Opinion
13812-23
09-12-2023
JOEL A. BOONE & DENISE DELGADO-BOONE, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Kathleen Kerrigan Chief Judge
The petition filed to commence this case served on September 5, 2023, was not properly executed in that it did not bear the original signatures of petitioners or of a practitioner admitted and recognized to practice before the Tax Court, as required by the Rule 23(a)(3), Tax Court Rules of Practice and Procedure. Instead, the petition was signed by Richard F. Fopiano. A review of the Court's records shows that petitioners' non-attorney representative Richard F. Fopiano is not admitted to practice before this Court. The United States Tax Court, which is separate and independent from the Internal Revenue Service, has certain requirements that must be met before an individual can be recognized as representing petitioners before the Court. The Tax Court, unlike the Internal Revenue Service, does not recognize power of attorneys. See Rules 24(a), 200; see also Ruggere v. Commissioner, 78 T.C. 979, 989 (1982). At this juncture, Richard F. Fopiano will not be associated with this case and we encourage petitioners' representative to review the Court's admissions requirements.
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. The Court also encourages practitioners and non-attorneys seeking admission to practice before the Court to consult "Guidance for Practitioners" on the Court's website at www.ustaxcourt.gov/practitioners.html.
Therefore, in order for this Court potentially to acquire jurisdiction to consider this case, it is necessary to obtain a Ratification of Petition bearing petitioners' original signatures and ratifying the petition previously filed. Upon due consideration and for cause, it is
ORDERED that on or before October 26, 2023, petitioners shall file with the Court a Ratification of Petition ratifying and affiming the filing of the Petition on their behalf. It is further
ORDERED that the Clerk of the Court is directed to attach to this Order a form that petitioners may use to comply with this Order. 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 Richard F. Fopiano at the address listed for him in the petition.
REPRESENTING A TAXPAYER BEFORE THE U.S. TAX COURT
The United States Tax Court, which is separate and independent from the Internal Revenue Service (IRS), has certain requirements that must be met before someone can represent another person or entity before the Court. Unlike the IRS, the Court does not recognize powers of attorney.
Who can represent me in my Tax Court case?
You may represent yourself or hire an attorney or other person who is admitted to practice before the Court. You will know that a person is admitted to practice before the Court because that individual will have a Tax Court bar number. All representatives who practice before the Tax Court are subject to the American Bar Association's Model Rules of Professional Conduct.
What if the person I want to represent me is not admitted to practice before the Court?
• If your representative is an attorney, he or she may submit an application to seek admission to the Court's bar. Upon admission, the attorney will be assigned a Tax Court bar number and can then represent you in the case.
• If your representative is not an attorney, that person can only be admitted to practice before the Court by taking a written examination given every two years and by meeting other Court requirements. Information concerning the application for admission and the Court's nonattorney exam may be found on the Court's website, www.ustaxcourt.gov.
May I represent the estate or trust of a deceased taxpayer before the Court without hiring a representative?
Yes, if you are a duly authorized fiduciary or representative of the deceased taxpayer. For example, a state court of competent jurisdiction may appoint an individual as an executor, administrator, or personal representative of a deceased person. If you are a fiduciary, you should file a "Motion for Substitution of Party and to Change Caption" and attach a copy of the state court-issued letters of administration or letters testamentary. The motion must list the case name and docket number.
May I represent an incompetent or incapacitated taxpayer before the Court?
Yes, if you are a fiduciary duly appointed under state law, such as a guardian or conservator. If you have been appointed to serve as a conservator or guardian of the petitioner, you may file a Motion to Substitute Party and attach a copy of any documents providing proof of your appointment. The motion must list the case name and docket number.
In the alternative, the Court may permit you to be recognized as petitioner's "next friend" by filing a Motion to Be Recognized as Next Friend stating:
1. that petitioner cannot prosecute this case without assistance;
2. that the person seeking appointment as next friend would like to be recognized as petitioner's next friend, he or she has a significant relationship with petitioner, and would represent petitioner's best interests;
3. that there is no other person better suited to serve as next friend; and
4. the names and addresses of persons (e.g., spouse, parent, or siblings) who may have an interest in this matter.
You must include as an attachment to the motion a current statement from the petitioner's personal physician (or equivalent support) indicating that the petitioner is not competent to prosecute his or her case without assistance. You must also state in the motion whether anyone is known to have an objection to the Court's recognition of you as the petitioner's next friend. The motion must list the case name and docket number.
Please visit the Court's website, www.ustaxcourt.gov , for additional resources and information.