Opinion
19627-22
12-07-2023
EBBE ALTBERG, DECEASED, & LEANNE ALTBERG, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Kathleen Kerrigan Chief Judge
The petition filed on August 29, 2022, does not bear the original signature of either petitioner Ebbe Altberg or the signature of a practitioner admitted to practice before the Tax Court, as required by the Tax Court Rules of Practice and Procedure. The petition indicates that Ebbe Altberg is deceased. On September 28, 2023, respondent filed a status report, in which he states that Ebbe Altberg's heirs do not intend to probate his estate. It is well settled that the Court's jurisdiction over a case continues unimpaired by the death of a petitioner. Nordstrom v. Commissioner, 50 T.C. 30, 32 (1968). Pursuant to Rule 63(a), Tax Court Rules of Practice and Procedure, when a petitioner dies, "the Court, on its own motion or on motion of a party or the decedent's successor or representative, may order substitution of the proper parties." State law generally determines who has the capacity to be substituted as a party for a decedent. Rule 60(c); Fehrs v. Commissioner, 65 T.C. 346, 349 (1975). Thus, the appointment of a personal representative, executor, or administrator by the appropriate State court having jurisdiction over the estate of the decedent is generally necessary to establish the capacity of a person to litigate on behalf of the estate. See Rule 60(c). It is well settled that, unless the petition is filed by the taxpayer, or someone lawfully authorized to act on the taxpayer's behalf, this Court is without jurisdiction. Fehrs v. Commissioner, 65 T.C. at 348-349.
By Order to Show Cause, served October 27, 2023, the Court directed the parties to show cause in writing why the Court should not dismiss so much of this case relating to petitioner Ebbe Altberg for lack of jurisdiction on the ground that the petition was not executed by petitioner Ebbe Altberg or by a practitioner admitted to practice before the Tax Court, as required by the Tax Court Rules of Practice and Procedure. On November 13, 2023, respondent filed a Response to the Court's Order stating that he has no cause why the Court should not dismiss so much of this case relating to Ebbe Altberg for lack of jurisdiction. Petitioner Leanne Altberg has failed to file any response to the Court's Order.
Upon due consideration, it is
ORDERED that the Court's Order to Show Cause, served October 27, 2023, is hereby made absolute, and so much of this case as relates to Ebbe Altberg is dismissed for lack of jurisdiction. It is further
ORDERED that the caption of this case is amended to read "Leanne Altberg, Petitioner v. Commissioner of Internal Revenue, Respondent".