Opinion
9796-23S
12-15-2023
CHONGWEN XU & XUEHENG ZHAN, DECEASED, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Kathleen Kerrigan Chief Judge
The Petition in the above-captioned case seeks review of a notice of deficiency issued to petitioners Chongwen Xu and Xueheng Zhan for their 2020 tax year. Although the caption of the Petition includes both petitioners, Chongwen Xu is the only signatory. On August 2, 2023, Chongwen Xu filed a Motion to Change or Correct Caption, which consists solely of a death certificate for Xueheng Zhan. The death certificate indicates that decedent died before the filing of the Petition in this case.
Given that record, the matter raised the jurisdictional question of whether the case, insofar as it purported to be an appeal by or on behalf of Xueheng Zhan, Deceased, or his estate, was executed or filed by a fiduciary or personal representative duly appointed by a court of competent jurisdiction and legally entitled to institute a case on behalf of Xueheng Zhan, Deceased, or his estate. At that juncture, by Order served August 22, 2022, the Court directed petitioner Chongwen Xu and respondent to confer and file a report advising the Court whether Chongwen Xu or any other person has been duly appointed the executor, personal representative, or fiduciary for the Estate of Xueheng Zhan, Deceased, by a court of competent jurisdiction, and attaching thereto the corresponding letters of administration or letters testamentary.
On September 28, 2023, the parties filed a joint Status Report stating that Chongwen Xu and petitioners' son do not intend to open a probate proceeding for Xueheng Zhan, Deceased, and that Chongwen Xu would like to proceed representing herself only.
In general, Rule 60(a) of the Tax Court Rules of Practice and Procedure directs that a case shall be brought by the individual against whom a deficiency or liability has been asserted or by a fiduciary legally authorized to institute a case on behalf of such person. The burden of proving that the Court has jurisdiction is on the taxpayer, and unless the petition is filed by the taxpayer or someone lawfully authorized to act on his or her behalf, the Court lacks jurisdiction. Fehrs v. Commissioner, 65 T.C. 346, 348 (1975).
Accordingly, upon due consideration of the foregoing and the record herein, it is ORDERED this case is dismissed for lack of jurisdiction as to Xueheng Zhan, Deceased. It is further
ORDERED that the caption of this case is amended to read: "Chongwen Xu, Petitioner v. Commissioner of Internal Revenue, Respondent".