                                                                             FILED
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                        UNITED STATES COURT OF APPEALS                   May 28, 2009
                                     TENTH CIRCUIT                   Elisabeth A. Shumaker
                                                                         Clerk of Court


 CATHERINE C HERRING (a trust),
 Catherine C. Herring, Trustee,

          Petitioner-Appellant,
 v.                                                          No. 09-9000
 COMMISSIONER OF INTERNAL                              (United States Tax Court)
 REVENUE,                                                 (T.C. No. 8828-08)

          Respondent-Appellee.



                                  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.




      *
         This order and judgment is not binding precedent, except under the doctrines of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.
          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



          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.
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



         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.
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




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