Opinion
34667-21S
03-29-2022
MAE R. SUMMAR, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Maurice B. Foley Chief Judge
On November 3, 2021, the petition in this case was filed. Among other things, that petition seeks review of the notice of deficiency dated August 23, 2021, issued to petitioner Mar R Summar for tax year 2018. That petition does not bear petitioner's original signature or the original signature of a practitioner admitted to practice before the Court, as required by the Tax Court Rules. Rather, that petition was signed by Ken Summar as her power of attorney.
The Tax Court is separate and independent from the IRS. The Court also does not recognize powers of attorney. Unless a petition is filed by the taxpayer, or by someone lawfully authorized to act on the taxpayer's behalf, the Court lacks jurisdiction over the matter. See Fehrs v. Commissioner, 65 T.C. 346, 348-349 (1975); Rule 60(a) Tax Court Rules of Practice and Procedure (available at ww.ustaxcourt.gov). Although the Court does not recognize powers of attorney, other procedures may be available to permit someone to act on behalf of petitioner in this Tax Court case. The Court has prepared Q&A's on the subject "Representing a Taxpayer Before the U.S. Tax Court. A copy of these Q&A's are attached to this order.
A fiduciary duly appointed under State law, such as a guardian or conservator, may bring a case in this Court. Rule 60(c), Tax Court Rules of Practice and Procedure. In the event an individual is duly appointed to serve as a conservator or guardian, that individual may file with the Court a Motion To Substitute Party and attach thereto, a copy of any documents providing proof of the appointment. In the alternative, Rule 60(d), Tax Court Rules of Practice and Procedure (available at www.ustaxcourt.gov), provides in relevant part that an incompetent person may prosecute a case in this Court through a duly appointed representative or by a "next friend" recognized by the Court. See Campos v. Commissioner, T.C. Memo. 2003-193. Before an individual may be recognized by the Court as "next friend" in this case, the individual must submit to the Court a Motion To Be Recognized as Next Friend reciting and explaining: (1) that petitioner cannot prosecute this case without assistance; (2) that individual would like to be recognized as petitioner's next friend, and the individual has a significant relationship with petitioner, and would represent petitioner's best interests; and (3) that there is no other person better suited to serve 1 as next friend; and (4) a list of the names and addresses of persons (e.g., spouse, parent, children, or siblings) who may have an interest in this matter. A doctor's letter establishing that petitioner is incapable of managing his own business and financial affairs and showing that petitioner himself is not competent to prosecute this action would also be helpful.
Under the circumstances the Court will direct Mae R. Summar to file a report concerning the present status of this case, including (1) whether petitioner is an incompetent person, (2) whether petitioner has a duly appointed fiduciary, such as a guardian or conservator, and (3) whether Mr. Summar, or any other family member of petitioner would like to file a motion to have her/him recognized as next friend for Mar R. Summar in this case.
Upon due consideration and for cause, it is
ORDERED that, on or before May 27, 2022, petitioner shall file a proper ratification of petition (see form attached) bearing her original signature (a "wet ink" signature not a photocopy). It is further
ORDERED that, if petitioner is unable to file a ratification of petition, Ken Summer shall file either a Response to this Order or a motion to be recognized as petitioner's next friend. If filing a response, Mr. Summar shall advise the Court as to (a) whether petitioner is an incompetent person, (b) whether petitioner has a duly appointed legal representative, such as a guardian, conservator, or other similar fiduciary, and if not (c) whether Mr. Summar or another individual intends to file an appropriate motion to have the Court recognize someone as next friend for petitioner. If filing a motion to be recognized as next friend for petitioner, any such motion shall include the required information discussed above. It is further
ORDERED that the Clerk of the Court is directed to attach to the copy of this Order the Court's Q&As on the subject "Representing a Taxpayer Before the U.S. Tax Court". It is further
ORDERED that, in addition to regular service, the Clerk of the Court shall serve a copy of this Order on Ken Summar at the address of record of this case. 2