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Tax judge declines to require attorneys represent LLCs in court

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The Indiana Department of State Revenue asked the Indiana Tax Court to create a rule requiring limited liability companies be represented by attorneys in court, similar to a rule pertaining to corporations, but Judge Martha Wentworth declined to “invent such a rule where one does not currently exist.”

Wireless Advocates LLC appealed the revenue department’s final determination denying its claim for refund of adjusted gross income tax for the 2006 tax year. Thomas Gaisser, a member, vice president and chief financial officer of the company, signed the verified petition for judicial review and notice of appearance filed with the clerk’s office. An attorney appeared on behalf of Wireless Advocates after the department filed its motion to dismiss.

The revenue department wants Wentworth to dismiss the case because Wireless Advocates as a company couldn’t initiate the appeal itself but needed an attorney to file it. Gaisser, as a non-attorney, engaged in the unauthorized practice of law by signing and filing the verified petition and notice of appearance, the government argued.

Wentworth declined to create a rule for LLCs similar to that of corporations. She noted that she didn’t need to determine whether Indiana Small Claims Rule 8(C)(3) applied – which requires LLCs be represented by attorneys in matters of more than $1,500 – since neither attorney mentioned the rule. She also pointed out in the footnote that UPL determinations are for the Indiana Supreme Court to decide.

Corporations proceeding pro se are given an opportunity to retain counsel when its opponent contests the party proceeding pro se. A corporation must refuse before dismissing the action, Wentworth noted.

She rejected the government’s argument that Gaisser – over the advisement of the clerk’s office and a certified public accountant to consult with an attorney before appealing – attempted “to game the system and get additional time to hire an attorney.”

Wentworth pointed out Wireless Advocates hired an attorney just nine days after the department filed its motion to dismiss, and its petition reveals nothing to defeat an equitable result. The revenue department will have 30 days to file its answer to the complaint.  

 

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  5. I whole-heartedly agree with Doug Church's comment, above. Indiana lawyers were especially fortunate to benefit from Tom Pyrz' leadership and foresight at a time when there has been unprecedented change in the legal profession. Consider how dramatically computer technology and its role in the practice of law have changed over the last 25 years. The impact of the great recession of 2008 dramatically changed the composition and structure of law firms across the country. Economic pressures altered what had long been a routine, robust annual recruitment process for law students and recent law school graduates. That has, in turn, impacted law school enrollment across the country, placing upward pressure on law school tuition. The internet continues to drive significant changes in the provision of legal services in both public and private sectors. The ISBA has worked to make quality legal representation accessible and affordable for all who need it and to raise general public understanding of Indiana laws and procedures. How difficult it would have been to tackle each of these issues without Tom's leadership. Tom has set the tone for positive change at the ISBA to meet the evolving practice needs of lawyers of all backgrounds and ages. He has led the organization with vision, patience, flexibility, commitment, thoughtfulness & even humor. He will, indeed, be a tough act to follow. Thank you, Tom, for all you've done and all the energy you've invested in making the ISBA an excellent, progressive, highly responsive, all-inclusive, respectful & respected professional association during his tenure there.

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