Strawman Trustee?

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LPC
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Strawman Trustee?

Post by LPC »

The nuttiness of this case is not immediately apparent from the 10th Circuit opinion quoted below, but is apparent from the order of dismissal by the Tax Court (there was no opinion written), which included the following paragraph:
Tax Court wrote:In short, the record demonstrates that : (1) Respondent sent notices of deficiency dated January 11, 2008, to Catherine C. Herring determining deficiencies in her individual Federal income taxes (Form 1040) for 2005 and 2006 ; (2) respondent has not sent any notice of deficiency for 2005 or 2006 to either a Catherine C . Herring Trust or to Catherine C. Herring trustee determining any deficiency in fiduciary Federal income tax (Form 1041); and (3) Catherine C . Herring is attempting to prosecute this case on behalf of a "trust", which she views as an alleged creation of the Social Security Administration.
(Underlining in original; color added.)

The 10th Circuit has affirmed. Catherine C. Herring et al. v. Commissioner, 2009 TNT 101-16, No. 09-9000 (10th Cir. 5/28/2009)
10th Circuit wrote:CATHERINE C HERRING (A TRUST),
CATHERINE C. HERRING, TRUSTEE,
Petitioner-Appellant,
v.
COMMISSIONER OF INTERNAL REVENUE,
Respondent-Appellee.

UNITED STATES COURT OF APPEALS
TENTH CIRCUIT

(United States Tax Court)
(T.C. No. 8828-08)

ORDER AND JUDGMENT*

Before KELLY, BRISCOE, and HOLMES, Circuit Judges.

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is, therefore, submitted without oral argument.

Catherine C. Herring ("Herring"), acting pro se,2 appeals the United States Tax Court's dismissal of her petition. The Tax Court dismissed her petition for lack of jurisdiction. We have jurisdiction over the appeal pursuant to 26 U.S.C. § 7482(a)(1) and affirm.

I

In 2008, the Commissioner of the Internal Revenue Service ("IRS") notified Herring by letter that she had tax deficiencies for the 2005 and 2006 tax years ($14,949 and $23,441 respectively) and was subject to penalties under 26 U.S.C. §§ 6651, 6654. Herring filed a petition in the Tax Court to contest these determinations, but captioned her petition "CATHERINE C HERRING TR Catherine C. Herring, Trustee," and signed the petition "Catherine C. Herring, Trustee."3

The Commissioner filed a motion to dismiss, asserting it had never issued a notice of deficiency to the entity referred to as the Trust. See 26 U.S.C. § 6212 (authorizing the IRS to send a notice of deficiency to a taxpayer when there is a tax deficiency); § 6213(a) (authorizing "the taxpayer" to file a petition with the Tax Court for a redetermination of a deficiency notified by the IRS). The Tax Court denied the motion to dismiss, but amended the caption of the case to refer to Herring individually, rather than to the Trust. Herring then objected to the amendment of the caption, and the Tax Court issued an order requiring Herring to show cause why the petition should not be dismissed for lack of jurisdiction over the Trust.

Herring responded, insisting in essence that the person to whom the deficiencies were sent is not her, but rather the Trust through which she is just the trustee. The Tax Court disagreed and dismissed the case. The present appeal followed.

II

On appeal, Herring continues to argue that the Trust is the proper petitioner to the IRS. The Commissioner responds that Tax Court Rule 60(a)(1) requires that a Tax Court petition be filed by, and in the name of, the person against whom a deficiency has been determined. Because Herring is the party to whom the deficiency was issued, and not the Trust, the Commissioner argues the Tax Court's order dismissing the petition should be affirmed.4 The Tax Court's factual findings are reviewed for clear error, and its legal conclusions are reviewed de novo. Anderson v. Comm'r, 62 F.3d 1266, 1270 (10th Cir. 1995).

We agree with the Tax Court's order dismissing Herring's petition for lack of jurisdiction. As stated above, 26 U.S.C. § 6212 authorizes the IRS to send a notice of deficiency to a "taxpayer" when there is a tax deficiency, and § 6213(a) authorizes "the taxpayer" to file a petition with the Tax Court for a redetermination of a deficiency notified by the IRS. In addition, Tax Court Rule 60(a)(1) states:
A case shall be brought by and in the name of the person against whom the Commissioner determined the deficiency (in the case of a notice of deficiency). . . . A case timely brought shall not be dismissed on the ground that it is not properly brought on behalf of a party until a reasonable time has been allowed after objection for ratification by such party of the bringing of the case; and such ratification shall have the same effect as if the case had been properly brought by such party.
(Emphasis added). The Tax Court attempted to correct the caption of the petition to correct the petition as being brought by the person against whom the deficiency was sought, i.e., Herring, rather than the Trust, but Herring objected. Therefore, the Tax Court was correct in concluding that it lacked jurisdiction over the petition.

III

We affirm.

Entered for the Court

Mary Beck Briscoe
Circuit Judge

FOOTNOTES

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

2 As she is proceeding pro se, we have construed Herring's pleadings liberally. Cannon v. Mullin, 383 F.3d 1152, 1160 (10th Cir. 2004).

3 The alleged "CATHERINE C HERRING TR Catherine C. Herring, Trustee" will hereinafter be referred to as the Trust.

4 The Commissioner alternatively argues that because Herring filed her appeal as the alleged Trust, but is not represented by counsel, her appeal must be dismissed because a non-attorney cannot prosecute an appeal on behalf of a trust. See Rowland v. California Men's Colony, 506 U.S. 194, 202 (1993) (stating that for "all artificial entities," the artificial entity "may appear in the federal courts only through licensed counsel"). We need not address the Commissioner's alternative argument, because we affirm the Tax Court's dismissal based on the Tax Court's lack of jurisdiction.

END OF FOOTNOTES
Dan Evans
Foreman of the Unified Citizens' Grand Jury for Pennsylvania
(And author of the Tax Protester FAQ: evans-legal.com/dan/tpfaq.html)
"Nothing is more terrible than ignorance in action." Johann Wolfgang von Goethe.
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Pottapaug1938
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Re: Strawman Trustee?

Post by Pottapaug1938 »

All this talk of a "strawman" reminds me that it was The Strawman who sang "If I Only Had A Brain"....
"We've been attacked by the intelligent, educated segment of the culture." -- Pastor Ray Mummert, Dover, PA, during an attempt to introduce creationism -- er, "intelligent design", into the Dover Public Schools
Nikki

Re: Strawman Trustee?

Post by Nikki »

The Tax Court's docket inquiry function is your friend. The coury issued an Order To Show Cause as to why the case should not be dismissed including the following:
John O. Calvin wrote:However, on August 13, 2008, the Court received from petitioner a document entitled "Objection to Captioning Change" and filed as a motion to reconsider the July 14, 2008, Order . Therein, petitioner objected to the change of caption and resurrected various largely inchoate but oft-rejected arguments regarding natural persons, taxpayer identification numbers, and the Social Security Administration .
(emphasis added)
Last edited by Nikki on Fri May 29, 2009 10:48 pm, edited 1 time in total.
LPC
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Re: Strawman Trustee?

Post by LPC »

Nikki wrote:The Tax Court's docket inquiry function is your friend. The coury issued an Order To Show Cause as to why the case should not be dismissed including the following:
Yes, it's nice that the docket now allows the public to access some documents, and I had used the docket search to get the copy of the order that I quoted in the original posting.

But the urls to the images are temporary, and so the link you've provided above to the earlier order goes nowhere but to a 404 error.
Dan Evans
Foreman of the Unified Citizens' Grand Jury for Pennsylvania
(And author of the Tax Protester FAQ: evans-legal.com/dan/tpfaq.html)
"Nothing is more terrible than ignorance in action." Johann Wolfgang von Goethe.
Nikki

Re: Strawman Trustee?

Post by Nikki »

URL removed.

Ephemera is truly annoying.

Anyone who is interested in digging up the documents will have to run a fresh query.

Sorry.