs.