                                                                                                                           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Precedential or Non-Precedential: Non-Precedential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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Recommended Citation
"Van De Berg v. Commissioner IRS" (2006). 2006 Decisions. Paper 1290.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1290


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                                                             NOT PRECEDENTIAL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.

                                              2
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



                                               3
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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