Van De Berg v. Commissioner IRS , 175 F. App'x 539 ( 2006 )

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
4-7-2006
Van De Berg v. Commissioner IRS
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-1569
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"Van De Berg v. Commissioner IRS" (2006). 2006 Decisions. Paper 1290.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 05-1569
__________________________________
STEPHEN M. VAN DE BERG (Trust),
Appellant
v.
COMMISSIONER OF INTERNAL REVENUE
___________________________________
On Appeal From the United States Tax Court
(T.C. No. 17072-04)
Tax Court Judge: Honorable Peter J. Panuthos
______________________________________
Submitted Under Third Circuit LAR 34.1(a)
October 3, 2005
Before: ROTH, MCKEE AND ALDISERT, CIRCUIT JUDGES
(Filed: April 7, 2006)
_______________________
OPINION
_______________________
PER CURIAM
On June 15, 2004, the Commissioner of Internal Revenue issued a notice of
deficiency to Stephen M. Van De Berg determining that he had a tax deficiency for the
2002 tax year. On September 9, 2004, Van De Berg, acting on behalf of “STEPHEN M
VAN DE BERG (Trust),” filed a Tax Court petition for redetermination of the deficiency.
In the petition, Van De Berg alleged that the income referenced in the notice of the
deficiency was not taxable to him, but rather was attributable to the Trust. Van De Berg
further alleged that the Trust had properly filed a Form 1041 for the 2002 tax year and
that the notice of deficiency issued to him as an individual was “void on its face.”
At a hearing held before the Tax Court on December 15, 2004, the Commissioner
orally moved to dismiss the petition for lack of jurisdiction. Specifically, the
Commissioner argued that the notice of deficiency had been issued to an individual,
Stephen M. Van De Berg, and therefore, the Trust was not the proper party to file the
petition for redetermination of deficiency. Van De Berg appeared at the December 15
hearing as trustee on behalf of the Trust, and insisted that the notice of deficiency had
been issued to the Trust. After finding no evidence that the Commissioner had
determined a deficiency against the Trust, the Tax Court granted the Commissioner’s
motion to dismiss for lack of jurisdiction pursuant to Tax Court Rule 60(a) on January 5,
2005. This appeal by STEPHEN M VAN DE BERG (Trust) followed.1
On July 20, 2005, this Court advised Van De Berg by letter that because he is not
an attorney duly admitted to practice law he could not represent STEPHEN M VAN DE
BERG (Trust) before this Court. Van De Berg was advised that his appeal could be
1
All documents filed with this Court have been signed on behalf of STEVEN M
VAN DE BERG (Trust) by Van De Berg as the trustee for the Trust, including, inter alia,
the notice of appeal, motion to amend case caption, motion to correct transcript, informal
brief, and reply brief.
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dismissed for failure to timely prosecute under 3d Cir. LAR Misc. 107.2 if a licensed
attorney did not enter an appearance on behalf of STEPHEN M VAN DE BERG (Trust).
Van De Berg responded to the July 20 letter with a letter of his own arguing that he
should be allowed to represent STEPHEN M VAN DE BERG (Trust) pro se in this
appeal.
“It has been the law for the better part of two centuries . . . that a corporation may
appear in the federal courts only through licensed counsel. As the courts have
recognized, the rationale for that rule applies equally to all artificial entities.” Rowland v.
California Men’s Colony, 506 U.S. 194, 201-02 (1993); see also United States v.
Cocivera, 104 F.3d 566 (3d Cir. 1996); Simbraw, Inc. v. United States, 367 F.2d 373 (3d
Cir. 1966); Harrison v. Wahatoyas, L.L.C., 253 F.3d 552, 556 (10 Cir. 2001) (“As a
general matter, a corporation or other business entity can only appear in court through an
attorney and not a non-attorney corporate officer appearing pro se.”). Thus, a non-lawyer
trustee, such as Van De Berg, may not represent a trust pro se before this Court. See
Knoefler v. United Bank of Bismarck, 20 F.3d 347, 348 (8th Cir. 1994) (“A nonlawyer,
such as these purported ‘trustees pro se’ has no right to represent another entity, i.e., a
trust, in a court of the United States”); see also C.E. Pope Equity Trust v. United States,
818 F.2d 696, 697 (9th Cir. 1987) (holding that a pro se litigant, who had filed an action
as trustee on behalf of a trust, “ha[d] no authority to appear as an attorney for others than
himself”). Van De Berg’s arguments to the contrary are unavailing. Accordingly, we
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will dismiss the appeal for failure to prosecute because Van De Berg has not complied
with our directive to retain counsel for STEPHEN M VAN DE BERG (Trust). The
motions to amend case caption and correct the transcript from the 12/15/04 Tax Court
motion hearing are thus denied.
Even if we were to reach the merits of the appeal, we would affirm the Tax Court’s
order dismissing the petition for lack of jurisdiction. Pursuant to Tax Court Rule 60(a), a
petition for redetermination of deficiency must be filed by the person against whom the
Commissioner determined the deficiency, or someone lawfully authorized to act on behalf
of that person. Rule 60(a) further provides that a petition timely filed shall not be
dismissed because it was filed by an improper party until a reasonable time has been
allowed for ratification by the proper party. Here, we agree with the Tax Court that
STEPHEN M VAN DE BERG (Trust), which filed the petition, was not the proper party
in the underlying action. Therefore, the Tax Court did not err in dismissing the petition
for lack of jurisdiction after having first allowed Van De Berg an opportunity to ratify the
petition.
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