Opinion
5761-22
07-27-2023
SAMUEL B. FRIEDLANDER & DORIS V. FRIEDLANDER, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
KATHLEEN KERRIGAN CHIEF JUDGE
On March 23, 2022, the petition to commence this case was filed by Susan Weisberg on behalf of petitioners. Ms. Weisberg indicates that petitioners are incompetent and represents that she is a fiduciary for petitioners. On June 7, 2022, respondent filed a Motion to Dismiss for Lack of Jurisdiction on the grounds that the petition was not filed by petitioners or by someone duly authorized to file a petition on behalf of petitioners. By Order issued May 17, 2023, the Court directed petitioners to file an Objection, if any, to respondent's motion. To date, no response has been received from petitioners.
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 legally appointed 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) petitioners are incompetent and cannot prosecute this case without assistance, (2) the person seeking to be recognized as next friend for petitioners will represent petitioners' best interests, and (3) the person seeking to be recognized as next friend has a significant relationship with petitioners. A doctor's letter regarding petitioners' disabilities and inability to conduct their own business and financial affairs should also be attached to any Motion to be Recognized as Next Friend.
Upon due consideration, it is
ORDERED that, on or before September 7, 2023, Susan Weisberg shall file a written Status Report concerning the following: (a) whether petitioners are incompetent or incapacitated persons, (b) whether petitioners have a legally appointed representative, such as a guardian, conservator, or other similar fiduciary and, if so, whether that individual will file an appropriate Motion to Substitute Parties and Change Caption (to which shall be attached the order from a court of competent jurisdiction appointing such fiduciary), and (c) if petitioners have no duly appointed fiduciary, whether Susan Weisberg or another individual intends to file an appropriate Motion to be Recognized as Next Friend for petitioners, as discussed above. At the present time, the Court will hold in abeyance respondent's Motion to Dismiss for Lack of Jurisdiction. It is further
ORDERED that, in addition to regular service, the Clerk of the Court shall serve a copy of this Order and respondent's Motion to Dismiss for Lack of Jurisdiction on Susan Weisberg at her address listed in the petition.