In Uncategorized on 08/01/2022 at 11:14

Another of Judge David Gustafson’s conundrums is found in Rock Creek Property Holdings, LLC, Rock Creek Land Manager, LLC, Tax Matters Partner, Docket No. 5599-17, filed 8/1/22. Tax Court is one of those rare venues where a non-human can proceed without counsel; Rule 24(b) lets corporations, trusts, estates, and unincorporated associations pick a fiduciary, officer, or authorized individual to appear and litigate in Tax Court, whether admitted to practice or not.

But LLCs (limited liability companies), creatures of State statutes, never got mentioned in Rule 24(b), and ex-Ch J Maurice B (“Mighty Mo”) Foley didn’t fill the gap when he proposed Rules changes back in March.

The Rockers’ trusty attorney wants to bail, but who will “take up our quarrel with the foe”?

Judge Gustafson to the rescue. “Rule 24(b)(1) does not explicitly mention a ‘limited liability company’, but we construe the rule’s allowance to extend to an LLC. That is, we will allow Manager to continue to prosecute this case without counsel.” Order, at p. 2.

But Manager, the Rockers’ TMP under the now-repealed TEFRA régime, is inhuman; it’s another LLC.

Since trusty attorney filed the petition, no individual was designated to act for Manager, thus Rule 24(b)(2)(B) is off the menu.

Judge Gustafson again does the Gordian knot number.

“The case proceeded with counsel, but now counsel proposes to withdraw. Rule 24(c)(4) requires that ‘[a]ny motion to withdraw as counsel or to withdraw counsel must also include the party’s then-current mailing address, email address (if any), and telephone number.’ Paragraph 8 of Mr. [trusty attorney’s] motion acknowledges Rule 24(c)(4)(B); and as ‘[t]he TMP’s current mailing address’ the motion gives ‘Rock Creek, LLC, c/o Dwayne P. (Pete) Davis . . . .’ The motion does not state Mr. Davis’s relation to Manager, nor (assuming he is the human person who will appear) the capacity in which he will be appearing (whether officer, member, or something else).” Order, at p. 2.

So let trusty attorney dish on the individual who will appear for Manager: name, mailing address, e-mail (if any; but who in the 21st Century doesn’t have e-mail? Maybe another Rule change should require litigants to get e-mail), telephone number, and capacity In which appearing (member, manager, assignee, Bankruptcy trustee, receiver, creditor, casual bystander).

A good practice tip from Judge Gustafson.


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