                       T.C. Memo. 2003-193



                     UNITED STATES TAX COURT



 FRANCISCO E. CAMPOS, JR. AND LUALHATI N. CAMPOS, Petitioners v.
           COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 18708-02.            Filed July 1, 2003.


     Lualhati N. Campos, pro se.

     Jennifer Breen and Sylvia L. Shaughnessy, for respondent.



                       MEMORANDUM OPINION


     PANUTHOS, Chief Special Trial Judge:    This matter is before

the Court on petitioner Lualhati N. Campos’s Motion to Appoint

Guardian Ad Litem and Substitute Party.1    As explained in detail

below, we shall grant petitioner’s motion in that we shall


     1
        Unless otherwise indicated, section references are to
sections of the Internal Revenue Code, as amended, and Rule
references are to the Tax Court Rules of Practice and Procedure.
                                - 2 -

recognize Lualhati N. Campos as the next friend of petitioner

Francisco E. Campos, Jr., for purposes of prosecuting this case.

Background

     Petitioners Francisco E. Campos, Jr. (Mr. Campos), and

Lualhati N. Campos (Mrs. Campos), are husband and wife.    On

October 15, 2002, respondent issued to petitioners a joint notice

of deficiency.   In the notice, respondent determined a deficiency

of $18,096 in petitioners’ Federal income tax for 2000 and an

accuracy-related penalty under section 6662(a).   On December 2,

2002, the Court received and filed a timely petition for

redetermination challenging the above-described notice of

deficiency.   Mrs. Campos signed the petition for herself and on

behalf of Mr. Campos.

     Attached to the petition is a letter, dated May 8, 2002,

signed by Matthew Horn, M.D., Medical Director for Sharp Coronado

Hospital.    The letter states that Mr. Campos was admitted to the

hospital on November 5, 1993, suffering from a number of

disabling medical conditions and that “Mr. Campos is unresponsive

at this time unable to make any medical or financial decisions.”

     On March 12, 2003, Mrs. Campos filed a Motion to Appoint

Guardian Ad Litem and Substitute Party.   The motion states that

Mrs. Campos does not have the authority to act on her husband’s

behalf and that Mrs. Campos requests that the Court appoint her
                               - 3 -

to act as guardian ad litem in this matter.   Respondent filed a

Notice of No Objection to the motion.

     Pursuant to notice, this matter was set for hearing at the

Court’s motions session in Washington, D.C.   Counsel for

respondent appeared at the hearing and was heard.    Petitioners

filed with the Court a written statement under Rule 50(c) in lieu

of attending the hearing.

     During the hearing of this matter, respondent averred that

the Court has the authority to appoint Mrs. Campos as guardian ad

litem for Mr. Campos under the same general procedure that the

Court employed in Estate of Galloway v. Commissioner, 103 T.C.

700 (1994).   In Estate of Galloway, the Court relied upon

California law to appoint a special administrator to represent

the interests of a deceased taxpayer/petitioner.     Respondent also

acknowledged that the Court could recognize Mrs. Campos as Mr.

Campos’s “next friend” under Rule 60(d).

Discussion

     It is well settled that the Court’s jurisdiction to

redetermine a deficiency depends upon a valid notice of

deficiency and a timely filed petition for redetermination.       Rule

13(a), (c); Monge v. Commissioner, 93 T.C. 22, 27 (1989); Normac,

Inc. v. Commissioner, 90 T.C. 142, 147 (1988).     Rule 34 sets

forth the basic requirements for filing a valid petition with the

Court.   Rule 34(a)(1) provides in pertinent part:
                                 - 4 -

     Where the notice of deficiency or liability is directed
     to more than one person, each such person desiring to
     contest it shall file a petition, either separately or
     jointly with any such other person, and each such
     person must satisfy all the requirements of this Rule
     in order for the petition to be treated as filed by or
     for such person. * * * Failure of the petition to
     satisfy applicable requirements may be ground for
     dismissal of the case. * * *

Rule 34(b)(7) specifically requires the signature of each

petitioner or petitioner’s counsel.      In addition, Rule 60(a)

requires that “A case shall be brought by and in the name of the

person against whom the Commissioner determined the deficiency”.

     As indicated, the petition in this case is not signed by Mr.

Campos.   However, there is no dispute that Mr. Campos is

“unresponsive” and unable to make medical or financial decisions.

In an effort to protect Mr. Campos’s interests, Mrs. Campos

signed the petition on his behalf.

     Rule 60 sets forth criteria for resolving questions

pertaining to a person’s capacity to litigate in the Court.        Rule

60 provides in pertinent part:

          (c) Capacity: The capacity of an individual,
     other than one acting in a fiduciary or other
     representative capacity, to engage in litigation in the
     Court shall be determined by the law of the
     individual’s domicile. * * * The capacity of a
     fiduciary or other representative to litigate in the
     Court shall be determined in accordance with the law of
     the jurisdiction from which such person’s authority is
     derived.

          (d) Infants or Incompetent Persons: Whenever an
     * * * incompetent person has a representative, such as
     a general guardian, committee, conservator, or other
     like fiduciary, the representative may bring a case or
                              - 5 -

     defend in the Court on behalf of the * * * incompetent
     person. An * * * incompetent person who does not have
     a duly appointed representative may act by a next
     friend * * *

     Pursuant to Rule 60(c), we first look to California law to

determine whether Mr. Campos possesses the requisite capacity to

engage in litigation before the Court.2   See Neilson v. Colgate-

Palmolive Co., 199 F.3d 642, 656-657 (2d Cir. 1999); Thomas v.

Humfield, 916 F.2d 1032, 1034-1035 (5th Cir. 1990).   California

Probate Code section 1801(a) (West 2002), provides that a

conservator of a person may be appointed if a person is unable to

provide properly for his or her personal needs for physical

health, food, clothing, or shelter.   California Probate Code

section 1801(b) (West 2002), provides that a conservator of the

estate may be appointed for a person who is substantially unable

to manage his or her own financial resources or resist fraud or

undue influence.

     We are satisfied on the record presented that Mr. Campos is

unable to provide for his personal needs for physical health and

is unable to manage his own financial affairs within the meaning

of California Probate Code section 1801(a) and (b) (West 2002).

Because Mr. Campos would qualify for the appointment of a




     2
        The petition reflects a mailing address for Mr. Campos of
ICU Coronado Hospital, San Diego, Cal., and a mailing address for
Mrs. Campos of 1617 Ginsberg Court, San Diego, Cal.
                               - 6 -

conservator under California law, we conclude that he lacks the

capacity, standing alone, to engage in litigation in this Court.

     Rule 60(d) provides an avenue for infants or incompetent

persons to prosecute a case in this Court.   Specifically, Rule

60(d) provides that a duly appointed representative may bring a

case on behalf of an infant or incompetent person.   In the

absence of a duly appointed representative, Rule 60(d) provides

that an infant or incompetent person may act by a next friend or

by a guardian ad litem.   We have said that the purpose of Rule

60(d) “is to protect and preserve the rights and interests of

those taxpayers under the legal disability of infancy or

incompetency.”   Eiges v. Commissioner, 101 T.C. 61, 67 (1993);

see Garrick v. Weaver, 888 F.2d 687, 693 (10th Cir. 1989) (and

cases cited therein).   Consistent with the plain language of Rule

60(d), the recognition of a next friend or the appointment of a

guardian ad litem rests within the sound discretion of the Court.

     Mrs. Campos has informed the Court that she has not been

duly appointed to act as Mr. Campos’s representative.   Thus,

under Rule 60(d), the question arises whether the Court should

recognize Mrs. Campos as Mr. Campos’s next friend or appoint her

as Mr. Campos’s guardian ad litem.

     For present purposes, we observe that there is no meaningful

difference between the role of a next friend and a guardian ad

litem.   Eiges v. Commissioner, supra at 66-67.   The term “next
                               - 7 -

friend” is defined as “A person who appears in a lawsuit to act

for the benefit of an incompetent or minor plaintiff, but who is

not a party to the lawsuit and is not appointed as a guardian.–-

Also termed prochein ami.   Cf. guardian ad litem under GUARDIAN.”

Black’s Law Dictionary 1065 (7th ed. 1999).   The term “guardian

ad litem” is defined as “A guardian, usu. a lawyer, appointed by

the court to appear in a lawsuit on behalf of an incompetent or

minor party.–-Also termed special guardian.    Cf. NEXT FRIEND.”

Id. at 713; see Bowen v. Rubin, 213 F. Supp. 2d 220, 222 n.5

(E.D.N.Y. 2001).

     Rule 60(d) is derived in large part from Federal Rule of

Civil Procedure 17(c).   See 60 T.C. 1094.   Under Federal Rule of

Civil Procedure 17(c), a person seeking to represent a minor or

incompetent party as next friend generally must show: (1) That

the minor or incompetent party cannot prosecute the action

without assistance; (2) that the next friend will represent the

best interests of the minor or incompetent party; and (3) the

next friend has a “significant” relationship with the minor or

incompetent party.   See Whitmore v. Arkansas, 495 U.S. 149, 163-

164 (1990) (habeas corpus proceedings); Gonzalez v. Reno, 86 F.

Supp. 2d 1167, 1184-1185 (S.D. Fla. 2000) (citing Ford v. Haley,

195 F.3d 603, 624 (11th Cir. 1999)); 4 Moore, Moore’s Federal

Practice sec. 17.25[2], at 17-105 (3d ed. 1997).   Normally, a

next friend will be a family member such as spouse, parent, or
                               - 8 -

sibling.   T.W. & M.W. v. Brophy, 124 F.3d 893, 897 (7th Cir.

1997); Eiges v. Commissioner, supra at 67.

     As previously discussed, the record amply demonstrates that

Mr. Campos is unable to prosecute this action due to a medical

disability.   Moreover, as Mr. Campos’s spouse and de facto

representative, Mrs. Campos has a sufficiently close relationship

with Mr. Campos to justify her recognition as next friend.

Finally, although we recognize that conflicts of interest may

arise between spouses filing joint returns (see, e.g., sec.

6015), we are persuaded on this record that Mrs. Campos will

represent the best interests of Mr. Campos in this proceeding.3

     Consistent with the preceding discussion, and considering

all the facts and circumstances, we conclude that this is an

appropriate case for the Court to exercise its discretion under

Rule 60(d).   In an effort to promote the just, speedy, and

inexpensive determination of this case, we shall grant Mrs.

Campos’s pending motion in that we shall recognize Mrs. Campos as




     3
        There is no allegation in the petition that either spouse
is entitled to relief from joint and several liability on a joint
return under sec. 6015.
                                 - 9 -

Mr. Campos’s next friend for purposes of these proceedings.

Rules 1(b), 60(d).4

     To reflect the foregoing,



                                 An appropriate Order will

                         be issued.




     4
        Under the circumstances, we need not address the various
issues related to the question whether Mrs. Campos should be
appointed to serve as guardian ad litem for Mr. Campos.
