Carstenson v. Comm'r of Internal Revenue, Docket No. 3386-71S.
| Decision Date | 31 January 1972 |
| Docket Number | Docket No. 3386-71S. |
| Citation | 57 T.C. 542 |
| Parties | NORRIS E. AND PAULINE M. CARSTENSON, PETITIONERS V. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT |
| Court | U.S. Tax Court |
OPINION TEXT STARTS HERE
Norris E. Carstenson, pro se.
Robert N. Ginsburg, for the respondent.
A defective petition was timely filed in behalf of petitioners by their agent, who was not authorized to practice in the Tax Court. A proper amended petition was filed by petitioners more than 90 days after the notice of deficiency was mailed to petitioners. At a hearing on respondent's motion to dismiss for lack of jurisdiction, petitioners offered evidence that they had authorized and approved the filing of the original petition by their agent. Held, the amended petition filed by petitioners relates back to the original petition and was timely filed. Motion to dismiss denied.
This case is before the Court on respondent's motion to dismiss for lack of jurisdiction.
A statutory notice of deficiency was issued to petitioners on February 19, 1971, determining deficiencies in their income taxes for the year 1968 in the amount of $482.63.
Thereafter, on May 18, 1971, the Court received the following letter:
LEONARD P. WEG
71 Salem Hill Road
My client and I do not agree with the determination of the Newark District Director. Therefore we are filing a petition with you under the simplified procedure available for handling disputes involving $1,000 or less.
The area of dispute is the transportation expense. Other than the fact that my client must have his personally owned vehicle at work every day, he would be able to commute to work by means of public transportation at much less expense to him. We contend that his travel expense is a necessary business expense, as certified to by his employer and therefore is a deductible expense.
Please notify me if any additional information may be required.
Very truly yours,
(Signed) LEONARD P. WEG
The Court treated the foregoing letter as an imperfect petition, and filed the same at docket No. 3386-71 on May 18, 1971. Thereafter, on June 4, 1971, the Court issued its order to show cause for failure to file proper petition and pay filing fee, returnable at the motions session on July 28, 1971, which return date was extended by order of July 28, to September 1, 1971. On August 12, 1971, petitioners filed a proper amended petition, signed by each petitioner, on the Court's form a-S, the printed petition form for Small Tax Cases under section 7463, I.R.C. 1954, and paid the filing fee. The Court thereupon discharged its show cause order, and directed that the docket number be amended to read ‘3386-71S' in conformity with the request made by petitioners in their amended petition that proceedings be conducted under section 7463 and Rule 36 of the Court's Rules of Practice. The respondent filed his answer to the amended petition on September 22, 1971; and the case was thereafter calendared for trial on the merits at Newark, N.J., on January 3, 1972. On November 1, 1971, the respondent filed a motion to dismiss for lack of jurisdiction on the ground that a proper petition was not timely filed by the petitioners, which motion was calendared for hearing at Newark on January 3, 1972. Commissioner Caldwell was assigned to hear any evidence on the motion either party wished to submit, to have a transcript of such evidence prepared and returned to the Chief Judge for ruling on the motion.
The case came on for hearing on the respondent's motion at Newark on January 3, 1972, at which time respondent appeared by his counsel and petitioner Norris Carstenson appeared pro se. Petitioner Norris Carstenson was duly sworn and testified in response to questions by the commissioner and by respondent's counsel. Upon consideration of the proceedings had at Newark on January 3, the Court finds the following facts. Leonard P. Weg, a neighbor of petitioners, is a public accountant, employed as controller of a corporation. He is not a certified public accountant nor an attorney at law; and he is not admitted to practice before this Court. Ever since they filed their Federal income tax return for 1965, petitioners have regularly gone to Weg for assistance in preparing their returns. When petitioners received the notice of deficiency for 1968, they took it to Weg for his recommendation as to what should be done. Weg offered to respond thereto for petitioners, and this he did by the letter dated May 14, 1971, set forth hereinabove. Petitioners authorized Weg to write that letter; were with him when he did so; and reviewed the same prior to Weg's mailing it. Weg also assisted petitioners in the preparation of their amended petition filed herein, as above stated, on August 12, 1971.
Respondent contends that this case must be dismissed for lack of jurisdiction, for the reason that the document filed as the petition was signed by a person who was neither the taxpayer's attorney nor the taxpayer; and that the ‘amended petition,‘ which was signed by the taxpayer-petitioners, was not filed until 174 days after the mailing of the statutory notice of deficiency of petitioners— a date far beyond the statutory 90 days provided in section 6213(a) of the Code for the filing of a petition. Respondent points out that section 6213(a) provides that ‘the taxpayer may file a petition with the Tax Court’ (emphasis supplied); and that Rule 4(f) of the Court's Rules of Practice requires that ‘The signature either of the petitioner or of his counsel, shall be subscribed in writing to the original of all pleadings, motions, and briefs.’
In Soren S. Hoj, 26 T.C. 1074, a case likewise involving signature of a petition by a person who was neither the taxpayer nor the taxpayer's attorney, the petition had been signed and verified by one Charles R. Carpenter, as ‘agent or attorney in fact’ for the petitioners. The case was duly calendared for trial; and when called for trial from the calendar, it was submitted on a full stipulation of facts for decision on the merits. H. Howard Jonesi, an attorney duly admitted to practice before this Court, entered his appearance as counsel of record for petitioners when the stipulation of facts was filed. When the Court thereafter took up the case for decision, it discovered ‘that there was serious question of its...
To continue reading
Request your trial
-
Mitchell v. Comm'r of Internal Revenue
...e.g., Kallich v. Commissioner, 89 T.C. 676, 1987 WL 45169 (1987) (decision on motion to reinstate S designation); Carstenson v. Commissioner, 57 T.C. 542, 1972 WL 2517 (1972) (relation back of amended petition to original filing date); Dressler v. Commissioner, 56 T.C. 210, 1971 WL 2463 (19......
-
Morgan v. Commissioner
...addressed similar questions in other cases. Kraasch v. Commissioner [Dec. 35,318], 70 T.C. 623, 626-629 (1978); Carstenson v. Commissioner [Dec. 31,230], 57 T.C. 542 (1972); Hoj v. Commissioner [Dec. 21,935], 26 T.C. 1074 (1956). Hildreth had an unconditional power of attorney, as an attorn......
-
Lewy v. Comm'r of Internal Revenue
...Commissioner, 67 T.C. 829 (1977); Brooks v. Commissioner, 63 T.C. 709 (1975); Sylvan v. Commissioner, 65 T.C. 548 (1975); Carstenson v. Commissioner, 57 T.C. 542 (1972); Molosh v. Commissioner, 45 T.C. 320 (1965). 3 E.g., Di Viaio v. Commissioner, 539 F.2d 231 (D.C. Cir. 1976), revg. an unr......
-
Techtron Holding, Inc. v. Comm'r of Internal Revenue
...64 T.C. 35, 40-41 (1975) (allowing corporate taxpayer to ratify imperfect petition signed by its attorney); see also Carstenson v. Commissioner, 57 T.C. 542, 546 (1972) (allowing taxpayers to ratify imperfect petition signed their agent). The Note to Rule 60(a) states: "Where the intention ......