TAXLITIGATOR – Tax Controversy (Civil & Criminal) Report

In an unpublished per curium opinion, the Ninth Circuit recently dismissed an appeal filed by John C. Hom & Associates, Inc., on the grounds that the corporation was not represented by an attorney.[i]  The corporation had filed an appeal with the Ninth Circuit pro se, appealing the Tax Court’s order dismissing its petition challenging assessed tax deficiencies for tax years 2005 through 2009.

Although the Ninth Circuit rules do not limit which appellants may proceed pro se[ii], the Ninth Circuit has clarified that corporations and other unincorporated associations may not appear in court pro se.  In Licht v. Am. W. Airlines, 40 F.3d 1058,1059 (9^th Cir. 1994), the Ninth Circuit held that “Corporations and other unincorporated associations must appear in court through an attorney.”[iii]  Relying on this precedent, the Ninth Circuit dismissed the pro se appeal filed by John C. Hom & Associates, Inc., because the “appellant, a corporation, must appear in court through an attorney.”[iv] 

The taxpayer’s appeal followed a determination by the Tax Court that the Tax Court lacked jurisdiction over the corporation’s petition, because the corporation was suspended at the time the petition was filed on June 13, 2011.[v]  The corporation had been suspended by the California Franchise Tax Board from March 1, 2004 through April 13, 2012.  Respondent had brought a motion to dismiss on the grounds that the Tax Court lacked jurisdiction because the corporation lacked capacity to file the petition.  Tax Court jurisdiction requires (1) a valid notice of deficiency and (2) a timely petition.[vi]   Rule 60(c) of the Tax Court Rules of Practice and Procedure provides, in pertinent part, that “[t]he capacity of a corporation to engage in [Tax Court] litigation shall be determined by the law under which it was organized.”  Even though the corporation was reinstated prior to trial, the Tax Court held that it lacked jurisdiction, because the corporation’s capacity had been suspended by California at the time the petition was filed.[vii]

LACEY STRACHAN – For more information please contact Lacey Strachan at Strachan@taxlitigator.com. Ms. Strachan is a senior tax attorney at Hochman, Salkin, Rettig, Toscher & Perez, P.C. and represents clients throughout the United States and elsewhere involving federal and state, civil and criminal tax controversies and tax litigation. She routinely represents and advises U.S. taxpayers in foreign and domestic voluntary disclosures, sensitive issue domestic civil tax examinations where substantial civil penalty issues or possible assertions of fraudulent conduct may arise, and in defending criminal tax fraud investigations and prosecutions. She has considerable expertise in handling matters arising from the U.S. government’s ongoing civil and criminal tax enforcement efforts, including various methods of participating in a timely voluntary disclosure to minimize potential exposure to civil tax penalties and avoiding a criminal tax prosecution referral. Additional information is available at http://www.taxlitigator.com.

[i] John C. Hom & Assocs. v. Comm’r, 2016 U.S. App. LEXIS 5525 (9th Cir. Mar. 24, 2016).

[ii] The Ninth Circuit website specifically provides pro se litigants with information to assist them in their case. See http://www.ca9.uscourts.gov/open_case_prose/.

[iii] John C. Hom & Assocs., supra (citing Licht v. Am. W. Airlines, 40 F.3d 1058,1059 (9^th Cir. 1994)).

[iv] Id.

[v] John C. Homm & Associates, Inc. v. Comm’r, 140 T.C. 210 (2013).

[vi] Id. at 212.

[vii] Id. at 215.